author: I JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Michael P. COWART.
    No. 03-KA-880.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Prentice L. White, Baton Rouge, LA, for Appellant. ..
    Paul D. Connick, Jr.; District Attorney, Terry M. Boudreaux, Appellate Counsel, Juliet Clark, Counsel of Record on Appeal, Bradley Burget, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   I JAMES L. CANNELLA, Judge.

The Defendant, Michael Cowart, appeals his conviction of possession of hydrocodone and his sentence of seven years imprisonment at hard labor, as a second felony offender. We affirm and remand.

The Defendant was charged on April 12, 2002 with violating La.R.S. 40:967(C), possession of hydrocodone. He pled not guilty and filed a motion to suppress the evidence, which was- denied after a hearing. On December 3, 2002, a six-person jury- found him guilty as charged. On January 6, 2003, after denying the Defendant’s motion for post-verdict judgment of acquittal, the trial judge sentenced the Defendant to five years imprisonment at hard labor. The State subsequently filed a habitual offender bill of information, alleging the Defendant to be a second felony offender. The Defendant responded with objections to the habitual offender bill through counsel and pro se. After a hearing, the trial judge took the matter under advisement. On May 2, 2003, the trial judge found the Defendant to be a second felony offender, vacated his original sentence, and sentenced him to seven years imprisonment at hard labor, without benefit of probation or suspension of sentence. The trial judge ordered the first nine months of the enhanced sentence to be served concurrently with the Defendant’s parole violation sentence, and the remaining six years and three months to be served consecutively with the parole violation sentence. The Defendant filed a motion to reconsider the sentence, which was denied.

On March 23, 2002, Deputy Shenandoah Jones of the Jefferson Parish Sheriffs Office was driving south on Carrollton near the intersection of Hyacinth in Jefferson Parish at approximately 2:48 p.m. Deputy Jones observed the Defendant back his car out of a driveway on Hyacinth and drive north on Carrollton. As Deputy Jones passed the Defendant’s vehicle, he noticed that the Defendant’s inspection sticker was expired, so he turned his car around to pursue the Defendant. When the officer approached the Defendant, the Defendant had already stopped, exited his car and was standing near the rear of the vehicle with his hands cupped at his waist. Deputy Jones asked the Defendant for his driver’s license. The Defendant told the Officer that he had no license or identification. According to Deputy Jones, the Defendant was pacing between the car and the curb and held his hands cupped at waist level. Officer James could not see if the Defendant had anything in his hands. Based on these circumstances, Deputy Jones became concerned for his safety and decided to conduct a pat-down search for weapons.

Deputy Jones asked the Defendant to place his hands on the back of the car, but the Defendant refused. Instead, the Defendant pressed his body against the car and kept his hands clenched at his waistband. Deputy Jones repeatedly asked the Defendant to place his hands flat on the car, but the Defendant refused. When the Officer attempted to open the Defendant’s hands, the Defendant “bucked back and pushed” him, knocking the Officer backward several steps. As a result, Deputy Jones requested assistance from another police unit. Deputy James continued to attempt to move the Defendant’s hands, he noticed an object in one hand that “resembled ... the barrel of a handgun.” After another unsuccessful attempt to part the Defendant’s hands, Deputy Jones used a “take-down” maneuver to restrain the Defendant until backup arrived.

Deputy Urissa responded to the call. When he arrived on the scene, he and Deputy Jones managed to separate and open the Defendant’s hands and discovered that the Defendant had been clenching a pipe. The Defendant was handcuffed, arrested for battery upon a police office, and advised of his rights. Other officers also arrived. Thereafter, Deputy Jones removed the Defendant’s wallet to determine his identity. The wallet contained a Louisiana identification card and a white pill stored in one of the plastic dividers. Deputy Jones recognized the scoring on the pill and suspected that the tablet was vieodine. It was later determined that the pill was hydroeodone (vicodine). During the transportation of the Defendant to jail, the Defendant told Deputy Jones that he had obtained the hydroeodone from a friend and that he did not have a prescription for the pill.

On appeal, the Defendant first contends that the trial judge erred in denying his motion to suppress the evidence because the investigatory stop was clearly based solely on an expired inspection sticker that the Deputy could not have seen from ten feet away while driving over twenty miles an hour. Second, the Defendant contends the trial judge erred in denying his motion for a mistrial based on the comments made in closing arguments by the prosecution that referred to his failure to testify. Third, the Defendant asserts that the sentence is illegal because it is awkwardly divided and made both concurrent and consecutive to the time remaining on his sentence for parole violation.

MOTION TO SUPPRESS

The Defendant contends that the trial judge improperly denied his motion to suppress the evidence because the discovery of hydroeodone was the fruit of an illegal investigatory stop and pat down ■ search.

The Fourth Amendment to the United States Constitution and Article 1, Section 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate a person reasonably suspected of criminal activity is recognized by state and federal jurisprudence and codified in La.C.Cr.P. art. 215.1. See: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Robertson, 97-2960, p. 2 (La.10/20/98), 721 So.2d 1268, 1269; State v. Camese, 00-1479, p. 4 (La.App. 5th Cir.4/11/01), 786 So.2d 763, 765. The trial judge’s determination on the motion to suppress will not be disturbed on appeal unless it is clearly wrong. State v. Casey, 99-0023, p. 12 (La.1/26/00), 775 So.2d 1022, 1029, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000)

The Defendant asserts that the traffic stop was illegal because it was made without reasonable suspicion of criminal activity and was pre-textual. However, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, 1056. The standard is purely objective and does not take into account the subjective beliefs or expectations of the detaining officer. Whren, 517 U.S. at 813, 116 S.Ct. at 1774. “Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.” Waters, 00-356 at 4; 780 So.2d at 1056.

Deputy Jones testified that when he drove past the Defendant’s car on March 23, 2002, he observed that the inspection sticker had expired as of December of 2001. A motor vehicle driven upon a highway in Louisiana must have an inspection sticker as provided in La.R.S. 32:53(D), unless it is exempted. Violation of this statute carries a punishment of a fíne and potential imprisonment. La.R.S. 32:57.

There is no evidence here that the Defendant’s vehicle was exempted from inspection. Therefore, it was required to have an unexpired, official certifícate of inspection. Since it did not, Deputy Jones was justified in stopping the vehicle for an expired inspection sticker.

The Defendant also asserts that the stop was illegal because the officer could not have observed that the inspection sticker was expired. However, in denying the motion to suppress, the trial judge believed Deputy Jones’s testimony. This Court has stated that the “[credibility of witnesses is best determined by the trial judge and is not to be upset on appeal unless the trial judge abuses his or her discretion.” State v. Snavely, 99-1223, p. 10 (La.App. 5th Cir.4/12/00), 759 So.2d 950, 957, writ denied, 00-1439 (La.2/16/01), 785 So.2d 840. Nothing in the record indicates that the judge abused her discretion in crediting the testimony of Deputy Jones.

Next, the Defendant argues that the pat down frisk was unlawful. After a traffic stop, an officer may perform a pat down of a driver upon reasonable suspicion that he may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998); La.C.Cr.P. art. 215.1. This limited protective search for weapons is justified under circumstances where a “reasonably prudent man ... would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. It is not necessary for the officer to establish that it was more probable than not that the detained individual was armed and dangerous. Rather, the officer need only establish a ‘substantial possibility’ of danger. State v. Hunter, 375 So.2d 99, 102 (La.1979); State v. Barney, 97-777, p. 6 (La.App. 5th Cir.2/25/98), 708 So.2d. 1205, 1208.

In State v. Landry, 588 So.2d 345, 347 (La.1991), the Louisiana Supreme Court recognized there is potential danger for an officer even during a routine traffic stop:

A police officer’s stopping a vehicle for a routine traffic violation sets up the possibility of a significant confrontational situation. The motorist may be driving a stolen vehicle, 'may be transporting contraband, may be in possession of illegal weapons, or may be involved in other criminal activity. The likelihood of danger may also be greater during darkness and in early morning hours, or when there are a number of occupants. A police officer who stops a vehicle for a routine traffic offense may be exposed, according to the circumstances, to a significant risk of attack, and concern for the safety of the officer may be a legitimate and weighty justification for reasonable intrusions into the privacy interests of the occupants of the stopped vehicle.

At the suppression hearing, Deputy Jones testified that he was afraid for his safety because the Defendant was pacing back and forth and clenched his hands tightly. Deputy Jones demonstrated the manner in which the Defendant held his hands for the trial judge. Based on these circumstances and behavior, including that Deputy Jones was alone with the Defendant, who failed to produce a driver’s license or identification, we find that the Deputy was justified in conducting the pat down search for weapons.

Even if the pat down were unlawful, suppression of the evidence was not warranted because the Defendant resisted, which led to his arrest for battery upon a police officer. In State v. Sims, 02-2208, 12 (La.6/27/03), 851 So.2d 1039, 1047, the Louisiana Supreme Court held that a person has no right to resist an unlawful pat down search. In Sims, two police officers stopped the defendant who was walking along the street because they suspected that he was a curfew violator. The officers discovered that the defendant was not a juvenile after he produced his identification. However, one of the officers decided to perform a pat down search because the defendant looked nervous. During the pat down, the defendant hit the officer with his elbow and was arrested for battery upon a police officer. A search incident to arrest revealed several rocks of cocaine in the defendant’s pocket. The Sims court concluded that the pat down was unlawful because there was no reasonable suspicion of danger to justify the pat down, but found that the defendant had no right to resist the unlawful search. Further, the Sims court held that the cocaine was admissible because it was recovered in a search incident to a lawful arrest for battery upon a police officer.

In this case, the Defendant committed a battery upon a police officer during the pat down search, and the hydrocodqne was discovered in a search incident to the Defendant’s arrest. Accordingly, we find that the trial judge did not err in denying the Defendant’s motion to suppress.

MOTION FOR MISTRIAL

The Defendant contends that the trial court erred when it denied a motion for mistrial after the prosecutor referred in rebuttal argument to the Defendant’s failure to take the stand. The Defendant contends that the mistrial was mandated since the trial judge conceded on the record that the prosecution tainted the jury’s perception of the Defendant by indicating that the Defendant had something to hide when he failed to present any evidence on his behalf. The State responds that the trial judge properly denied the Defendant’s motion for mistrial because the remark was in response to the Defendant’s closing argument and did not directly or indirectly refer to the Defendant’s failure to testify.

The Defendant did not testify on his own behalf at trial and the defense presented no evidence. In closing argument, the Defendant argued that the jury should find the Defendant not guilty because the State did not present the testimony of the other officers who responded to the scene, and that Deputy Jones’ testimony was not credible because he did not seize the Defendant’s wallet or identification card. Additionally, the Defendant pointed out that he did not attempt to flee the scene after the traffic stop. During the State’s rebuttal argument, the prosecutor made the following remarks that preceded the Defendant’s objection:

Why didn’t he flee? It would’ve made sense. No. I can’t explain it to you. I can’t explain why somebody’s going to have prescription drugs just for fun. Why? Because I don’t do that, ‘cause it’s against the law, because it can kill you. If you take too much, you could die. I can’t explain to you why he did what he did on March 23rd, plain and simple. The uncontradicted evidence is that he pulled him over.

In response to the Defendant’s motion for a mistrial on the basis that these remarks constituted a reference to the failure of the defendant to testify in his own defense, the trial judge responded, “Yeah. Be careful,” but she denied the motion.

La.C.Cr.P. art. 770(3) provides that a mistrial shall be ordered when the prosecutor makes a remark or comment during the trial or in argument, within the hearing of the jury, that refers directly or indirectly to the failure of the defendant to testify in his own defense. Even without this statutory prohibition, a prosecutor is not free to comment upon a defendant’s failure to take the stand, since such a comment violates the Self-Incrimination Clause of the Fifth Amendment made applicable to the states through the Fourteenth Amendment. See: Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) and State v. Fullilove, 389 So.2d 1282, 1283-1284 (La.1980). See also: State v. Mitchell, 00-339, p. 4 (La.2/21/01) 779 So.2d 698, 701. This prohibition applies to both direct and indirect references to the defendant’s failure to testify. Mitchell, 00-1399 at 5, 779 So.2d at 701; State v. Pendelton, 00-1211, p. 6 (La.App. 5th Cir.3/14/01), 783 So.2d 459, 464.

In Mitchell, the prosecutor stated during rebuttal argument, “Where’s the weapon? One person knows where the weapon is. One person.” Mitchell, 00-1339 at 2,779 at 700. In analyzing whether the statement required a mistrial, the court stated:

“When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared, and ‘it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence.’ ” When the reference to the defendant’s failure to take the stand is not direct, this Court will inquire into the remark’s “intended effect on the jury” in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from statements that are not (which are permissible, though not favored). In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying.
There are indirect references which focus on, or are intended to focus on a defendant’s failure to testify. One such instance is when the defendant is the only witness who can rebut the state’s evidence. Such a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify and warrants a mistrial. Then, there are and can be indirect references which are not intended to focus on a defendant’s not testifying. One such frequently seen instance is a prosecutor’s emphasizing that the State’s evidence is unrebutted in a situation ivhere there are witnesses other than the defendant who could testify on behalf of the defense, but have not. Also “[statements in argument to the effect that there is no refuting evidence does not constitute an impermissible reference to the defendant’s failure to testify.” [Citations omitted; emphasis added]

Mitchell, 00-1399 at 4-5, 779 So.2d at 701.

In the earlier case of State v. Fullilove, the court found that the mistrial should have been granted because the prosecutor’s comment was a direct reference to the defendant’s failure to testify. There, the defense made references to the failure of the state to produce the clothing of the defendant in order to cast doubt on the identity of the defendant as the perpetrator. The prosecutor responded:

“... That is why the evidence was not introduced. The State’s case is clear and simple. I really cannot add any more. The only thing that I would like to tell you is that at every phase of these proceedings, this man has been afforded his constitutional right. He has been afforded the right not to take the stand. He has been afforded the right that he has an attorney appointed for him if he can’t afford one. His constitutional rights — ” [Emphasis added]

State v. Fullilove, 389 So.2d at 1283.

In State v. Johnson, 541 So.2d 818 (La.1989), the State produced three witnesses who testified that the defendant confessed to the crime. In closing argument, the prosecutor stated:

I will submit to you that there can be no better evidence in a criminal proceeding but that evidence from the defendant’s own mouth, not contradicted by anybody. Nobody came here and contradicted anything that was attributed to him, not one single person. Nobody took the stand. [Emphasis added]

Johnson, 541 So.2d at 822

In Johnson, “the challenged statements of the prosecutor focused on the absence of testimony in rebuttal to the testimony of those state witnesses who said that the defendant told them that he committed the crimes.” Johnson, 541 So.2d at 823. No one else witnessed the alleged confessions. Thus, the court held that the mistrial should have been granted.

In Pendleton, however, this Court found that the comments were permissible. There, the prosecutor stated:

She was a little shaky. She was a little upset. She is a victim of a robbery. She had to come into a courtroom and testify. But she was clear in one critical regard: That that’s the man that robbed me back on June 17th. No evidence presented to contradict that. And, of course, what I say — [Emphasis added],

Pendleton, 00-1211 at 6, 783 at 463.

This Court found that the record supported the conclusion that the prosecutor’s comment was “a permissible general comment on the strength of the State’s unre-butted evidence [the victim’s testimony], rather than an impermissible reference intended to draw the jury’s attention to the defendant’s failure to testify.” Pendleton, 00-1211 at 7, 783 at 464.

We find that the comment in this case is similar to the one in Pendleton as it was “a permissible general comment on the strength of the State’s unrebutted evidence.” Pendleton, 00-1211 at 7, 783 at 464. It was not a reference intended to draw the jury’s attention to the Defendant’s failure to testify. Thus, the trial judge did not err in denying the motion for mistrial.

ILLEGAL/EXCESSIVE SENTENCE

The Defendant asserts that the sentence was illegal because the trial judge awkwardly divided it and made it both concurrent and consecutive with the Defendant’s remaining time under his parole, and that his enhanced sentence of seven years is excessive.

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. Williams, 98-1146, p. 21 (La.App. 5th Cir.6/1/99), 738 So.2d 640, 655, writ denied, 99-1984 (La.1/7/00), 752 So.2d 176. However, La.C.Cr.P. art. 881.4(D) provides that the court of appeal “shall not” set a sentence aside on grounds of excessiveness if the record supports the sentence imposed. See: State v. Richmond, 98-1015, p. 8 (La.App. 5th Cir.3/10/99), 734 So.2d 33, 38.

As a second felony offender, the Defendant was subject to a sentence of not less than one-half of the maximum sentence of the underlying offense and not more than twice the maximum sentence of the underlying offense. La.R.S. 15:529.1(A)(l)(a). The underlying offense of possession of hydrocodone is punishable by a term of imprisonment of not more than five years. La.R.S. 40:967(C)(2). Thus, the sentencing range in this case was between 2^ years to 10 years of imprisonment.

The Defendant contends first that he received the maximum sentence. However, that is not reflected in the record. He received seven years out of a possible ten year sentence. Although the trial judge did not detail the factors considered when imposing sentence, the trial judge’s remarks indicate that she was familiar with the circumstances surrounding the Defendant’s case. She was aware of the Defendant’s age and, at the original sentencing, the trial judge stated that she was aware of the Defendant’s “past history.” In denying the Defendant’s motion to reconsider the original sentence, the judge stated that she that she felt “pretty strongly about this one.”

Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966, p. 15 (La.App. 5th Cir.2/25/98), 708 So.2d 1212, 1219. The Defendant here was twenty-six years old when he was sentenced and had pled guilty three years before to simple robbery.

In State v. Joseph, 99-1161, p. 6 (La.App. 5th Cir.3/22/00), 759 So.2d 141, 144, this Court held that the defendant’s eight year sentence was not excessive as a second felony offender, where the underlying offense was possession of cocaine. Furthermore, the issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144, pp. 1-2 (La.10/9/98), 719 So.2d 49, 50. In this case, we find that the Defendant’s seven year sentence as a second felony offender is not excessive.

The Defendant also asserts that the sentence was “awkward and distorted” because the trial judge made part of the sentence consecutive and part of the sentence concurrent with the sentence on the parole violation. At sentencing, the trial judge stated that part of the seven years would be served concurrently and part would be served consecutively to the parole violation sentence:

THE COURT:
[A]nd on the parole violation, in connection with the sentence that I gave you of seven years in # 02-2090, I am going to make — it’s my understanding that you’ve got — let me think how I’m going to do this ... I’m going to make one half of — I’m going to run the seven years that I have just given you one-half concurrently with what the [sic] time you have left on your parole and one-half consecutively to what you have left on your parole, and it’s my understanding from your attorney it’s about a year and a half. Okay. So — if that’s it, and I’m not saying it is, it will be about nine months concurrently, nine months consecutively. All right. Good luck sir.

After the Defendant’s attorney questioned the judge about the sentence, the judge clarified that the first nine months of the sentence would be served concurrently with the Defendant’s parole violation sentence and that six years and three months would be served consecutively to the parole violation sentence.

Although not clearly articulated, it seems that the thrust of the Defendant’s argument is that the sentence is indeterminate. La.C.Cr.P. art. 879 requires a sentence to be determinate for each offense upon which he is convicted. See: State v. Fish, 00-922, pp. 9-10 (La.App. 5th Cir.1/30/01), 782 So.2d 1087, 1092, writ denied, 01-0548 (La.2/1/02), 808 So.2d 337.

The record reflects that the trial judge stated that the first nine months of the sentence is concurrent to the Defendant’s parole violation sentence and that the remaining six years and three months will be consecutive to the parole violation sentence. It is noted that a person who commits a felony while on parole is subject to revocation as of the date of the commission of the felony and the new sentence is to be served consecutively with the parole violation sentence, unless the court expressly directs the sentence is to be served concurrently. See, La.R.S. 15:574.10. Accordingly, the trial court had the authority to order the sentence to be served consecutively or concurrently.

Further, a “split” sentence has been held to be permissible. In State v. Johnson, 450 So.2d 48 (La.App. 3rd Cir.1984), the court found that La.C.Cr.P. art. 883 permitted the trial judge to order that a portion of a sentence be served concurrently and the remainder consecutively with another sentence. See also: State v. Hayes, 602 So.2d 285, 287 (La.App. 2nd Cir.1992). Thus, we find no abuse of the trial judge’s discretion in ordering a portion of the enhanced sentence to be served concurrently and the remainder to be served consecutively with the Defendant’s parole violation sentence.

PATENT ERROR

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

The sentencing transcripts show that the trial judge did not advise the Defendant of the two-year prescriptive period for applying for post-conviction relief pursuant to La.C.Cr.P. art. 930.8. Thus, we’ remand the case with an order for the trial judge to send written notice within 10 days of the rendering of this opinion informing 'the Defendant that he has two years from the'date’the conviction and sentence become final to file his application for post-conviction relief, then to file written proof in the record that the Defendant received the notice.

There is a discrepancy between the transcript of the habitual offender sentencing hearing and the corresponding commitment. The transcript reflects that the trial judge stated that the first nine months of the habitual offender sentence is to be served concurrently with the Defendant’s parole violation sentence and the remaining six years and three months were to be served consecutively with the parole violation sentence. The commitment states that “[w]hat is left on parole Violation [sic]/¿ is [sic] run concurrent and $ is to run consecutive.” (R., pp. 73, 227-228). It is further noted that the transcript of December 3, 2003 reflects that the trial court denied the Defendant’s motion to suppress after a hearing, while the minute entry does not so reflect.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Pugh, 02-171 (La.App. 5th Cir.10/16/02), 831 So.2d 341, 354. We will therefore, order the trial judge to correct the commitment to reflect the manner in which the trial judge ordered the habitual offender sentence to be served, and to correct the minute entry relative to the hearing on the motion to suppress the evidence.

Accordingly, the conviction and enhanced sentence are hereby affirmed. The case is remanded and the trial judge ordered to send to the Defendant written notice within 10 days from the rendering of this opinion, informing the Defendant that he has two years from the date the conviction and sentence become final to file his application for post-conviction relief, then to file written proof in the record that the Defendant received the notice. We also order the trial judge to correct the commitment to reflect the manner in which the trial judge ordered the habitual offender sentence to be served and to correct the minute entry relative to the denial of the motion to suppress.

AFFIRMED AND REMANDED.

      . The Deputy's first name is not in the record.

      . The defense and the State stipulated that the State's expert forensic chemist would testify that the tablet tested positive for hydroco-done.

      . The Defendant was also charged with battery on a police officer and possession of marijuana, which was found in the car following a search for insurance papers. According to the testimony in the hearing on the motion to suppress the evidence and statements, the marijuana was in plain view and found by the Deputy in and under the ashtray. This information was withheld from the jury at the trial on the hydroeodone possession. He later pled guilty to those charges.

      . Reaffirmed in. Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994 (2001).

      . In Pendleton, we further noted that the defense theory in this case was misidentification and that, as part of its burden of proof, the State was required to demonstrate beyond a reasonable doubt that the defendant was the perpetrator of the offense.

      . He pled guilty on April 27, 1998

      . Possession of cocaine has the same penalty provision as possession of hydrocodone. See, La.R.S. 40:967(C)(2).


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Leonard JOHNSON.
    No. 03-KA-747.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      James M. Crum, District Attorney, Rodney A. Brignac, Assistant District Attorney, Parish of St. John The Baptist, Ed-gard, 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. CHE HARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

By this appeal, defendant, Leonard Johnson, challenges his sentence as excessive. For the reasons which follow, we affirm defendant’s conviction and sentence.

On August 21, 2001, defendant and his cousin, Kim Edwards, got into an altercation because defendant believed that his wife was having an affair with Edwards. Apparently, both men were armed with weapons, defendant with a gun and Edwards with a knife. During the course of the argument, defendant shot and killed Edwards. In the subsequent statement given to police, defendant claimed that he and Edwards began to struggle, and that the gun discharged after it was grabbed by the victim. Defendant indicated that he only meant to scare Edwards and did not intend to shoot him.

As a result of this incident, on October 2, 2001, a grand jury for St. John the Baptist Parish, returned an indictment charging defendant with second degree murder, in violation of LSA-R.S. 14:30.1. At the arraignment, defendant pled not guilty. Thereafter, on January 21, 2003, defendant withdrew his plea and after being advised of his rights, pled guilty to the reduced charge of manslaughter, LSA-R.S. 14:31. After reviewing the pre-sen-tence investigation report, the trial judge sentenced defendant to thirty years of imprisonment at hard labor with credit for time served. Defendant orally objected to the sentence imposed and thereafter filed a written motion for reconsideration of sentence which was denied by the trial court. Defendant now appeals. He asserts that his thirty year sentence is excessive considering that he is a first felony offender with a history of mental illness and substance abuse. We find no merit to defendant’s argument.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const. art. I, Sec. 20. A sentence is constitutionally excessive, even if it is within the 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. Lott, 02-702 (La.App. 5 Cir. 12/30/02), 836 So.2d 584, 587.

In determining whether a sentence is excessive, the test imposed on the reviewing court is two-pronged. First, the record must show that the trial court took cognizance of the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. After determining whether the provisions of LSA-C.Cr.P. art. 894.1 have been complied with by the trial court, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Woodward, 02-1017 (La.App. 5 Cir. 3/25/03), 844 So.2d 236, 239-240.

The sentencing court is given wide discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing court. On appellate review of sentence, the only relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. McBride, 01-588 (La.2/8/02), 807 So.2d 836; State v. Woodward, 844 So.2d at 240.

In the present case, defendant pled guilty to manslaughter and was sentenced to thirty years at hard labor. At the time of this offense, the authorized sentence for manslaughter was a sentence of up to forty years at hard labor. LSA-R.S. 14:31. Thus, defendant’s sentence was within the prescribed statutory range.

Prior to imposing sentence, the trial judge took cognizance of the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. The trial judge indicated that she had reviewed the pre-sentence report, as well as the letters submitted by defendant, his brother, and three of the victim’s family members. The trial judge noted for the record that defendant was a first felony offender, and that the death arose out of an argument between family members. Additionally, the pre-sentence report, which forms a part of the record on appeal and which was reviewed by the trial judge prior to sentencing, indicates defendant had a high school education and had been gainfully employed in the construction field since he finished high school. In a letter to the court, reviewed by the judge, defendant indicated the shooting had been an “accident.”

In addition to these mitigating factors, the trial judge also stated for the record certain aggravating factors. The judge mentioned the fact that a dangerous weapon was used in the commission of the offense. She also indicated that she was aware of the serious consequences the victim’s death would have on his family. Finally, the judge noted for the record that the letters received from the victim’s family indicated the family, especially his minor child, was very distraught over his death.

It is apparent from the record that the trial judge, in imposing sentence, carefully considered both mitigating and aggravating circumstances as required by the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. Although defendant urges his lack of criminal history and the family dispute in mitigation, the record indicates the judge took these factors into consideration. Defendant also urges in mitigation an allegation that he suffers from substance abuse and mental illness. However, other than the use of a controlled substance some fifteen years prior to this incident, reflected in the pre-sen-tence report, the record is devoid of any proof that defendant suffered from “bouts of substance abuse or that he was mentally ill.”

Having found adequate compliance with the sentencing guidelines, it must now be determined if the sentence is too severe given the circumstances of the case and the background of the offender. The present crime was a crime of violence which resulted in the killing of a family member. Although the defendant had no prior felony convictions, he did have two previous arrests. Also, defendant received a significant benefit from his plea to the amended charge of manslaughter. As originally charged, defendant faced life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Under these circumstances, we find that the trial judge did not abuse her discretion in imposing a sentence of thirty years on defendant. Furthermore, we note that it was less than the sentence recommended in the pre-sentence report.

We have also reviewed the record for errors patent and have found none. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975).

For the reasons set forth herein, defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . The only indication of any possible mental problem was the request by defendant for a sanity hearing. However, the conclusion of the sanity commission was that defendant was competent to stand trial.


author: DUFRESNE, Chief J.

text:
    STATE of Louisiana v. William SMITH.
    No. 03-KA-866.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Doug Freese,, Assistant District Attorneys, Gret-na, Counsel for Plaintiff-Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Counsel for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and JAMES L. CANNELLA.
   DUFRESNE, Chief J.

The Jefferson Parish District Attorney filed a bill of information charging defendant, William Smith, with armed robbery and aggravated burglary in violation of LSA-R.S. 14:64 and 14:6o. After pleading not guilty, defendant filed a motion to appoint a sanity commission and was found incompetent to stand trial. He received jail-based psychiatric treatment, as ordered, and was subsequently found competent to stand trial.

Defendant thereafter proceeded to trial on the armed robbery charge. After considering the evidence presented, the twelve person jury found him guilty as charged. The trial judge sentenced him to sixty years at hard labor without the benefit of parole, probation or suspension of sentence. The state then dismissed the aggravated burglary charge and filed a multiple offender bill of information alleging defendant to be a second felony offender based on a prior conviction for possession of cocaine. After a hearing, the trial court found defendant to be a second felony offender, vacated his original sentence, and imposed an enhanced sentence of 160 years pursuant to the provisions of LSA-R.S. 15:529.1. Defendant now appeals.

FACTS

In the early morning of September 14, 2000, Chanda Johnson was sleeping on a sofa in her apartment on Tallowtree Lane with her fifteen-month-old son lying on her chest when the front door was kicked open. Ms. Johnson was grabbed off the sofa and thrown to the stairs. The perpetrator yelled profanities and demanded where “it” was. Ms. Johnson indicated “it,” a' Crown Royal sack containing approximately $60, was under the sofa pillow. The perpetrator grabbed the sack and voiced his discontent with the meager contents of the sack.

Ms. Johnson was then shot twice. Her injuries were so severe that she was not expected to live. The record reflects the victim had approximately eight or nine full surgeries and a 'total of thirty surgical procedures as a result of her injuries.

Both the burglary and homicide units of the Jefferson Parish Sheriffs Office investigated the incident. During its investigation, the police developed defendant as a suspect. The police went to defendant’s residence and brought defendant in for questioning on an unrelated incident, aggravated battery, which occurred eleven days prior and involved the same type of assault rifle used in the current incident.

Defendant gave two statements. His first statement pertained to the unrelated aggravated battery incident. In that statement, defendant admitted having a Mac 90 assault rifle, the same type of gun that was used to shoot Ms. Johnson. He also asserted an alibi for the current incident by stating he was in Algiers with a friend at the time the victim was robbed and shot.

After his first statement, defendant was brought to several locations in an attempt to corroborate his alibi. When confronted with the problems with his alibi, defendant gave a second statement during which he admitted his participation in the robbery and shooting of the victim. In his second statement, defendant explained that, in the early morning hours of September 14, 2000, he and three of his friends, David Williams, Marvin Robinson, and Richard Mitchell, drove around Gret-na looking for someone to rob. Being unsuccessful, they returned to the “Mary Poppins” area of Jefferson Parish. According to defendant’s statement, Williams and/or Robinson indicated they knew someone in an apartment on Tallowtree that sold “weed.” Mitchell, who was driving, parked the car behind an apartment complex on Tallowtree, and defendant, Williams and Robinson jumped out and ran toward the victim’s apartment. Defendant stated Robinson had the gun, a cherry brown Mac 90 with a banana clip.

Defendant stated Robinson kicked in the door to the victim’s apartment and ran inside with Williams. Defendant claimed he stayed outside as a lookout. Defendant overheard Williams and Robinson ask “where its at.” He subsequently saw Williams fire two shots toward the stairs at which time he heard a female screaming. Thereafter, all three perpetrators ran back to the car with only a purple Crown Royal sack that was taken from the home. Defendant admitted he knew they were going to the apartment to rob the victim but denied there was any discussion about killing anyone.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant asserts that the trial court erred in allowing hearsay testimony. He specifically complains about Detective Gorman’s testimony regarding statements that co-defendants Mitchell and Robinson made to the police. When the prosecutor asked Detective Gorman whether Mitchell admitted his own participation in the offense, defense counsel immediately objected on the grounds of hearsay. The prosecutor began to respond that it was a statement against interest when the trial court overruled the objection. Detective Gorman proceeded to state that Mitchell and Robinson both admitted their participation in the offense and that the statements established Mitchell as the driver of the getaway car. No additional inquiry was made into the substance of the co-defendants’ statements.

On appeal, defendant claims that this testimony was improperly admitted. He argues that the testimony could not be admitted as a statement against interest because there was no showing the co-defendants were unavailable to testify at trial. He further contends that the admission of the hearsay was not harmless error because the statements were the only evidence that corroborated defendant’s statement.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801. Hearsay evidence is not admissible except as otherwise specified in the Code of Evidence or other legislation. LSA-C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So.2d 454, 460 (La.1984); State v. Sarrio, 01-543 (La.App. 5 Cir. 11/27/01), 803 So.2d 212, 223, writ denied, 02-0358 (La.2/7/03), 836 So.2d 86. A declaration against penal interest is a recognized exception to the hearsay rule that is admissible when the declarant is unavailable at trial. LSA-C.E. art. 804(B)(3); State v. Hammons, 597 So.2d 990, 995-996 (La.1992). In the present case, there was no showing that Mitchell and Robinson were “unavailable” to testify at trial as required by LSA-C.E. art. 804. On cross-examination, defense counsel asked Detective Gorman the whereabouts of Mitchell and Robinson. Detective Gorman replied, “They are in the Jefferson Parish Correctional Center I believe still.” The prosecutor offered no explanation as to why Mitchell and/or Robinson could not testify at defendant’s trial. Since the parties were severed for trial, it is plausible the co-defendants were awaiting trial and would likely invoke their Fifth Amendment right against self-incrimination which would make them “unavailable” for purposes of LSA-C.E. art. 804(B)(3). However, there is no evidence in the record to support this possible explanation. Because there was no showing Mitchell and Robinson were “unavailable,” their statements to Detective Gorman did not fall under the LSA-C.E. art. 804(B)(3) exception to the hearsay rule and were inadmissible.

The admission of inadmissible hearsay is subject to a harmless error analysis. State v. Antoine, 02-1068 (La.App. 5 Cir. 2/25/03), 841 So.2d 874, 881. The proper inquiry is whether the guilty verdict rendered was surely unattributable to the error. Factors to be considered in making this determination include: ' 1) the importance of the witness’ testimony; 2) the cumulative nature of the testimony; 3) the existence of corroborating or contradictory evidence regarding the major points of the testimony; 4) the extent of cross-examination permitted; and 5) the overall strength of the State’s case. State v. Antoine, 841 So.2d at 881.

The statements of Mitchell and Robinson played a minimal role in the case against defendant. The statements were only used to show that the co-defendants admitted their participation in the crime. While such evidence corroborated defendant’s statement that he committed the offense with Mitchell and Robinson, it did nothing to establish any of the essential elements of the crime.

In arguing the admission of the hearsay was not harmless error, defendant’ contends the statements of Mitchell and Robinson were the only evidence that corroborated his statement. To the contrary, the victim’s statement corroborated various aspects of defendant’s statement. The victim testified there was more than one perpetrator. She stated the perpetrators bashed open the door which corroborated defendant’s statement that entry was gained into the apartment by kicking in the door. The victim explained her little boy was lying on her chest when the perpetrators broke into her apartment corroborating defendant’s statement that he saw a little boy when he looked into the apartment. The victim testified she was shot twice while defendant stated Williams shot two times. The victim stated the perpetrators took a Crown Royal sack which corroborated defendant’s statement that a purple Crown Royal sack was taken from the home.

The use of Mitchell’s and Robinson’s statements was simply cumulative to the testimony of the victim and defendant that more than one perpetrator committed the offense. Thus, we find any error in the admission of this part of Detective Gor-man’s testimony to be harmless. Based on the foregoing discussion, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant alleges ineffective assistance of counsel. He specifically argues’that his trial counsel was ineffective for failing to object to references of other crimes evidence contained within his statement and Sergeant John Drury’s testimony.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. State v. McIn tyre, 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. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, supra.

In this case, we conclude that defendant’s allegations of ineffectiveness would be better addressed by an application for post-conviction relief where an evidentiary hearing can be conducted. See State v. Smothers, 02-277 (La.App. 5 Cir. 12/30/02), 836 So.2d 559, 567, where this court concluded that the issue of whether defense counsel was ineffective for failing to object to hearsay testimony |Rshould be raised in an application for post-conviction relief because an evidentiary hearing may be warranted to fully explore the issues raised by the defendant.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assigned error, defendant challenges his sentence as excessive. Defendant was convicted of armed robbery, and as a second felony offender, he faced an enhanced sentencing range between 49 years and 198 years. LSA-R.S. 15:529.1. The trial judge sentenced defendant to 150 years. Defendant now claims that this sentence is excessive considering his role in the robbery. He notes the trial court based the sentence solely on the victim’s injuries and failed to consider the following mitigating factors: 1) he was not the shooter; 2) his role in the robbery was limited to being a lookout; 3) he cooperated with the police and named the other perpetrators who were involved; 4) his prior conviction of possession of cocaine was not a violent crime; 5) he did not know the other perpetrators intended to shoot the victim; and 6) he has a mental disorder.

In the present case, defendant did not object to his enhanced sentence nor did he file a motion to reconsider his sentence pursuant to LSA-C.Cr.P. art. 881.1. Therefore, his sentence may only be reviewed for constitutional excessiveness. State v. Marshall, 02-747 (La.App. 5 Cir. 2/11/03), 841 So.2d 866, 872, writ denied, 03-659 (La.6/6/03), 845 So.2d 1090.

Both the United States and the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const. of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the 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. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

In reviewing a sentence for ex-cessiveness, this court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

In the present case, the trial judge, in imposing the 150-year enhanced sentence, noted that the victim was shot in the back and required seven or eight surgeries. The prosecutor corrected the judge stating the victim underwent eight or nine full surgeries and approximately 30 surgical procedures. The trial court further stated the victim, who could barely walk to the witness stand, continues to receive medical treatment and faces future surgeries. The trial court admonished defendant by stating he caused severe injury to a helpless woman who was holding a child.

In addition to the reasons expressed by the trial judge, we further note that armed robbery is a serious offense against the person. Defendant participated in a crime wherein the door to the victim’s apartment was kicked open while she slept on the couch holding her toddler son. The victim’s additional children were upstairs. The victim was shot twice resulting in such severe injuries that she was not expected to live, as evidenced by the investigation of the crime by the homicide division. Two years after the crime, the victim continued to visibly suffer from her injuries.

Contrary to defendant’s assertion, the fact he did not actually enter the apartment, take the money, or fire the bullet that struck the victim does not entitle him to a lesser sentence. All persons concerned in the commission of a crime, whether present or absent, are equally culpable. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999). Additionally, although defendant suffers from a mental disorder (i.e., bipolar disorder), he knew what he was doing. He admitted knowing that he and his co-perpetrators went to the victim’s home to rob her. The trial judge was fully aware of defendant’s mental state when she imposed sentence. Finally, the fact defendant’s prior conviction was for a non-violent offense does not make his present sentence excessive. Defendant progressed from a non-violent crime to a violent crime that almost killed the victim.

Higher sentences for a second felony offender where the predicate offense is armed robbery have been upheld. See State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 451, units denied, 97-1050 (La.10/13/97), 703 So.2d 609, and 97-1050 (La.10/13/97), 703 So.2d 609; State v. Jones, 560 So.2d 590 (La.App. 5 Cir.1990); and State v. Sims, 02-1244 (La.App. 5 Cir. 4/29/03), 845 So.2d 1116.

Based on the foregoing discussion, we find that the enhanced sentence imposed by the trial judge is not constitutionally excessive. This assigned error is 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 one error which requires correction. While both the original commitment and the multiple offender commitment show defendant was advised of the two-year prescriptive period for filing an application for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8, the transcript does not so reflect. Generally, where there is a discrepancy between the transcript and the minute entry or commitment, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, the trial court is hereby instructed to inform defendant of the two-year prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received such notice. State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618.

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

CONVICTION AND SENTENCE AFFIRMED, REMANDED WITH INSTRUCTIONS.

      . Co-defendants, Richard Mitchell and Marvin Robinson, were also charged in the bill of information. The defendants were severed for purposes of trial.

      . Detective John Drury explained the Mary Poppins area is comprised of the two streets of Orange Blossom and Tallowtree.

      . During the sanity hearing, Dr. Richard Ri-choux testified defendant suffered from probable bipolar disorder.


author: DREW, J.

text:
    Malcolm COOLEY and Ruth D. Cooley, Plaintiffs-Appellants v. TRINITY UNIVERSAL INSURANCE COMPANY, Defendant-Appellee.
    No. 37,701-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 26, 2003.

      Robert G. Foley, Monroe, Richard L. Fewell, 'Jr., West Monroe, Counsel for Appellants.
    Richard D. Chappuis, Jr., Lafayette, Cyd Sheree Page, Monroe, Kristen Brous-sard Menard, Lafayette, Counsel for Ap-pellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

Plaintiffs, Malcolm Cooley and his wife, Ruth Cooley, appeal the judgment denying recovery against their own uninsured/under insured motorist carrier, Trinity Universal Insurance Company. The Cooleys’ damages arose out of a two-car collision on Highway 80 in Ouachita Parish. Mrs. Cooley was turning left onto the highway from a parking lot north of the road so she could proceed east into West Monroe. Ann A. Halley, who was driving her Suburban west towards Calhoun, struck Mrs. Cooley’s Ford Taurus as it was crossing the westbound lane. Plaintiffs contend that the collision resulted from Halley’s negligence. Following a trial limited to the liability issue, the jury found in favor of defendant, Trinity, after which the trial court denied plaintiffs’ subsequent Motions for Judgment Notwithstanding the Verdict and in the alternative, for New Trial.

On appeal, the plaintiffs assert that the jury erred in finding Halley free from fault because she had crossed the double yellow center line into the eastbound lane. Plaintiffs further assert that the jury erred in deciding that Halley had rebutted the presumption of her fault in causing the crash. For the following reasons, the judgment is affirmed.

FACTS AND TESTIMONY

Plaintiffs own and operate Cooley Printing, which sells printing, office supplies, and furniture. Mrs. Cooley calls upon customers, including Dixie Hydro-Vac, which is located on the north side of Highway 80 west of West Monroe. After concluding her business at Dixie Hydro-Vac, Cooley intended to return to West Monroe. Exiting the parking lot, Cooley had to traverse the westbound lane in order to make the left turn into the eastbound lane of Highway 80. Cooley testified:

• She looked in both directions and then pulled into the eastbound lane.
• She straightened her vehicle completely into the eastbound lane when she observed Halley’s vehicle, a 1996 GMC Suburban, cross the center line.
• Halley’s vehicle struck Cooley’s vehicle head-on, entirely in the eastbound lane of travel.

A registered nurse who resides in Union Parish, Halley had taken her three-year-old grandson shopping. Returning the child to his home near Calhoun, Halley drove west on Highway 80. Although she was not sure of her exact speed, she testified she was not in a hurry because the child had fallen asleep in his ear seat and she wanted him to sleep. Halley believed that she was driving at or below the speed limit. As she approached the Dixie Hydro-Vac parking lot, Halley observed the white Taurus pulling onto the roadway and into the westbound lane from the west side of the Dixie Hydro-Vac parking lot. Halley thought Cooley looked at her and believed that Cooley saw her and would stop. Halley veered slightly left into the eastbound lane in the hope that she could negotiate around the Cooley vehicle and avoid the collision. Halley’s thought process was that if she swerved to the right toward the Dixie Hydro-Vac parking lot, her vehicle would impact the Cooley auto broadside at the driver’s door.

TESTIMONY OF WITNESSES

Ouachita Sheriffs Deputy Darryl Frost testified via video tape, that:

• He was the officer who responded and investigated the accident on September 30, 1997.
• The damage to the white Taurus was located at the right front side while the damage to the Suburban was at the front end.
• The vehicles were locked together at the scene — the front fender above the tire of the Taurus was attached to the front end of the Suburban — and had to be separated by the wrecker drivers.
• He was unable to speak with Halley, who, along with her grandson, had been transported by ambulance to the emergency room.
• When he spoke with Cooley, however, inside the Dixie Hydro-Vac building, she indicated to him that she did not see the Halley vehicle before she entered the eastbound lane.
• At the hospital, Halley told him that she had been westbound on U.S. 80 when Cooley pulled out into her pathway, and she veered into the eastbound lane to avoid the accident.
• He made no notation in his report with regard to the existence or location of debris from the accident. He believed, based upon the location of and damage to the vehicles, that the Cooley vehicle was headed more in a southerly direction, as if coming out of the parking lot.

The two wrecker drivers pulled the interlocked vehicles apart using the wreckers. Both of them estimated the field of debris to be 50 to 60 feet from the point of impact. They further testified that the resting place of the vehicles was farther on the shoulder of the highway than other witnesses remembered it to be. The accident occurred in September of 1997, while the trial was not held until June 2002.

Several employees of Dixie Hydro-Vac testified on behalf of the defendant. Although none saw the accident, they described the events which occurred shortly thereafter. Gay Viereck, Jo Ann Bass, and Carolyn McHenry heard the crash and went outside. All three observed that the Cooley vehicle had been impacted over the right front wheel. All three testified that they believed the automobiles were positioned in the middle of the highway, farther to the center than described by the wrecker drivers. Jo Ann Bass stated that she helped Cooley out of the passenger side of the vehicle. Carolyn McHenry confirmed that testimony, stating that she was right behind Bass and that she also assisted in extricating Cooley, although Cooley did not recall being assisted from the car. The employees stated that they mistook the air bag smoke for actual smoke and were afraid of an explosion. They further stated that they feared for their own safety because of the position of the vehicles in the middle of the highway.

EXPERT TESTIMONY

Plaintiffs’ accident reconstruction expert, Andrew J. McPhate, reviewed the accident report, photographs, witness deposition testimony, and depositions of Ray Herd and Jere Johnston, defendant’s experts. McPhate also viewed the accident scene, took appropriate measurements, observed traffic at the site, and listened to the testimony at trial.

• There was left-side-to-left-side contact between the vehicles. The Suburban had to be going in at a slight angle in order to get the bumper essentially behind the wheel.
• The Cooley vehicle was not “T-boned” by the Halley vehicle; i.e., the impact did not occur at a perfect 90 degree angle.
• The deployment of the driver-side air bag indicated a more frontal impact with enough rear acceleration to trigger the air bag.
• Cooley was traveling about 12 miles an hour at the time of the impact.
• Prior to the application of brakes, Halley’s speed was 71 miles per hour at the highest and 62 miles per hour at the lowest.
• Halley had an opportunity to maneuver onto the right shoulder of the road.

On cross-examination, McPhate acknowledged that he had arrived at Halley’ speed by relying on Scott Kirkland’s (one of the wrecker drivers) deposition testimony that the debris field was 50 to 60 feet. If the debris field was 30 feet, however, he estimated Halley’s pre-braking speed at 54.5 miles per hour. A 40-feet field of debris meant Halley’s pre-braking speed would have been about 55.5 miles per hour. McPhate further acknowledged that the deposition of Ray Herd, which he reviewed in preparation for the trial, estimated Halley’s speed to be 55 miles per hour. He further admitted that Cooley’s version of the accident was unlikely given the physical evidence.

The defense accident reconstruction expert, Jere Johnston, testified based upon his review of the police report, depositions, photographs, and the accident scene that:

• The Suburban came in at about a 40-degree angle to the front of the Taurus as opposed to the 35-degree angle estimated by plaintiffs’ expert.
• Estimates of Halley’s pre-braking speed ranged from 56.7 to 51.9 miles per hour, depending on the factors used.
• The left front wheel of the Taurus was in a turn position.
• The vehicles were joined together at the final resting place, approximately 30 feet from the point of impact.
• If Halley had not steered left, she would have impacted anyway, most likely directly at the driver’s position.

DISCUSSION

In order to resolve the issue on appeal, we must determine whether or not the jury’s factual findings were manifestly erroneous or clearly wrong. In Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-883 (La.1993), the Louisiana Supreme Court set forth a two-part test for the reversal of a fact finder’s determinations:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the -witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record previewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ”
This court has recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation 'Of trial and appellate functions between the respective courts.” Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Stobart, supra, at pp. 882-883. (Citations omitted.)

Plaintiffs rely heavily upon the presumption that when a collision occurs between two vehicles, one of which is in the wrong lane of travel, there is a presumption that the driver in the wrong lane was negligent and that the burden of proof is on the driver to show that the collision was not caused by his own negligence. Simon v. Ford Motor Co., 282 So.2d 126 (La.1973). Defendant, on the other hand, points out that this presumption of negligence attaches to Halley only if Cooley was in her proper lane of travel. Carter v. The Travelers Ins. Co., 535 So.2d 1001 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1202 (La.1989). In Carter, the trial court found that the Carter vehicle was at least partially in the wrong lane of travel; therefore, the burden of proof did not shift to the defendant to whom the presumption did not apply. Likewise, in this dispute, the great weight of the evidence is that the Cooley vehicle was at least partially in Halley’s westbound lane that Cooley was attempting to cross in order to turn east onto Highway 80.

Under the Sudden Emergency Doctrine, one who finds herself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to avoid an impending danger, is not guilty of negligence if she fails to adopt what subsequently and upon reflection appears to be the better method, unless the emergency is brought about by her own negligence. Jackson v. Town of Grambling, 29,198 (La.App.2d Cir.2/26/97), 690 So.2d 942. The rationale is that in a sudden emergency, a person who does not have sufficient time to weigh and consider the best means to avoid an impending danger, should not be held to the same standard of control, care, and caution as someone who has ample time to fully exercise judgment and reason. Whiddon v. Hutchinson, 94-2000 (La.App. 1st Cir.2/23/96), 668 So.2d 1368, writs denied, 96-0731, 96-0775 (La.5/10/96), 672 So.2d 923.

Citing Stapleton v. Great Lakes Chemical, 627 So.2d 1358 (La.1993), plaintiffs argue that the Sudden Emergency Doctrine is not applicable. However, the Coo-leys’ reliance upon Stapleton is misplaced. In Stapleton, supra, an accident occurred when a driver’s trailer jack-knifed into the path of the plaintiffs lane of travel. The Sudden Emergency Doctrine did not apply in Stapleton to exonerate the driver of the jack-knifed truck, which was traveling at an excessive rate of speed for the icy conditions and could have possibly avoided the accident had he been proceeding more cautiously. The Cooleys contend that Halley was speeding and negligent in this collision. Based upon the evidence set out above, the jury was not unreasonable in finding that Halley was neither speeding nor at fault.

Additionally, plaintiffs assert that Halley was negligent in her failure to steer the vehicle to the right shoulder in order to avoid the collision, pointing out that the Stapleton driver was found to be negligent even though he tried to use the shoulder of the road to avert the impending collision.In contrast, defendant argues that Halley was faced with a sudden emergency created by Cooley so that Halley was under no duty to take the best possible course of action. The jury’s conclusion that Halley was not negligent in swerving to the left rather than veering toward the right-hand shoulder was reasonable and supported by the evidence. Halley testified that she believed, in that instant, that Cooley had seen her and was going to stop, which would have allowed Halley to drive around the Cooley car on the left in the eastbound lane at least in part. Halley further stated that she feared that a swerve to the right toward the parking lot from which Cooley drove could possibly have resulted in a direct impact and serious injury to the other driver.

A driver entering a highway has a high duty to avoid a collision; this duty becomes more onerous as the hazards increase and requires a motorist to use every reasonable means available to ascertain that the driver’s entry onto the highway may be made in safety; this driver is required to keep a lookout for vehicles on the highway and refrain from entering until it is safe. Daniels v. Burridge, 2000-1089 (La.App. 4th Cir.3/21/01), 785 So.2d 906, writ denied, 2001-1110 (La.6/1/01), 793 So.2d 201. A left turn is a dangerous maneuver and the driver has a duty not to attempt the turn until |inhe ascertains it can be completed safely. Hawkins v. Gilfoil, 483 So.2d 1082 (La.App. 2d Cir.1986).

Cooley, as the left-turning motorist from the parking lot onto the roadway, clearly had the obligation to observe both lanes of travel prior to entering the roadway. Notwithstanding her trial testimony that she saw Halley and had time to complete her turn, Cooley’s statement to the investigating officer at the time of the accident was that she did not see Halley at all. Cooley’s trial testimony was the only evidence which supported plaintiffs’ contention that Cooley was entirely straight in her own eastbound lane of travel and that the collision was head-on. Given the overwhelming evidence to the contrary, the jury reasonably discounted Cooley’s version of the collision.

The bottom line is that Cooley pulled onto the highway in front of the Halley Suburban, which was proceeding in a reasonable manner. Despite Halley’s best efforts when faced with the sudden emergency, she was unable to avoid striking the Cooley vehicle. Under the circumstances of this case, we find no clear error in the jury’s conclusion that Halley’s actions were reasonable. We affirm.

DECREE

For the reasons set forth, the judgment is affirmed. All costs are assessed to plaintiffs.

AFFIRMED.

      . The evidence was that the actual posted speed limit was 55 miles per hour although Deputy Frost's report had stated the limit to be 45 miles per hour.

      . Kirkland’s testimony at trial was that his estimate of the length of the debris field was a "guesstimate,” and it could have been a little more than 30 up to 60 feet.

      . Ray Herd, plaintiffs' initial expert, died before the trial.