author: LTHOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Brandon STEIN.
    No. 04-KA-23.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Harry J. Morel, Jr., District Attorney, Howat A. Peters, Jr., Assistant District Attorney, Hahnville, LA, for Plaintiff/Ap-pellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and THOMAS F. DALEY.
   LTHOMAS F. DALEY, Judge.

Defendant, Brandon Stein, appeals his conviction for second degree murder in the homicide of James Rogers. On appeal, he assigns three errors of the trial court: 1) the trial court erred in denying his challenges for cause concerning three jurors; 2) the trial court erred in denying the Motion to Suppress his statement; and 3) the evidence was insufficient to support the verdict. After thorough review, we affirm.

On March 14, 2002, the St. Charles Parish Grand Jury issued a bill of indictment charging Brandon Stein with second degree murder. LSA-R.S. 14:30.1. Calvin Couvillion and Timothy Prudhomme were charged as co-defendants. Stein was arraigned on April 3, 2002, and apparently entered a plea of not guilty.

| sStein made pretrial motions to suppress statements and evidence. The record contains no written suppression motions. An inquiry by this court to the district court revealed that those motions were made orally.

On January 10, 2003, the trial court heard and denied Stein’s Motion to Suppress the recorded statement he made on February 16, 2002, while in the custody of the St. Charles Parish Sheriffs Office. On February 21, 2003, the court heard and denied Stein’s Motion to Suppress the statement he made to St. John the Baptist Parish detectives.

On February 21, 2003, the court heard and denied a Motion to Suppress the evidence seized from the home of defendant’s cousin, Michelle Mayfield. On the same day, the court heard a Motion to Suppress evidence recovered from the home of Stein’s grandmother, Theresa Tassin. The court held that Motion open for the presentation of additional evidence. The court heard a Motion to Suppress evidence seized at 14855 Old Spanish Trail, the alleged scene of the murder. The court also held that Motion open for additional testimony. On February 26, 2003, the court denied the Motions to Suppress the evidence from Ms. Tassin’s house and from the house on Old Spanish Trail.

Stein was tried separately before a twelve-person jury on March 24, 25 and 26, 2003. The jury returned a verdict of guilty as charged. On June 4, 2003, the trial court sentenced Stein to a mandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence. Stein made an oral Motion for Appeal.

| ¿FACTS

Tuesday, February 12, 2002 was Mardi Gras Day. Dr. Wayne Rogers, a LaPlace veterinarian, testified that his seventeen-year-old son, James Rogers (“Jim”), the victim, went out with friends that night, driving his Ford Ranger truck. Mr. and Mrs. Rogers expected him either to telephone them or to return home by midnight. Sometime between 2:00 and 3:00 a.m. on February 13th, Mrs. Rogers awakened Dr. Rogers to tell him their son had not yet returned. Later that morning, Dr. Rogers telephoned the St. John the Baptist Parish Sheriffs Office to report Jim missing.

Believing that Jim met or went out with defendant Stein on Tuesday night, Dr. Rogers located Stein and asked him if he knew Jim’s whereabouts. Stein responded that he and Jim had planned to meet the previous night, but that Jim had never arrived. Stein said that Jim was supposed to have bought some marijuana at the LaPlace housing project before picking him up. Dr. Rogers told Stein he believed Jim was dead, and that the St. John the Baptist Parish Sheriffs Office was looking for him. Dr. Rogers testified that Stein turned pale and his hands began to twitch.

Major Robert Hay of the St. John the Baptist Parish Sheriffs Office testified that his department questioned Rogers’s family and friends in an effort to locate him. He and other officers found Rogers’s truck on the afternoon of February 13, 2002 in the 600 block of West Fifth Street. It appeared to have been abandoned. The driver’s side window of the vehicle was broken and the stereo had been removed; apparently by force. Major Hay testified that, on February 13th, detectives questioned sixteen-year-old Timothy Prud-homme, Stein’s cousin, concerning Jim Rogers’s whereabouts.

Detective Sergeant Royal Burke conducted a tape recorded interview with Stein at the St. John the Baptist Parish Sheriffs Office on the afternoon of |fiFebruary 14, 2002. The tape was entered in evidence at trial, and was played for the jury. Stein said that on the night of February 12th, he called Jim’s pager. Jim telephoned Stein, and Stein asked Jim if he wanted to get together to smoke marijuana or drink. On Stein’s instruction, Jim picked up his cousin, Timmy Prudhomme. Jim then picked up Stein. The three went to a convenience store where Stein bought alcohol for all of them. He also bought a cigar, which the young-men filled with marijuana and smoked. They also drank as they road around in Jim’s truck. They did not go into the LaPlace housing project.

Stein said he was contacted by an acquaintance named George. Jim dropped off Stein and Prudhomme at a convenience store. From there, they walked to a nearby Wal-Mart store, where George picked them up. Stein said he did not see Jim after Jim left Prudhomme and him at the convenience store.

After the interview was completed, Stein was allowed to leave the sheriffs office. Detective Sergeant Burke conducted a second interview with Timothy Prudhomme on February 15, 2002 in an attempt to resolve discrepancies between his statement and Stein’s. Based on information gleaned during that interview, the St. John the Baptist Parish Sheriffs Office informed the St, Charles Parish Sheriffs Office of a possible location for the missing boy.

At about 5:30 p.m. on February 15, 2002, Detective Sergeant Rodney Madere and several other St. Charles Parish deputies located Jim Rogers’s body. It was visible from an overpass leading from Interstate 310. The body lay on a small “island” of land in the marsh. Detective Roscoe Brewer testified that | fiit was obvious the victim had been dropped from a considerable height, as there was an indentation in the piece of ground where the body lay. Rogers was partially wrapped in a blanket, and there was a mattress lying fifty feet away. The body was difficult to reach, as it was surrounded by marsh. Detective Brewer testified that he and other officers used an all terrain vehicle and a small boat to recover the body.

Dr. Susan Garcia, an expert in forensic pathology, testified that she performed an autopsy on the body of Jim Rogers. She listed his death as a homicide, and determined the cause of death was asphyxiation due to ligature strangulation. Dr. Garcia testified that something was placed around the victim’s neck and tightened so as to cut off the flow of blood to and from the brain. She pointed out that there were marks on the victim’s neck that she believed were the result of a ligature, as opposed to manual strangulation. Dr. Garcia testified that although the victim was found in water, there was no evidence that he had drowned. Blood, urine and vitreous fluid samples taken from the body showed an elevated level of alcohol, as well as THC, the active metabolite in marijuana.

Detective Sergeant Madere testified that, once Jim Rogers’s body was found, he obtained a warrant in St. Charles Parish for Stein’s arrest. Stein was subsequently arrested in St. John the Baptist Parish. Detective Sergeant Madere testified that Timothy Prudhomme led him and other officers to 14855 Old Spanish Trail, the home of defendant’s friend, Calvin Couvillion. Prudhomme indicated to officers that Jim Rogers’s murder had occurred at that residence. Officers found Calvin Couvillion there, along with Traci Caillet, Britney Dufrene, and Terrel Gis-clair.

Traci Caillet and Calvin Couvillion were brought to the detective bureau of the St. Charles Sheriffs Office. The other two individuals were released. Detective Sergeant Madere testified that officers were left to secure the house on Old Spanish Trail while he obtained a search warrant for the residence. Detectives Claude Adams and Othello Carter retrieved Stein from St. John the Baptist Parish authorities. Those officers transported Stein to the detective bureau. Adams, Madere, and other deputies then returned to Calvin Couvillion’s residence to 17execute a search warrant. Among the items found in the search was a box spring that appeared to match the mattress found with the body.

Detective Sergeant Madere testified that he interviewed Calvin Couvillion and Traci Caillet. Madere and Detective Roscoe Brewer conducted a tape recorded interview with Stein at the detective bureau on February 16, 2002 at 2:18 p.m. The tape was entered into evidence and was played for the jury.

Stein told Madere that on the night of February 12, 2002, Jim picked him up in his (Jim’s) truck. Timothy Prudhomme was in the truck with Jim. Their plan was to do drugs and drink together. The three stopped at a convenience store, where Stein bought Prudhomme two small bottles of Mad Dog (a cheap wine), a six-pack of Smirnoff Ice (vodka) for himself, and a large bottle of Mad Dog for Jim. Stein also bought a cigar.

Stein related that Jim drove to Calvin’s house in Luling. Once there, the three young men cut open the cigar and made a “blunt” by stuffing it with marijuana. They smoked the blunt and drank the alcohol Stein had purchased. Calvin and his girlfriend, Traci, were there, as were several other people. Stein bought a small bag of cocaine from an unknown woman at the house. He put some of it in a marijuana cigarette and then shared the cigarette with some of the others.

Some time later, only Stein, Calvin, Jim, and Timmy remained. Stein stated that Jim said he wanted to leave. Jim started to walk toward the door. Stein and Rogers started to argue. Stein took off his belt, wrapped it around Jim’s neck, and began to strangle him. Stein said Calvin aided him by beating Jim while Stein continued to strangle him. Timmy did not participate in the attack; he sat and watched television. Jim struggled with Stein, and said, “Man why are ya’ll doing this to me?”

Stein stated that Jim died in the master bedroom, close to the back door of the house. Stein and his companions wrapped Jim’s body in a blanket and put it in 18the back of Jim’s pickup truck. They put a mattress from the house on top of the body to conceal it. Stein drove the truck, while Prudhomme rode in the passenger seat. Calvin Couvillion sat on top of the mattress in the back of the truck.

Stein said he stopped the truck on the interstate at the Norco Bridge exit. He threw the body and the mattress over the side of the bridge. Stein and Prudhomme removed the stereo system from the truck, and left the equipment at the home of Stein’s grandmother. Stein drove the truck to the LaPlace housing project and left it there. He then walked to the home of his cousin, Michelle Mayfield, and spent the rest of the night there. Stein said he hid the keys to the truck under a shed in Ms. Mayfield’s yard.

Detective Brewer testified that he and other officers went to the LaPlace home of Stein’s cousin, Michelle Mayfield. They found the keys to the victim’s truck in a clear plastic bag under Ms. Mayfield’s shed. Brewer further testified that Theresa Tassin, Stein’s grandmother, gave her consent for officers to search her house. Brewer located the victim’s car stereo in Ms. Tassin’s converted garage.

Brandon Stein testified on his own behalf at trial. He said he and Jim Rogers were friends, and that they both attended East St. John High School. Defendant knew Calvin Couvillion because they had once lived on the same street. Stein testified that he smoked marijuana on a daily basis, and that he took other drugs as well. He was often joined in his drug use by Jim and other friends. Stein also bought liquor for Jim on a regular basis.

Stein admitted that he killed Jim. He testified that on the night of February 12, 2002, Jim picked him up at Michelle May-field’s house, where he had been babysitting. Prudhomme was already in the truck. The three of them went to a convenience store, where Stein bought liquor and a cigar.

| aThey rode to Calvin Couvillion’s house, drinking along the way. Once there, they put some marijuana inside the cigar and smoked it. Stein bought cocaine from someone at the house. He put some of the cocaine in a marijuana cigarette and smoked it. Then he snorted the rest of the cocaine. Stein said that Jim did not consume any cocaine.

When Stein and his companions had been at Calvin’s house for an hour, Jim said he wanted to leave. Stein, who depended on Jim for a ride home, asked his friend to stay longer. He told Jim he did not want to go home “all messed up.” Jim agreed to stay. Five minutes later, Jim went to the door in an attempt to leave the house. Stein approached Jim and complained to Jim that he had agreed to stay there for a while longer. The two argued, and Jim pushed defendant. A fistfight ensued, and Calvin Couvillion became involved in the altercation.

Stein testified that he removed the belt he was wearing, put it around Jim’s neck, and used it to pull Jim to the floor. He strangled Jim, and the victim died within three to four minutes. While Stein was strangling Jim, Timmy Prudhomme sat watching television. Stein testified that he did not put the belt around Jim’s neck to keep him from leaving Calvin’s house; he killed Jim because they were fighting.

Stein and Couvillion wrapped the victim’s body in a blanket and put it in the back of Jim’s truck. Couvillion put a mattress on top of the body. Stein drove the truck. He first dropped off Couvillion at a nearby apartment. Stein and Prudhomme then took Jim’s body to a bridge, where Stein disposed of it while Prudhomme waited in the truck.

Stein said that he drove the truck to his grandmother’s house, where he removed the truck’s stereo system so that it would appear that the truck had been | instolen or burglarized. Stein drove Prudhomme home, and then spent the night at the home of his cousin, Michelle Mayfield, where he hid the keys to the truck under the shed.

Stein identified a letter he sent to the victim’s parents in October, 2002. In the letter Stein apologized to the Rogerses for having killed “one of my best friends.”

ASSIGNMENT OF ERROR NUMBER THREE

The evidence was insufficient to support the verdict.

Stein contends that the state failed to prove he was guilty of second degree murder, as the evidence showed he was intoxicated at the time of the offense, and was thus unable to form the requisite intent. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issue regarding trial errors becomes moot. For the foregoing reasons, Stein’s third assignment will be addressed first.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia , requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

Second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1(A)(1). TheJ^crime is also defined as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of one of the enumerated felonies. LSA-R.S. 14:30.1(A)(2)(a). Prior to trial, the state noticed its intention to proceed under the theory of specific intent.

Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as fact, but may be inferred from the circumstances and actions of the accused, as well as the extent and severity of the victim’s injuries.

LSA-R.S. 14:15, pertaining to the defense of intoxication, provides:

The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

Intoxication is in the nature of an affirmative defense to a criminal charge and the burden is on the defendant to prove the existence of that condition at the time of the offense. When a defendant raises intoxication as a defense, he must prove, by a preponderance of the evidence, that he was in fact intoxicated. When circumstances exist that indicate that, intoxication could have precluded specific | ^intent, the burden shifts to the state to show, beyond a reasonable doubt, that defendant possessed specific intent.

Stein’s mother, Penny Waguespack, testified that she had, on occasion, caught him smoking marijuana. She further testified that she had never seen him drink alcohol, but that she had smelled it on his breath at times. Stein’s twin sister, Jennifer Stein, testified that he smoked marijuana on a regular basis. His parents refused to buy him his own vehicle because his stepfather had caught him using marijuana. While neither Jennifer Stein nor Ms. Wagues-pack could say that they knew Stein used drugs and alcohol, neither had firsthand knowledge of whether he was intoxicated at the time of the murder. The only evidence Stein produced with regard to his level of intoxication at the time of the offense was his own testimony.

Stein testified that he and the victim consumed alcohol and marijuana on the night of February 12, 2002. Stein also testified that he smoked and snorted cocaine that night. Stein’s testimony was consistent with information he gave St. Charles Parish detectives following his arrest. However, there was nothing at trial to corroborate his assertions, with the exception of Dr. Garcia’s testimony that tests showed the victim had used alcohol and marijuana. Detective Madere testified that, aside from Stein’s own claims, he discovered no evidence that Stein was under the influence of drugs or alcohol at the time of the offense.

As the ultimate fact finder, the jury determines whether a defendant has proven intoxication and whether the state has negated the defense beyond a reasonable doubt. The jury apparently rejected Stein’s argument that he was drugged and/or intoxicated to the point that he could not form the specific intent to kill. Even assuming that Stein met his burden of proving intoxication by a | ^preponderance of the evidence, it appears the state negated the defense by proving beyond a reasonable doubt that Stein had the specific intent to kill.

In his recorded interview with Detective Madere, Stein admitted to arguing with the victim about whether they should leave Calvin Couvillion’s house. Stein further confessed to having removed his belt and tightening it around the victim’s neck. Stein used the belt and his arm to choke Jim Rogers. In addition, he hit Rogers with his fist. Even though the victim struggled with him and asked, “Man, why are ya’ll doing this to me?” Stein continued to choke him. Stein told Detective Madere that, as Jim Rogers continued to resist, he (defendant) said, “Goddamn, when he’s gonna die?” Stein also told the detective that he believed Jim Rogers knew he and Calvin were trying to kill him.

Once Jim Rogers had died, Stein and his companions loaded the body into the victim’s truck and dumped it in a remote location. He used a blanket and a mattress to conceal the body in the back of the truck. After dumping the body, Stein determined that he should leave the truck in the local housing project so it would appear that Jim’s disappearance was related to a robbery. In order to further that plan, Stein removed the truck’s stereo system and hid it at his grandmother’s house. He then concealed the truck’s keys at his cousin’s residence. At trial, Stein repeated the admissions he made during his police statement.

Despite the alcohol and drugs Stein claimed to have consumed, he was apparently capable of sustaining the will to apply force to the victim for the time it took the young man to die. Stein then had the presence of mind to dispose of the body and the victim’s property in a manner calculated to avert suspicion from himself. Moreover, Stein’s mind was not so clouded by drugs and alcohol that he could not later recall the events of that night in great detail.

|uIn viewing the evidence in the light most favorable to the prosecution, the state proved the essential elements of second degree murder, and it was reasonable for the jury to find that Stein specifically intended to kill or do great bodily harm to the victim. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in denying the defendant’s challenges for cause of jurors, Mr. Vasseur, Mr. Edwards, and Mr. Heul-ster, forcing the defense to use a peremptory challenge in the case of Mr. Vasseur, and in the case of Mr. Edwards and Mr. Heulster, forcing the defense to have them on the jury.

Stein argues that Mr. Vasseur and Mr. Edwards indicated by their voir dire responses that they could not be impartial jurors because they were acquainted with officers who were witnesses for the state, and that they were biased in favor of police testimony. Stein further contends that Mr. Heulster showed he was unable to be impartial because his stepson had dated a young woman who was peripherally associated with the police investigation. Stein moves this Court to vacate his conviction.

The State argues in brief that the defendant failed to contemporaneously object to the proceedings involving these three jurors, and thus has waived appellate review of these challenges. However, the lack of an express contemporaneous objection is not fatal to review of this Assignment of Error when the record as a whole shows an understanding among both counsel and the trial judge concerning the defense objections, and when counsel gave full reasons for the challenges at the time they were made. Accordingly, we review this Assignment of Error.

| ^Prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his rights and constitutes reversible error. Therefore, to prove there has been an error warranting the reversal of a conviction and sentence, a defendant need only show: (1) the trial court’s erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. The record in this case shows that Stein exhausted all of his peremptory challenges. The issue, then, is whether the trial court erred in denying defendant’s challenges for cause.

LSA-C.Cr.P. art. 797 provides that a defendant may challenge a prospective juror for cause if:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence!.]
(4) The juror will not accept the law as given to him by the court[.]

Mr. Vasseur stated that he grew up with Sergeant Billy LeBlanc of the St. Charles Parish Sheriffs Office. Sergeant LeBlanc, a crime scene investigator, testified at trial regarding his involvement in the recovery of the victim’s body. Although Mr. Vasseur said he considered Sergeant LeBlanc a friend, it had been years since they had spoken. When the judge asked whether his friendship with Sergeant LeBlanc would affect his ability to give a fair and impartial trial to both the state and the defense, Mr. Vasseur replied, “Absolutely not.” (Id.). Defense counsel later asked Mr. Vasseur, “Isn’t it natural that you’re going to lean towards 1T (¿Sergeant LeBlanc] and what he says and judge, based upon what you know about that individual from the past, of whether he’s telling the truth or not? Wouldn’t that make you lean in that direction?” Mr. Vasseur responded, “I would assume.” Mr. Vasseur agreed with counsel that such a predisposition is part of human nature. (Id.). There is no evidence in the record that the state attempted to “rehabilitate” Mr. Vasseur by questioning him further about his ability to follow the law. The trial court denied Stein’s challenge for cause as to Mr. Vass-eur, without giving reasons. Stein thereafter used a peremptory challenge to excuse Mr. Vasseur.

The law does not require that a jury be composed of individuals who are totally unacquainted with the defendant, the prosecuting witness, the prosecuting attorney, and the witnesses who may testify at trial. Rather, the law requires that jurors be fair and unbiased. In State v. Kang, the Louisiana Supreme Court summarized the law regarding challenges for cause based on bias in favor of law enforcement officers:

Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror, (cites omitted) However, a mere relationship between a prospective juror and a law enforcement officer is not of itself grounds to strike the juror for cause, (cites omitted) Additionally, a prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge’s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. (cites omitted) But, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render a judgment according to law may be reasonably implied, (cite omitted)

117The trial court has great discretion in ruling on cause challenges because it “ ‘has the benefit of seeing the facial expression and hearing the vocal intonations of the members of the jury venire as they respond to questioning.’ ”

In State v. Kang, supra, the Supreme Court held that the trial court did not err in denying a defense challenge for cause that was based on a prospective juror’s remarks indicating his bias in favor of police testimony. In so finding, the court reversed this Court’s holding. The issue raised in Kang is similar to that raised by Mr. Vasseur’s responses. The juror at issue in Kang stated during voir dire that his next door neighbor was a major with the Jefferson Parish Sheriffs Office. He indicated that he could put aside his dealings with his neighbor in deciding the matter before the court. When asked if he could be a fair and impartial juror in light of his association with his neighbor, Mr. Whitcomb replied, “[wjeighing testimony equally, I’m going to probably tend to put more weight on the Deputies, especially if it’s on things they have observed.”

When the defendant challenged this juror for cause, the trial judge questioned him about his earlier responses. The trial court denied the defendant’s challenge for cause, reasoning that the juror had not actually said that he would give a deputy’s testimony more weight just because he or she was a deputy. Rather, the judge found that the juror’s responses showed he would give weight to a deputy’s training in the area of observation.

The Supreme Court agreed with the trial court’s assessment, stating:

Mr. Whitcomb did not state he would give more weight to an officer’s testimony regarding anything outside of his or her powers of observation, nor did he state he would automatically believe the testimony of an officer simply because he was a police officer. He simply indicated that because police officers are trained in powers of observation, he would probably give more weight to their observations. This testimony, in and of | isitself, does not rise to the level of a prejudicial statement such that the trial court was required to rehabilitate the prospective juror. Further, Mr. Wfiiitcomb agreed he would initially presume defendant to be innocent and stated he would vote “not guilty” if the State did not prove beyond a reasonable doubt that the crime was not committed in self-defense. The trial court heard Mr. WTiitcomb’s testimony and observed his expressions and mannerisms. After review of the record, we cannot find the trial court abused its discretion in denying defendant’s challenge for cause as to Mr. Whitcomb.

Kang, 02-2812 at p. 7, 859 So.2d at 654.

Following the Supreme Court’s reasoning in Kang, the trial court in the instant case did not abuse its discretion in denying Stein’s challenge for cause as to Mr. Vass-eur. As was the case in Kang, Mr. Vass-eur did not say unequivocally that he would give more weight to the deputy’s testimony because he was an officer. He merely said, in response to defense counsel’s lengthy and leading question, that he “would assume” he would lean toward believing Sergeant LeBlanc was telling the truth. Moreover, Mr. Vasseur initially told the judge that his friendship with Sergeant LeBlanc would not affect his ability to be fair and impartial. Under the Kang holding, the trial court did not err.

We note, moreover, that Sergeant Le-Blanc testified in his capacity as a crime scene investigator and specifically about his activities in recovering the victim’s body. In his role in the investigation, he had no direct contact with defendant Stein. His testimony was not offered to directly establish Stein’s guilt or innocence.

Prospective juror Barry Edwards stated during voir dire that Detective Rodney Madere of the St. Charles Parish Sheriffs Office had lived in his neighborhood until one and one-half years before trial. When the trial judge asked Mr. Edwards whether his acquaintance with Detective Madere would affect his ability to be a fair and impartial juror, Mr. Edwards responded, “I don’t believe.”

11flDefense counsel subsequently asked Mr. Edwards, “Rodney takes the witness stand and, in your mind, when you’re listening to him, don’t you have the human tendency just to — not automatically, but tend to lean in his favor and say, well, you know, I’ve seen him before, so I got to think he’s telling the truth. Isn’t that natural?” Mr. Edwards responded, “Yeah, because he speaks of stuff I don’t know.” No attempt was made by either the court or the state to rehabilitate Mr. Edwards.

The trial court denied Stein’s cause challenge, reasoning that “[Mr. Edwards] indicated he hadn’t seen Detective Madere in a year-and-a-half and he felt he could be fair and impartial in this case to both sides.” Defendant subsequently accepted Mr. Edwards, and he was seated on the jury.

Defense counsel had only used eight of his twelve peremptory challenges when he accepted Mr. Edwards as a juror. Since defendant accepted Mr. Edwards after his challenge for cause was rejected without exercising one of his remaining peremptory challenges, he waived his right to assert his claim on appeal as to that juror.

Juror William Heulster stated that his stepson had dated a young woman who was at the scene shortly before the murder occurred. His stepson was no longer dating the girl at the time of the murder, but he learned about the incident from friends who were associated with it. When the judge asked Mr. Heulster what his stepson had told him, Heulster replied, “Just said that it happened at a party. And according to him, everybody was drunk and I don’t know what else.” Mr. Heulster said he had not drawn any conclusions about who might be responsible for the crime, or formed an opinion as to Stein’s guilt or innocence. He further stated that, although his stepson was living with him, he would not discuss the matter with him if he were seated on the jury.

| i>,nStein moved the court to excuse Mr. Heulster for cause, as he might receive information regarding the case from his stepson. The judge denied the challenge without giving reasons. Mr. Heulster was ultimately seated as an alternate juror, as Stein had no peremptory challenges left. One of the jurors was excused due to illness on the second day of trial, and the court replaced her with Mr. Heulster.

The trial court did not err in denying defendant’s challenge for cause as to Mr. Heulster. Viewing Mr. Heulster’s responses as a whole, it appears he was able and willing to follow the law as instructed. He stated that he would not allow himself to be influenced by outside information about the case, and he told the judge that he could give a fair and impartial hearing to both the state and the defense.

Compare State v. Frank, in which the court held that if a juror who has acquired knowledge about the case through the media can sufficiently lay aside his or her impression of the defendant’s guilt or innocence and render a verdict based on the evidence presented, he or she is competent to serve as a juror.

In State v. Hoffman., the trial court denied the defendant’s cause challenge of a juror on grounds that she appeared to have formed an opinion about the case based on media coverage she had seen. In the defendant’s view, the juror gave a vague response to the trial court’s question of whether she could put aside what she had heard and base the verdict on the evidence. She answered, “I think that I could. Coming into the jury pool, I sort of — like, I was going to have preconceived notions, but I don’t know anything about this defendant, so I think I could.” The Supreme Court noted that, standing alone, the juror’s response might seem ambiguous, but that her responses as a whole indicated her opinion would yield to the evidence presented. The juror acknowledged that media |21 accounts were frequently inaccurate, and that she could make a decision based on the facts presented at trial.

Mr. Heulster gave far less equivocal responses than did the juror in Hoffman. Mr. Edwards firmly stated that he had not drawn any conclusions as to who had committed the murder, or as to Stein’s guilt or innocence. Based on the foregoing, the trial court’s denial of challenges for cause as to jurors Vasseur and Heulster do not constitute reversible error.

ASSIGNMENT OF ERROR NUMBER TWO

Stein complains that the trial court erred in failing to suppress the recorded statement he made in St. Charles Parish following his arrest. He argues that he invoked his right to remain silent in St. John the Baptist Parish prior to his transfer to St. Charles Parish. He further argues that his waiver of rights with regard to the statement was not valid, as he was intoxicated. Lastly, Stein claims the investigating officers coerced the confession by telling him he would receive a life sentence unless he cooperated with the investigation. Stein made an oral Motion to Suppress the statement, he gave to Detective Madere on February 16, 2002. The trial court heard and denied the motion on January 10, 2003.

Before an inculpatory statement made during custodial interrogation may be introduced in evidence, the state must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily. The state must further prove that the statement was not made under the influence of fear, intimidation, menaces, threats, inducements or promises. A determination of voluntariness is made on a case-by-case basis, depending on the surrounding facts and circumstances.

| ¡¡¿The admissibility of a confession is a determination for the trial judge, and his conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. In reviewing the trial court’s ruling on a Motion to Suppress, an appellate court is not limited to the evidence adduced at the motion hearing, but may also consider the evidence adduced at trial.

On February 16, 2002, Stein was transported to the Criminal Investigations Division of the St. Charles Parish Sheriffs Office. He was placed in Detective Othello Carter’s office. Detective Madere testified that neither he nor other officers attempted to question Stein, as they were aware that he had refused to waive his right to remain silent after he was arrested in St. John the Baptist Parish.

According to Detective Madere’s testimony, Stein asked Detective Madere when he would get a turn to talk. Detective Madere responded that he could not question Stein, as he had declined to waive his rights in St. John the Baptist Parish. Detective Madere testified that Detective Carter, who had transported Stein from St. John the Baptist Parish, had informed him of defendant’s refusal to waive his rights. Stein continued to ask Detective Madere for a chance to talk. When Detective Madere asked him about his refusal to waive his rights in St. John the Baptist Parish, Stein replied that he had not been paying attention when St. John the Baptist Parish deputies explained his rights. Stein said he was unaware that he had refused to waive his rights. He insisted that he now wanted to give a statement.

Detective Madere testified that he noticed Stein was wearing a belt, and commented to another detective that they should take the belt as evidence. Stein | otilen told Detective Madere that the belt he was wearing was the one he had used to kill the victim. In the presence of Detective Madere and Detective Roscoe Brewer, Detective Carter advised Stein of his rights. The detectives reviewed a standard Waiver of Rights form with Stein. The rights advisal was tape recorded.

Detective Madere testified that Stein appeared to understand his rights as they were explained to him. Stein told the officers that he wished to waive his rights and make a statement. Both Detectives Madere and Carter testified that no threats or promises were made in order to persuade Stein to make a statement.

Stein testified at the motion hearing that he remembered his refusal to make a statement in St. John the Baptist Parish. He said he did not ask Detective Madere when he would get his turn to speak. He recalled that Detectives Madere and Carter advised him of his rights, and that he signed and initialed some papers. He testified that he was advised of his right to remain silent, and that he decided to make a statement to the St. Charles Parish detectives. Stein further testified that he was not sure what his motive was for giving the statement.

When a defendant exercises his privilege against self-incrimination, the validity of any subsequent waiver depends upon whether police have “scrupulously honored” his right to remain silent. A determination of whether police have scrupulously honored an accused’s right to silence requires consideration of a totality of the circumstances. Factors to be included in that assessment include who initiates further questioning, although police are not barred from reinitiating contact after the defendant invokes his right to remain silent; whether there has been a substantial delay between the original request and subsequent interrogation; | ¡.¿whether signed Miranda waivers are obtained; and whether the later interrogation is directed at a crime that was not a subject of the earlier questioning. Id.

In the instant case, all of the foregoing factors favor the state. Detective Madere’s testimony indicates that he and the other detectives were aware of Stein’s refusal to speak to St. John the Baptist Parish deputies, and it was his intention to honor defendant’s decision to remain silent. If Detective Madere’s testimony is believed, Stein actually initiated contact with him. Even if the officers initiated contact, the recording of the interview shows that they fully apprised Stein of his rights. The state produced defendant’s signed Waiver of Rights. There is no merit to Stein’s argument that the St. Charles Parish detectives violated his rights by questioning him after he invoked his right to remain silent in St. John the Baptist Parish.

Stein testified at the suppression hearing that after he was transported to the Criminal Investigations Division of the St. Charles Parish Sheriffs Office, Detective Madere told him things would be easier for him if he gave a statement. Stein further testified that Detective Madere stood in the doorway of the office and, with an angry expression on his face, said the word “life.” According to Stein, Detective Mad-ere made the statement before he turned on the tape recorder. Stein felt he would receive a life sentence if he did not make a statement. Detective Madere denied making these statements to Stein.

Stein testified he was not threatened or coerced into indicating on the rights form that he wished to waive his rights. Upon further questioning, however, Stein said he was not physically abused, but felt as if he were forced to make a statement after Detective Madere told him he could receive a life sentence. Stein testified that when he gave his recorded confession, he spoke freely and voluntarily, and he was not threatened or coerced.

DkAs noted above, both Detective Mad-ere and Detective Carter testified that they did not threaten Stein or promise him anything in exchange for his confession. The trial judge apparently found the officers’ testimony more credible than Stein’s. The judge’s ruling is supported by the evidence. It does not appear that Stein was subjected to coercion sufficient to vitiate the voluntariness of his statement.

Intoxication renders a confession involuntary when the intoxication is of such a degree as to negate the defendant’s comprehension and to make him unconscious of the consequences of what he is saying. Whether intoxication existed and was of a degree sufficient to vitiate the voluntariness of the confession are questions of fact, and a trial judge’s determination will not be set aside unless it is not supported by the evidence. Id.

Stein testified at the motion hearing that he took two Valium tablets and “smoked a little weed” before St. John the Baptist Parish deputies arrested him. He further testified that he felt “loaded.” At the time of his arrest, Stein did not tell anyone he felt loaded. He did not tell Detective Madere that he had used drugs before his arrest. When asked why he did not tell Detective Madere, he responded that Detective Madere never asked.

Based on information adduced from the state’s evidence and defendant’s testimony, Stein gave his statement at least ninety minutes after he allegedly consumed Valium and marijuana. Defendant testified that he consumed the Valium and marijuana about twenty minutes before he was arrested by St. John the Baptist Parish deputies. He stated that he was in the custody of the St. John the Baptist Parish authorities for thirty to forty-five minutes before the St. Charles deputies picked him up. The St. Charles. Parish arrest report indicates that Detectives Carter and Adams retrieved Stein from St. John the Baptist Parish | ^authorities at 0130 hours. Detective Madere began defendant’s interview at 2:14 a.m.

At the suppression hearing, Detective Madere testified that at the time he took Stein’s statement, he did not appear to be under the influence of drugs or alcohol to the extent that it “would have affected his decision making or his understanding.” Detective Madere said that Stein looked tired, but there was no indication to him that he was under the influence of anything. Detective Madere testified at trial that, had Stein appeared to him to be under the influence of drugs or alcohol, he would not have taken his statement.

Based on the foregoing, the state met its burden of proving, beyond a reasonable doubt, that the voluntariness of defendant’s confession was not vitiated by intoxication. This assignment of error has no merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. The following error patent was found. The record does not show that the judge instructed defendant on the prescriptive period in which to file an Application for Post Conviction Relief, as per LSA-C.Cr.P. art. 930.8. The trial court is hereby ordered to supply defendant with written notice of the prescriptive period under Article 930.8, and to file written proof of said notice in the record.

Accordingly, the defendant’s conviction is affirmed.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The minute entry for April 3, 2002 reads, in pertinent part, "Accused present in court with counsel Mark Marino. Reading of indictment is waived. State given 10 days to provide open file discovery. Counsel given 30 days to file pleadings thereafter.”

      . Other Motions made by defendant, which are not pertinent on appeal, were a Motion to Quash Indictment, which was denied, and a Motion for Psychiatric Evaluation, which was granted with the appointment of a sanity commission, which found defendant competent to stand trial.

      . On February 26, 2003, the state noticed its intent to sever the defendants for trial.

      . Defendant further testified that he was to sleep at Michelle Mayfield's house that night, and he was concerned that if he arrived there while drunk or high, Michelle would tell his mother.

      . Defendant testified that the time span of thirty to forty minutes he gave Detective Mad-ere in his statement was inaccurate.

      . State v. George, 95-0110, p. 6 (La.10/16/95), 661 So.2d 975, 978; State v. Conner, 02-363, p. 7 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 401, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607

        .State v. Keating, 00-51, p. 5 (La.App. 5 Cir. 10/18/00), 772 So.2d 740, 743, writ denied, 00-3150 (La.10/18/00), 772 So.2d 740, 743, writ denied, 00-3150 (La.10/12/01), 799 So.2d 494.

      . State v. Edwards, 01-116, p. 8 (La.App. 5 Cir. 6/27/01), 790 So.2d 109, 114, writ denied, 01-2235 (La.8/30/02), 823 So.2d 935.

      . Id.; State v. Patterson, 99-994, p. 8 (La.App. 5 Cir. 1/25/00), 752 So.2d 280, 284, writ denied, 00-0753 (La.2/9/01), 785 So.2d 26.

      . State v. Legrand, 02-1462, p. 7 (La.12/3/03), 864 So.2d 89, 96.

      . Defendant's admission was supported by Doctor Garcia's testimony that the victim bore ligature marks on his neck, and that the ligature was apparently tightened to the point where it cut off blood flow to and from the victim's brain.

      . See State v. Williams, 02-1118 (La.App. 5 Cir. 4/8/03), 846 So.2d 22.

      . State v. Kang, 02-2812, p. 3 (La.10/21/03), 859 So.2d 649, 651.

      . State v. Anthony, 98-0406, p. 22 (La.4/11/00), 776 So.2d 376, 391, cert denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000); State v. Bush, 02-0247, p. 8 (La.App. 5 Cir. 6/26/02), 822 So.2d 859, 865, writ denied, 02-1887 (La.1/24/03), 836 So.2d 42.

        . Kang, 02-2812 at p. 3, 859 So.2d at 652.

      . State v. Williams, 00-1134, p. 2 (La.App. 5 Cir. 3/28/01), 783 So.2d 566, 567.

      . 02-2812 at pp. 4-5, 859 So.2d at 652-653.

        . State v. Anthony, 98-0406 at p. 25, 776 So.2d at 392 (quoting State v. Lee, 93-2810, p. 9 (La.5/23/94)), 637 So.2d 102, 108; State v. Bush, supra).

      . See, State v. Kang, 01-1262 (La.App. 5 Cir. 10/29/02), 831 So.2d 409.

      . Kang, 02-2812 at p. 4, 859 So.2d at 652.

      . Detective Madere was the supervising officer of the murder investigation, and recorded defendant's confession.

      . State v. Bourque, 622 So.2d 198, 229-230 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16; State v. Kennerson, 96-1518, p. 25 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1383.

      . 99-0553, p. 19 (La.1/17/01), 803 So.2d 1, 18.

      . 98-3118 (La.4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).

      . Hoffman, 98-3118 at p. 17, 768 So.2d at 561.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . LSA-R.S. 15:451; State v. Comeaux, 93-2729 at p. 47, 699 So.2d at 29; State v. Quest, 00-205, p. 9 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

      . State v. Quest, supra.

      . State v. Quest, supra.

      . State v. Onezime, 01-1018, p. 17 (La.App. 5 Cir. 2/26/02), 811 So.2d 1033, 1043-1044, writ denied, 02-1099 (La.3/21/03), 840 So.2d 535.

      . See the transcript of the recorded statement, Exhibit Folder, pp. 3-5.

      . Madere testified that although defendant did not give a verbal response on tape when asked whether he understood his rights, he shook his in the affirmative.

      . State v. Taylor, 01-1638, pp. 6-7 (La.1/14/03), 838 So.2d 729, 739, cert. denied, - U.S. -, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004) (citing Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975)).

      . Taylor, supra.

      . State v. Redditt, 03-0354 (La.App. 5 Cir. 10/28/03), 868 So.2d 704; State v. Quest, 00-205 at p. 9, 772 So.2d at 780.

      . 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).

        .See, State v. Stelly, 98-578, p. 6 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.


source: Caselaw Access Project

author: LSOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Chauncey D. TAYLOR.
    No. 04-KA-54.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Kia Ha-bisreitinger, Bobby Malbrough, Assistant District Attorneys, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plain-tiffAppellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for DefendanVAp-pellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and THOMAS F. DALEY.
   LSOL GOTHARD, Judge.

Defendant, Chauncey D. Taylor, appeals his convictions and sentences on three criminal charges. For reasons that follow, we affirm.

The Jefferson Parish District Attorney filed a bill of information charging Taylor with attempted second degree murder, a violation of La. R.S. 14:30.1; 14:27 (count one); possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count two); and possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) (count three). Taylor pled not guilty at arraignment.

Defendant proceeded to trial before a twelve-person jury on February 10 and 11, 2003. On count one, the jury returned a responsive verdict of guilty of aggravated battery, a violation of La. R.S. 14:34. The jury found defendant guilty as charged on count two. On count three, the jury returned a responsive verdict of guilty of possession of cocaine, a violation of La. R.S. 40:967(C).

On February 24, 2003, the trial judge denied defendant’s motion for new trial and defendant waived sentencing delays. Thereafter, the judge imposed a sentence of ten years of imprisonment at hard labor on count one, and fifteen years of imprisonment at hard labor on count two. The trial judge ordered the sentences |3on counts one and two to be served without benefit of parole, probation, or suspension of sentence. On count three, the trial judge sentenced defendant to five years of imprisonment at hard labor. All of these sentences were ordered to be served concurrently with each other. That same day, the State filed a multiple offender bill of information alleging that defendant is a third felony offender, and seeking to enhance the aggravated battery sentence. Defendant initially denied the allegations therein, but subsequently stipulated that he was a third felony offender. The trial judge vacated the original aggravated battery sentence and imposed a sentence of seventeen and one-half years at hard labor. This timely appeal follows.

FACTS

On June 28, 2001, at approximately 5:44 p.m., defendant Taylor and the victim, Todd Washington, had an argument at the Villa D’Ames Apartments in Marrero where they both lived. The argument escalated into a fight, which ended with Taylor shooting Washington in the shoulder, leg, and thigh.

According to Washington, he was downstairs talking to an acquaintance when Taylor began an argument because defendant believed Washington was “disrespecting” the acquaintance’s “old lady.” Washington said that defendant came up to him, but Washington pushed him away. Taylor stated that he was going to get a gun, so Washington walked upstairs towards his apartment in a separate building to get away from the area.

Washington was outside of his apartment door when Taylor approached him from behind and hit him in the head with a gun. Thereafter, Washington “charged” Taylor and pushed him toward the balcony in an attempt to get the gun. Washington, who was holding Taylor half-way over the balcony, released him because Washington did not believe Taylor would shoot him. However, when freed, Taylor shot Washington in the left leg. As Washington fell, Taylor shot him 1 ¿again. Taylor started walking away; then he stopped, turned and shot Washington a third time. Washington was later treated at Charity Hospital, where it was discovered that he had cocaine on his person.

Tiffany Isaac, a cousin of Washington’s girlfriend, was a witness to the events leading up to the shooting. Ms. Isaac testified that she saw a fight between Washington and a person she later identified as Taylor. Ms. Isaac observed the fight from her apartment building, which was across a field from the building where Taylor and Washington were fighting. During the fight, Ms. Isaac heard two gunshots, but did not see who fired the gun. After the two shots were fired, Ms. Isaac saw Taylor walk away, turn around and shoot Washington.

On cross-examination, Ms. Isaac elaborated on her testimony. Ms. Isaac acknowledged that she had given a statement to the police in which she gave information which conflicts with her testimony at trial. In the statement she said that Washington was sitting outside of his upstairs apartment when a person, whom she later identified as defendant, approached. Ms. Isaac told the police that it appeared as if Taylor had received something from Washington and then walked away. She acknowledged she told the police that Washington then chased Taylor and started the fight. However, at trial she testified that she did not know whether Taylor started the fight with Washington. Ms. Isaac testified it appeared as though Washington had attempted to throw Taylor over the balcony. Finally, Ms. Isaac acknowledged that Washington sold drugs. Ms. Isaac testified on redirect examination that Taylor and Washington were “tussling” on the concrete when she heard the two shots. She reiterated that she did not know who had fired the two shots during the fight. However, after the two shots were fired, she saw Taylor walk away, turn around and shoot Washington.

Taylor’s girlfriend, Shanika Triplett, testified that she lived with him in the apartment ■ complex. On the day in question, Taylor entered the apartment with |fiscratches on his face. He was very upset and was angry with the “bald head dude with the golds in his mouth.” Ms. Triplett testified that she heard Taylor say, “I’m going to show you,” and that she heard him cock a gun' as he left the apartment. Seconds later, Ms. Triplett heard two to three gun shots and Taylor re-entered the apartment holding a gun and a tampon box.

Deputy Madere was one of the first officers on the scene. He testified that he discovered Washington with gunshot wounds to the left leg, buttocks, and left chest area. Deputy Madere had a discussion with Washington regarding the perpetrator’s identity, but Washington did not identify the perpetrator. Paramedic Clint Gaspard responded to the scene and spoke to Washington. However, Washington only told Gaspard that he was shot, and did not identify the perpetrator. Gaspard observed that Washington had sustained a laceration to his forehead, a gunshot wound to the left anterior shoulder, a gunshot wound to the right upper thigh, and a gunshot wound to the left lower leg below the knee.

Shortly after the police and paramedics arrived at the apartment complex, the police knocked on Ms. Triplett’s door and she let the officers inside. Deputy Jason Barrette was one of the officers who entered the apartment. Deputy Barrette testified that he arrested Taylor without incident after discovering him in a bathroom. Pursuant to Ms. Triplett’s consent, the officers searched the apartment. The scene investigator, Lieutenant Thurman, testified that he searched the hall closet and found a gun and magazines for the weapon. He also found crack cocaine inside of a tampon box. Later that evening, Lieutenant Thurman returned to search the apartment again with Ms. Triplett’s consent. Ammunition was discovered in the pocket of a jacket and $150 was found in the apartment. The State’s ballistics expert linked the gun found in the closet to three spent casings recovered from the scene of the shooting.

| fiAfter Taylor was arrested, Sergeant Drury interviewed him at the Detective Bureau. Taylor waived his constitutional rights and made two taped statements to Sergeant Drury. The taped statements were played at trial for the jury, and the tapes and transcripts of the statements were admitted into evidence. In the first statement, Taylor related that the fight was precipitated by Washington’s behavior of motioning for Taylor’s friend to approach. Taylor felt that Washington’s behavior was disrespectful to the friend’s wife, in the event that she had never seen that “kind of transaction.” Taylor and Washington had a heated conversation regarding Washington’s behavior that led to a physical fight. Taylor asked Washington if he wanted to “go play pistols now,” and Washington replied that he was going to get his pistol. Taylor retrieved his gun, but Washington was knocking on an apartment door as Taylor approached. According to Taylor, they started hitting each other again and the Taylor struck Washington with the pistol. Thereafter, Washington charged him and they resumed fighting. Taylor shot the gun twice and Washington fell. Taylor admitted he turned around as he was leaving and shot again, but he was unsure whether the shot hit Washington. According to Taylor, Washington was holding onto Taylor’s shirt while falling. Taylor acknowledged that he was very angry and that he had a problem with his temper.

In the second statement, Taylor said that he had put approximately ten or twenty rocks of crack cocaine inside of a tampon box in the hall closet of the apartment. He had planned to sell some of the cocaine and use some of it. He denied that he had purchased the drugs on the day of the shooting, but said that he had placed them inside of the box that day. Taylor also reiterated that the shooting was about respect, and denied that the shooting was related to the drugs.

Taylor testified on his own behalf at trial. He admitted to prior convictions of possession of cocaine, possession of drug paraphernalia, and flight from a police |7officer. His testimony at trial differs in some respects from his statements to police. At trial Taylor stated the argument he had with Washington on the day in question was about drugs. Contrary to his prior statement, defendant denied that the person that had pulled up in the car had anything to do with the shooting. Taylor said that he had paid Washington for crack in advance, but Washington had not given him the drugs. After a heated exchange, Washington instructed Taylor to come to his apartment to get the drugs. Because Washington also told Taylor that he “might have something else around there for you,” Taylor retrieved his gun for “protection reasons,” and approached Washington. Washington gave Taylor his drugs. As Taylor walked away, Washington charged him and another fight ensued. They were wrestling and Washington pushed Taylor over the balcony. At that point, Taylor shot Washington in the leg. Because Taylor believed that Washington was reaching for something, he fired again and hit Washington in the shoulder. Washington reached behind himself as he went down. Taylor was backing up and stumbled. He fired again, hitting Washington in the leg and ran. Taylor denied that he struck Washington with the gun. Taylor said that he believed his life was in danger when he fired the gun as Washington attempted to push him over the balcony. Further, Taylor testified that he did not intend to kill Washington. He pointed out that there were seven rounds left in the gun, and he could have killed Washington if that was his intent. Taylor also admitted that he was not truthful to Detective Drury when he made the statements. LAW

In his only assignment of error, defendant Taylor contends the evidence was legally insufficient to support his aggravated battery conviction because the State failed to prove beyond a reasonable doubt that his actions were not in self-defense. Specifically, defendant contends that Washington’s testimony was not credible. | ^Defendant further contends that his own testimony and Tiffany Isaac’s testimony established that his actions were in self-defense.

The State responds that the jury rationally rejected defendant’s testimony relating to self-defense, and that the evidence was sufficient to support the conviction.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

Although defendant was charged with attempted second degree murder, the jury found him guilty of the lesser charge of aggravated battery, a violation of La. R.S. 14:34. To support a conviction of aggravated battery, the State has the -burden of proving three elements: 1) that the defendant intentionally used force or violence against the victim; 2) that the force or violence was inflicted with a dangerous weapon; and 3) that the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. .

Defendant does not argue that the State failed to prove the elements of aggravated battery. Rather, defendant contends the jury should have found him not guilty because the State failed to carry its burden of proving that he did not act in self-defense.

Justification is defined in La. R.S. 14:18, which provides in pertinent part:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any 19crime based on that conduct. This defense of justification can be claimed under, the following circumstances: ■
(7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

The use of force or violence upon another person is justified under certain circumstances as provided in La. R.S. 14:19:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

Additionally, an aggressor generally cannot claim the right of self-defense, as provided in La. R.S. 14:21:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

When a defendant claims self-defense in a homicide case, the State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. See, State v. Garcia, 483 So.2d 953, 956 (La.1986); State v. Batiste, 96-1010 (La.App. 5 Cir. 1/27/98), 708 So.2d 764, 771, writ denied, 98-0913 (La.9/4/98), 723 So.2d 954.

Defendant observes that the Louisiana appellate courts are split on the issue of whether the State or the defendant bears the burden of establishing that the defendant did not act in self-defense in a non-homicide case. Nevertheless, defendant contends that the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense.

ImIn State v. Freeman, 427 So.2d 1161, 1163 (La.1983), the Louisiana Supreme Court indicated in dicta that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence. However, the Freeman court declined to resolve the issue, and found that the State carried its burden of proof, even assuming that the State had to prove beyond a reasonable doubt that the defendant did not act in self-defense.

In State v. Barnes, 491 So.2d 42, 47 (La.App. 5 Cir.1986), this court concluded that the defendant has the burden of proving by a preponderance of the evidence that his actions were in self-defense or in defense of others in a non-homicide case. That holding was reinforced by State v. Steele, 01-1414 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 547, writ denied, 02-2992 (La.9/19/03) 853 So.2d 632, when this court stated that;

.the law in this circuit is that the defendant, in a non-homicide case, has the burden to establish, by a preponderance of the evidence, that he acted in self-defense. State v. Barnes, 491 So.2d 42, 44-47 (La.App. 5 Cir.1986).
(Emphasis in original.)

We do not find it necessary to revisit the issue of who bears the burden of proof in a non-homicide case because we find that in the present case a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the State proved beyond a reasonable doubt that the defendant did not act in self defense.

The State’s evidence consisted primarily of the testimony of Ms. Triplett, Ms. Isaac, Washington and defendant’s statements to police. Ms. Triplett testified that defendant was angry at the victim when defendant entered the apartment with scratches on his face. Ms. Triplett heard defendant cock a gun and say, “I’m going to show you.”

_JjjMs. Isaac testified that Washington started the physical altercation that she observed. Further, she testified that she did not see defendant fire the two shots while Washington and defendant were wrestling. Ms. Isaac acknowledged that it appeared to her that Washington was attempting to throw defendant off of the balcony. However, Ms. Isaac testified that she saw defendant “walk off and turn around and shoot again.”

Washington testified that defendant was outside of his apartment door when defendant approached him from behind and hit him in the head with a gun. Washington admitted he “charged” defendant and pushed him toward the balcony in an attempt to get the gun. Washington said that he fell to the ground after the first shot and defendant shot twice more after he fell.

In the first statement to the police, defendant admitted that he knew Washington had not retrieved his gun. Defendant said that he struck Washington in the head with the gun when they resumed fighting near Washington’s apartment door. Defendant also said that he fired the gun twice and Washington fell to the ground. Defendant admitted that he turned around and fired the gun again when Washington was on the ground. Defendant characterized the event as “[a] little temper thing, no misunderstanding, that’s all it was.” At trial, however, defendant contended the fight revolved around drugs, as opposed to respect, as he had initially told police. Additionally, defendant claimed the two shots during the fight were in self-defense, but that the third shot was fired as he was “backing up ... stumbling.”

Defendant cites State v. Perron, 94-0761 (La.App. 4 Cir. 12/27/96), 686 So.2d 994, 997, writ denied, 97-0090 (La.1/24/97), 686 So.2d 869, in support of this assignment. However, that case is inapplicable. Per-ron held that the evidence was insufficient to establish the defendant’s identity beyond a reasonable doubt. In the present case, the perpetrator’s identity is not at issue. Defendant admitted at trial |iathat he shot Washington multiple times and defendant does not argue in his brief that the State failed to prove any of the elements of the offense. Rather, defendant argues the jury should have found him not guilty because the State failed to carry its burden of proving that he did not act in self-defense.

After considering all of the evidence, the jury obviously concluded that defendant did not act in self-defense when he shot Washington. It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). Accord, State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297. “The reviewing court is not permitted ‘to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.’ ” State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56 (quoting State v. Mussall, 523 So.2d 1305, 1311 (La.1988)). Thus, even assuming that the State was required to bear the burden of proving the defendant did not act in self-defense beyond a reasonable double, viewing the evidence in the light most favorable to the prosecution, the State carried that burden. We find no merit in this assignment of error.

The record was reviewed for errors patent, in accordance with La.C.Cr.P. art. 920. In that review we find several discrepancies between the commitmenVminute entry and the transcript. First, the transcript reflects that the trial judge imposed an original sentence of ten years at hard labor on count one (aggravated battery), while the commitment indicates that defendant received a sentence of seventeen and one-half years at hard labor on count one. Also, while the transcript reflects that defendant waived sentencing delays after the denial of the new trial motion, the commitment does not.

h»As to the multiple bill, the commitment fails to reflect which original sentence the trial judge vacated, while the transcript reflects that the trial judge vacated the sentence on count one and imposed an enhanced sentence of seventeen and one-half years at hard labor.

It is also noted the commitment reflects that the “[sjentence on counts 1 and 2 is to be served without benefit of parole, probation of suspension of sentence.” Although the transcript reflects that the original sentence on count one, as well as the sentence on count two, were ordered to be served without benefits, the transcript reflects that the trial judge did not impose the enhanced sentence on count one without benefits.

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). Accordingly, we remand the matter to allow the trial judge to correct the commitment to conform to the transcript as noted.

It is noted that defendant’s sentence on count two is illegally lenient because the trial judge failed to impose a mandatory fíne as required by La. R.S. 14:95.1B. However, the State has not objected to the sentence. Although this court has the authority to correct an illegally lenient sentence despite the failure of the State to raise the issue, we refrain from taking action on our own motion. See; State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609; State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, writ denied 03-2170 (La.1/30/04), 865 So.2d 74.

We also note defendant’s multiple offender sentence is illegally lenient because the trial court failed to impose the sentence without benefit of probation or suspension of sentence as required by La. R.S. 15:529.1(G). However, the enhanced sentence is deemed to contain these restrictions. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Accordingly, no action is required by this court to address this error.

For the foregoing reasons, the convictions and sentences are affirmed and the matter is remanded to the trial court for correction of the minute entry/commitment in accordance with this opinion.

AFFIRMED AND REMANDED.

      . See, State v. Rainey, supra. 722 So.2d at 1103-1105 for a discussion of the split in the circuits on this issue.

      . The specific issue under consideration in Barnes was whether the trial judge had erred in giving a jury charge that placed the burden of proving self-defense or defense of another by a preponderance of the evidence on the defendant.


author: | PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Daphne M. ARMOUR.
    No. 2003-KA-1882.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Val M. Solino, Assistant District Attorney of Orleans Parish, New Orleans, LA, for PlaintiffiAppellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans,- LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE). '
   | PATRICIA RIVET MURRAY, Judge.

The defendant, Daphne Armour, appeals asserting as her sole assignment of error the trial court’s imposition of an additional three year sentence pursuant to La. R.S. 14:50.2, which provides for the discretionary imposition of an additional three year sentence when the victim of certain crimes of violence is sixty-five years old or older. Ms. Armour seeks a declaration that this statute is unconstitutional and a remand for re-sentencing. Finding no error, we affirm.

STATEMENT OF THE CASE

On April 28, 2003, the state filed a bill of information charging Ms. Armour with one count of purse snatching, a violation of La. R.S. 14:65.1. On May 1, 2003, Ms. Armour was arraigned and pleaded not guilty. On May 12, 2003, the trial court heard and denied the defense pretrial motions to suppress. On May 19, 2003, the state filed a motion to invoke the sentencing provisions set forth in La. R.S. 14:50.2 for crimes of violence against victims aged sixty-five or older. On May 20, 2003, a six-member jury found Ms. Armour guilty as charged. On June 4, 2003, the state filed a | ^multiple bill charging that Ms. Armour was a second offender. On July 24, 2003, the trial court denied Ms. Armour’s post-verdict motions. After she waived the sentencing delays, the trial court sentenced her to serve fifteen years at hard labor and imposed an additional three years pursuant La. R.S. 14:50.2. The additional sentence was to run consecutively, making the total sentence of eighteen years at hard labor without the benefit of probation or suspension of sentence. The eighteen-year sentence was to run concurrently with any other sentence. The trial court denied her motion to reconsider sentence, but granted her motion for an appeal.

On October 8, 2003, after several continuances, Ms. Armour appeared for the multiple bill hearing and pled guilty to being a second offender. The trial court vacated the previously imposed sentence and re-sentenced her to serve eighteen years at hard labor, which sentence expressly included the additional three year enhancement pursuant to La. R.S. 14:50.2. This appeal followed.

STATEMENT OF THE FACTS

On February 27, 2003, at about 11:30 a.m., eighty-six year old Franceline Borde-nave was preparing to eat lunch and watching a television show, “The Young and Restless.” At that time, her doorbell rang several times. When she opened the door, a younger woman, later identified as Ms. Armour, greeted her and requested to use her bathroom. Although Ms. Armour informed Ms. Bordenave that she had helped her with her groceries in the past, Ms. Bordenave had no recollection of that. Nonetheless, Ms. Bordenave allowed Ms. Armour inside her house.

After Ms. Armour was through in the bathroom, she came into the kitchen where Ms. Bordenave was eating lunch. Ms. Armour requested a drink and a banana, and Ms. Bordenave complied with her requests. Ms. LArmour then turned her requests from food to money. She asked for bus money, and Ms. Bordenave gave her a dollar bill. She then asked for change, but Ms. Bordenave informed her that she had no change. At that point, Ms. Armour became furious and grabbed Ms. Bordenave’s purse, which was lying on the bed. Ms. Armour then emptied out the purse onto the bed. Taking a bank envelope containing forty-six dollars and Ms. Bordenave’s wallet containing credit cards, Ms. Armour ran down the hall of the house. Ms. Bordenave yelled for her to return the money. Ms. Armour then knocked Ms. Bordenave down to the ground and ran from the house. Ms. Bor-denave pulled herself up from the ground and walked to her front porch where she met her tenants, Doris West and Floyd Tribble. She informed them that she had been robbed.

At trial, the tenants, Ms. West and Mr. Tribble, testified that they lived next door to Ms. Bordenave in the other half of a double house at 924 North Roman Street in New Orleans. On the morning in question, the tenants testified that they were watching television when they heard a noise next door. Ms. West stated that she attributed the noise to Ms. Bordenave falling. Ms. West further testified that she then heard someone running. When she looked out her window, she observed Ms. Armour running down the steps of the double house. She instructed Mr. Tribble to follow Ms. Armour while she assisted Ms. Bordenave and called 911.

Mr. Tribble followed Ms. Armour to Du-maine Street, but then lost track of her. He returned to the house to make sure that Ms. West had called the police, and he went back to Dumaine Street. Mr. Trib-ble walked up and down several streets until he spotted Ms. Armour near St. Ann and North Roman Streets. At that point, he ran back toward the house to alert the police. Although he never saw Ms. Armour enter or exit a store, he testified 14that he did see her carrying a plate of food. According to Mr. Tribble, when he was following Ms. Armour she was not running.

Officer Fayard of the New Orleans Police Department First District received a call from the dispatcher that there was unknown trouble at 924 North Roman Street. Because he happened to be nearby, he responded to the call in less than five minutes. When he arrived, he found Ms. Bordenave on her front porch. She informed him that she had been robbed. While they were talking, he saw Mr. Trib-ble about a block away running down the street and waving his hands as if he was trying to get their attention. Officer Fa-yard then drove his police car to meet him. As Officer Fayard was speaking to Mr. Tribble, he saw Ms. Armour crossing the intersection of North Roman and St. Ann Streets. She was carrying a black purse and a white plastic bag. The plastic bag contained a cooked chicken and some cigarettes that she had just purchased. Officer Fayard detained Ms. Armour, placed her into his police car, and drove back to Ms. Bordenave’s house. There, Ms. Bordenave identified Ms. Armour as the woman who robbed her, and Ms. West identified her as the woman that she saw running down the steps of the double house. Likewise, both Ms. Bordenave and Ms. West positively identified Ms. Armour at trial.

Officer Fayard further testified that he asked Ms. Armour where she purchased the chicken and cigarettes and that her response was that it was from a neighborhood store. He asked her for identification and her response was that it was in her purse. When he opened her purse, he found inside of it a piece of banana and thirty-eight dollars in cash. According to Officer Fayard, Ms. Armour’s recent purchase of the chicken and cigarettes explained the differential between the amount of cash that she had in her | fipurse and the amount that was taken from Ms. Bordenave’s bank envelope. Officer Fa-yard also identified the gray sweat suit that Ms. Armour was wearing when she was arrested.

At trial, the witnesses identified several crime lab photographs of Ms. Bordenave’s house, of Ms. Bordenave’s clothing with banana smeared on it, of the banana inside of Ms. Armour’s purse, and of the envelope with the name “Dean Campbell” written on it. As to the envelope, Ms. Bordenave explained that while Ms. Armour was in her house, she had Ms. Armour write her name down on that envelope and that Ms. Armour had written that name. Finally, Ms. Bordenave, in response to the prosecutor’s question as to her current age, testified that she was eighty-seven.

DISCUSSION

As noted at the outset, Ms. Armour’s sole assignment of error is that the trial court erred in imposing an additional three-year sentence pursuant to La. R.S. 14:50.2, which she contends is unconstitutional. Her constitutional challenge to this statute is premised on the rule recently espoused in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Apprendi rule is that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Ms. Armour contends that the same analysis and application of the Apprendi rule as the Louisiana Supreme Court performed in State v. Palermo, 2000-2488 (La.5/31/02), 818 So.2d 745, to find La. R.S. 14:54 unconstitutional, should be performed in this case to find La. R.S. 14:50.2 unconstitutional.

IbMs. Armour acknowledges that her actual sentence does not exceed the statutory maximum for the crimes she was convicted, i.e., purse snatching and habitual offender. Nonetheless, she argues that the statute violates due process because it allows the court to impose an additional three-year sentence over the statutory maximum for the underlying offense. Stated otherwise, her argument is that some other defendant may be sentenced pursuant to La. R.S. 14:50.2 to three years beyond the prescribed statutory maximum for the underlying crime. For that reason, she argues that allowing the district court to impose such an additional sentence without a specific jury finding that the victim’s age was sixty-five or older at the time of the crime violates due process.

In support of her argument, Ms. Armour quotes the following reasoning from Apprendi: “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.” Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. at 2365, n. 19. She argues that the Legislature by enacting La. R.S. 14:50.2, in essence, created “a greater degree of any non-enumerated offense when [the] victim of the offense is older than sixty five.” She claims it is telling that the exceptions from La. R.S. 14:50.2 are crimes for which the Legislature has already created greater degree offenses based on the victim’s age.

The state counters that Ms. Armour’s constitutional challenge is procedurally improper because she did not raise this constitutional issue in |7the trial court. In support, the state cites State v. Williams, 2002-0898, p. 7 (La.10/15/02), 830 So.2d 984, 988, for the proposition that constitutional issues are not an exception to the general rule that appellate courts will not consider issues not submitted to the trial court for decision. Alternatively, the state argues that Ms. Armour lacks standing to challenge the constitutionality of this statute because the actual sentence she received for purse snatching (and even the sentence she received as a habitual offender) did not exceed the statutory maximum for the underlying crime. In support, the state cites State in Interest of A.C., 93-1125, p. 24 (La.1/27/94), 643 So.2d 719, 734, which held that “to have standing to raise a constitutional issue, there must be an ‘injury in fact’ to the plaintiff, not the remote threat of injury to him or injury to another class of which he is not a member.” Id. In the further alternative, the state argues that La. R.S. 14:50.2 does not violate Apprendi because it makes any sentence enhancement discretionary with the sentencing court and thus consideration under this statute of the fact the victim was age sixty-five or older is “the functional equivalent of a circumstance of the offense which the court is entitled to consider when tailoring a sentence appropriate to the defendant.”

While we acknowledge Ms. Armour’s failure to present this constitutional challenge to the trial court for decision and the fact that this failure arguably renders the constitutional issue not properly before us, we nonetheless find it appropriate to address this issue given that it presents a potential error patent. As to the state’s suggestion that Ms. Armour lacks standing to raise the constitutional issue, we find this suggestion overlooks the fact that Ms. Armour was exposed to a possible sentence of three years | ¿more than the statutory sentencing range for purse snatching and habitual offender. We thus find that she has standing.

In addressing this constitutional challenge, we begin by analyzing the language of the statute at issue. La. R.S. 14:50.2, which was enacted by La. Acts 2001, No. 648 and applicable to offenses committed on or after August 15, 2001, provides:

The court in its discretion may sentence, in addition to any other penalty provided by law, any person who is convicted of a crime of violence or of an attempt to commit any of the crimes as defined in R.S. 14:2(13) with the exception of first degree murder (R.S. 14:30), second degree murder (R.S. 14:30.1), aggravated assault (R.S. 14:37),-aggravat-ed rape (R.S. 14:42) and aggravated kidnapping (R.S. 14:44), to an additional three years’ imprisonment when the victim of such crime is sixty-five years of age or older at the time the crime is committed.

La. R.S. 14:50.2 (Emphasis supplied). The crime in question, purse snatching, is defined as a “crime of violence” by La. R.S. 14:2(13)(z), and it is not one of the crimes specifically excluded by La. R.S. 14:50.2.

Significantly, as the state stresses, the application of this statute by the sentencing court is not mandatory; rather, it is discretionary. Another significant factor, also stressed by the state, is that the trial court did not sentence Ms. Armour to a total sentence that exceeded the underlying prescribed statutory maximum for purse snatching, which is twenty years, or under the habitual offender law, which is forty years for a second offender. We find these two factors alone dispositive of the issue presented in this case.

Our finding that La. R.S. 14:50.2 is constitutional as applied to the facts of this case is buttressed by both the procedural history of this case and by the jurisprudence declaring a similar Louisiana statute unconstitutional. In State v. Goode, 380 So.2d 1361 (La.1980), the Louisiana Supreme Court articulated two reasons for finding La. R.S. 14:50.1 unconstitutional; to wit:

[First, t]he mandatory nature of the penalty can result in a sentence which is disproportionate to the severity of a particular crime.... Although a simple battery on an elderly person could result in serious medical and psychological consequences to the victim, the mandatory minimum sentence of five years in addition to the sentence for the underlying offense fails to meet the test of being proportionate to the offense.
Furthermore, the statute fails to prescribe a maximum sentence which the court may impose; it merely provides for a minimum of five additional years. Therefore, a defendant charged under this statute could be faced with serving up to a life sentence, in addition to the sentence for the underlying offense.

Goode, 380 So.2d at 1364. The Louisiana Supreme Court thus held that La. R.S. 14:50.1 was unconstitutional because “the nature of the penalty provided for in the statute is unusually severe when compared with some of the offenses which are included in the statute.” Id.

In drafting La. R.S. 14:50.2, the Legislature attempted to cure the infirmities the Louisiana Supreme Court in Goode identified in La. R.S. 14:50.1. La. R.S. 14:50.2 was enacted in 2001, after Apprendi was decided in 2000. Nonetheless, the Legislature did not limit its application to the | ^prescribed statutory maximum for the underlying crime. This statute, as Ms. Armour argues, exposes a defendant to an additional three-year sentence beyond the statutory maximum sentence and thus presents a potential Apprendi problem. For this reason, although the Legislature structured La. R.S. 14:50.2 in the format of an “enhanced penalty” provision, this statute, based on the Apprendi rule, “must be construed as creating a new offense.” Chaney C. Joseph, Jr. and P. Raymond Lamonica, 17 Louisiana Civil Law Treatise: Criminal Jury Instructions § 10.50.1 (2001 Supp.).

To avoid the Apprendi problem, a better practice, as the commentators suggest, is for the state to charge the defendant separately with a violation of La. R.S. 14:50.2 and to instruct the jury on this separate crime. Id. Doing so would require the state to prove and to instruct the jury on only one additional element; to wit: “[t]hat [name the victim] was at least 65 years of age on the date alleged in the indictment that the offense took place.” Id. Despite the state’s failure to follow that practice in this case, we find no Apprendi violation occurred; the sentences the trial court imposed on Ms. Armour did not exceed the statutorily prescribed maximum sentences.

The jurisprudence has recognized that when, as here, a defendant is sentenced within the prescribed statutory maximum, no Apprendi violation occurs. See State v. Walker, 2001-51, p. 10 (La.App. 5 Cir. 5/30/01), 789 So.2d 86, 91, writ denied, 2001-1922 (La.5/10/02), 815 So.2d 834 (finding no Apprendi violation because the defendant’s penalty was not increased beyond the maximum term prescribed by the armed robbery statute); see also State v. Palermo, 2000-2488, p. 2 (La.5/31/02), 818 So.2d 745, 755 (Johnson, J., dissenting)(collecting cases)(noting that Apprendi rule applies only when “the disputed ‘fact’ enlarges the applicable statutory maximum and the defendant’s sentence exceeds the original maximum”).

|nNor does this case present a due process problem of failure of notice. As noted above, on the day before trial, the state filed a “Motion to Invoke Crimes of Violence Against Victims Sixty-Five Years of Age or Older Sentencing Provisions.” In that motion, the state averred that the victim was eighty-six years old at the time of the crime of violence (purse snatching) that the bill of information charged Ms. Armour with committing. Thus, Ms. Armour was on notice of the state’s intent to invoke La. R.S. 14:50.2. At trial, the state expressly elicited testimony from the victim, Ms. Bordenave, regarding her age. The record indicates that the defense neither objected to the jury instructions, nor requested the jury be charged on this sentencing enhancement provision.

At sentencing, the trial court stated for the record that testimony from the trial “revealed to the Court that Franceline Bordenave was eighty-six years of age on the 27th day of February, 2003 [the date of the crime].” The court noted the state’s motion to invoke the sentencing provisions of crimes of violence against victims sixty-five or older and that the sentencing range for purse snatching was a minimum of two years to a maximum of twenty years. The court further noted that, pursuant to La. R.S. 14:50.2, the imposition of the additional three years was discretionary. After reviewing the provisions of La.C.Cr.P. arts. 893 and 894.1 and the multiple bill filed by the state, the trial court imposed a sentence of fifteen years, then added three years pursuant to La. R.S. 14:50.2. The total sentence was thus eighteen years, two years below the statutory maximum. Thus, we find no due process violation in the trial court’s discretionary use of La. R.S. 14:50.2, as opposed to simply sentencing Ms. Armour to eighteen years without mentioning the enhancement provision.

| ^Furthermore, at re-sentencing, following Ms. Armour’s pleading guilty to the multiple bill charging her as a second offender, the trial court asked her if she understood that she would be sentenced to “eighteen years in the custody of the Louisiana Department of Corrections.” The record reflects the absence of any sentencing agreement between the state and Ms. Armour in exchange for her plea to the multiple bill. However, defense counsel asked the court off the record if it “would be inclined to sentence Ms. Armour to a sentence greater than the eighteen years that was originally imposed, which was fifteen years plus an additional three years under the Elderly Victim Law. The Court indicated ... that it would not be inclined ... to enhance or increase the sentence beyond the eighteen years.” When the trial court formally imposed the sentence pursuant to the multiple bill, it stated that the sentence was “eighteen years in the custody of the Louisiana Department of Corrections.” After imposing that sentence, the court noted that the sentencing range under La. R.S. 15:529.1 was no less than ten or more than forty years. The court then noted that the offense was a crime of violence and that “[t]his sentence also includes a three year enhancement in connection with the motion to invoke crimes of violence against victims 65 years or age or older sentencing provisions.”

Given the above procedural history of this case coupled with the fact the actual sentence imposed on Ms. Armour did not exceed the statutory maximum for purse snatching, we find no due process violation occurred as a result of the trial court’s expressly considering the victim’s advanced age in setting the sentences. In so finding, we note two relevant factors. First, the state filed a pretrial motion to invoke the sentencing enhancement provision of La. R.S. 14:50.2. Second, Ms. Armour failed to object in the trial court to her eighteen-year sentence, in general, and the constitutionality 11Bof La. R.S. 14:50.2, in particular. We thus find Ms. Armour’s argument that her sentence should be vacated unpersuasive.

DECREE

For the foregoing reasons, we affirm Ms. Armour’s conviction and sentence.

AFFIRMED.

      . Although Ms. Armour also seeks an error patent review, we found, in reviewing the record, that the only possible error patent is that presented by the additional three-year sentence imposed pursuant to La. R.S. 14:50.2.

      . The cash was later photocopied and returned to Ms. Bordenave.

      . The statute at issue in Palermo was La. R.S. 14:54, which defines the crime of placing of combustible materials as attempted arson, but which directs the trial court to La. R.S. 14:51 to 53, the arson statutes, for a determination of the appropriate sentence based on the type of arson attempted. In that case, the Louisiana Supreme Court extensively analyzed Ap-prendi and the related jurisprudence.

      . As noted in footnote one, the imposition of this additional three-year sentence is the only possible error patent we found in reviewing the record in this case.

      . La. R.S. 14:50.1 provides:

        Notwithstanding any other provisions of law to the contrary, any person who is convicted of manslaughter, simple rape, forcible rape, aggravated assault, aggravated battery, aggravated kidnapping, simple kidnapping, or false imprisonment or any attempt to commit the aforementioned crimes where a victim of any such crime is sixty-five years of age or older shall in addition to any other penalty imposed, serve a minimum of five years without benefit of parole, probation or suspension of sentence and adjudication of guilt or imposition of sentence shall not be suspended, and lack of knowledge of the victim’s age shall not be a defense.
      Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law. La. R.S. 14:50.1. Although this statute has been declared unconstitutional, it has not been legislatively repealed. Indeed, the record reflects that when Ms. Armour was arrested she was initially also charged with violating this statute.

      . This is evidenced by the fact that La. R.S. 14:50.2 is discretionary, not mandatory; imposes a three-year cap on the sentence enhancement, alleviating the problems presented by an open-ended sentencing provision; defines the covered crimes by borrowing the statutorily defined term "crimes of violence,” which term includes purse snatching — a crime the court in Goode noted is frequently committed on the elderly; and carves out those crimes which the court in Goode stated were inconsistently included in La. R.S. 14:50.1.