author: | ¡.SUSAN M. CHEHARDY, Judge. It EDWARDS, J.,

text:
    STATE of Louisiana v. Patrick A. CONNER.
    No. 02-KA-363.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      Paul M. Cullen, New Orleans, LA, for Patrick A. Conner, Defendant-Appellant.
    Paul D. Connick, Jr., District Attorney, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys — Appellate Counsel, Thomas S. Block, Assistant District Attorney — Trial Counsel, Gretna, LA, for State of Louisiana, Plaintiff-Appellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | ¡.SUSAN M. CHEHARDY, Judge.

On September 1, 1999, the Jefferson Parish District Attorney filed a bill of information charging defendant, Patrick Conner, with fifth-offense operating a vehicle while intoxicated (DWI), in violation of La. R.S. 14:98E. The bill of information alleged that Patrick Conner had four prior DWI convictions, which occurred on or about May 23, 1990, September 17, 1991, July 31,1997, and September 9, 1997. Defendant was arraigned on October 8, 1999, and pled not guilty.

On January 26, 2000, defendant filed a Motion to Quash the Bill of Information, arguing that the State did not possess the evidence necessary to prove the alleged predicate convictions. On March 21, 2000, the State amended the original bill of information to add a second conviction that was obtained on September 17, 1991. On March 21, 2000, defendant was arraigned on the amended bill, and pled not guilty.

On April 25, 2000, defendant filed another Motion to Quash/Suppress the Evidence of Prior Offense, specifically claiming that the State did not possess sufficient evidence to show that the predicate guilty pleas obtained on May 23, 1990, September 17, 1991, and September 9, 1997 were knowingly and voluntarily made. On May 15, 2000, the trial court heard the motion and took the |3matter under advisement. On May 17, 2000, the trial judge denied defendant’s motion.

Defendant filed an application for supervisory review with this Court, challenging the trial court’s ruling. On June 27, 2000, this Court, in a two-to-one ruling granted the writ in part, finding that the trial court had erred in failing to suppress the convictions obtained on May 23, 1990 and September 9, 1997. The panel denied the writ regarding defendant’s September 17, 1991 conviction.

The State sought supervisory review from the Louisiana Supreme Court, challenging this Court’s ruling. On October 13, 2000, the supreme court, which granted writs in part and denied writs in part, stated:

The ruling of the Court of Appeal, Fifth Circuit, regarding defendant’s September 9, 1997 conviction is reversed. The record reflects the State of Louisiana satisfied its burden under State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. Accordingly, the ruling of the trial court is hereby reinstated as to the September 9,1997 conviction only.

State v. Conner, 00-2061 (La.10/13/00), 771 So.2d 641.

On June 1, 2001, after the defendant waived his right to a jury trial, he was tried on the amended charge of fifth-offense DWI. That day, the trial judge found Rthe defendant guilty as charged. Defendant made an oral motion for new trial, which the court denied.

On July 25, 2001, the trial judge sentenced defendant to ten years at hard labor, without benefit of parole, probation, or suspension of sentence. Additionally, the trial court imposed a fine of five thousand dollars, and ordered defendant’s vehicle seized, impounded, and sold at auction. On July 30, 2001, defendant filed a Notice of Intent to Appeal, which was subsequently granted.

On appeal, defendant argues that the trial court erred in limiting defense counsel’s cross-examination on matters related to DWI investigation; the trial court erred in allowing the prosecutor to question a defense witness about other bad acts allegedly committed by him; the evidence was insufficient to support his conviction; and his sentence was unconstitutionally excessive and constituted cruel and unusual punishment. We have thoroughly reviewed his assignments of error and, for the foregoing reasons, we affirm his conviction and sentence.

Facts

At defendant’s trial, Corporal Ronald Furlow of the Causeway Police testified that he was working a routine patrol on the Causeway Bridge on July 10, 1999. At approximately 5:42 p.m. that evening, Corporal Furlow saw a green Toyota Camry traveling at a high rate of speed near the two-mile marker on the southbound portion of the bridge. He saw the Camry overtake four or five cars at a rate of speed that obviously exceeded the posted speed limit on the bridge, which he testified is 55 miles per hour. Furlow activated the radar in his police vehicle and clocked the car’s speed at 68 miles per hour.

1 .¡Corporal Furlow followed the Camry to the end of the bridge, activated his car’s emergency lights and pulled the Camry over at the south toll plaza, with the intention of issuing a traffic citation to the driver. Furlow testified that when the defendant, Patrick Conner, exited the Camry, he stumbled, grabbed the side of the Camry to maintain his balance, then staggered toward Furlow’s police car. As the defendant approached, Furlow detected a strong smell of alcohol on defendant’s breath and about his person. Defendant also slurred his words when he spoke to the officer.

Furlow asked defendant if he would take a field sobriety test. Defendant responded that his attorney had advised him to refuse any such test. Furlow then placed defendant under arrest and informed him of his Miranda, rights, which defendant indicated he understood. Furlow testified that defendant did not request an attorney at that point and did not refuse to answer any of Furlow’s questions.

Furlow proceeded, with the defendant, to the Causeway Police station at the south toll plaza, with the intention that defendant would undergo an Intoxilyzer test. After Furlow placed defendant in the In-toxilyzer room with the Patrol Supervisor on duty, Sergeant Russell Simmons, Fur-low ran a check on defendant’s driver’s license and found that it had been suspended. At 6:05 p.m., Furlow read defendant his rights with regard to the Intoxi-lyzer procedure. Defendant signed the form acknowledging that he had been read his rights and understood those rights. Simmons also signed the form.

Furlow then questioned the defendant about any physical defects that defendant might have and defendant responded that he had none. Furlow asked whether defendant was taking any medication and defendant responded that he [¿was not. When asked whether he had been drinking, defendant responded that he had consumed two glasses of wine with lunch. Both Furlow and Simmons testified that during the interview, the smell of alcohol in the room was strong. Finally, after Furlow completed the questioning, Simmons twice asked defendant to submit to an Intoxilyzer test. Defendant refused both requests to take the test.

William Schilling, a longtime friend of the defendant, testified on his behalf. Schilling stated that, on July 9, 1999, defendant picked him up at his house in Metairie and the two men drove to defendant’s house on the Northshore, where they stayed that night. On the afternoon of July 10, 1999, Schilling and the defendant had lunch at the home of a mutual friend, Karen Serpas. According to Schilling, defendant had one or two glasses of wine with lunch. Schilling testified that he did not see defendant have any more alcoholic beverages after lunch. The two men remained at Ms. Serpas’ house until about 5:00 pm or 6:00 pm that evening.

Schilling testified that defendant took the Causeway to bring Schilling back to his house in Metairie. While they were on the Causeway Bridge, defendant was stopped by police. According to Schilling, there were two officers. One of them asked defendant to get out of the car, and defendant complied. Schilling was told to stay in the car.

At one point, he saw one of the officers place the defendant in handcuffs. An officer told Schilling that defendant was being arrested for DWI. One of the officers told Schilling he could take custody of the car, but that he would have to take a sobriety test before he would be allowed to drive it. Schilling submitted to a test and was allowed to take custody of defendant’s vehicle.

DISCUSSION

7 By this assignment, defendant argues that the State failed to prove his guilt beyond a reasonable doubt. Specifically, defendant asserts that the evidence was insufficient to show he was legally intoxicated and that the prosecution failed to prove he was the same person who was convicted of the prior DWI offenses alleged in the bill of information.

When issues are raised on appeal regarding the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. George, 95-0110, p. 6 (La.10/16/95), 661 So.2d 975, 978; State v. Noil, 01-521, p. 12 (La.App. 5 Cir. 12/26/01), 807 So.2d 295, 305. Therefore, we will examine defendant’s assignment of error regarding the sufficiency of the evidence first, and then, if necessary, address the defendant’s remaining assignments of error.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Lapell, 00-1056 (La.App. 5 Cir. 12/13/00), 777 So.2d 541, 545.

s Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

A different standard is applied on appellate review. The Louisiana Supreme Court recently commented:

On appeal, the reviewing court ‘does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events’.... Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

At the time of the underlying offense, LSA-R.S. 14:98 provided, in relevant part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
|fl(c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

In order to convict an accused of driving while intoxicated, the prosecution need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Bourgeois, 00-1585, p. 6 (La.App. 5 Cir. 3/14/01), 785 So.2d 848, 853. It is not necessary that a DWI conviction be based upon a breath or blood alcohol test; the observations of the arresting officer may be sufficient to establish the defendant’s guilt. State v. Landry, 01-0784, p. 5 (La.App. 5 Cir. 12/12/01), 804 So.2d 791, 794.

Intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify. Bourgeois, 785 So.2d at 853. Some behavioral signs, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. What behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Id. Refusal to take the Intoxilyzer test is admissible as evidence of intoxication. LSA-R.S. 32:666A(3); State v. Loisel, 01-2018 (La.App. 4 Cir. 3/6/02), 812 So.2d 822.

At trial, Corporal Furlow testified that, on July 10, 1999, defendant was exceeding the speed limit, although he was not driving erratically. Furlow testified that several factors, which were evident after Fur-low stopped the defendant for speeding, led Furlow to conclude that' defendant was intoxicated. First, when defendant exited his car, he swayed, and grabbed the side of the car to steady himself. Second, when defendant walked toward Furlow after exiting his car, he staggered. Third, defendant smelled strongly of alcohol and his speech was slurred. Finally, defendant refused several requests to submit to an Intoxilyzer |intest, indicating that his lawyer had advised him not to submit to such tests if he was stopped.

Furlow testified that, as of the day he arrested defendant, he had made a approximately 25 to 30 DWI arrests. Furlow stated there is a distinction between the behavior of someone who is nervous about being stopped by police, and the behavior of one who is intoxicated. If a person is slurring his words and swaying from side-to-side, Furlow attributes that behavior to alcohol or drug use.

Moreover, during questioning at the police station, defendant stated he did not suffer from any physical impairments and that he was not on any medication. He also admitted that he drank two glasses of wine at lunch and even admitted that he was under the influence of alcohol. (R., p. 172). Sergeant Russell Simmons also stated that when he met with defendant at the south toll plaza police station, he detected the smell of alcohol and defendant slurred his words.

Our review of the entire record support’s the trial judges determination that the defendant was legally intoxicated on July 10, 1999, and, thus, guilty, beyond a reasonable doubt, of operating a vehicle while intoxicated. While defendant’s longtime friend testified that defendant did not stagger when he exited his car after he was stopped, he did admit that the defendant had two glasses of wine earlier in the day. Moreover, the credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of witnesses will not be re-weighed on appeal. State v. Ledet, 00-1103, p. 16 (La.App. 5 Cir. 7/30/01), 792 So.2d 160, 171.

In Next, defendant argues that the State did not provide sufficient proof that he was the same person who was convicted of the alleged predicate DWI offenses. At trial, the State alleged that the defendant was convicted of DWI offenses on the following dates:

1) September 17, 1991: Twenty-Second Judicial District Court, St. Tammany Parish, Docket number 199414, Division “G”;
2) September 17, 1991: Twenty-Second Judicial District Court, St. Tammany Parish, Docket number 200632, Division “G”;
3) July 31, 1997: Twenty-Second Judicial District Court, St. Tammany Parish, Docket number 268745, Division “G”;
4) September 9, 1997: First Parish Court, Jefferson Parish, Docket number F-1040395, Division “B”.

The Louisiana Supreme Court in State v. Carlos, 98-1366, p. 5 (La.7/7/99), 738 So.2d 556, 558, recognized a conflict in its prior jurisprudence on the issue of whether the recidivist portions of the DWI statute constitute essential elements of the offense. The Carlos court noted, however, that “the present interpretation holds the recidivist provisions to be ‘elements’ of the DWI statute,” and not simply forming a sentencing mechanism. Id. Consequently, “it is clear that the burden rests on the State to prove at trial, beyond a reasonable doubt, the existence of the prior convictions and the defendant’s identity as the prior offender, when charging a second, third, or subsequent offense.” State v. Carlos, 98-1366 at p. 5, 738 So.2d at 558-559 (citing State v. Krause, 405 So.2d 832, 833 (La.1981)).

In determining what evidence is acceptable to prove identity in a recidivist DWI case, an analogy can be made to the evidence required to prove identity in multiple offender proceedings. To prove that a defendant is a multiple offender, the State must establish the existence of the prior felony convictions, and that the defendant is the same person convicted of those offenses. State v. Mims, 00-1507, p. 4 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766. The State may establish | ^identity by various means, such as the testimony of witnesses to prior offenses, expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or photographs contained in a duly authenticated record. State v. Manson, 01-159, p. 19 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 763.

In this case, the State introduced the testimony of witnesses to establish identity. Judge Peter Garcia, now of the Twenty-Second Judicial District Court, testified that, while he was a practicing attorney, he represented defendant in the Twenty-Second Judicial District Court when defendant pled guilty to two first-offense DWIs on September 17,1991.

|1sJudge Garcia testified that because the offenses occurred on two different days, May 18, 1991 and July 7, 1991, they were assigned separate case numbers. Judge Garcia identified State’s Exhibit 6 as the guilty plea minute entry in case number 199414, and State’s Exhibit 7 as the guilty plea minute entry in case number 200632. He also identified State’s Exhibit 5 as the transcript of the guilty plea colloquy, dated September 17, 1991. When shown the photograph attached to State’s Exhibit 4, Judge Garcia stated that the man pictured appeared to be Patrick Conner. Further, Judge Garcia stated that he had independent recollection of the guilty pleas, because it was unusual for a defendant to plead guilty to two first offense DWIs on the same day. We find that the State provided sufficient evidence to prove that defendant was the same person who pled guilty in the Twenty-Second Judicial District Court to case numbers 199414 and 200632.

In addition, August Hand, an attorney who has known defendant for five years, testified that he represented defendant on July 31, 1997 in his guilty plea to first offense DWI in case number 268745 in the Twenty-Second Judicial District Court in St. Tammany Parish. Hand identified State’s Exhibit 1 as a |ucertified copy of the transcript of those proceedings, and State’s Exhibit 2 as a certified copy of the court minutes. Hand identified defendant as the man pictured on State’s Exhibit 3, a “Suspect Rap Sheet” bearing the name Patrick Conner.

While defendant correctly notes that the transcript shows that defendant gave Patrick Hand as his attorney’s name and Patrick Hand is named as defendant’s counsel on the transcript’s cover page, August Hand explained that these were errors, and that he, in fact, represented defendant at his guilty plea on July 31, 1997. He surmised that Patrick Hand, his cousin, represented another defendant in the same court on that day. Indeed, the transcript reflects that Patrick Hand made an appearance on behalf of another defendant that day. Moreover, the minute entry indicates that August Hand represented defendant. We find that the evidence, as a whole, shows that defendant was the same person who pled guilty to first offense DWI in case number 268745 on July 31, 1997.

Likewise, Anthony Glorioso testified that he has practiced law for 30 years, and has known defendant since they went to high school together. Although he recalled representing defendant in First Parish Court for Jefferson Parish on a second-offense DWI charge, Glorioso did not initially remember the date of that guilty plea. After refreshing his recollection by reviewing State’s Exhibit 4, which was identified as a certified copy of the record in case number 1040394 in First Parish Court, Glorioso noted that the plea was made on September 9, 1997. Further, Glorioso identified his own and defendant’s signatures on the guilty plea form and identified the man pictured in a photograph attached to State’s Exhibit 4 as defendant. We find that the evidence was sufficient to show that defendant 11Bwas the same person who pled guilty to second-offense DWI in First Parish Court for Jefferson Parish, case number 1040394.

After reviewing the entire record, we find that the State introduced sufficient evidence for any rational trier of fact, viewing that evidence in the light most favorable to the prosecution, to find the essential elements of the crime of fifth-offense DWI beyond a reasonable doubt. Because we find that this assignment of error has no merit, we will address the remainder of defendant’s arguments.

In his next assignment of error, defendant argues the trial court deprived him of his constitutional right to confrontation by limiting his cross-examination of Corporal Furlow, the State’s primary witness, and by deterring him from calling an expert witness who might have aided in his defense.

The Sixth Amendment to the United States Constitution and Article I, 16 of the Louisiana Constitution of 1974 guarantee an accused in a criminal prosecution the right to confront the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974); State v. Joseph, 01-360, p. 16 (La.App. 5 Cir. 10/17/01), 802 So.2d 735, 745. Cross-examination is the primary means by which the believability of a witness and the truth of his testimony are tested. State v. Hotoph, 99-243, p. 15 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1046, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062.

“[T]he right of confrontation is not so unlimited as to require the trial court to permit a defendant on cross-examination of a State witness to make any and all inquiries of whatever type. The inquiry must be relevant.” State v. Howard, 01-0005 (La.App. 5 Cir. 4/24/01), 786 So.2d 174, 180-181, writ denied, 01-1467 (La.4/26/02), 816 So.2d 846. Relevant evidence is defined in LSA-C.E. art. 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence in a criminal case is that which tends to show commission of the offense charged, and intent, or tending to negate commission and intent. State v. Bowen, 01-594 (La.App. 5 Cir. 12/26/01), 806 So.2d 749, 753. A trial judge’s determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion of the trial judge and his rulings will not be disturbed in the absence of an abuse of discretion. Id.

Corporal Ronald Furlow was the State’s primary fact witness. On direct examination, he testified that he was not certified to administer an Intoxilyzer test at the time of defendant’s arrest, although he later earned certification. Furlow stated that, if defendant had agreed to submit to the test, Sergeant Simmons would have administered it. On cross-examination, defense counsel attempted to question Furlow regarding his knowledge of the Louisiana Department of Public Safety and Transportation’s training manual for Intoxilyzer testing. Subsequently, defense counsel attempted to question Furlow about the U.S. Department of Transportation and Safety’s standards for DWI investigations. The State objected to both lines of questioning. The trial judge ruled that questions regarding those agencies’ standards were not pertinent or relevant.

We agree. The Intoxilyzer testing procedures contained in the training manuals were not relevant to the facts of this case. Importantly, defendant refused to submit to an Intoxilyzer test so the procedures that might have been employed if a test had been administered are irrelevant. Further, Corporal Furlow, who readily admitted that he was not certified in those procedures at the |17time of defendant’s arrest, was not questioned about those procedures on direct examination. Moreover, although defense counsel argued daring trial that he wished to elicit “expert testimony” from Corporal Furlow, he did not attempt to qualify the officer as an expert in the standards for Intoxilyzer testing.

On appeal, defendant argues that he should have been allowed to continue the line of questioning to demonstrate Fur-low’s lack of experience in DWI investigations. Indeed, that was the proper inquiry and both the prosecutor and defense counsel asked questions directed at that issue. Here, defendant does not show prejudice.

Defendant also complains that, prior to commencement of trial, when defense counsel voiced his intention to call an expert witness in the area of field sobriety testing, the trial judge stated:

I am going to tell you, I have a great deal of difficulty in accepting folk who come in here to do that which the trier of fact is qualified to do. So, that may be an issue when it comes before the Court. The purpose of an expert is to assist the trier of fact in an area where the trier of fact needs assistance and edification. I don’t know any area of the law relative to the Intoxilyzer or the field sobriety test or any other area that this trier of fact lacks the requisite experience and training by which it requires someone to come in and tell him. So, I will allow it, but I will put you on notice. If you want to address that, I know we’ve got counsel sitting around here, but I, in the past, have not permitted experts in those areas where I feel quite comfortable. And, we don’t have a jury in here. This Court has some twenty-five years in the area, seventeen of which are as a prosecutor and nine of which are as a judge. So, I am curious as to what it is that counsel deems the Court to be deficient in.

Defendant does not specify this comment deprived him of his right of confrontation. There is no evidence in the record to show that defense counsel attempted to call an expert witness or that the trial court refused to allow such witness. In fact, it is not clear from the foregoing comments that the trial judge would have disallowed expert testimony. Further, defendant does not show that he was prejudiced. Based on the foregoing, we do not find that the defendant |1Rwas deprived of his constitutional right of confrontation. This assignment of error lacks merit.

In his next assignment of error, defendant complains that the trial court erred in allowing the prosecutor to question defense witness, William Schilling, about his knowledge of defendant’s prior DWI offenses because this constituted impermissible “other crimes” evidence. The State counters that the line of questioning was properly within the scope of cross-examination because Schilling gave testimony as to defendant’s character and conduct.

Generally, “other crimes” evidence is not admissible to show the probability that the accused committed the charged crime because he is a “bad” person who has a propensity for this type of offense. LSA-C.E. art. 404B(1); State v. Kennedy, 00-1554 (La.4/3/01), 803 So.2d 916, 920. There are, however, exceptions to this rule.

LSA-C.E. art. 404A allows admission of evidence of a pertinent trait of an accused’s character, such as moral quality, offered by him or by the prosecution to rebut character evidence. For this exception to apply, the requirements of LSA-C.E. art. 405 must be satisfied. Article 405 provides:

A. Reputation. Except as otherwise provided in Article 412, in all eases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to general reputation only. On cross-examination of the character witness, inquiry is allowable into relevant specific instances of conduct.
B. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, such as in a prosecution for defamation or when there is a defense of entrapment, proof may also be made of specific instances of his conduct.
C. Foundation. Before a person may be permitted to testify to the reputation of another person, a foundation must be established that the witness is familiar with that reputation.

|10On direct examination, defense counsel briefly questioned Schilling about how long he had known defendant and established that the two were long-time friends. The majority of defense counsel’s questions involved Schilling’s memory of the events leading up to and including defendant’s arrest.

On cross-examination, the prosecutor began by questioning Schilling about his association with defendant. Schilling testified that he has known defendant since their high school days and that the two of them have socialized with each other. The prosecutor asked Schilling whether he knew that defendant had a drinking problem. The defense objected to the question and the trial judge sustained the objection.

Defendant argues that the State’s ensuing line of questioning to Schilling about defendant’s prior DWI arrests and convictions was improper. At trial, defense attorney did object but the trial court overruled the objection stating, in part, that the witness “has been offered ... on behalf of the defendant and testified to the defendant’s character and there [sic] conduct together. The State is permitted to inquire as to his knowledge relative to certain facts and circumstances surrounding that defendant.”

The prosecutor went on to ask Schilling whether he was aware that defendant had DWIs in 1977 in Gonzales, and in 1976 and 1979 in Orleans Parish. Schilling responded, “I may have heard that he had one other but I don’t know where it was or any of that.” Again defense counsel objected to the line of questioning. The trial judge responded:

The witness has testified that he is close friends with the defendant. He has been such since the age of 15 or 16, and has testified with respects to his knowledge of the defendant’s conduct, his body movements, and so forth. The State is permitted to inquire and/or to impeach that which he has testified to with respects to his knowledge and closeness to this defendant, such that he understands his conduct and so forth, and the court deems the examination to be proper under the rules of evidence.

IsnWe find that the trial court erred in its ruling. Although defense counsel questioned Schilling briefly about how he knew defendant, and how he came to be with defendant at the time of his arrest, this background information cannot be considered character evidence. Schilling’s testimony that defendant had one or two glasses of wine with lunch several hours prior to his arrest does not constitute a description of any moral quality of the defendant. Schilling was simply a fact witness, called to testify by the defense regarding his recollection of the events surrounding defendant’s arrest. The State was, therefore, not entitled to cross-examine Schilling on issues of defendant’s character under Articles 404A and 405.

Further, even if Schilling could be considered a character witness, the prosecutor neglected to follow the provisions of Article 405B and 405C. The prosecutor failed to lay a proper foundation for the introduction of the “other crimes” evidence. He was also not entitled to go into specific instances of conduct; only defendant’s general reputation.

We find, however, that the trial court’s error was not reversible. The introduction of “other crimes” evidence is subject to harmless error analysis. State v. Morgan, 99-1895, p. 5 (La.6/29/01), 791 So.2d 100, 104; State v. Charles, 00-1586, p. 6 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 709. The test for harmless error is whether the verdict actually rendered was surely unattributable to the error. State v. Johnson, 94-1379, p. 18 (La.11/27/95), 664 So.2d 94, 102. Here, the evidence at trial was such that the mention of additional DWI offenses was merely cumulative and likely did not contribute to the verdict.

In his last assignment of error, defendant complains that his sentence of ten years without benefit of parole, probation, or suspension of sentence is constitutionally excessive. First, we note that defendant failed to file a motion to | ^reconsider sentence and failed to make a specific oral objection at the time of re-sentencing. LSA-C.Cr.P. art. 881.1. Such an omission normally precludes review of a sentence on appeal. See, State v. Ewens, 98-1096, p. 10 (La.App. 5 Cir.3/30/99), 735 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. However, in the interest of judicial efficiency, we have routinely reviewed sentences for constitutional exces-siveness even absent a defendant’s compliance with Article 881.1. State v. Anderson, 01-789, p. 8 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961.

The Eighth Amendment to the United States Constitution and Article I, 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992). Even a sentence which falls within the statutory limits may be excessive under certain circumstances. State v. Robicheaux, 412 So.2d 1313, 1319 (La.1982).

A reviewing court will not set aside a sentence as excessive if the record supports the sentence imposed. LSA-C.Cr.P. art. 881.4D; State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219. Factors the court may consider in reviewing the sentencing judge’s discretion are: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Ulmer, 99-1079 (La.App. 5 Cir. 1/25/00), 751 So.2d 1017, 1019.

On July 10, 1999, the date of the underlying DWI offense, as well as on the date sentence was imposed, the sentencing provisions of LSA-R.S. 14:98 read, in pertinent part:

E. (1) On a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and | g?regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years, and shall be fined five thousand dollars.
(3)(a) At least two years of the sentence shall be imposed without benefit of suspension of the sentence, probation or parole. In the discretion of the court, any additional portion or all of the sentence may be imposed without benefit of suspension of sentence, probation or parole. If a portion of the sentence is imposed with benefit of suspension of sentence, probation or parole, the court shall require the offender to participate in a court-approved substance abuse program and a court-approved driver improvement program.
(b) If the offender has previously been required to participate in either or both of such programs pursuant to Subsection D of this Section, at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.
(c) If the offender has previously been required to participate in either or both of such programs under Subsection B or C of this Section, but not under Subsection D, at least two years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.

Defendant does not challenge the term of ten years, the minimum term of imprisonment allowable under the relevant version of the statute. Rather, he complains that the trial court imposed the entire sentence without benefit of parole, probation or suspension of sentence.

Under LSA-R.S. 14:98(E)(3)(a), the trial judge had the discretion to impose the entire sentence without benefit of parole, probation or suspension of sentence. Further, the trial judge gave extensive reasons for the sentence he imposed, noting inter alia, that the defendant “is in need of institutional care which can be best provided under the ’supervision of the State of Louisiana; that he is a threat and a danger not only to himself but to society.” The court also took notice of the fact that defendant had a record of DWIs beyond those alleged in the bill of 1 ^information. Finally, the trial judge commented, “[Defendant] believes in drinking and driving on the roadways of this city and this Court is not going to give him another opportunity to ride on this highway under the influence of alcohol and kill some little 3-year-old in the process.”

.We find that, when viewed in its entirety, the record supports the sentence imposed. Further, we find that the trial court did not abuse its discretion in ordering that the entire ten-year term be served without benefit of parole, probation, or suspension of sentence.

Finally, we reviewed the record for errors patent pursuant to La C.Cr.P. art. 920. We found none requiring remand.

CONVICTION AND SENTENCE AFFIRMED.

It EDWARDS, J.,

Dissents.

I concur with the majority that the trial court erred in permitting the State to question Schilling about prior DWI arrests. However, I believe that such error was, taken in context with the remaining evidence at trial, reversible. Conner admitted to the officer that he had imbibed two glasses of wine at lunch. The arresting officer testified that Conner staggered when he exited his vehicle; Schilling testified otherwise. Schilling also testified that he was with Conner during the day and had not seen him drink after lunch. There was no objective evidence of intoxication. While the State may have proven the elements of the crime, its evidence was not overwhelming as it depended chiefly on credibility determinations. In my opinion, the State’s line of questioning to Schilling was geared to cast suspicion on his credibility, the extent of which doubt cannot be measured, and tipped the scales in favor of the prosecution. It certainly cannot be ruled out that the court decided that Conner was a bad man who had previously' been arrested for similar offenses. Considering all these circumstances, I cannot agree that the verdict was surely unattributable to this error, and would reverse and remand for a new trial.

Therefore, I respectfully dissent.

      . State v. Conner, 00-K-1144, unpublished writ disposition.

      . On May 24, 2001, the trial court held a hearing to allow the State to perpetuate the testimony of three witnesses for trial. Defense counsel waived defendant's presence at that hearing.

      . There is no evidence in the record that defendant filed a written motion for new trial as required by La.C.Cr.P. art. 852.

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

      . Furlow stated that he encountered defendant twice after his arrest, at a convenience store on West Esplanade Avenue. On those occasions, defendant’s speech was not slurred.

      . With the defendant’s assent, the testimony of these three witnesses was taken on May 24, 2001 and perpetuated for trial.

      . Our supreme court has held that the language of La. R.S. 14:98 evidences tire Legislature’s "clear intent” that all prior DWI convictions should be considered when determining the applicable penalty. State v. Woods, 402 So.2d 680, 683 (La.1981). In addition, the statutory language "shows an intent to distinguish these enhancement proceedings from other multiple offender prosecutions.” Id. Thus, “it is the number of pri- or convictions, not their sequence, which determines the appropriate designation of a subsequent offense. [Footnote omitted.]”
        Id. Thus, the trial judge properly considered both of defendant’s September 19, 1991 guilty pleas as predicate DWI offenses.

      . We note that, although the sentencing transcript shows that the trial court did not properly instruct defendant regarding the time limitations for applying for post conviction relief as required by LSA-C.Cr.P. art. 930.8, the minute entry reflects that the trial court properly “informed the Defendant he/she has ... two (2) years after judgment of conviction and sentence has become final to seek post conviction relief.” Minor discrepancies between the minute entry and the transcript need not be corrected on appeal where the discrepancy does not cause confusion or ambiguity and where a substantial right of the defendant is not violated. See, State v. Mayer, 98-1311 (La.App. 5 Cir. 9/28/99), 743 So.2d 304, 309 (per curiam); State v. Davis, 01-123, pp. 6-7 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 130. We find that the discrepancy is not confusing and that the defendant's rights under Article 930.8 are protected by the information in the minute entry, thus, no corrective action is required.


source: Caselaw Access Project

author: PSOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Richard MILTON.
    No. 02-KA-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      Paul D. Connick, Jr., District Atorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   PSOL GOTHARD, Judge.

Defendant, Richard Milton, was convicted of possession of a firearm while in possession of marijuana, in violation of LSA-R.S.14:95E and of possession with the intent to distribute cocaine in violation of LSA-R.S.40:967A. Defendant was sentenced to imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for a period of seven and one-half years and a fine of $10,000.00 as to count one; and to imprisonment at hard labor for a period of fifteen years as to count two, with the sentences being ordered to run concurrently. Thereafter, the State filed a multiple bill. After the defendant admitted his status as a second felony offender, the defendant was resen-tenced to 22jé years of imprisonment at hard labor without benefit of probation or suspension of sentence for his conviction under count two of the original bill of information, to be served concurrent to the sentence imposed on count one. The trial court also recommended Blue Walters Drug Treatment for the defendant. The defendant now appeals his convictions and sentences.

I .FACTS

The following facts were developed at trial. On January 1, 2000, at approximately 1:30 a.m., four members of the Jefferson Parish Sheriffs Office Street Crimes Division were on routine patrol in the Tallow-tree neighborhood on the Westbank of Jefferson Parish. The neighborhood is known as a “high crime” area because of numerous violent crimes and drug transactions. Deputies Kevin Decker and John Heck were in one unmarked unit, while Deputies David Roddy and Brett Beavers were in a second unmarked unit. The officers were dressed in the uniforms worn by the Street Crimes Unit, which consisted of a dark shirt with the word “Sheriff’ on the back and a reflective police patch on the sleeve. Each patrol unit traveled down one of the main streets leading into the neighborhood and the units ran parallel to each other.

As Officers Kevin Decker and his partner approached a group of apartment complexes in the 1000 block of Tallowtree, two black male subjects were observed “in the shadows,” walking north between the buildings and the parking lot. According to Officer Decker, the men “appeared to be interacting strangely” as they stopped to talk. Officer Decker testified that, although his police vehicle was unmarked, it was known in this neighborhood. Officer Decker stated that when the men recognized the unmarked police unit in which Decker was riding, the two men attempted to hide behind a U-haul truck. It was at this point the officers decided to stop and investigate. Officers Decker and Heck exited the vehicle, and, as they did, the two subjects began to run in opposite directions. . Officer Decker gave chase after one of the suspects, who was later identified as Richard Milton. According to Officer Decker, as Milton fled, he reached into the waistband of his pants, as if he was attempting to grab a weapon. Officer Decker chased Milton down an alley to the back of the apartment complex. At the rear of the complex was a fence that bordered the property and behind the fence was a canal. Officer |4Pecker followed Milton, while holding his police-issued flashlight in his hand. It was dark and there was fog in the area. Officer Heck also held a flashlight as he followed behind Officer Decker and the suspect. Neither officer had his weapon drawn. When Milton reached the fence surrounding the canal, he went over the fence. Milton fell to the ground and a gun fell from his right front pocket. Out of his left hand, defendant dropped a piece of white paper and a plastic bag containing individual plastic bags containing a white powder substance. Officer Decker was about fifteen (15) feet behind Milton at this time.

Thereafter, Officer Decker broadcast a description of Milton as being a black male, wearing a gray sweatshirt and tan shorts, with a white cap. The officer also broadcast the direction that the suspect was seen running. Shortly before the broadcast, Officer Heck ran in the opposite direction because he felt Milton could have escaped through one of the holes in the fence. However, Milton did not run past Officer Heck.

In response to Officer Decker’s broadcast, Officers David Roddy and Brett Beavers, who were patrolling nearby, drove to the area. The pair exited them police unit and headed to the canal, that was about fifty (50) feet away from where they parked. Officer Roddy was on the fence line and Officer Beavers was on the outside of the fence. As Officer Roddy ran around the fence he spotted a black male who matched the description broadcasted by Officer Decker. The subject had slowed to a jog and was out of breath, as if he had been running. According to Officer Roddy, because the apprehending officers were aware of the prior report of a gun being connected with this suspect, they detained the suspect in a prone position on the ground with his hands in cuffs. An outer search of the suspect’s clothing for weapons was conducted, but none was found. Officer Roddy radioed Officers Decker and Heck to advise them of the apprehension.

| ¡Although Officer Decker did not see the defendant’s face prior to his apprehension, the officer would later testify that this subject met the description of the person he chased to the canal and he was apprehended in the same general direction. Additionally, there was no one else on the canal that night and when this subject was apprehended, he was sweating and out of breath.

The suspect was placed under arrest, advised of his rights, and a search incident to arrest was conducted. The search revealed rolling papers found on the defendant and three $20 bills.

The second suspect was not apprehended.

The evidence at the scene was collected. What appeared to be controlled substances was first field tested and then sent to the Crime Lab. The green vegetable matter in the paper dropped by defendant tested positive for marijuana and the white powder substance in the eighteen (18) individual plastic bags tested positive for cocaine. An expert would later testify at trial that this manner of packaging was consistent with drug distribution.

On July 24, 2000, shortly before the trial of this case, the assistant district attorney assigned to the case, Joan Benge, contacted Officer Decker to request that he accompany her to the crime scene. The pair walked through the apartment complex courtyard at approximately 8:15 p.m. and Officer Decker was attempting to remember what portion of the fence the defendant had previously sealed. The pair looked at two segments of the fence line. Thereafter, they stopped on the driveway and were approached by the defendant. The defendant walked up, shook the officer’s hand and the assistant district attorney, who was surprised to see the defendant, and said hello. Defendant asked the pair what they were doing and the detective said he was looking to see what portion of the fence defendant had jumped before his apprehension. The officer said, “I think the cut’s right there that you ran through,” and he indicated accordingly. The defendant stated, “That’s the pone I jumped over right there.” Thereafter, Ms. Benge advised the defendant that his attorney would not be happy with him talking to them and she told him to go back inside. The defendant wished the pair “Good Luck” and he left.

ANALYSIS

In his first allegation of error, defendant alleges that the trial court erred in failing to suppress the evidence. Defendant contends that reasonable suspicion did not exist for the stop of the defendant; thus, the subsequent arrest and seizure of the physical evidence was illegal and should have been suppressed. The State responds that the evidence was admissible since it was not the product of an illegal seizure. The State reasons that the officers approached the defendant to interview him. In response, defendant fled and abandoned the evidence that was subsequently seized and provided the basis of probable cause for his arrest.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Manson, 01-159, p. 4 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. Id. at 757 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

When the constitutionality of a warrant-less search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. Jones, 99-972, p. 6 (La.App. 5 Cir. 2/29/00), 757 So.2d 110, 112, writ denied, 00-1186 (La.9/21/01), 797 So.2d 58, 2001 La. LEXIS 2716.

In reviewing the ruling on the motion to suppress, the appellate court will look to the totality of the evidence as presented at the hearing of the motion and the trial. State v. Wilson, 00-0178, p. 3 (La.12/8/00), 775 So.2d 1051, 1053; State v. Manson, 791 So.2d at 755. The trial judge’s determination on the motion to suppress will not be disturbed on appeal, unless it is clearly wrong. State v. Casey, 99-0023, p. 2 (La.1/26/00), 775 So.2d 1022, 1029, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

On appeal, defendant alleges that the only facts available at the time the policemen decided to stop the defendant was that he was a young man in a high crime area. He reasons that these facts did not provide “reasonable suspicion” for his stop. Additionally, defendant contends the decision to stop was made when the two men were seen walking down the street, before any attempt to hide or run was made. He also argues that the officers had not observed any suspicious or criminal activity prior to the determination to stop him.

It was established at trial and at the motion hearing that, at the time of this incident, it was night and the area being patrolled was a “high crime” area known for violent crimes and drug transactions. Officer Decker testified at the suppression hearing and trial that the police vehicle was known in the area. Officer Decker testified that the men “appeared to be interacting strangely,” as the two men stopped to talk. According to the testimony of Officer Decker, when the vehicle drove by and was apparently recognized by the subjects, the men attempted to hide behind a U-haul.

When the policemen exited the vehicle, dressed in the Street Crimes uniform, the suspects fled. Milton ran away, and, as he did so, he reached in his waistband, as if to secure a weapon. The police officers ran after Milton. He jumped a fence, fell to the ground, and dropped a gun and contraband. Shortly thereafter, defendant was apprehended by two police officers who were also patrolling the area.

We find that the police were justified in pursuing defendant because under the totality of the circumstances, reasonable suspicion existed for a | Rstop of defendant. It was the evasive activity of the suspects that prompted the officers to stop and investigate. Presence in a high crime area, coupled with nervousness, startled behavior, flight, or suspicious actions upon the approach of officers, is sufficient to justify an investigatory stop. State v. Hill, 01-1372, p. 8 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 87. Before Milton could be stopped, he abandoned a gun and contraband. This abandoned evidence was lawfully seized. State v. Johnson, 01-2436, pp. 4-5 (La.1/25/02), 806 So.2d 647, 648.

We find that the trial judge correctly denied the defendant’s motion to suppress the evidence in this case.

In his second allegation of error, the defendant alleges that the trial court erred in failing to suppress his statement. He contends that the statement he made to Officer Decker and the prosecutor at the scene on July 24, 2000 (after the first day of trial), even if initiated by defendant, nonetheless developed into a police interrogation. Defendant reasons that the officer’s statement that he (the officer) had forgotten which alley defendant ran through was in fact a question posed to the defendant. Thus, argues defendant, the statement should have been suppressed because the State failed to show a valid waiver of constitutional rights, including right to counsel and right against self-incrimination.

The State replies that the incul-patory statement was properly admissible because it was not made as a result of police-initiated custodial interrogation, but resulted from the accused’s initiated communication. As such, the defendant voluntarily waived his right to counsel and against self-incrimination.

Before the State may introduce a confession or statement for consideration by the jury, the State must prove beyond a reasonable doubt that the statement or confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, and promises. If the statement is made during a custodial interrogation, the State must prove that the declarant was advised of his constitutional rights. Custodial interrogation means | ¡/‘questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way. Spontaneous and voluntary statements not given as a re-suit of police interrogation or compelling influence, are admissible in evidence ■without Miranda warnings, even where a defendant is in custody.”
Voluntariness of the statement is to be determined in a case-by-case basis. The trial judge’s conclusions regarding the credibility and weight of the testimony relating to the voluntariness of the confession or statement will not be overturned unless they are not supported by the evidence. (Citations omitted.)

State v. Williams, 98-1006, (La.App. 5 Cir. 3/80/99), 735 So.2d 62, 73-74, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

The record in this matter supports the trial judge’s findings that the defendant’s inculpatory statement was voluntary and not made as a result of police interrogation. Under these circumstances, the defendant voluntarily waived his right to counsel and right against self-incrimination, and, therefore, the trial judge correctly refused to suppress the statement.

In his third allegation of error, the defendant alleges that the trial court erred in failing to grant a mistrial.

Defendant contends that he was entitled to a mistrial under LSA-C.Cr.P. art. 775 because of the prejudicial conduct of the prosecutor and investigating officer in procuring his inculpatory statement. The State responds that, since the defendant initiated the statement of which he complains, no basis exists for a mistrial.

A mistrial shall be ordered and in a jury trial, the jury dismissed, when prejudicial conduct in or outside of the courtroom makes it impossible for the defendant to obtain a fair trial. LSA-C.Cr.P. art. 775. The decision to grant or deny a mistrial is within the sound discretion of the trial court. The denial of a mistrial will not be reversed on appeal unless the court has abused its discretion. State v. Cassard, 01-931, p. 24 (La.App. 5 Cir. 2/26/02), 811 So.2d 1071, 1081.

hoThe statement was made on July 24, 2000 at approximately 8:15 p.m. This occurred after the voir dire of the jury that occurred earlier that day. The prosecutor testified that she was uncertain as to whether she was going to use the statement. On the day before trial, the prosecutor arrived late into her office. She made the decision to use the statement and immediately had the notice of intent to use the statement sent to opposing counsel. Because the statement was voluntarily made by defendant and the prosecutor immediately notified the defendant upon making the decision to use the statement at trial, we find that the trial judge did not abuse his discretion in refusing to grant a mistrial.

In his fourth allegation of error, the defendant alleges that the trial court erred in failing to recuse the prosecutor.

We note that the defendant lodged a motion to disqualify the prosecutor, but withdrew the motion prior to trial. The record clearly indicates that the court was willing to recuse Ms. Benge as the prosecutor in the event the defense counsel chose to call her as a witness. The defense counsel made the conscious decision not to call her as a witness and specifically withdrew his motion for recusal. Therefore, he cannot now be heard to complain that his actions caused him damage. See, State v. Ormond, 00-1371, p. 7 (La.App. 5 Cir. 4/24/01), 786 So.2d 187, 191.

Appellant requests that we review the record for errors patent pursuant to La. C.Cr.P. art. 920; See, State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have reviewed the record and note the following, which require our consideration.

The trial judge failed to correctly advise the defendant of the prescriptive period for filing for post-conviction relief. Accordingly, we remand this case to the district court and order the trial court to advise the defendant in writing of the | ]prescriptive period under LSA-C.Cr.P. art. 930.8 within ten days of this opinion and file evidence of same in the record.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. The case is remanded for the trial court to inform the defendant of the delays for filing for post-conviction relief.

AFFIRMED AND REMANDED.


author:
| .MICHAEL E. KIRBY, Judge.
      |,BYRNES, C.J.,

text:
    STATE of Louisiana v. Kennedy D. KIRK.
    No. 2000-KA-0190.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 2002.

      Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   ON REMAND FROM THE SUPREME COURT OF LOUISIANA

| .MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE:

This case comes before us on remand from the Supreme Court of the United States. See, Kennedy D. Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). In our original opinion we held that the police officers did not need a warrant to enter defendant’s apartment because they had obtained sufficient probable cause, through surveillance, to make a warrantless arrest of him. The contraband for which he was prosecuted was recovered from his person, not the apartment, during a search incident to his warrantless arrest. Therefore we did not consider his contention that the officers lacked exigent circumstances to enter his apartment.

The Louisiana Supreme Court denied writs over Chief Justice Calogero’s dissent to the effect that there is a fine line at the entrance of the home and, as such, the police need both probable cause to either arrest or search and exigent circumstances. The U.S. Supreme court agreed with Chief Justice Calogero, reversed our judgment that exigent circumstances were not required to justify the ^officers’ conduct and remanded the case to us for further proceedings consistent with its decision.

FACTS:

The facts recited below are taken from our original opinion:

Detective John Brunet testified at trial that he and his partner, Detective Derrick Brumfield, went to the 2300 block of Washington Avenue on March 5, 1998, around 5:00 p.m. to observe the apartment in question. At the motion to suppress hearing, the officer testified that they went to the location in response to a citizen complaint. Once there, they saw a person approach the apartment and exchange currency for a small object. They continued watching the apartment and saw a total of four apparent narcotics transactions. Brunet saw the defendant complete a transaction. After the fourth transaction, Brunet ordered that the buyer to “taken down.” Detective Steven Gaudet and his partner stopped the man. Because the stop took place within a block of the apartment, Brunet feared that evidence would be destroyed and ordered that the apartment be entered. Upon the officers’ entering, the defendant sat on a gun. Another weapon was on a table to the defendant’s left. Both defendants were “secured.” Officers obtained .a search warrant. After the warrant was obtained, a search of the defendant revealed fifty-eight pieces of crack cocaine and $238.00. The officers seized a cooking tube from the apartment.

EXIGENT CIRCUMSTANCES:

We start this analysis from the well established proposition that a war-rantless search is presumptively unreasonable under the Fourth Amendment, unless it falls within a specific exception to the warrant requirement. See Roska v. Peterson, 304 F.3d 982, 989 (C.A.10 (Utah)). According to Roska, supra, exigent circumstances arise when

|3(1) the law enforcement officers ... have reasonable grounds to believe that there is immediate need to protect then-lives or others or their property or that of others, (2) the search [is not] motivated by an intent to arrest and seize evidence, and (3) there [is] some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be search.
United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir.1992) (alterations in original). The government bears the burden of proving exigency. United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993). The government’s burden is “Particularly heavy where the police seek to enter a suspect’s home.” Anderson, 981 F.2d at 1567 (quoting United States v. Maez, 872 F.2d 1444, 1452 (10th Cir.1989).) In evaluating whether exigent circumstances existed. We examine the circumstances “as they would have appeared to prudent, cautious, and trained officers.” United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir.1998). This exception is narrow, and must be “jealously and carefully drawn.” Id.

The United States Supreme Court has defined exigent circumstances as “a plausible claim of specially pressing or urgent law enforcement need.” See Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001).

DISCUSSION:

In applying the above principles to the facts of this case we find there were insufficient exigent circumstances to justify the warrantless entry. The only reason given by the officer in support of the decision to enter the apartment was because the “take down” of the fourth purchases occurred within the same block as the apartment. However, there is no testimony or other evidence in the record from which we can conclude that the occupants of the apartment were aware of the police surveillance or of the “take down” nearby. There is no evidence that anyone else discovered the police presence who could notify the occupants of the surveillance or “take down.” There is no evidence that a crowd was gathering as a Rresult of the police activities. In the absence of a showing that the officers possessed specific and articulable facts, together with the rational inferences from those facts, we cannot find that their belief that exigent circumstances existed to enter the apartment without a warrant was a reasonable one. See U.S. v. Wilson, 306 F.3d 231, 238, (5th Cir.(Tex.) 2002). The evidence seized during that warrantless entry, therefore, should have been suppressed.

CONCLUSION:

For the above and foregoing reasons we reverse the defendant’s conviction and remand for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

BYRNES, C.J., dissents with reasons.

|,BYRNES, C.J.,

DISSENTS WITH REASONS:

I respectfully dissent based on my conclusion that the majority erred in reversing the defendant Kennedy D. Kirk’s conviction and sentence. The majority reversed the trial court’s denial of the motion to suppress the evidence including two weapons, money, a purse, letters, drug paraphernalia, and contraband found on Kirk and Paul Cook when they and the residence were searched.

Detective John Brunet testified at the hearing on the motion to suppress held on June 1, 1998 and at the trial on September 22,1998. Based on an anonymous tip to the task force, Detective Brunet and his partner, Detective Brumfield, set up a surveillance of the apartment building in March 1998. At the motion hearing, Detective Brunet testified that:

During that surveillance, we had a high foot traffic going back and forth from the apartment. We could observe from our location U.S. currency being exchanged for small packages of some sort.

At trial, Detective Brunet stated that:

We observed both subjects [the defendants/occupants] at periodic times. Paul Cook and Kennedy Kirk was one of the two subjects. At that time, we didn’t know their last names. All we knew were the first names.

|2After they saw four transactions, the police stopped a subject [Leslie Butler] who had approached the apartment and had exchanged currency for a small object. At the motion hearing, the detective stated:

Once it was confirmed that crack cocaine was being sold from that location, we secured the premises due to this exigent circumstances and obtained a search warrant for the target location.

The detective said that the drug transactions took place in front of the door of the apartment. At trial the detective related that he personally saw Kirk and Cook at different times exchange a small object for currency at the front door of the apartment. At the motion hearing, the detective stated that: “we thought the information would get back to them [the occupants] and they would destroy the contraband.” When the police entered the apartment, Kirk stepped backward and sat on a chair where the officers saw a weapon. The officers could observe the weapon before Kirk sat on it to conceal it, and they saw another weapon located on the table. The detective testified:

Like I said, we secured the apartment based on the exigent circumstances. And at that time, we frisk-searched the subjects for weapons upon entering the apartment. The subject, Kennedy Kirk, was in possession of a plastic — it looked more like a medicine bottle. I think he had like 53, 58 pieces, something like that of crack cocaine on his person.

Sergeant Steven Gaudet frisk-searched Kennedy Kirk. Detective Brunet frisk-searched Paul Cook. Kirk and Cook were placed in handcuffs. Thereafter, Detective Brunet obtained a warrant to search the apartment. Later, it was determined that Cook had 19 rocks in one of his front pockets. The defendant Kirk testified that the apartment was rented by Cook, and that Kirk received mail at the apartment. The State provided evidence of letters to Kirk at the apartment address.

13Standard of Review of a Motion to Suppress

The appellate court reviews the district court’s findings of fact on a motion to suppress under a clearly erroneous standard, and will review the district court’s ultimate determination of Fourth Amendment reasonableness de novo. U.S. v. Seals, 987 F.2d 1102 (5 Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. United States v. O’Keefe, 128 F.3d 885 (5 Cir.1997), cert. denied, 523 U.S. 1078, 118 S.Ct. 1525, 140 L.Ed.2d 676 (1998). An appellate court reviews the district court’s determinations of reasonable suspicion and probable cause de novo. U.S. v. Green, 111 F.3d 515 (7 Cir.1997), cert. denied sub nom. Green v. U.S., 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997). Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Maryland Cas. Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1 Cir.1993), writ denied 629 So.2d 1138 (La.1993). In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence from the motion hearing. It may also consider the evidence presented at trial. State v. Nogess, 98-0670, p. 1 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

In the present case, the United States Supreme Court reversed “the Court of Appeal’s judgment that exigent circumstance were not required to justify the officers’ conduct, and remand for further proceedings.... ” Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 2459, 153 L.Ed.2d 599 (6/24/02). The United States Supreme Court did not express an opinion on the argument that any Fourth Amendment violation was cured because the police had an “independent 14source” for the recovered evidence. Id The United States Supreme Court implied that probable cause existed where it remanded the case only on the issue of whether exigent circumstances were present.

I conclude that probable cause and exigent circumstances existed for the officers to lawfully enter and secure the apartment.

Probable Cause to Arrest

La.C.Cr.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(1). The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or in close pursuit;
(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;

It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. State v. Gates, 24,995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied sub nom. Gates v. Jones, 94-0640 (La.6/17/94), 638 So.2d 1091. An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. Rodriguez v. Deen, 33,308 (La.App. 2 Cir. 5/10/00), 759 So.2d 1032, writ denied, 2000-1414 (La.6/23/00), 765 So.2d 1049. For an arrest, the law does not require that “reasonable cause to believe” be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. La.C.Cr.P. art. 213; State v. Weinberg, 364 So.2d 964 (La.1978). The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. Id.

Probable cause for an arrest must be judged by the probabilities and practical considerations of everyday life in which average people, and particularly average police officers, can be expected to act. State v. Franklin, 598 So.2d 1147 (La.App. 1 Cir.1992), writ denied, 604 So.2d 1317 (La.1992). The reputation of the area is an articulable fact upon which a police officer may legitimately rely. Id. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or a preponderance standard demands. State v. Green, 98-1021 (La.App. 4 Cir. 12/22/99), 750 So.2d 343, writ denied, 96-2610 (La.6/20/97), 695 So.2d 1348. State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97), 694 So.2d 549. Deference should be given to the experience of the police who were present at the time of the incident. Id. The fundamental philosophy behind the probable cause requirement of the Fourth Amendment is that common rumor or report is not an adequate basis for the arrest of a person. State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179. Police are not required to arrest an individual at the point at which probable cause for arrest arises. State v. Coleman, 412 So.2d 532 (La.1982).

In State v. Zayas, 93-1473 (La.App. 4 Cir. 5/26/94), 637 So.2d 1237, the police officer had probable cause to arrest the defendant and codefendant charged with possession of cocaine. The search of the co-defendant’s bag of potato chips was lawful, where the police had information from a confidential informant about | ¿the defendant, his operating procedure, and address where drug trafficking had occurred a week earlier, and where the defendant and co-defendant appeared to be carrying out a drug transaction similar to the transaction observed a week before the arrest.

In State v. Shelton, 96-2322 (La.App. 4 Cir. 10/30/96), 682 So.2d 338, the police officers who observed the defendant and another individual conduct hand transactions in an area known for frequent drug activity and observed the defendant place a clear plastic bag in his front shirt pocket when he saw the officer, had probable cause to make a warrantless arrest of the defendant and search the defendant pursuant to the arrest. U.S.C. Const.Amend. 4; La.C.Cr.P. art. 213.

In State v. Davis, 612 So.2d 1052 (La.App. 4 Cir.1993), an officer who was in an area known for drug trafficking, saw a defendant showing a matchbox to another person. The officer had probable cause to arrest the defendant where the officer knew that matchboxes are commonly used to carry cocaine.

In the present case, information was relayed to two police detectives by a task force who received an anonymous a tip of drug activity at a certain address. The officers set up a surveillance in front of the apartment. Based on their experience, the officers had justifiable reason to believe that the occupants were involved in drug activity because the officers saw the occupants engage in four different transactions with other individuals. Under the totality of circumstances, it was reasonable for the officers to believe that the occupants had committed a felony when they observed the occupants conducting hand-to-hand drug transactions. Pursuant to La.C.Cr.P. art. 213, the officers had probable cause to arrest Kirk. Once Kirk could be lawfully arrested, the police could search him. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wilson, 467 So.2d 503 (La.1985), U.S. cert. denied, 474 U.S. 911, 1027, 106 S.Ct. 281, 585, 88 L.Ed.2d 246, 567 (1985); State v. Tasby, 26,103 (La.App. 2 Cir. 6/24/94), 639 So.2d 469, writ denied 94-2256 (La.1/13/95), 648 So.2d 1336.

In the present case, the officers had probable cause to arrest Kirk. To legally enter the apartment and secure it while waiting for a warrant, the officers required exigent circumstances as well as probable cause.

Exigent Circumstances

In State v. Johnson, 617 So.2d 18, 20 (La.App. 4 Cir.1993), this court discussed the applicability of the “exigent circumstances” warrant exception:

... Generally, searches may be conducted only pursuant to a warrant which has been issued by a judge on the basis of probable cause. U.S. Constitution, Amendment 4; Louisiana Constitution Article 1 § 5; C.Cr.P. Article 162; State v. Brady, 585 So.2d 524 (La.1991). A recognized exception to the warrant requirement for entry into a building is a quick search of the premises to determine the presence of persons in need, the presence of a perpetrator who might still remain on the premises, or to prevent the destruction of evidence. Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409 [83 L.Ed.2d 246] (1984); United States v. Rubin, 474 F.2d 262 (3rd Cir.1974 [1973]) cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); State v. Roebuck, 530 So.2d 1242 (La.App. 4th Cir.1988), writs denied, 531 So.2d 764 (1988).
Probable cause alone does not justify the entry into an area otherwise protected by the Fourth Amendment of the United States Constitution and the Louisiana Constitution, Article 1 § 5.
There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320 (La.1979). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a “protected” area that without those exceptional circumstances would be unlawful. Examples of exigent circumstances have |Rbeen found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence.
State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).

See also State v. Page, 95-2401, p. 10, (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709, writ denied 96-2352 (La.2/21/97), 688 So.2d 522; State v. Tate, 623 So.2d 908 (La.App. 4 Cir.1993), writ denied 629 So.2d 1126, and writ denied 629 So.2d 1140 (La.1993).

The intrusiveness of a search is not measured so much by scope as it is by whether it invades an expectation of privacy that society is prepared to recognize as reasonable. Twenty-Three Thousand Eight Hundred Eleven and No/100 ($23,811) Dollars in U.S. Currency v. Kowalski, 810 F.Supp. 738 (W.D.La.1993).

In United States v. Rubin, 474 F.2d 262, 268-269 (3 Cir. (Pa.) 1973), the federal court listed circumstances that might lead police officers to reasonably conclude that evidence would be destroyed or removed before they could secure a search warrant:

(1) The degree of urgency involved and the amount of time necessary to obtain a warrant;
(2) A reasonable belief that the contraband is about to be removed;
(3) The possibility of danger to police officers guarding the site of the contraband while a search warrant is sought;
(4) Information indicating the possessors of the contraband were aware that the police were on their trail; and
19(5) The ready destruction of the contraband and the knowledge and efforts to dispose of narcotics and escape are characteristic behavior of persons engaged in narcotics traffic.

In State v. Woods, 591 So.2d 1323 (La.App. 4 Cir.1991), this Court found that exigent circumstances existed where the defendant’s brother might be in the residence and that crack cocaine found inside the residence easily could have been destroyed.

In Johnson, supra, 617 So.2d 18 (La.App. 4 Cir.1993), the officers received information that drugs were being sold from a certain address. After the officers established a surveillance, they observed what appeared to be drug sales. The officers arrested the companion at the car and then secured the house while waiting for the issuance of a warrant for the house. This court found that the officers had probable cause to believe that the house contained drugs, and the arrest of the defendant’s companion, of which the defendant would be aware, allowed the officers to enter the house to secure it.

In Roebuck, supra, from a tip that drugs were sold from a motel room by Roebuck and his girlfriend, the police officers conducted a surveillance for several days and observed activities consistent with drug trafficking. Officers saw Roebuck and his girlfriend leaving the apartment carrying a brown paper bag. The suspects were stopped and arrested. The officers then entered the room “to secure it” while awaiting the issuance of the warrant. This Court rejected the defendants’ argument that the officers’ warrantless entry tainted the subsequent search of the room pursuant to a warrant. This Court noted that the officers were justified in entering the room because of the possibility that another person may have been in the room, may have seen Roebuck and his |ingirlfriend being arrested, and may have attempted to leave through a back door with the remaining drugs. This Court found exigent circumstances even though the officers could give no basis for the belief that another person was inside the motel room.

In State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, the officers were justified in knocking on a motel room door to investigate an anonymous tip about drugs being present in the room because reasonable suspicion of criminal activity was not required. Knocking on the door did not constitute an investigatory stop. Id. There is no compulsion, force, or coercion involved when the door is opened in response to the knock, and it is considered to be a consent of the occupant to confront the caller. Id. When the officers observed drug paraphernalia in plain view, they had probable cause to arrest the defendant. When the door was opened, the Fifth Circuit found that: “there were exigent circumstances because there was the possibility that the occupant could have escaped during the time which would have been required to prepare an affidavit, locate a magistrate, and obtain an arrest and/or search warrant.” Id. at 576.

In the present case, the police saw several drug transactions transpire in front of the residence. The police were aware that the occupants/sellers remained in the apartment after a buyer left and was stopped down the block. After the police stopped the buyer down the block with drugs, the officers had probable cause to believe that the house contained drugs. Where drugs were involved, exigent circumstances existed for the detectives to enter and secure the apartment because the officers thought that information could get back to |nthe occupants and they could destroy the contraband under the totality of circumstances.

Inevitable Discovery

The officers inevitably would have discovered the evidence on lawful grounds. See State v. Ballon, 97-2036 (La.App. 4 Cir. 11/12/97), 703 So.2d 130, writ not considered, 97-3114 (La.2/13/98), 706 So.2d 987. As this Court stated in State v. Knapper, 626 So.2d 395, 396 (La.App. 4 Cir.1993), writ denied, 93-2950 (La.1/28/94), 630 So.2d 798:

In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the United States Supreme Court adopted the “inevitable discovery” doctrine, holding that evidence found as a result of a violation of a defendant’s constitutional rights, would be admissible “[I]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered.” The so-called “inevitable discovery doctrine” has been followed by Louisiana courts. State v. Nelson, 459 So.2d 510 (La.1984), cert. den., Nelson v. Louisiana, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 322 (1985); State v. Clark, 499 So.2d 332 (La.App. 4 Cir.1986).

In the present case, Detective Brunet testified that the drugs were not found on Kirk and Cook until after the search warrant was obtained. The detective answered the prosecutor’s questions as follows:

Q. While you are checking Paul Cook for weapons who was searching Kennedy Kirk?
A. Frisk search by Sergeant Gaudet and other members of the task force.
Q. Did you see anything seized from the person of Kennedy Kirk at that time?
A. Not that I recall.
Q. Okay. So, he didn’t seize anything off the actual person of him?
A. Nope. He was seated on the weapon.
Q. Did you see anyone remove any drugs from the defendant at that time?
A. Not that I pan recall.
[12Q- Did you seize any drugs from Paul Cook at that time?
A. No. I didn’t seize any drugs but like I said, I frisk searched him for weapons and he had what I thought was a vial at that time but it ended up being a pill bottle.
Q. You didn’t seize the pill bottle?
A. I didn’t have a need to immediately.
Q. You went to get a search warrant?
A. Yes.
Q. Once you got the search warrant and return, what did you do in respect to the apartment? Was the search done at that time after the warrant was received?
A. I think Mr. Cook had nineteen pieces of crack cocaine in his front pant pocket. Mr. Kirk had fifty eight pieces of crack cocaine which was inside of his front pant, inside of his underwear.

Even if the officers had seized the drugs from Kirk and Cook before obtaining the warrant, inevitably the police would have found the evidence in a lawful search of the apartment as well as pursuant to a lawful arrest of Kirk and Cook. Before entering the apartment, the detectives had probable cause to arrest the occupants. They could fully search the occupants pursuant to valid arrests when the officers entered the apartment under exigent circumstances.

Accordingly, I would affirm the defendant Kennedy Kirk’s conviction and sentence as amended in this Court’s original opinion, ie., with a denial of the benefit of parole, probation, or suspension of sentence on the last ten years of the sentence.


author: | JAMES L. CANNELLA, Judge.

text:
    Robert J. EVANS, Sr. v. Christine S. EVANS.
    No. 02-CA-691.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 19, 2002.
    D. Douglas Howard, Jr., Danyelle M. Taylor, New Orleans, LA, for Appellant Robert J. Evans, Sr.
    Pat M. Franz, Metairie, LA, for Appel-lee Christine S. Evans.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

Plaintiff, Robert J. Evans, appeals from the trial court ruling finding Defendant, Christine S. Evans, Plaintiffs former wife, to be free from fault in a hearing on Defendant’s request for final spousal support. For the reasons which follow, we find that the trial court’s judgment is a partial final judgment and not subject to appeal. We dismiss the appeal as premature and remand.

The parties were married on July 26, 1992. They physically separated on July 26, 2000. Plaintiff filed a petition for divorce on August 9, 2000. Pursuant to orders of the trial court, Plaintiff paid interim spousal support to Defendant in the amount of $1,500 per month. After the judgment of divorce, Plaintiff was ordered to continue paying the same amount pending a determination of Defendant’s entitlement to final periodic support. A hearing was held on the issue of fault and the trial court found that Defendant was free from fault. The trial court has not yet made any findings on need, ability to pay or quantum. It is from this fault ruling that Plaintiff appeals.

On appeal the Plaintiff argues that the trial court erred in it’s ruling, finding that the Defendant was free from fault.

13Before considering the merits of Plaintiffs arguments on appeal, Defendant points out that the matter is an interlocutory ruling and not appealable. We agree.

This Court has been presented with the same procedural problem in two prior cases, Brehm v. Brehm, 96-159 (La.App. 5th Cir.9/18/96), 686 So.2d 881 and Plauche v. Plauche, 95-979 (La.App. 5th Cir.3/13/96), 673 So.2d 1053. In both cases this Court held that an appeal of a ruling which determined fault but not an award of support or a final determination that support was not due was improper because such a ruling was a partial final judgment that was not appealable. La. C.C.P. art. 1915. We find those cases on point and dispositive of the instant case.

Plaintiff argues that this case is distinguishable because La. C.C. arts. Ill and 112 on periodic support have been amended subsequent to the rendition of the Brehm and Plauche cases. While we recognize that the articles have been amended, we do not find that the amendment changes the legal principles applicable to the issue herein.

The relief sought by the Defendant is a monetary award of periodic support. While the ruling on fault touches on one issue in the support dispute, it is not a final appealable judgment because it does not grant a party all or part of the relief for which it prayed. The trial court must still make determinations regarding Defendant’s need and Plaintiffs ability to pay, as well as several other factors, including the ultimate monetary award. As pointed out in Planche, to hold otherwise would mean we could look forward to a second appeal on need, and third appeal on ability to pay and then a forth appeal on quantum. Judicial economy and the avoidance of piecemeal Lappeals remain guiding appellate principles. Plaintiff or Defendant will, of course, be entitled to full consideration of all issues involved in their litigation in an appeal of a final judgment on periodic support. Accordingly, this appeal is dismissed as premature and the case is remanded to the trial court for further proceedings.

APPEAL DISMISSED. CASE REMANDED.