author: | ¡MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Foster TAYLOR.
    No. 03-KA-1272.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Paul D. Connick, Jr., District Attorney 24th Judicial District, Andrea F. Long, Terry Boudreaux, Assistant District Attorneys, Gretna, LA, for Appellee.

      Jane L. Beebe, Gretna, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   | ¡MARION F. EDWARDS, Judge.

Defendant, Foster Taylor, appeals his conviction and sentence for armed robbery in violation of La. R.S. 14:64. Following his arraignment, Taylor pled not guilty, and was tried before a twelve-person jury. At the conclusion of the trial, Taylor was found guilty as charged. After the appropriate delays, he was sentenced to imprisonment at hard labor for thirty-five years without benefit of parole, probation, or suspension of sentence. A multiple bill was subsequently filed alleging Taylor to be a multiple offender, which allegations Taylor denied. The trial court found Taylor to be a second felony offender and vacated the original sentence, imposing a new sentence of forty-nine and one-half years without benefit of parole, probation, or suspension of sentence. Taylor has appealed.

At the trial, Tanya King, a night auditor at the Holiday Inn in Kenner, testified that on November 8, 2000, at approximately 12:00 or 12:80 a.m., she and Susan Cordes, another night auditor, were at the front desk. Ms. King was | Sfinishing a conversation with a bellman over a radio, and walked into the back office to hang up the radio. As she turned around to go back up front with Ms. Cordes, she saw a man, later identified as Taylor, wearing a Halloween mask and carrying a gun. Ms. King saw another man wearing a Halloween mask who was guarding the door. Ms. King identified State’s Exhibit 3 as a photograph of the mask the gunman was wearing, and she described the gun as being slender, gray, and automatic.

The gunman pointed the gun at Ms. King and told her to be quiet and that nothing would happen to her. Grabbing the back of Ms. King’s neck with his left hand, he put the gun under her chin. He pushed her to the front and told Ms. Cordes to get the money and to hurry up, giving her a red T-shirt in which to put the money. After Ms. Cordes brought the money, he brought both Ms. King and Ms. Cordes to the back room and told them to lie down on their faces, and the robbers left. Ms. King described the gunman as being tall and slender and the other man as being shorter and heavier.

Both women were terrified as they lay on the floor, thinking they were going to die. They subsequently heard someone punching in the code and were afraid that the gunmen had returned. When they turned around and saw John Riley, the bar manager, both women jumped up. Ms. Cordes grabbed the radio and called a deputy, and Ms. King called 911.

Ms. King testified that the back office was a secure area to which the public did not have access, and that the only way to gain entry to the area was to use an electronic code to open the door or to jump over the front counter. Ms. King testified that she was familiar with Derrin Smith, a maintenance worker at the hotel (who was also charged in the robbery), and that he had the code to get into the door so he could pick up and turn in keys.

pMs. Cordes testified at trial, and her testimony largely corroborated that of Ms. King. Additionally, Ms. Cordes testified that the robbers stole $250 that night. Further, she stated that she told Kenner Police Department Detective Michael Cunningham that she could not provide a description of the individuals who had robbed them because the two men were wearing masks, but that she could identify the mask and the clothes they were wearing. Ms. Cordes was shown a photographic lineup by the district attorney’s office, but she was unable to recognize anybody’s face. However, she testified that the man shown in the photograph, top row, third picture, in State’s Exhibit 5, was wearing a dark jean jacket that looked exactly like the jacket the man with the gunman was wearing. This was Taylor’s photo.

Det. Michael Cunningham testified that he investigated the armed robbery. Ms. King and Ms. Cordes explained to him that during the robbery, one man wore a ski mask, and that the other man wore a Star Wars type mask. Det. Cunningham testified that Det. Ed Derringer of the New Orleans Police Department was investigating the shooting death of a Jamal Rely-veld, and that he had recovered evidence from that shooting which included a Star Wars type mask and a silver-colored automatic handgun.

Det. Cunningham showed Ms. Cordes a photograph of that Star Wars mask which Ms. Cordes positively identified as the mask that the gunman was wearing. Det. Derringer also gave Det. Cunningham the name of the defendant, Foster Taylor, and his nickname “Ketchup,” in order to assist him with the Holiday Inn armed robbery investigation. Det. Cunningham learned that Mr. Relyveld and Taylor had the same address.

Det. Cunningham met with David Moore, the general manager of the Holiday Inn, who informed him that his employee, Derrin Smith, had requested bereavement leave as a result of Mr. Relyveld’s death. Mr. Moore provided Det. | ^Cunningham with a copy of the bereavement leave and a copy of Mr. Relyveld’s obituary notice. Det. Cunningham learned that Mr. Relyveld and Derrin Smith were half-brothers.

Det. Cunningham testified that he met with a Matthew Smith during the investigation, and that Mr. Smith told him that he had knowledge regarding the Holiday Inn armed robbery. Det. Cunningham took a taped statement from Matthew Smith and two statements from Derrin Smith, the second of which was admitted into evidence.

According to the witness, in his first statement of November 21, Derrin Smith stated that he had talked to Mr. Relyveld and Taylor about the possibility of a robbery, but that he did not think that they would go through with it. In his second statement of February 15, 2001, admitted into evidence Derrin Smith stated that he knew Mr. Relyveld and Taylor were going to commit the armed robbery.

Derrin Smith told Det. Cunningham that he was on the telephone with his brother Mr. Relyveld and Taylor on November 7, after 5:00 p.m., approximately eight hours prior to the armed robbery. Both were asking him specific questions about the security of the hotel and the layout of the front office, and that he provided both of them with the access code to the door. Mr. Relyveld knew which door to go into because he had been there. On the day after the robbery, Mr. Relyveld was killed in another armed robbery. Derrin Smith felt that if he had come forward previously, his brother may still have been alive. There was no doubt in his mind that Mr. Relyveld and Taylor committed the robbery. Following the second statement, Det. Cunningham arrested Derrin Smith as a principal to the armed robbery.

Matthew Smith testified that he knew Taylor and Mr. Relyveld, who were roommates, because he lived in the same apartment complex. He explained that, in November of 2000, he had known them for approximately one month. Mr. Smith Ifihad visited the two men almost every day because they had a television and he did not. Det. Cunningham showed Mr. Smith a photographic lineup, and Mr. Smith identified number three as Taylor, who he knew as Torreyana Tates or “Ketchup.”

When Matthew Smith went to the two men’s apartment on November 9, Taylor and Mr. Relyveld were there. Taylor was counting penny wrappers and had money on the table. [Matthew] Smith asked Taylor where he had gotten the money, and Taylor said he had “hit a lick,” which meant he had robbed someone. Taylor told Matthew Smith that he, Derrin Smith, and Mr. Relyveld had robbed the Holiday Inn where Derrin Smith worked.

Matthew Smith testified that he saw two guns in their apartment: one was a chrome-colored automatic 9 millimeter that was kept on top of the television in a box, and the other one was a .22 caliber revolver with a brown handle that was also kept on top of the television, but not in a box. Mr. Smith testified that the 9 millimeter gun belonged to Mr. Relyveld, and that the .22 caliber gun belonged to Taylor. Mr. Smith knew the gun belonged to Taylor because he saw Taylor carrying it around on his person.

After November 9, Taylor told Matthew Smith that he had hidden the gun in his back yard, and that he wanted [Matthew] Smith to go and get it. However, [Matthew] Smith did not go and get the gun, nor did he call the police because he did not want to get involved. [Matthew] Smith admitted that he and Taylor had had a fight approximately one week before the incident, and that he had tried to make up with Taylor, but that Taylor had held a grudge.

Mr. Moore, the general manager of the Holiday Inn, testified that, on November 8, 2000, Derrin Smith was employed by the hotel as a maintenance worker. Mr. Moore further testified that [Derrin] Smith gave the Human Resources Director a bereavement leave slip and an obituary notice in connection with the death of his brother, Jamal Relyveld, which Mr. Moore identified as |7State’s Exhibits 1 and 2, respectively. Mr. Moore explained that, in order to collect for bereavement leave, the employee was required to fill out a personnel action form, or PAF, and produce a copy of the obituary from the Times-Picayune newspaper.

Mr. Moore explained that the area behind the front desk was known as the PBX office, that it was a secured area to which the public did not have access, and that in order to get through the door to gain access to the area, one had to punch in numbers on a keypunch number lock. He testified that [Derrin] Smith may have had access to that back area, that he should not have had the access code, but that some maintenance personnel did.

After hearing the evidence, the jury found Taylor guilty as charged.

Taylor alleges on appeal that the trial court erred in failing to grant the defense’s motion for a new trial because there was insufficient evidence to support the conviction as to the identity of the perpetrator. He contends that, considering the fact that Matthew Smith and Taylor had a fight the week before the incident, and that Taylor had held a grudge against Matthew Smith, that Matthew Smith had every reason to lie. He urges that Matthew Smith had no credibility regarding either their relationship or the likelihood that Taylor would admit committing the robbery to him. Thus, Taylor alleges that the guilty verdict was contrary to the law and evidence.

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.” 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.

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. 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.

LSA-R.S. 14:64 defines armed robbery as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

In addition to proving the statutory elements of the charged offense at trial, the state is required to prove the identity of the perpetrator. Where the key issue is identification the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof.

In the instant case, Taylor does not contend that the state failed to establish the elements of the crime of armed robbery. Rather, he alleges that there was insufficient evidence to conclude that he was the perpetrator of the armed robbery.

Derrin Smith, a Holiday Inn employee, admitted in his statement that he knew Taylor and Jamal Relyveld were going to commit the armed robbery at the Holiday Inn, and told Det. Cunningham that approximately eight hours before the robbery, he gave Taylor and Mr. Relyveld information regarding the security of the hotel, the layout of the front office, and the access code to the door.

| ciMatthew Smith testified that he went to the apartment shared by Taylor and Mr. Relyveld on the day after the robbery and saw Taylor counting penny wrappers. He testified that Taylor told him that he and Mr. Relyveld had robbed the Holiday Inn where Derrin Smith worked, and that he, Taylor, had hidden the gun that was used in the robbery in the backyard.

Ms. Cordes testified that Taylor was wearing a mask during the robbery, and she positively identified a photograph of the mask, which had been obtained from an investigation involving the shooting death of Mr. Relyveld, who was the half-brother of Derrin Smith.

The state’s case against Taylor rested to a great extent on the testimonies of both Derrin and Matthew Smith.

The reviewing court will not assess the credibility of witnesses, nor re-weigh evidence. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual finding.

In the instant case, the jury obviously found Matthew Smith’s testimony credible. Further, there was no internal contradiction or irreconcilable conflict between the physical evidence and Matthew Smith’s testimony. There was evidence other than Mr. Smith’s testimony, outlined herein-above, which was used at trial. Viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. This assignment of error is without merit.

ImTaylor also argues that his forty-nine and one-half year sentence is constitutionally excessive. He contends that the trial judge clearly indicated that he should not be sentenced to 49j¿ years, but that she felt helpless to deviate from the legislative minimum. He asserts that the trial judge faded to articulate any reasons for the sentence, and that she failed to consider both mitigating circumstances and Taylor’s background. The state responds that the sentence is not constitutionally excessive.

On June 19, 2002, the trial judge sentenced Taylor on the armed robbery conviction to imprisonment at hard labor for thirty-five years without benefit of parole, probation, or suspension of sentence. Pri- or to sentencing, the court noted that Taylor had a prior conviction, that he was twenty years old, that the evidence indicated that Taylor probably committed another robbery right after this robbery, that the victims testified in graphic detail, that Taylor was violent, and that he was unable to conform his behavior to the “safe social morays of your society.”

It is the goal of this court that Foster Taylor be housed until such time that he passes the statistical point at which it is likely that he will not be violent. It is the Court’s goal that Mr. Taylor be incarcerated until somewhere around the age of 50.

On July 17, 2002, the trial judge found Taylor to be a second felony offender, vacated the original sentence, and sentenced him to forty-nine and one-half years without benefit of parole, probation, or suspension of sentence. She did not provide reasons for her sentence. Following sentencing, defense counsel stated that he intended to appeal the excessiveness of the sentence, and that he intended to file a motion to have the excessiveness of the sentence reviewed. On August 7, 2002, Taylor filed a motion to have the sentence declared excessive.

On December 18, 2002, a hearing was held on the motion. Defense counsel argued that the sentence was excessive, noting that Taylor would be in jail until the age of 70. The trial judge asked if that was the minimum sentence, and defense counsel responded affirmatively. The trial judge stated in pertinent part:

I^Mr. Montgomery, I believe I agree with you, that it is a waste of time of the taxpayers’ money to house this gentleman until he is 70 years old. I don’t know too many 70 year olds capable of committing acts of violence or armed robberies. I think 65 is plenty long enough.
However, I am constrained by the legislature by the State of Louisiana, who would rather spend money to the tune of $25,000 a year, rather than far less to put them in an old folks home. So I’m sorry, but I must deny your motion.

After the trial judge denied his motion, defense counsel noted his objection.

The record shows that Taylor filed a written motion to have sentence declared excessive, which actually appears to be a motion to reconsider sentence, in accordance with LSA-C.Cr.P. art. 881.1, and that he orally objected to the excessiveness of the sentence. However, he did not state the specific grounds on which the motion was based either in court or in his written motion. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional exces-siveness. Accordingly, Taylor’s sentence will be examined only for constitutional excessiveness.

A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. This Court has considered three factors in reviewing a judge’s sentencing discretion: 1) the nature of the crime; 2) the nature li?and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness.

When a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional.

In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this Defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Further, if the trial court finds clear and convincing evidence that justifies reducing the sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is |13not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive.

Johnson emphasized that a downward departure from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in “rare situations.”

In the instant case, Taylor was convicted of armed robbery. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64(B). The trial judge subsequently found Taylor to be a second felony offender, vacated the original sentence, and sentenced him under LSA-R.S. 15:529.1 to forty-nine and one-half years of imprisonment at hard labor. LSA-R.S. 15:529.1(A)(l)(a) provides in pertinent part:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction[.]

Thus, Taylor was subject to a sentence of forty-nine and one-half years to 198 years. He received the mandatory minimum of forty-nine and one-half years.

After serious consideration, we find that Taylor has not presented sufficient evidence to rebut the presumption of constitutionality of the sentence imposed and, therefore, that the statutory minimum sentence of forty-nine and one-half years is mandated and proper in this case. Here, Taylor pointed a gun at the night auditors, placing their lives at risk. The victims were terrified and thought that they were going to die. The evidence in the record indicates that Taylor is a violent man who committed another armed robbery right after this one. The fact his prior conviction was for a non-violent offense does not make his present sentence excessive.

| uFurthermore, the jurisprudence supports the enhanced sentence. While the sentence is indeed, extensive, our Supreme Court has pointedly stated that:

Given the Legislature’s constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.

This assignment of error is without merit.

The record was reviewed for errors patent according to La.C.Cr.P. art. 920. LSA-R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the information, his right to a hearing and his right to remain silent. In the present case, the record does not disclose that Taylor was advised of his rights prior to the multiple bill hearing. The failure of the trial court to advise the defendant of his right to a trial and to remain silent is harmless error when the multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant.

In the instant case, Taylor denied the allegations of the multiple bill, and the State presented competent evidence at the hearing to establish his multiple offender status. Therefore, the trial court’s failure to advise Taylor of the specific allegations against him and of his right to be tried and to remain silent was harmless error.

At the time of Taylor’s enhanced sentencing on July 17, 2002, the trial court advised him as follows:

And as the underlying sentence, I am informing you that you have two years to file a petition for Post Conviction Relief, complaining |1sof the Constitutionality of the process. And that is from the date your conviction and sentence become final; and today is the day.

LSA-C.Cr.P. art. 930.8 provides that a court shall not consider an application for post-conviction relief filed more than two years after the judgment of the conviction and sentence has become final. The trial court’s statement is confusing, in that the date the conviction and sentence becomes final is not the date of sentencing since the appeal is still pending. Also, it appears from the advisal that Taylor can only appeal constitutional issues pertaining to the underlying sentence and nothing else. Therefore, we remand the matter to the district court with instructions to inform Taylor of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof that defendant received the notice in the record of the proceedings.

For the foregoing reasons, Taylor’s conviction and sentence are affirmed. We remand the case to the district court with instructions for the trial court to correctly inform Taylor of the prescriptive provisions for seeking post-conviction relief.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

      . Id.

      . State v. Joseph, 01-1211 (La.App. 5 Cir. 4/10/02), 817 So.2d 174.

      . State v. Shapiro, 431 So.2d 372, 378 (La. 1982).

      . State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69.

      . Id.

      . State v. Rosiere, 488 So.2d 965, 968 (La. 1986); State v. Ellwood, 00-1232 (La.App. 5 Cir. 2/28/01), 783 So.2d 423, 427.

      . State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La. 11/22/02), 829 So.2d 1035.

      . Id.

      . State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

      . State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

      . State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

      . State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, 1040-1041, writ denied, 94-3063 (La.4/7/95), 652 So.2d 1344.

      . State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Cushinello, 01-109 (La. App. 5 Cir. 7/30/01), 792 So.2d 926, 929, writ denied, 01-2505 (La.9/20/02), 825 So.2d 1159.

      . State v. Dorthey, 623 So.2d at 1280; State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 383.

      . State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388.

      . State v. Harbor, 817 So.2d at 227.

      . State v. Johnson, supra;State v. Jerome 03-126 (La.App. 5 Cir. 4/29/03), 845 So.2d 1194.

      . See State v. Smith, 03-866 (La.App. 5 Cir. 11/25/03), 862 So.2d 240.

      . See State v. Pierre, 02-838 (La.App. 5 Cir. 12/30/02), 834 So.2d 1229, writ denied, 03-508 (La. 10/17/03), 855 So.2d 755; State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666;); State v. Durden, 36,842 (La.App. 2 Cir. 4/9/03), 842 So.2d 1244, writ denied, 2003-1350 (La. 11/26/03), 860 So.2d 1131.

      . State v. Johnson, supra.

      . See State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990).

      . State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir. 1992), overruled on other grounds in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 131.

      . State v. Dearmas, supra.

      . State v. Haywood, 00-1584 (La.App. 5 Cir.3/28/01), 783 So.2d 568.

      . State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975, writ denied, 01-1719 (La.4/12/02), 812 So.2d 666.


source: Caselaw Access Project

author: 1 .MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Damaris JACKSON.
    No. 03-KA-883.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Walter Amstutz, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   1 .MARION F. EDWARDS, Judge.

Defendant, Damaris Jackson On March 8, 2001, appeals his conviction for one count of second degree murder (LSA-R.S. 14:30.1) and one count of attempted second degree murder (LSA-R.S. 14:27, 14:30.1). We affirm.

Quentin Wiley, charged in the indictment as a codefendant, was tried along with Jackson. His appeal is a companion case to the instant opinion. Jackson was arraigned and pled not guilty. He filed a Motion to Amend Original Plea which the trial court granted, allowing Jackson to change his plea to not guilty and not guilty by reason of insanity.

Jackson filed several pre-trial motions, including motions to suppress the confession, identification and evidence. The trial court heard and denied the motion to suppress the confession. Jackson also filed a Motion to Sever Parties, which motion the court heard and took under advisement. That motion was later denied, and subsequently the court heard and denied the motions to suppress evidence and identification.

| .Jackson and Wiley were tried together by a twelve-person jury on April 9, 10, 11, and 12, 2002. The jury returned verdicts of guilty as charged on both counts. On May 20, 2002, the trial court sentenced Jackson, as to Count 1, to life imprisonment at hard labor. As to Count 2, the court sentenced Jackson to forty-nine years at hard labor, ordering that both sentences be served without benefit of parole, probation, or suspension of sentence and that the sentences run concurrently to each other. Jackson appeals.

FACTS

Kenyatta Francis testified that, on January 24, 2001, he met with Quentin Wiley (a/k/a “Heat”) to discuss the sale of one and one-quarter kilograms of cocaine he (Francis) had in his possession. Wiley told Francis that he knew someone who would buy the cocaine. Francis responded that he didn’t want the buyer to know he was selling drugs, and that Wiley would have to “serve” him. That evening, Francis drove a Lexus sports utility vehicle (SUV) to the home of Wiley’s girlfriend in the Woodmere Subdivision in Harvey. He was accompanied by a friend, Corey Charles, who was not involved in the planned transaction. Wiley joined the two men, and they set out to locate the buyer.

Following Wiley’s directions, Francis drove to the Concordia Apartments on Westwood Drive in Marrero. Wiley exited the vehicle, carrying the cocaine in a plastic garbage bag. Wiley walked a short distance and met with a man Francis later identified as defendant, Damaris Jackson. Jackson and Wiley walked toward one of the apartment buildings and disappeared from view, while Francis and Charles waited in the SUV.

When Wiley failed to return, Francis placed a call to his cellular telephone. Francis’ cellular telephone showed that the call was made at 7:11 p.m. He asked Wiley why the transaction was taking so long. Wiley told Francis that the buyer wanted to negotiate some changes in the original agreement. Francis exited the |4SUV, leaving Charles alone in the vehicle. Jackson approached Francis and told him he would take him to Wiley.

Francis and Jackson walked along the outside of one of the apartment buildings. At this time, Francis did not see Wiley. Francis observed that Jackson flinched nervously each time they passed a doorway. When Francis asked him where they were going, Jackson pointed a gun at him and said, “Give it up.” Francis attempted to reach for the gun, but Jackson fired at him. A bullet went through his shoulder and hit his face, and he fell to the ground. Francis testified that Jackson did not take anything from him after he pulled out the gun. Jackson fled on foot, running toward the truck, and Francis heard two more gunshots. Although he did not see what happened, he assumed Jackson was firing at Corey Charles. He did not, however, have firsthand knowledge of who shot Charles. Francis did not see Wiley with a gun, and did not hear Wiley tell Jackson to shoot him.

A nearby resident called police. Francis told an officer at the scene that Heat had set him up, and that Heat’s real first name was Quentin. Francis was transported to West Jefferson General Hospital, where his injuries were treated. Francis testified that he did not recover the cocaine, nor did he receive any money. Francis also testified that he identified Wiley and Jackson from a photographic lineup. On cross-examination, Francis agreed that in his initial statement to police a week after the shooting, he did not mention that Jackson had told him to “give it up.

At trial, Deputy Theodore Keelen of the Jefferson Parish Sheriffs Office testified that he went to the 1500 block of West-wood Drive in response to a shooting call. He found Corey Charles lying on the ground, bleeding and gasping for air. He asked Charles what had happened. Charles told him that he was with a guy called Keyana [sic], and then Charles responded that he could not breathe any Islonger. Deputy Keelen and another officer performed cardiopulmonary resuscitation, and then turned the victim over to the care of emergency medical technicians. Charles was eventually pronounced dead at the scene. The position of bullet casings found at the scene along with Charles’ location when found by police indicated a chase had taken place.

Detective Donald Clogher testified that he interviewed Francis after the shooting, and based on information given by him, Wiley was arrested. Subsequently he obtained an arrest warrant for Jackson. Between January 30, 2001 and February 5, 2001, Clogher conducted six tape-recorded interviews with Wiley. Portions of the statements were excised as agreed upon by attorneys, and the tape recordings were all played for the jury at trial. Transcripts of the statements were given to the jury. In the first interview, Wiley stated that he knew Kenyatta Francis, and that he knew who Corey Charles was. (In that first interview, Charles was referred to as “Corey Brown”, whose nickname was “Rat”.) Wiley denied having been on West-wood Drive on the night of January 24, 2001, insisting that he never goes to that area.

In his second statement taken approximately two hours later, Wiley said he went to 1500 Westwood Drive with Kenyatta Francis, who drove the Lexus truck, and Corey Charles, on January 24, 2001. He and Charles waited in the vehicle while Kenyatta went into an apartment to “holler at” someone about a “deal” he had worked out earlier. Wiley believed the deal involved a drug transaction. Francis called Wiley from his cell phone and told him to come in. Wiley continued to wait in the truck, and Francis exited the apartment some time later with two unknown men wearing hats. Francis was saying he would not give (the men) their money back, and as the men walked toward the vehicle, one of Francis’ two companions shot him. Wiley did not know which of the men fired on Francis, but he saw them both holding guns. One had a silver gun, and the other a large, |fiblack semi-automatic handgun with a laser sight. Wiley jumped out of the truck and ran. Rat also jumped out. Wiley went to the Woodmere area, to the home of his girlfriend, Gretchen, and later left there in his Corvette.

Wiley made his third statement on February 1, 2001 at 11:35 a.m. This statement was substantially the same as the second, except that Wiley identified the shooter as “Marious,” also known as “D.” Wiley said Marious was the one who had the ,9mm gun with a laser sight. He denied any involvement in a drug transaction.

Wiley’s fourth interview took place on February 1, 2001 at 2:45 p.m. Wiley stated that he arranged for Kenyatta Francis and the shooter “Demarious, [sic]” whose last name is either Smith or Jackson, to meet. Damarious wanted to buy a “quarter key” (i.e., kilogram) of cocaine, and Wiley contacted Francis. Wiley accompanied Francis to the Concordia Apartments to sell a quarter key to Damarious. When they arrived at the apartment complex, Wiley sent Francis to meet with Damarious. Francis went into an apartment. When he exited the apartment, shots were fired. Wiley saw Damarious and a second, unknown man. Throughout the incident, Wiley never saw the drugs.

Wiley made a fifth statement at 3:40 p.m. on February 1, 2001. He stated that he went with Francis and Rat to meet Damarious. They were in a Lexus truck and planned to sell a quarter key of cocaine to Damarious, as arranged by Wiley. Wiley jumped out of the truck with the cocaine which was packaged in a black bag. He met with Damarious inside of an apartment and gave him the cocaine. Francis called Wiley on his cellular telephone to ask if he was alright. Wiley told Francis that Damarious was not satisfied with the quality and price of the cocaine. Francis said he wanted to see Damarious to discuss the matter. Wiley stayed in the apartment while Damarious went outside, putting a .9 mm handgun in his jacket. A short time later, Wiley heard shooting. When he left the apartment, he saw |7Pemarious with the .9 mm, with the red laser. Another unidentified man was outside. Wiley ran to a nearby wooded area and later that night, he learned that Francis had been shot.

Wiley made a sixth and final statement on February 5, 2001 at 7:09 p.m. Wiley said Damaris Jackson told him he wanted to buy a quarter key of cocaine. Wiley picked up Jackson, who had a gun obtained from Wiley, and left him at Wood-mere. Jackson was to meet him at the Concordia Apartments, and later, Wiley went with Francis and Corey to the Con-cordia, purportedly to sell cocaine to Jackson. However, when Wiley exited the Lexus SUV with the cocaine, he did not meet with Jackson. Instead, he went to a Nissan Maxima he had parked nearby, and drove it to Woodmere. Wiley then left Woodmere in his Corvette. He took the cocaine with him and hid it. He did not see Jackson after the shootings. Although he changed his story several times during the statement, Wiley ultimately said that he and Jackson planned a “rip-off’ before the meeting at the Concordia Apartments.

Jackson made seven separate tape recorded statements on February 2, 2001. He was questioned by Detective Clogher and Detective Donald Meunier. All of the statements, as altered by agreement of the attorneys, were played at trial, and transcripts of those statements were shown to the jurors. The first interview began at 5:02 p.m. Jackson told Detective Clogher that he lives with his girlfriend, Pamela Willis, at 6565 Benedict Street in Marrero. He spent most of the day with her, and later in the evening went to smoke some “weed” with his brother Jerell, a/a/a “Hoops.” After about 30 minutes, Jackson returned home. He said he did not know Kenyatta Francis, and that he knew Corey Charles only as a friend of his brother’s. Jackson told the detective that he did not go to Westwood Drive on the night of January 24, 2001, had not seen Corey that night, and had no direct knowledge of what had transpired.

IsDetective Clogher conducted a second tape recorded interview with Jackson at 5:37 p.m. There, Jackson said he heard a rumor that Wiley (“Heat”) was seen leaving the scene of the shooting. He had seen Wiley the Saturday after the incident. A week after the shooting, Wiley contacted him through his (Wiley’s) girlfriend. Wi-. ley wanted to know whether Jackson had heard anything about the shootings.

The third interview began at 6:35 p.m. According to this account, Jackson was riding a bicycle through the Concordia Apartments complex at the time of the shootings. He heard three shots, but he did not see the incident. Jackson saw a black truck pulling into the last driveway. He drove past the area later with his girlfriend, and they saw police.

Jackson’s fourth interview began at 7:25 p.m. He stated that he was walking toward Westwood Drive on the night of January 24, 2001, when he saw a man who he later learned was Francis walking toward him. Addressing someone else, Francis said, ‘What’s up dog?” He saw a black truck, with someone sitting inside of it. Jackson then heard gunfire, and ran. He did not see anyone else in the area, and did not see Quentin Wiley there.

Jackson’s fifth statement began at 9:14 p.m. He said he was in the Concordia Apartments complex looking for his girlfriend’s car, as she had allowed a man to borrow it. He saw Heat (Wiley), who said he had business in the area. Wiley asked Jackson to go around the corner and let Francis know that Wiley was there. Jackson went to give Francis the message from Wiley, and as he approached Francis, his (Jackson’s) pants started to slide down. Jackson grabbed the gun that was tucked into his pants and started to put it in his jacket pocket. Francis tried to grab the gun, and it went off. Jackson shot Francis two to three times. Jackson then fled on foot. He saw someone jump out of Francis’ truck and move toward him. Thinking that person had a gun, Jackson fired on him. Jackson stated that his |9gun is a .40 mm, and that it has a laser sight. He ran home and asked his girlfriend to take him to the St. Thomas Housing Project in New Orleans, where he sold his gun.

A sixth interview began at 10:04 p.m. Jackson said that, on January 24, 2001, Heat told him that he and Francis had some cocaine they were going to sell. Wiley told Jackson to meet him at the Con-cordia Apartments, and he would get a share of the cocaine. Jackson brought his gun to protect himself. When the two met that night, Wiley asked Jackson to go to Francis’ truck and bring Francis to him. Jackson and Francis were walking together, and Francis flinched or jumped. In response, Jackson pulled out his gun and shot Francis. Corey Charles ran from Francis’ truck, taking Jackson by surprise. Thinking Charles might have a gun, Jackson fired at him. Jackson did not see Wiley after the incident, and in this statement, declared that he sold his gun for two bags of heroin.

The seventh and final interview began at 10:54 p.m. Jackson stated that Wiley) came to his house on January 23, 2001. Wiley told him that he had a “little hustle” and offered Jackson six thousand dollars worth of cocaine to kill Francis. Jackson said he has a bad heroin habit, and Wiley knew he spent any money he got on the drug. Wiley used this to manipulate him.

On the morning of January 24, 2001, Wiley brought Jackson a gun, and brought him to Concordia earlier in the evening. Jackson then left in his girlfriend’s car, and met Wiley at the Concordia Apartments later that evening. Wiley was carrying a bag. Wiley told Jackson to “go call that n-r for me.” Jackson found Francis and told him to accompany him to where Wiley was. The plan called for Jackson to take Francis in back of a building and kill him.

As Jackson led Francis to the appointed spot, he tried to pull the gun from his jacket pocket, and found it was stuck. Francis saw this, and became jumpy. Thinking that Francis might have a gun, Jackson fired his gun, shot Francis twice, |10and fled on foot. He saw someone in the truck and when Charles opened the door, Jackson shot him. Charles tried to run from Francis’ vehicle as Jackson fired ten shots at him. Wiley saw Jackson running, and picked him up in a car and took him to his (Jackson’s) girlfriend’s house. Wiley gave him one hundred dollars that night. Jackson saw Wiley days later, at which time Wiley gave him an additional five hundred dollars. Wiley told Jackson he (Wiley) was wanted by the authorities, and that he planned to turn himself in.

Detective Clogher testified that the search of a residence where Jackson had been disclosed .9, .22, .25, and .32 caliber ammunition, but no .40 caliber rounds were found. No information was developed during the investigation to indicate that Wiley shot or robbed either Corey Charles or Francis, and neither the cocaine nor the gun used in the shooting was ever located.

Dr. Susan Garcia, an expert in forensic pathology, testified that she conducted an autopsy on the body of Corey Charles. She identified four bullet entrance wounds. Two of those wounds had corresponding exit wounds. As to the other two, the doctor recovered projectiles from the body. Two bullets entered from the back, and two from the right side. Three of the wounds were not lethal. The fourth bullet injured the victim’s kidney, liver, and right lung. Dr. Garcia testified that organs bleed at a high rate. The liver is particularly vascular, and bleeds profusely when injured. It was the doctor’s opinion that the victim bled to death. Dr. Garcia identified State’s Exhibits 26 and 27 as the projectiles she removed from Corey Charles’ body.

Louise Walzer, an expert in firearms identification and ballistics, examined the spent cartridge casings recovered from the scene and identified them as .40 caliber Speer casings. Walzer also examined State’s Exhibits 26 and 27, the bullets recovered from the victim’s body. She found that they were also .40 caliber. She testified that all of those items were consistent with being fired from a |n.4Q caliber class weapon, and all of the fired cartridge casings came from the same weapon.

Detective Donald Meunier testified that he collected the evidence recovered from the crime scene, which included several .40 caliber cartridge casings. Investigating officers executed several search warrants in connection with the investigation. However, no gun was ever recovered. Among the items recovered in a search of 4232 Lac Couture Drive, Apartment C in Harvey, where defendant was believed to be staying, were numerous live .9 mm cartridges, as well as .22, .25 and .32 caliber cartridges.

Jackson’s fiancée, Pamela Willis, testified on his behalf. She stated she was with Jackson during the entire day on January 24, 2001. She did not know of any conversation he may have had with Wiley. He used heroin on a daily basis, and that night he used heroin starting at around 6:00 p.m. He left her house that evening in her car. On the morning just prior to his arrest, he smoked marijuana.

Jackson concedes that he shot Kenyatta Francis and Corey Charles. He argues, however, that the state failed to prove a second degree murder in that it failed to produce sufficient evidence that he had the specific intent to kill or inflict great bodily harm as to Charles, or that he killed Charles while committing an armed robbery. Jackson further argues that the state failed to prove an attempted second degree murder, as it did not prove he had the specific intent to kill Francis.

SUFFICIENCY OF EVIDENCE

When issues are raised on appeal as to 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 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. For the foregoing reasons, we first address Jackson’s second assignment of error.

The constitutional standard for testing the sufficiency of the evidence, 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. When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. 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.

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.

To prove second degree murder, the state was required to show (1) the killing of a human being, and (2) that defendant had the specific intent to kill or inflict great bodily harm; or that defendant was engaged in the perpetration or attempted perpetration of an enumerated felony (i.e., armed robbery). LSA-R.S. 14:30.1. The trial court charged the jury as to the law regarding both felony murder and specific intent murder.

| is As to the murder of Corey Charles, from the evidence produced by the state, and from the prosecutors’ closing arguments, the state apparently proceeded under both the theory of felony murder based on armed robbery or attempted armed robbery, and the theory of specific intent. Jackson argues the state did not produce sufficient evidence to prove second degree murder under either theory.

He urges that the state failed to prove he had the specific intent to kill or inflict great bodily harm, as required under LSA-R.S. 14:30.1 A(l). 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 a 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.

Jackson’s seventh police statement provides direct evidence of specific intent. Jackson stated Wiley enlisted him to kill Francis in exchange for a share of Francis’ cocaine. By his own account, Jackson went to the Concordia Apartments with the intention of carrying out that act.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. Jackson admitted to police that he fired ten shots at Corey Charles despite the fact that Charles was running away from him. Dr. Susan Garcia testified that the victim was hit four times, and that two of those shots were fired from behind.

Jackson asserts that various mental and emotional deficiencies made it impossible for him to formulate the specific intent to kill or inflict great bodily harm. However, the testimony of his expert witness refutes that claim. Dr. Sara Deland was accepted by the court as an expert in forensic psychiatry. She testified | uthat Jackson has a long history of substance abuse, starting at age nine, and that heroin is now his drug of choice. In her opinion, he suffers from post traumatic stress disorder, stemming from the violent environment in which he was raised, and from several shootings which had occurred in his lifetime. He also suffers from polysubstance dependence. His I.Q. has consistently measured 74-75. After meeting with Jackson and studying his record, she was fairly certain that he has mental health problems that cause impaired judgment. Also, persons who use heroin chronically can function better day to day even when intoxicated than someone who uses it rarely; however, in general they do not think as clearly as everybody else. Nevertheless, she did not feel that Jackson was incapable of understanding the difference between right and wrong.

Dr. Deland testified that she reviewed Jackson’s recorded statements, but that there was nothing in the statements that led her to believe Jackson was in a drug-induced stupor when he made them. She noted that he spoke of having been aware of at least some of the consequences of following through with the plan he and Wiley devised. Based on the foregoing, we find the evidence was sufficient to support a conviction for specific intent murder under Jackson v. Virginia.

To prove the attempted second degree murder of Kenyatta Francis, the state was required to establish that Jackson had specific intent to kill and that he committed an overt act in furtherance of that goal. Jackson complains the evidence at trial does not support his conviction on Count 2, as it does not show he had the specific intent to kill Francis. In his brief, Jackson states, “While the original plan might have been to kill Francis, at the second he shot, Damaris Jackson was scared, thinking Francis was going for his own gun.” Jackson admitted in his seventh recorded statement that he agreed to kill Francis for Wiley in exchange for cocaine. By his own admission, he accepted a gun from Wiley for |1fithe express purpose of committing the offense. On Wiley’s instruction, Jackson led Francis toward an area at the back of a building where he was to shoot Francis. Before they reached the designated spot, Jackson attempted to pull out his gun. The weapon became stuck in his jacket. To Jackson, it appeared that Francis was going to pull out a gun, and he panicked, shooting Francis.

The only evidence that Jackson may have acted in self-defense, or that he shot Francis accidentally, came from his own statement. It is apparent from these police statements that he intended all along to shoot Francis, and that circumstances simply led him to fire earlier than planned. Francis testified that, after shooting him, Jackson aimed the gun at his head, as if he were going to fire again. Francis fell to the ground before he could be shot a second time. There is no evidence that Francis was going to commit a forcible act against Jackson, and Francis testified that he did not have a gun. After shooting Francis, Jackson fled the scene, and did not seek help for Francis. Based on the foregoing, we find the state presented sufficient evidence to support Jackson’s conviction for attempted murder. Jackson’s claim that he had the specific intent to kill Francis until the moment he shot the victim has no merit.

MOTION TO SEVER AND ADMISSION OF CO-DEFENDANT’S STATEMENTS

Jackson also urges error in the trial court’s rulings in failing to sever the trial of the defendants, in failing to deny the admission of the co-defendant’s statements into evidence, and failing to grant the mistrial motion, which errors resulted in a violation of Jackson’s Confrontation Clause rights.

Both Wiley and Jackson filed motions to suppress their confessions, which motions were denied. Jackson filed a Motion to Sever Parties, arguing he should receive a separate trial because, “his codefendants [sic] has a defense which is antagonistic to his.” Jackson’s counsel argued that he and Wiley should be tried |1fiseparately, as he (Jackson) would be prejudiced by the admission of Wiley’s recorded statements, and the admission of those statements would be a violation of the holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial court denied the severance motion.

La.C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried jointly unless the state elects to try them separately, or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La.1984); State v. Foret, 96-281 (La.App. 5th Cir.11/14/96), 685 So.2d 210, 224. A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. Prudholm, 446 So.2d at 741; State v. Cedrington, 98-253 (La.App. 5th Cir.12/16/98), 725 So.2d 565, 577, writs denied, 99-190 La.00-205 [(La.6/4/99)], 743 So.2d 1249 and 99-431 (La.6/25/99), 745 So.2d 1182. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Prudholm, 446 So.2d at 741; Cedrington, 725 So.2d at 577.
A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the state. Prudholm, 446 So.2d at 741; Cedrington, 725 So.2d at 577. The Defendant bears the burden of proof in such a motion. Mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Prudholm, 446 So.2d at 741; Foret, 685 So.2d at 224. Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. Prejudice must be shown if defendants are to receive separate trials. State v. Williams, 416 So.2d 914, 916 (La.1982); Cedrington, 725 So.2d at 577.

Under the antagonistic defenses test, a severance is required when each defendant intends to blame the other because a joint trial would require the defendants to defend not only against the State, but also against each other. We note that in ordering severance of defendants, our Supreme Court has cautioned:

Prejudice may occur in a joint trial “when evidence that the jury should not consider against a defendant and that would not be 117admissible if a defendant were tried alone is admitted against a codefendant.” Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1933)[(1993)] (citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). The Supreme Court has not yet delineated those circumstances under which a codefendant’s statement may be directly admissible against the defendant. It has made clear that such statements are presumptively unreliable to the extent that they incriminate the defendant. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), and that they remain inadmissible at a joint trial even when the defendant has given his own “interlocking” statement. See Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) (“[Wjhere a non-testifying co-defendant’s confession incriminating the defendant is not directly admissible against the defendant ... the Confrontation Clause bars its admission at their joint trial.... ”).

Jackson complains that the trial court deprived him of his Sixth Amendment right of confrontation by allowing the admission of inculpatory statements made by his co-defendant, Wiley, when he (Jackson) did not have the opportunity to cross-examine Wiley. The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution 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.

On the second day of trial, out of the jury’s presence, the attorneys representing Jackson and Wiley informed the court that their clients would not be testifying. Jackson’s counsel stated that, if Wiley’s police statements were admitted in evidence without his being given an opportunity to cross-examine Wiley, he would move for a mistrial.

By agreement of the parties, Wiley’s and Jackson’s statements were redacted to eliminate some potentially prejudicial material. Nothing was redacted from Wiley’s first statement. Two pages were removed from each of statements two |1aand four. A sentence or phrase was removed from each of statements three, five, and six.

When the state offered the tapes and transcripts, the defense objected to their admission in evidence. The objections were overruled. At the conclusion of the state’s case, both Jackson and Wiley informed the court they would assert their Fifth Amendment rights if they were called to testify. Wiley moved for a mistrial on grounds that Jackson had implicated him in his seventh statement, and that he would be deprived of his confrontation rights if he were not given the opportunity to cross-examine defendant. Jackson adopted Wiley’s motion. The court denied a mistrial.

Confrontation errors are subject to a harmless error analysis. Pre-termitting a full discussion on the admissibility of Wiley’s statements, we find that whether or not the admission of such was error, any possible error was harmless.

The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Here, Wiley’s statements were not necessary to the state’s case. In light of the overwhelming evidence submitted by the state, including Jackson’s own confession, we find the guilty verdict was surely unattributable to any possible error. Further, the defenses are not mutually antagonistic, as Jackson neither attempted to implicate Wiley as the shooter nor deny his own actions. Under these circumstances, a severance was not required, and there was no basis for a mistrial. This assignment of error is without merit.

J^ERROR PATENT

The record was reviewed for errors patent. LSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence become final” within which to file a post-conviction relief application. The article requires that the trial judge inform a defendant of the prescriptive period at the time of sentencing. In the instant case, the judge instructed Jackson that he would have “two years from today’s date to file post conviction relief.” (Emphasis supplied). We therefore order the trial court to supply Jackson with written notice of the prescriptive period under Article 930.8, and to file written proof of such notice in the record.

For the foregoing reasons, the conviction is affirmed. The matter is remanded for purposes stated hereinabove.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . See State v. Quentin Wiley, 03-KA-0884 (La.App. 5 Cir. 4/27/04), 880 So.2d 854, 2004 WL 895841.

      . 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.

      . Jackson v. Virginia, 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 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

      . State v. Williams, supra.

      . State v. Mitchell, 99-3342, p. 7 (La. 10/17/00), 772 So.2d 78.

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

      . State v. Williams, 01-1650 (La.11/1/02), 831 So.2d 835, 849.

      . LSA-R.S. 14:27, 14:30.1; State v. Zaldivas, 02-0690 (La.App. 5 Cir. 12/20/02), 836 So.2d 577, 580-581, writ denied, 03-0705 (La.10/17/03), 855 So.2d 757.

      . State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, writ denied 00-3137 (La.11/2/01), 800 So.2d 866.

      . State v. Crowell, 1999-2238 (La.App. 4 Cir. 11/21/00), 773 So.2d 871, writ denied 2001-0907 (La. 10/4/02), 826 So.2d 1112.

      . State v. Johnson, 96-0959 (La.6/28/96), 675 So.2d 1098.

        . Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Jones, 02-267, p. 4 (La.App. 5 Cir. 7/30/02), 824 So.2d 514, 516, writ denied, 02-2518 (La.6/27/03), 847 So.2d 1254.

      . See State v. Williams, 2002-1406 (La.4/9/03), 844 So.2d 832; State v. Robinson, 2001-0273 (La.5/17/02), 817 So.2d 1131.

      . State v. Robinson, supra.

      . 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.