author: I, WILLIAMS, Judge. 11 BROWN, J.,

text:
    STATE of Louisiana, Appellee, v. Sean F. SMALL, Appellant.
    No. 37,134-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2003.

      Peggy J. Sullivan, Monroe, Mary L. Harried, New Orleans, for Appellant.
    Sean F. Small, Pro Se.
    Paul J. Carmouche, District Attorney, for Appellee.
    J. Thomas Butler, Lea R. Hall, Assistant District Attorneys.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   I, WILLIAMS, Judge.

The defendant, Sean Small, was charged by amended bill of information with armed robbery, a violation of LSA-R.S. 14:64 and attempted second degree murder, a violation of LSA-R.S. 14:30.1 and 14:27. After a jury trial, the defendant was found guilty as charged. The trial court adjudicated defendant a second felony offender and imposed separate sentences of 50 years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery and attempted second degree murder convictions. These sentences were to be served concurrently. Defendant’s motions for new trial, for post-verdict judgment of acquittal and reconsideration of sentence were denied. The defendant appeals. For the following reasons, we affirm the convictions, vacate the sentences for armed robbery and attempted second degree murder and remand for resentencing.

FACTS

On July 11, 2000, the elderly victim, Wilda Ritzheimer, walked out of . the Brookshire’s Food Store on Line Avenue in Shreveport carrying her purchase. Rit-zheimer approached her automobile, a gold Cadillac, pressed the door lock and turned to open the car door. An assailant, later identified as the defendant, came up from behind Ritzheimer, grabbed her right hand, took her car keys and shot her with a .45 caliber handgun. Ritzheimer observed the gun in defendant’s hand and asked, “Why are you doing this to me?” The defendant shot her a second time as she screamed for help. Ritzheimer later stated that the defendant never said a word to her during Rthe crime and that she did not touch the defendant’s gun in any way to cause the weapon to discharge.

The store’s security guard, Keith Stewart, heard two gunshots and proceeded outside. He then heard another gunshot, which sounded muffled and saw an elderly woman struggling with a male, who entered a vehicle and started the ignition. As the defendant drove away in the victim’s automobile, Stewart fired six rounds from his .38 caliber revolver toward the vehicle. Three spent .45 caliber shell casings and six spent .38 caliber shell casings were recovered from the crime scene during the subsequent police investigation. The victim’s automobile was found in a parking lot with several bullet holes in the passenger side.

Another store employee, Bennico Canada, heard.two gunshots and assisted Rit-zheimer, who was transported to the hospital by ambulance. Ritzheimer suffered gunshot wounds through her left arm and side. One bullet entered just below her left elbow and exited the other side of her arm just above the elbow. The other bullet entered her left side below her ribs and exited through her back near the spine. The victim required surgery to remove her ruptured spleen and to stop the internal bleeding.

Subsequently, an anonymous Crime Stoppers tip reported that the defendant was present at a residence located in the west Shreveport area. Police Detectives Smith and Rudell responded to the residence and learned that defendant had fled on foot. After a search of the area, the detectives discovered defendant hiding under a vehicle in a nearby alley and arrested him without further resistance. The detectives did not question the | ^defendant during the apprehension or while transporting him to the violent crimes bureau.

After being advised of his Miranda rights and signing a waiver card, the defendant gave an audio-taped statement to Shreveport Police Detectives Wray and Jeter. In his recorded statement, the defendant admitted that he approached the victim from behind and grabbed her car keys so that he could drive around in the automobile. The defendant stated that the gun accidentally discharged three times into the ear, and that he drove away in the victim’s automobile without her permission. Defendant said he sold the gun to an unknown male on the street. Defendant showed Detective Wray an abrasion on his thigh that appeared to be a graze wound.

The defendant was initially charged with armed robbery by bill of information, which was later amended to add the charge of attempted second degree murder. Both the defendant and defense counsel filed motions to suppress the defendant’s recorded statement to police. After a hearing, the trial court denied the motions to suppress.

The jury found the defendant guilty as charged. The defendant’s motions for new trial and post-verdict judgment of acquittal were denied. Subsequently, the trial court adjudicated defendant a second felony offender and sentenced him to serve 50 years at hard labor without benefit of parole, probation or suspension of sentence on each conviction. The sentences were ordered to be served concurrently with each other, and with the sentence imposed upon revocation of the defendant’s probation. The trial |4 court denied the motions for reconsideration of sentence filed by defendant and his counsel. The defendant appeals his convictions and sentences.

DISCUSSION

Reference to Defendant’s Failure to Testify

The defendant contends the trial court erred in denying his motion for mistrial based upon remarks in the state’s closing argument. Defendant argues that the prosecutor improperly commented on his decision not to testify in violation of his right against self-incrimination.

LSA-C.Cr.P. art. 770(3) provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense;

In State v. Mitchell, 00-1399 (La.2/21/01), 779 So.2d 698, the supreme court stated the applicable law:

La.C.Cr.P. art. 770(3) provides that the trial court “shall” declare a mistrial when the prosecutor “refers directly or indirectly to ... the failure of the defendant to testify in his own defense.... ” The purpose behind art. 770(3)’s prohibition against such prosecutorial comment is to protect the defendant’s Fifth Amendment right against self-inerimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf. State v. Fullilove, 389 So.2d 1282, 1283 (La.1980); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
“Direct” and “indirect” references to the defendant’s failure to take the stand are prohibited by article 770(3). State v. Johnson, 541 So.2d 818, 822 (La.1989). “When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared, and ‘it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence.’ “ Id. (citing Fullilove, 389 So.2d at 1284). When the reference to the defendant’s failure to take the stand is not direct, this Court will inquire into the remark’s “intended effect on the jury” in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from statements that are not (which are permissible, though not favored). Johnson, 541 So.2d at 822; Fullilove, 389 So.2d at 1284; State v. Jackson, 454 So.2d 116, 118 (La.1984). In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying. State v. Smith, 327 So.2d 355, 362 (La.1976) (on rehearing); State v. Reed, 284 So.2d 574, 576 (La.1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972).

During closing argument in the present case, the prosecutor referred to defendant’s assertion in his recorded statement that he accidently shot the gun three times into the ear. The prosecutor then stated:

It’s not possible. It’s a he. It’s a bad lie. It’s easy to see through it. And the only reason he’s lying to you is trying to cover up what his intent was.
The judge will tell you if any witness in this case has deliberately testified falsely — and before I go on, I want to distinguish this: This is not testimony that I’m talking about. Sean Small didn’t take the same oath that you saw everybody else take.

(Emphasis added.)

The defense requested a bench conference, after which the prosecution was allowed to continue to differentiate the defendant’s taped statement, which was admitted as evidence, from trial testimony:

His statement was given in the Shreveport Police Department. But the instruction that the Court is going to give you is that if you believe that any witness in this case has deliberately testified falsely to any material fact for the purpose of deceiving you, then you are justified in disregarding the entire testimony of such witness as proving nothing and as not worthy of belief. You have the right to accept as true or reject as false the testimony of the witness, in whole or in part, as you are impressed with their truthfulness.
And the taped interview is not testimony, but the taped interview is evidence. And I think that that (sic) statement applies to evidence, and I think you can weigh the credibility of |Rthat statement just like the judge is going to tell you applies to any testimony that may have come in this case. And so I think you can take the parts out of it that ring'true.

After closing arguments were concluded, the jury was charged and removed from the courtroom. The trial court denied defendant’s motion for a mistrial.

A reasonable reading of the prosecutor’s remark that “Sean Small didn’t take the same oath” as everyone else demonstrates that the comment was not a general statement emphasizing that the state’s evidence was unrebutted, but was a direct reference to defendant’s failure to testify at trial. Pursuant to the statutory rule, when the prosecutor makes a direct reference to the defendant’s failure to take the witness stand, a mistrial shall be declared, and it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence. Consequently, we must conclude the trial court erred in refusing to grant a mistrial. However, reaching this conclusion does not complete our analysis, which requires a determination of whether this trial error was harmless.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that a Griffin v. California error (prosecutor’s direct reference to defendant’s failure to testify) is subject to a harmless error analysis on appeal and does not automatically require a reversal. State v. Moser, 588 So.2d 1243 (La.App. 1st Cir.1991). Thus, a violation of Article 770(3) is subject to a harmless error analysis. State v. Rodriguez, 01-2182 (La.App. 1st Cir.6/21/02), 822 So.2d 121, writ denied, 02-2049 (La.2/14/03), 836 So.2d 131. The proper analysis for |7determining harmless error is whether the jury’s guilty verdict actually rendered in the particular case was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037; Rodriguez, supra.

In the present case, the jury heard the victim’s unequivocal testimony describing defendant as the assailant who took her car keys at gunpoint, shot her two times at close range and then drove away in her vehicle leaving her bleeding and seriously wounded. The victim testified that after the defendant shot her the first time, she looked down, saw the gun and pleaded no, why are you doing this to me? Defendant then raised his right hand and shot the victim a second time. He subsequently fled the scene, disposed of the weapon and tried to evade the police. The jury also heard defendant’s recorded statement to police in which he admitted approaching the victim while armed with a handgun, taking her keys by force, firing the gun accidently and then driving away in the victim’s automobile without her permission. The jury could have reasonably concluded that contrary to defendant’s assertion, his actions both during and after the crime were not consistent with an accidental shooting.

The record contains compelling evidence from which the jury could infer that defendant intentionally shot the elderly victim twice at close range while committing an armed robbery. In addition, the prosecutor’s comment in closing argument, while clearly improper, was relatively brief. |s Accordingly, we conclude that the verdict rendered in this case is surely unattributable to the prosecutor’s improper reference to the defendant’s failure to testify on his own behalf. Consequently, while we do not condone the prosecutor’s statement, we cannot say that the court’s refusal to declare a mistrial constitutes reversible error. The assignment of error lacks merit.

Suppression of Recorded Statement

The defendant contends the trial court erred in denying the motions to suppress his recorded statement to the police. Defendant argues that the state failed to prove that his confession was free and voluntary because he was not adequately advised of his Miranda rights.

In determining whether a ruling on a motion to suppress is correct, an appellate court is not limited to evidence adduced at the hearing on the motion but may consider pertinent evidence given at trial. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.), writ denied, 619 So.2d 573 (La.1993).

Before the state can introduce an inculpatory statement made in police custody, it bears the heavy burden of establishing that the defendant received a Miranda warning and that the statement was freely and voluntarily made, and not the product of promises, threats or duress. LSA-C.Cr.P. art. 703; LSA-R.S. 15:451; State v. Johnson, 36,014 (La.App.2d Cir.6/12/02), 821 So.2d 652; State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/99), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.

The admissibility of a confession is a question for the trial judge whose conclusions on the credibility and weight of testimony relating to the 19voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence. State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151. We place great weight upon the trial court’s factual determinations because of that court’s opportunity to observe witnesses and assess credibility. State v. Roddy, supra; State v. Normandin, 32,927 (La.App.2d Cir.12/22/99), 750 So.2d 321, writ denied, 00-0202 (La.9/29/00), 769 So.2d 550.

At the hearing on the motions to suppress in this case, Detective Wray testified as to the circumstances surrounding the defendant’s oral recorded statement; Detective Wray explained that he was not present when the defendant was initially advised of his Miranda rights. Detective Wray believed that Detective Jeter had read the defendant his rights prior to the taping of the recorded statement based upon a written waiver of rights form signed by the defendant and initialed by Detective Jeter. In addition, Detective Wray testified that during the taped statement, he showed the defendant the waiver of rights card and that the defendant responded affirmatively when asked if his signature was on the card and if he understood his rights.

Contrary to defendant’s assertion in his brief, the state established that the defendant received an adequate Miranda warning through the testimony of Detective Wray, the introduction of the waiver of rights form signed by the defendant and initialed by one of the detectives, and the defendant’s affirmative responses in the audiotaped statement indicating his | ^understanding and waiver of his Miranda rights. The record supports a finding that defendant’s statement was freely and voluntarily given and was not the product of promises, threats or duress. Thus, we cannot say the trial court erred in denying defendant’s motions to suppress his confession. The assignment of error lacks merit.

Patent Sentencing Error

The defendant contends the district court erred in denying his motion to reconsider sentence. Defendant argues that his sentence is excessive considering the circumstances of the case and his background.

An appellate court may notice sentencing errors as error patent. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Multiple convictions obtained the same day for offenses arising out of one criminal episode should be considered as one conviction for purposes of applying the habitual offender law in sentencing. State v. McCurtis, 2000-3080 (La.11/2/01), 800 So.2d 862; State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991); State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222.

The habitual offender law mandates that a second felony offender be sentenced to not less than one-half the longest term and not more than twice the longest term for a first conviction. LSA-R.S. 15:529.1(A)(l)(a). Any sentence imposed under the habitual offender law shall be served without benefit of probation or suspension of sentence, but parole is not prohibited. LSA-R.S. 15:529.1(G).

A conviction for armed robbery is punishable by imprisonment at hard labor for not less than 10 and for not more than 99 years, without Inbenefit of parole, probation or suspension of sentence. LSA-R.S. 14:64(B). Thus, a second felony offender convicted of armed robbery would face an enhanced sentence of not less than 49^ years (one-half the longest term), and not more than 198 years (twice the longest term), without benefit of parole, probation or suspension of sentence. Defendant was sentenced to 50 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence for his armed robbery conviction.

A conviction of attempted second degree murder is punishable by imprisonment at hard labor for not less than 10 nor more than 50 years, without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:30.1(B) and 14:27(D)(1). Thus, a second felony offender convicted of attempted second degree murder would face an enhanced sentence of not less than 25 years (one-half the longest term) and not more than 100 years (twice the longest term), without benefit of parole, probation or suspension of sentence. Defendant was sentenced to serve a separate term of 50 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence for his conviction of attempted second degree murder.

In the present case, the defendant’s offenses of conviction formed part of a single transaction and therefore support only one multiple offender sentence under LSA-R.S. 15:529.1. At the time of sentencing, the district court noted that defendant had been adjudicated a second felony offender. Based upon this record, the defendant’s sentences are indeterminate because the trial court did not designate which sentence was being enhanced under |1?the habitual offender statute. If a court fails to specify which of the two sentences is being enhanced under the statute, the sentences are set aside and the case is remanded for resentencing as the law directs. State v. Mayweather, 28,271 (La.App.2d Cir.6/26/96), 677 So.2d 594.

Because we cannot determine from the sentencing proceedings whether the district court imposed impermissible enhanced sentences for both of defendant’s convictions, or which of the sentences was enhanced under the habitual offender statute, we must vacate the sentences imposed for armed robbery and attempted second degree murder and remand this case for resentencing. In reaching this conclusion, we pretermit a discussion of defendant’s assignment of error alleging that the sentences imposed were excessive.

CONCLUSION

For the foregoing reasons, the defendant’s convictions are affirmed, the sentences imposed for armed robbery and attempted second degree murder are vacated and this case is remanded to the district court for resentencing consistent with this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

BROWN, C.J., concurs in convictions; dissents from vacating sentences.

11 BROWN, J.,

concurring in part and dissenting in part,

The ADA’s remarks in closing argument referred to defendant’s statement to the police in which he asserted that the shooting was accidental. The ADA told the jury that the statement was not given under oath like “you saw everyone else take” and that the court will instruct you that you can disregard it, if you believe any witness (defendant) deliberately testified falsely.” An unfortunate comparison, but I believe the jury understood that the remarks were not a direct reference to defendant’s failure to testify. I agree that defendant’s convictions should be affirmed.

Defendant’s sentences were within the range provided for by the armed robbery and attempted second degree murder statutes which also | ..require that they be served without parole. The court ordered the sentences to be served concurrently. I see no error patent. Considering the circumstances of these crimes and defendant’s criminal history, these sentences are not constitutionally excessive.

I note that the predicate felony conviction for the habitual offender charge was simple escape (while handcuffed in city court). The armed robbery and attempted murder may have occurred in sequence, but they represent two distinct and independent crimes.

I find it difficult to understand that under the criminal statute the punishment is “without” parole but if sentenced as a second felony offender, it is “with” parole. I disagree that such an incongruity exists in the statute.

Because defendant was sentenced under the criminal statutes, I respectfully dissent to vacating the sentences.


source: Caselaw Access Project

author: | WILLIAMS, J.

license: Public Domain

text:
    BROOKS WELL SERVICING, INC. and National Union Fire Insurance Company of Pittsburgh, PA, Plaintiff-Appellee, v. CUDD PRESSURE CONTROL, INC. and Sonat Exploration Company, Defendant-Appellant.
    No. 36,723-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2003.
    Rehearing Denied Aug. 14, 2003.

      Michael H. Bagot, Jr., Thomas A. Rayer, Jr., New Orleans, for Appellant, Cudd Pressure Control, Inc.

      Philip K. Jones, Jr., New Orleans, Russell K. Jarrett, Thomas P. Diaz, New Orleans, for Appellant, Sonat Exploration Company.
    Robert B. Nolan, Thomas G. O’Brien, New Orleans, Patrick E. Henry, Shreveport, Megan Haggerty, Thomas Eliot Gott-segen, New Orleans, for Appellee, Brooks Well Servicing, Inc.
    Francis J. Barry, Jr., Robert E. Kerri-gan, Jr., Walter P. Maestri, New Orleans, for Appellee, National Union Fire Insurance Co.
    Arthur W. Landry, New Orleans, for Intervenor, Lumbermens Mutual Casualty Co.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   | WILLIAMS, J.

The defendant, Cudd Pressure Control, Inc. (“Cudd”), appeals a district court judgment in favor of Sonat Exploration Company (“Sonat”) sustaining Sonat’s exceptions of lis pendens and res judicata, finding that Cudd’s request for declaratory judgment was precluded by a prior Texas judgment. Additionally, the co-defendant, Sonat, appealed a judgment granting the motion for summary judgment of the plaintiffs, Brooks Well Servicing, Inc. (“Brooks”) and its insurer National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”). The district court held that pursuant to Louisiana law Sonat was not entitled to indemnity from Brooks or to insurance coverage from National Union under the parties’ service contract. The intervenor, Lumbermens Mutual Casualty Company (“Lumber-mens”), appeals a judgment sustaining So-nat’s exception of lis pendens and staying its intervention.

Subsequently, Sonat, Brooks and National Union settled their differences and filed a joint motion to dismiss Sonat’s appeal. Accordingly, by separate order of this court, the appeal filed by Sonat has been dismissed with prejudice and the moving parties have been assessed with their own appeal costs. The settlement and dismissal do not affect the appeal filed by Cudd. For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Sonat owned and operated the Otto Cummings Alt. Well No. 2, a high pressure gas well in Bryceland, Bienville Parish, Louisiana. Pursuant to separate Master Service Agreements (“MSA”), Sonat retained Brooks to conduct well-servicing operations at the Bryceland site and hired Cudd to ^perform snubbing operations, a process which involves forcing pipe into high pressure wells. In October 1998, during the snubbing operations, a well explosion killed seven men and severely burned three others. There was also significant damage to all of the equipment at the site. Prior to beginning work, Brooks had obtained excess liability insurance coverage from National Union. Cudd’s excess coverage was provided by Lumber-mens. Pursuant to the MSA, Sonat was added as an insured under the policies issued by National Union and Lumber-mens.

As a result of the well blowout, a number of lawsuits were filed in various locations. Employee personal injury and wrongful death suits were filed in Texas. Cudd sued various parties, including Brooks in Orleans Parish, Louisiana, for damage to Cudd’s equipment. Sonat also filed suit in Orleans Parish for damage to its property. In January 2000, Brooks and National Union sued Cudd and Sonat in Bienville Parish seeking damages for the loss of Brooks’ equipment. That suit was dismissed in March 2000 following the trial court’s sustention of Cudd’s exception of lis pendens based on the lawsuit in Orleans Parish. Brooks and National Union appealed the dismissal. However, while the appeal was pending, Cudd amicably resolved its property damage claim against Brooks and National Union and the Orleans Parish case was dismissed.

In September 2000, Sonat filed third-party indemnity claims against Brooks and Cudd in a pending personal injury case entitled Creel v. Sonat Exploration Company, NO. 99-0199, 71st Judicial District Ct. of Harrison County (Houston), Texas. By August 2001, Sonat had settled the wrongful 1 ¡¡death and personal injury suits of the Cudd and Brooks employees. Sonat also filed a separate action against Brooks and National Union seeking insurance coverage for the amount of personal injury damages paid.

In February 2001, Cudd joined Brooks and National Union in their appeal of the district court’s judgment sustaining Cudd’s exception of Us pendens. After finding that the parties had resolved the Orleans Parish suit which was the basis for the exception, this court reversed the trial court’s judgment and remanded the case to the district court in Bienville Parish. Brooks Well Servicing v. Cudd Pressure Control, Inc., 34,796 (La.App.2d Cir.8/22/01), 796 So.2d 66.

Prior to our remand of the Bienville Parish case, Sonat filed motions for partial summary judgment in Harrison County against Cudd, Brooks and National Union seeking the application of Texas law to the M.S.A. and a finding that Sonat was entitled to indemnity and insurance coverage for personal injury damages paid. The motions were granted in Sonat’s favor, leaving the assessment of quantum to be determined. The jury trial on the issue of damages convened as to Cudd; however, Brooks was granted a continuance after its attorney became ill. In October 2001, the Texas Court rendered judgment on the jury verdict in favor of Sonat and against Cudd in the amount of $20.7 million. Cudd appealed to the Texas court of appeals, which dismissed the appeal on the grounds that the judgment was not final. Cudd Pressure Control, Inc. v. Sonat Exploration Company, 74 S.W.3d 185 (Tex.App.-Texarkana 2002).

In January 2002, Cudd filed its answer and cross-claim against Sonat 14in Bienville Parish, seeking a declaration that it did not owe indemnity to Sonat. Cudd’s excess insurer, Lumbermens, intervened in the lawsuit.

Based upon the ongoing proceedings in Harrison County against Brooks and Cudd, Sonat filed an exception of Us pen-dens and a motion to dismiss or stay against Brooks and National Union in Bienville Parish district court. Sonat filed an exception of lis pendens and motion to dismiss or stay against Cudd, and added an exception of res judicata based upon the October 22, 2001 Texas judgment assessing quantum. Sonat also filed an exception of lis pendens against Lumber-mens.

In March 2002, the district court denied Sonat’s exception of Us pendens and motion to dismiss against Brooks and National Union and granted the motions for summary judgment filed by Brooks and National Union, holding that the indemnity and insurance provisions of the M.S.A. § were void under Louisiana Law. In May 2002, the district court granted Sonat’s exceptions of Us pendens and res judicata against Cudd based upon the prior Texas judgment and dismissed Cudd’s cross-claims against Sonat. The district court also stayed Lumbermens’ claim based upon Sonat’s exception of Us pendens and denied Sonat’s motions to dismiss or stayed the proceeding.

Cudd appeals the judgment dismissing its cross-claim against Sonat. Lumber-mens appeals the judgment staying its intervention. As stated above, Sonat appealed the summary judgments in favor of Brooks and National Union, but this court subsequently granted Sonat’s motion to dismiss its appeal after the parties agreed to a settlement.

[.DISCUSSION

Cudd’s Assignments of Error # 1 and #2

Cudd contends the district court abused its discretion and failed to enforce Louisiana’s public policy by sustaining Sonat’s exception of lis pendens. Cudd also contends the district court erred in giving res judicata effect to the October 22, 2001 Harrison County, Texas judgment.

Generally, an exception of lis pen-dens under LSA-C.C.P. art. 532 may be granted when the defendant proves: (1) that a suit was brought in a Louisiana state court during the pendency of a suit in a federal court or a court of a state other than Louisiana; (2) that the two suits are based on the same transaction or occurrence; and (3) that the two suits are between the same parties in the same capacities. If the defendant proves these three elements, the Louisiana court may stay the proceedings in that suit until the federal suit or the suit in the court of another state has either been discontinued or a final judgment has been rendered. See Goldblum v. Boyd, 267 So.2d 610 (La.App. 2d Cir.1972), unit refused, 263 La. 243, 267 So.2d 906 (1972). A Louisiana state court case can be stayed by a judgment granting an Article 532 exception of lis pendens only if another suit was filed prior to the filing of the Louisiana state court case either in federal court or in the court of another state. If the Louisiana state court suit is filed first, the state court proceedings may not be stayed on an exception of lis pendens. Goldblum v. Boyd, supra.

LSA-C.C.P. art. 532 gives the district court the discretion to grant a lis pendens exception. The test for deciding whether an exception of lis \ ¿pendens should be granted is whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Fincher v. Insurance Corp. of Amer., 521 So.2d 488 (La.App. 4th Cir.), writ denied, 522 So.2d 570 (La.1988). Because lis pendens does not address the merits of the disputes between parties, the reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment. Louisiana Cotton Ass’n Workers’ Compensation Group Self-Insurance Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461 (La.App. 2d Cir.1993). The decision of whether to stay a proceeding under the doctrine of lis pendens “rests in the sound discretion of the trial court,” and cannot be overturned on review absent a clear abuse of that discretion. Southwestern Electrical Power Co. v. Amax, Inc., 621 So.2d 615 (La.1993).

Because Sonat relies on the Texas judgment as a basis for its lis pendens argument, we must also examine the requirements of res judicata under Texas law. The Full Faith and Credit Clause requires every state to give a foreign judgment the res judicata effect that it would be accorded in the rendering state. Anderson v. Collins, 26,142 (La.App.2d Cir.1/6/95), 648 So.2d 1371.

Under Texas law, the general doctrine of res judicata consists of two principal categories: (1) res judicata or claim preclusion; and (2) collateral estoppel or issue preclusion. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). Res judicata precludes a second action by the parties or their privies on matters actually litigated and on causes of action or 17claims that arise out of the same subject matter and could have been litigated in the first suit. Getty Oil v. Insurance Co. of N. America, 845 S.W.2d 794, 798 (Tex.1992), cert. denied, 510 U.S. 820, 114 S.Ct. 76, 126 L.Ed.2d 45 (1993).

To determine if the subject matter of two law suits is the same, for purposes of res judicata, a court examines the factual basis of the claim or claims in the prior litigation, regardless of the form of that action; specifically, the court must consider and weigh the extent to which the facts of the cases are related in time, space, origin or motivation, whether the cases form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties’ expectations or business usage. Restatement (Second) of Judgments § 2J)(2) (1982).

As stated above, Sonat has claims pending against both Cudd and Brooks in Harrison County. The Harrison County court granted identical partial summary judgments against Brooks and Cudd with respect to Sonat’s indemnity claim. Based on this judgment, liability was established for both Brooks and Cudd in Harrison County. Because the trial continued against Cudd only on the issue of quantum, a judgment was rendered which assessed an amount for damages against Cudd, but not Brooks. Cudd contends that this is a distinction without a difference because both judgments are interlocutory and have no preclusive effect.

However, in this case the district court sustained Sonat’s exception of lis pendens against Cudd, but denied the exception as to Brooks. The district court also sustained Sonat’s exception of res judicata against Cudd.

|SA. Lis Pendens:

Cudd and its excess coverage insurer, Lumbermens, contend Louisiana public policy has been violated and they have been treated unfairly. Cudd and Lumbermens argue that their position was analogous to that of Brooks and National Union and the court also should have ruled in favor of Cudd. However, there were differences in the situations of the parties that should be considered.

The record shows that Cudd filed its cross-claim after Sonat obtained a $20 million judgment against Cudd for indemnity, and after Cudd filed a lawsuit for declaratory relief in Houston. A court should stay proceedings when a suit is pending in a foreign court on the same transaction, between the same parties, in the same capacities. LSA-C.C.P. art. 532.

In the instant case, the exception of lis pendens was properly sustained because the claim filed by Cudd in Louisiana involved the same parties and the same transaction or occurrence as the lawsuit previously filed in Texas. The record indicates that Sonat had previously filed suit seeking indemnity against Cudd in Harrison County on September 18, 2000. Cudd filed a suit in Harris County, Texas, on January 4, 2002. Cudd did not file its cross claim against Sonat in Bienville Parish until January 11, 2002. Thus, both of the Texas lawsuits were filed first. Lum-bermens filed its intervention petition in the Bienville Parish suit on September 7, 2001, seeking a declaration that it did not owe insurance proceeds to Sonat. All of these lawsuits arise out of the 1998 well blowout and raise the issue of Cudd’s contractual indemnity and insurance obligations to Sonat.

•The record shows that Cudd and Lum-bermens did not file their factions in Bien-ville Parish until after Sonat had filed its contractual claims based on the M.S.A. § in Harrison County, Texas. Thus, at the time Cudd and Lumbermens filed their actions in Louisiana, another lawsuit was pending in Texas between the same parties, in the same capacities and based on the same transaction involving claims of defense, indemnification and insurance. Consequently, we cannot say the district court abused its discretion in sustaining Sonat’s exceptions of lis pendens and staying the actions filed by Cudd and Lumber-mens.

B. Res Judicata:

Cudd contends the judgment rendered against it in Creel is not entitled to preclusive effect because a Texas appellate court has ruled that the judgment is not yet final for appeal purposes. Cudd Pressure Control, Inc. v. Sonat Exploration Co., 74 S.W.3d 185 (Tex.App.Texarkana 2002). Texas law requires that a judgment be final to have a res judicata effect. Frost National Bank v. Burge, 29 S.W.3d 580, 595 (Tex.App. Houston—14th Dist-2000).

First, we note that the district court’s interlocutory partial summary judgment on the issue of liability was not entitled to res judicata effect. A partial summary judgment that is interlocutory and non-appealable is not final and cannot support a plea of res judicata. See Homeright Co. v. Exchange Warehouses, Inc., 526 S.W.2d 241, 244-45 (Tex.Civ.App.Tyler 1975, writ refd n.r.e.); Restatement (Second) of Judgments § 13 (1982).

Following a jury trial on the issue of quantum, the Texas court rendered judgment assessing Cudd with $20.7 million in damages. Cudd |10filed an appeal of this judgment before the trial to assess damages against Brooks had commenced. The Texas appellate court concluded that because a portion of the case was still pending in the trial court, the judgment against Cudd was not final. The court dismissed Cudd’s appeal on the ground that appellate jurisdiction had not been invoked. Cudd Pressure Control v. Sonat Exploration Co., supra.

Citing Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex.1986) and FSLIC v. Kennedy, 732 S.W.2d 1 (Tex Civ App. Houston (1st Dist) 1986), Sonat contends the Texas judgment against Cudd is final for res judicata purposes, even though the appeal process has not been completed. In Scurlock Oil Co., supra, the Texas Supreme Court held that a judgment is final for issue and claim preclusion despite the taking of an appeal. In Kennedy, supra, the court stated that with regard to res judicata, a judgment is final notwithstanding that it is “yet appealable” and is subject to modification.

Our review of the Scurlock and Kennedy decisions indicates that each of those cases involved a situation where the judgment had been rendered, subject only to an appeal, and was thus considered “final” for res judicata purposes, even though the appeal process had not been completed. However, the instant case does not involve such a judgment. Here, the appellate court specifically held that the judgment against Cudd was not final, but was in effect a partial judgment, which could not be appealed at the time. Consequently, we conclude that the Texas judgment assessing Cudd with damages is not a final judgment entitled to preclusive res | njudicata effect in Louisiana. Therefore, because the district court erred in sustaining Sonat’s exception of res judicata, we shall reverse the dismissal of Cudd’s claim.

Sonat’s Answer to Cudd’s Appeal

Declaratory Judgment Act

Sonat contends the district court abused its discretion in refusing to stay or dismiss this lawsuit as an abuse of the Louisiana Declaratory Judgment Act.

LSA-C.C.P. art. 1871 provides:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

LSA-C.C.P. art. 1872 provides:

A person interested under written contract or whose rights or other legal relations are affected by a statute, may have determined any question of construction or validity arising under the instrument, contract, or statute and obtain a declaration of rights thereunder.

A court may refuse to render a declaratory judgment when such judgment would not terminate the uncertainty or controversy giving rise to the proceeding. LSA-C.C.P. art. 1876. The consistent interpretation of the Uniform Act and of our own codal articles is that declaratory relief is available only to decide justiciable controversies, and that such enactments do not empower the courts to render advisory opinions on abstract questions |12of law. Petition of Sewerage & Water Board, 248 La. 169, 177 So.2d 276 (1965); Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). A “justiciable controversy” connotes an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract. See Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941). On appeal of a declaratory judgment, the scope of appellate review involves a determination of whether the trial court abused its discretion by granting or refusing to render a declaratory judgment. In re Peter, 98-0701 (La.App. 4th Cir.12/23/98), 735 So.2d 665.

Sonat argues that Cudd’s declaratory judgment action should not be heard because a separate action is pending in Texas that can resolve all of the issues between the parties. The relief sought by Cudd, a declaration that the M.S.A. § indemnity provisions are void and unenforceable, is authorized by Article 1872 and would terminate the controversy between the parties. This is the appropriate use of the Declaratory Judgment Act.

We agree with the district court’s finding that Cudd did not forum shop. Cudd filed its claim in the first filed suit. Louisiana’s public policy and legislative intent are involved in the dispute and it is reasonable to apply Louisiana law to this Louisiana catastrophe. In addition, the contract was signed and the work was performed in Louisiana. Furthermore, Cudd is not a Texas corporation and does not have offices in Texas. Cudd’s operational headquarters is in Houma, Louisiana with offices in Belle Chasse, Shreveport, Lafayette and Maurice. Cudd signed the M.S.A. in |13Houma, where the insurance policy was delivered to Cudd and the demand for indemnity was received by Cudd. Louisiana is neither an inconvenient nor inappropriate forum. Declaratory relief is appropriate here because Cudd sought to determine the validity of the M.S.A. pursuant to LSA-C.C.P. art. 1872.

Based upon this record, Sonat failed to carry its burden of demonstrating that declaratory relief was improper in this case. Consequently, we cannot say the district court abused its discretion in refusing to dismiss Cudd’s declaratory judgment action. Sonat’s assignment of error lacks merit.

In summary, we conclude that: (1) the district court did not abuse its discretion in sustaining Sonat’s exceptions of lis pen-dens; (2) the district court erred in granting Sonat’s exception of res judicata as to Cudd; and (3) the district court did not err in refusing to stay or dismiss the declaratory judgment action while the Texas litigation proceeded.

CONCLUSION

For the foregoing reasons, that part of the district court’s judgment sustaining Sonat’s exception of res judicata and dismissing Cudd’s cross-claim is reversed, and Cudd’s action is hereby stayed. The judgment in all other respects is affirmed. Costs of this appeal are assessed 50% to Sonat Exploration Company and 50% to Cudd Pressure Control, Inc. and Lumber-mens Mutual Casualty Company.

REVERSED IN PART; AFFIRMED IN PART; RENDERED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS, and DREW, JJ.

Rehearing denied.


author: hBROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Michael Larue MACK, Appellant.
    Nos. 37,174-KA, 37,175-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2003.

      James E. Beal, Jonesboro, for Appellant.
    Robert W. Levy, District Attorney, Stephen Kendall Hearn, Jr., Clifford Royce Strider, III, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   hBROWN, C.J.

Defendant, Michael Larue Mack, was convicted of second degree murder and attempted second degree murder. He was sentenced to life imprisonment at hard labor on the second degree murder conviction and 49 1/2 years on the attempted second degree murder conviction. Both sentences were imposed without benefit and were ordered to run consecutively. Defendant appeals his convictions and sentences. Finding no error, however, we affirm.

Facts

Just after 1:00 p.m. on July 15, 1998, authorities at the Lincoln Parish Sheriffs Office in Ruston, Louisiana, received two 911 calls within minutes of each other. The callers reported that shots had been fired and that two persons had been shot at 132 Peachland Trailer Park, located on Hwy. 80 west, halfway between Ruston and Grambling. By the time Steven Rogers, the primary investigator, arrived at approximately 1:21 p.m., numerous police cars and two ambulances were already on the scene. A crowd of adults and children was gathered outside the mobile home. According to the deputy, there was a lot of “screaming and crying.” Inside the residence he found emergency medical personnel working on two wounded men.

At the time of the shooting, eleven people, six adults and five children ranging in age from seven months to twelve years old, were in the trailer. The residence belonged to Mary Scott, who was not at home during the shooting. Because the witnesses were so distraught, Dy. Rogers did not conduct formal interviews at the scene that day, but he did collect evidence hand take photographs. As a result of the shooting, Patrick Scott (“Patrick”) was killed and Glenn Patrick (“Glenn”) lost his right leg.

Information provided at the scene led to a “be on the lookout” bulletin (which was broadcast at 1:28 p.m.) for a green Toyota Tercel occupied by a bald, medium-colored black man wearing boots, camouflage pants and a t-shirt. Almost immediately, the owner of Ruston Pawn and Gun, Bruce Carter, called the sheriffs department to report that a man fitting the description that had just been broadcast had just been in his store buying a box of ammunition for an SKS, AK-47 assault rifle. Bruce also related that this same man had bought a box of the same type ammunition on the previous day.

An arrest warrant for defendant was filed just days after the shooting; however, he was not indicted until December 28, 2000. Apparently, after the shooting, he fled to Canada. Lincoln Parish authorities enlisted the assistance of the FBI to track down defendant, who was eventually found in Canada where he was arrested on other charges. Defendant was extradited to Jefferson Parish, Louisiana, where he went to trial on two other charges before being released to the Lincoln Parish authorities. Prior to his indictment, defendant filed a pro se motion for speedy trial in Lincoln Parish. The speedy trial motion was granted on July 11, 2001. However, a motion filed by his attorney to quash the indictment for failure to prosecute was denied that same day.

A three day trial began on May 21, 2002. The primary investigator, four men and one woman who had been at the trailer during the shooting, a ^passenger in the green Toyota Tercel, the pawnshop owner, the 911 dispatcher, a crime lab specialist, and the coroner were called by the state. Defendant called one witness, Dr. Edward Banks, a former Grambling State University assistant dean, who stated that he saw defendant the day of the shooting on the Grambling campus between 1:00 and 1:45 p.m.

On May 23, 2002, the jury unanimously found defendant guilty of second degree murder and attempted second degree murder. A motion for new trial and motion for post-verdict judgment of acquittal were denied. Defendant was sentenced to life imprisonment on the second degree murder conviction and 49 1/2 years on the attempted murder conviction. The sentences were ordered to run consecutively and without benefit. Defendant’s timely filed motion to reconsider sentence was denied and this appeal ensued.

Discussion

Sufficiency of the Evidence

Defendant first asserts that the evidence was insufficient to convict him of second degree murder and attempted second degree murder. According to defendant, the testimony of most of the lay witnesses should have been disregarded by the jury because there are inconsistencies in their testimony, and their identifications of defendant were tainted.

Applicable Legal Principles

As set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the critical inquiry in reviewing the sufficiency of the evidence to convict is whether the evidence reasonably supports a finding of |4guilt beyond a reasonable doubt. Specifically, the issue 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 offense established beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

La. C. Cr. P. art. 821 provides that a motion for post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir. 1992), unit denied, 604 So.2d 973 (La.1992).

La. C. Cr. P. art. 851(1) provides that the court shall grant a motion for new trial whenever the verdict is contrary to the law and the evidence, i.e., that the evidence is insufficient to sustain the conviction. Under this article, the trial judge has wide discretion to determine the weight of the evidence. The refusal to grant a new trial is not subject to appellate review, except for error of law. State v. Mitchell, 26,070 (La.App.2d Cir.06/22/94), 639 So.2d 391, writ denied, 94-1981 (La.12/16/94), 648 So.2d 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Robinson, 624 So.2d 1260 (La.App. 2d Cir.1993), writ denied, 93-2899 (La.02/11/94), 634 So.2d 372; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993).

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. \ ¿Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court must defer to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

Trial Testimony

At the time of the shooting, there were eleven people in the mobile home: six adults and five children between the ages of seven months and twelve years old. As noted above, the trailer belonged to Mary Scott, who was not at home when the incident occurred. Her son, Mario Scott, stayed there occasionally. On the morning of July 15, 1998, Mario had picked up Carlos Scott and Glenn Patrick to go to the mobile home. Patrick Scott and a family friend, Shalena Stafford (“Shea”), and several young children were already at the trailer when Mario, Carlos, and Glenn arrived. Shea left to pick up Timothy Rhone (“Timothy”), who was going to give haircuts to some of the men at the trailer. While Shea was gone, Aquanita Harris (“Aquanita”) came to the trailer to purchase cocaine from Mario. He told Aqua-nita that he did not have any cocaine, but that she could come back in a few minutes, and he should be able to have the drugs by then.

Aquanita testified that she had been brought to the mobile home in a green Toyota Tercel driven by Tiffany Burns (“Tiffany”), a girlfriend of defendant, Michael Mack. Aquanita testified that defendant had ridden to the trailer park with her and Tiffany, but that when she got back into the car |fiafter trying to buy cocaine, he was not in the car. Jerry Maiden, Jr., the owner of the Toyota, testified that he shared a home with Tiffany and several other people. Jerry stated that defendant, who he knew as Malek, was with Tiffany when she asked to borrow his car on the morning of the shooting. Jerry testified that Tiffany brought the car back around 4:00-6:00 p.m. that afternoon.

Four of the men, Patrick, Glenn, Carlos and Timothy, as well as one (or two) of the male children were in the back bedroom of the trailer. Patrick was ironing. Everyone was waiting for Mario, who was in the front bedroom, to finish getting dressed so that he could get his hair cut. There was some music playing but not so loudly that they couldn’t carry on a conversation. Timothy testified that he was standing at the window when he saw the curtain fly back and defendant point a rifle at him. The window did not have a glass covering, but had over the opening what most witnesses described as a blanket.

When the gunman stuck the rifle through the window, Timothy and Carlos were standing in the doorway. Patrick, Glenn and a young boy were sitting on the bed. Timothy testified that defendant pushed the blanket back and pointed the weapon right at him; they were “eye to eye.” Timothy stated that he got a good look at defendant’s face. Timothy thought that the gunman was a law enforcement official coming after him, so he ran out of the trailer, climbed over a fence, and ran into the nearby woods. He subsequently fled to Houston and was extradited to Lincoln Parish on drug |7charges approximately a year and a half after the shooting. Upon his return, he picked defendant out of a photo line-up.

Shea testified that she saw the green car leaving the trailer park as she and Timothy were driving to the mobile home. Aquanita was riding with a black female who had a turban on her head. About ten minutes after Shea and Timothy got to the mobile home, the shooting started. She and Mario were sitting at the kitchen table when she heard the shots. Shea grabbed her seven-month-old son and ran to the bedroom in the front of the trailer. Glenn, who had been shot, joined her in the front room. The blinds were open, and she saw the green car she had seen earlier speeding away. Shea stated that she didn’t know how many people were in the car at that time. She used the phone in the trailer to call 911 to report the shooting.

Glenn testified that his back was to the window but that he first heard a “bumping” sound outside the trailer, then heard a man yell, “I got y’all mother f — now.” Glenn ran from the room but returned immediately to get the young boy who was too stunned to get out of the room. It was at this time that Glenn got a glimpse of defendant, who then shot him in the leg. Because of his injuries, Glenn lost a large amount of blood, and his right leg had to be amputated below the knee. He was hospitalized for over a month and then underwent intensive rehabilitation. He now wears a prosthetic device.

Carlos testified that he also heard a “bumping” noise prior to the shooting. His brother Patrick moved the curtain back, and defendant stuck | Rthe rifle in the window and began shooting. Carlos noticed that the gunman had gold teeth. He also heard the shooter say, “I got ya’ll mother f — now.”

The 911 dispatcher testified that at 1:28 p.m. authorities sent out a bulletin for persons to be on the lookout for a green Toyota Tercel occupied by a black male who was a suspect in the shooting. Almost immediately, Bruce Carter, the owner of Ruston Pawn and Gun, called the sheriffs department to report that a person fitting the description that had just been broadcast had just been in his store buying a box of ammunition for an SKS, AK-47 type rifle. Bruce also related that defendant had been in the store the previous day and had purchased a box of the same type ammo at that time. The expert from the crime lab testified that eight spent cartridges recovered from the crime scene were fired from an SKS rifle.

Analysis

The crux of defendant’s argument is that the four persons who claim to have seen him on the day of the shooting testified that they only got a “glimpse” of the shooter. Therefore, it is defendant’s position that none of them could positively identify him as the shooter. He likewise attacks the use and accuracy of the photo line-ups as well as the in-court identifications.

Two of the witnesses, Timothy Rhone and Carlos Scott, had seen a newspaper photograph of defendant before they were asked to pick the shooter out of a photo line-up. It is not known what weight, if any, the jury put on this evidence. Even if the photo line-ups were discounted, in his prior statement Carlos described the gunman, being the only person to lflnotice that the shooter had gold teeth. At trial, defendant was ordered to display his teeth for the jury.

Of the three people in the back bedroom who survived the shooting, only two men, Glenn and Carlos, heard the gunman say, “I got ya’ll mother f — now.” However, the evidence shows that the person who did not overhear that remark, Timothy Rhone, was standing in or by the doorway. Furthermore, there was music playing in the back bedroom. Timothy testified as follows:

Q: You thought it might be the police out there?
A:' Yeah.
Q: Did you hear any noise before the shooting? Anybody knock or anything? Any knocking noise or anything to call your attention?
A: I was back and forth, was trying to see what was taking Mario so long. I really wasn’t hearing — I didn’t hear no noise.
# * *
Q: Okay. And whoever it was in the window did not say anything, did they?
A: I didn’t even stay to see if he said something or not.
Q: I don’t understand you. What?
A: I didn’t even stay to see if he said something or not.

This testimony, elicited on cross-examination, shows that Timothy was not paying attention at the beginning and that he quickly ran as soon as he realized that there was someone with a gun at the window. The evidence established the possibility that the gunman made the statement either early on while Timothy was “back and forth” or that the statement was made after Timothy got out of the room.

Defendant also points out that the testimony of Mario Scott and Timothy Rhone was contradictory regarding their flight away from the shooting. Timothy testified that as he was trying to get out of the trailer, |inMario had difficulty opening the door. On both direct and cross-examination, Timothy testified that as he and Mario were running, he passed Mario up, jumped the fence, then ran into the woods. According to Timothy, Mario was behind him. Mario testified that the door jammed, but he was able to get it open and get out of the trailer. Timothy ran past him and then Mario saw defendant come from behind the trailer. According to Mario, defendant had stopped and was “messing with the gun.” Mario stated that it appeared as if the weapon had jammed and he “could still see the smoke from the barrel.” Mario testified that he ran off in the same general direction as Timothy. On cross-examination, he related that after he and Timothy got out of the mobile home, he paused for a second because the shooting had stopped and he wanted to go back inside to check on everybody. At that point, he saw the shooter. Mario stated that the gunman was baldheaded, wearing army fatigues and carrying what appeared to be an AK-47 rifle. After defendant ran away, Mario went back into the trailer briefly. He then ran back out of the trailer, jumped over a fence, and ran into the woods. He stated that he had Timothy in his sight while he was fleeing.

Obviously, it was crucial to the defense that Mario’s testimony be discredited, inasmuch as he was the witness who literally saw defendant “with a smoking gun.” Be that as it may, we find no significant | n contradictions in this testimony. Furthermore, as noted above, a spent shell was found by officers in the area described by Mario.

There was also conflicting testimony regarding whether Mario resided in the trailer, whether there was a working telephone in the mobile home, the number of times that some of the witnesses came and went that day, and the number of times Aquani-ta went to the trailer that day looking for drugs. Defendant also emphasizes that a critical piece of information, that defendant was brought to the trailer park that day, was not told to investigators during the investigation. However, it was Aquanita’s testimony that no one had ever asked her whether defendant had been with her and Tiffany that day and, because of the nature of her visits to the trailer park, i.e., to buy drugs, she did not volunteer the information.

Facing the difficult task of attacking the credibility of numerous eyewitnesses, defense counsel did an excellent job of pointing out a number of inconsistencies in the eyewitness testimony. In fact, two of the witnesses related information that had not been originally told to the authorities. Nonetheless, the prosecutor managed to restore or rehabilitate the witnesses’ credibility.

In State v. Williams, 35,911 (La.App.2d Cir.09/18/02), 828 So.2d 180, this court recently pointed out that:

[W]hen a witness is impeached, this simply means the jury, as the trier of fact, is presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior | ^inconsistent statements does not mean that the jury is prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony. State v. Dunn, 30,846 (La.App.02/25/98), 708 So.2d 512; State v. Bender, 598 So.2d 629 (La.App. 3d Cir.1992), writ denied, 605 So.2d 1125 (La.1992).

During the three day trial, the state presented, and the defense was unable to shake, the witnesses’ statements that they saw and could positively identify defendant as the gunman. Each person who testified that they saw defendant with the assault rifle also testified that defendant was partially bald and was wearing camouflage-colored clothing. The three witnesses who were in the back bedroom testified consistently as to where they and the victim were located and what they were doing prior to the shooting. Furthermore, all adults present in the trailer during the shooting testified consistently regarding the occupants of the trailer and what they were doing at the time of the shooting.

Likewise, the circumstantial evidence supports the guilty verdicts in this case. Aquanita testified that she, defendant and Tiffany drove to the trailer park in a green Toyota immediately before the shooting. After going inside the mobile home to talk to Mario, Aquanita got back into the car. At that time, defendant was no longer in the green car.

Only moments after the shooting, the pawn shop owner called in to report that defendant, dressed as described by the witnesses and in the same color and make vehicle as broadcast on the radio, had just been in his store buying more ammunition. The witness also stated that he recognized 113defendant because he had bought a box of similar ammunition just the day before the shooting.

Having reviewed the evidence in the light most favorable to upholding the jury’s verdict, we are unable to determine that the testimony of the witnesses is contradictory regarding the major elements of the crimes of conviction or that the physical evidence presented any contradictions vis-a-vis the testimony. This assignment of error is without merit.

Use of Defendant’s “Muslim” Name

According to defendant, he is entitled to a mistrial based on the prosecution’s intentional use of defendant’s Muslim name at trial, which was soon after the 9-11 terrorist attack. It is defendant’s position that the state used defendant’s Muslim name for the sole purpose of inflaming the jury. On the other hand, the state asserts that it was simply laying groundwork because one witness knew defendant only by his Muslim name.

Reference to defendant’s Muslim name occurred twice in direct testimony. The first time, the prosecutor asked the investigator whether defendant went by any other name. Defense counsel objected, based upon the witness’s apparently equivocal answer, “Malek. Malek Shabazz, I believe. I don’t know if I’m pronouncing it correctly.” The basis for defendant’s objection was that the investigator did not know the name and also that it was hearsay evidence. This objection was overruled by the court. No objections were made, however, when the name came up in testimony by one of the prosecution’s witnesses, Jerry Maiden, on cross-examination of the defendant’s witness, Dr. Edward Banks, or during the state’s closing | uremarks. Furthermore, defendant did not file a motion for mistrial or request an admonishment after his sole objection.

Nonetheless, as held by the supreme court in State v. Baylis, 388 So.2d 713 (La.1980), when a defendant’s objection to improper remarks is overruled, he is not required to make a useless motion for admonition or a mistrial to preserve his rights on appeal. See also State v. Ballay, 01-493 (La.App. 5th Cir.10/17/01), 800 So.2d 953; State v. Johnson, 98-281 (La.App. 5th Cir.09/29/98), 719 So.2d 1141; State v. Clay, 612 So.2d 266 (La.App. 4th Cir.1992); State v. Dorsey, 561 So.2d 974 (La.App. 4th Cir.1990), writ denied, 566 So.2d 984 (La.1990).

“Hearsay” is a statement other than one made by the declarant while testifying at the present trial or hearing offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay evidence is regarded as being unreliable because it is based upon statements made by persons who are not before the court, have not been sworn, and are not available for cross-examination. State v. Bratton, 32,090 (La.App.2d Cir.06/16/99), 742 So.2d 896; State v. Tate, 25,765 (La.App.2d Cir.02/23/94), 632 So.2d 1213, writ denied, 94-1218 (La.08/23/96), 678 So.2d 33. By definition, a statement not introduced to prove the truth of the matter asserted is not hearsay. La. C.E. art. 801(C); State v. Tate, supra; State v. Hicks, 607 So.2d 937 (La.App. 2d Cir. 1992).

When hearsay evidence is improperly admitted at trial, the appellate court must decide whether the evidence contributed to the verdict. If the inadmissible hearsay evidence is merely cumulative or corroborative of brother testimony introduced at trial, its admission is considered harmless. State v. Walker, 34,107 (La.App.2d Cir.01/24/01), 778 So.2d 695, writ denied, 01-0783 (La.01/25/02), 806 So.2d 669; State v. Coleman, 32,906 (La.App.2d Cir.04/05/00), 756 So.2d 1218, writ denied, 00-1572 (La.03/23/01), 787 So.2d 1010.

Even if Dy. Rogers’ statement that defendant was also known as Malek Shabazz was considered to be improperly admitted hearsay, this statement was merely cumulative and corroborative of the testimony given by Jerry Maiden and Dr. Banks, both of whom related that they knew defendant by the name Malek Sha-bazz without objection by the defense. Any error was harmless. See State v. Walker, supra.

Likewise, defendant did not object to the prosecutor’s reference to his Muslim name in closing statements. Considering the evidence in its entirety, we cannot say that the reference to defendant’s Muslim name was of such an inflammatory nature as to have had a prejudicial impact on the jury. In other words, the evidence was overwhelmingly sufficient such that, even without the remarks or references to defendant’s Muslim name, the jury could have found defendant guilty. See State v. Green, 416 So.2d 539 (La.1982). This assignment of error is without merit.

Excessiveness of Sentence

Defendant was given a life sentence for the second degree murder conviction and 49 1/2 years on the attempted second degree murder conviction. While he does not contend that the individual sentences are excessive, he does take issue with the fact that the trial court ordered the | T (¡sentences to be served consecutively. According to defendant, the trial court erred in imposing consecutive sentences for convictions which arose from a single course of conduct.

Applicable Legal Principles

La. C. Cr. P. art. 883 provides that when two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), unit denied, 94-0348 (La.05/20/94), 637 So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir. 1985). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/01/00), 770 So.2d 868; State v. Coleman, supra; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir. 1987), writ denied, 521 So.2d 1168 (La. 1988). All factors in the case are to be considered in choosing whether to impose consecutive or concurrent sentences. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2d Cir.1992), writ denied, 612 So.2d 55 (La.1993).

Defendant’s actions put a number of persons, including several small children, at risk and resulted in the death of one person and the permanent disabling of another. The trial court noted that there were no mitigating 117factors. Having reviewed defendant’s PSI, the court noted that defendant had a felony criminal history dating back to 1989. We find that the trial court properly stated the factors it considered and gave reasons in support of its decision to impose consecutive rather than concurrent terms, satisfying both the statutory and jurisprudential requirements. State v. Coleman, supra; State v. Green, 614 So.2d 758 (La.App. 2d Cir. 1993)..

The trial court’s determination that the sentences should be served consecutively is valid in light of the fact that the offenses of conviction involved extreme violence randomly directed, which resulted in the killing of one person and severe injuries to another. The court’s finding that defendant is a violent, dangerous criminal who should remain in custody for life, under these circumstances, does not shock our sense of justice. This assignment of error is merit-less.

Denial of Speedy Trial Motion

In a pro se brief, defendant complains that the delay from the time he was accused of the crimes until his trial violated his rights to a speedy trial.

Pertinent Facts

Although warrants for defendant’s arrest were issued on July 16, 1998, defendant was not indicted until December 28, 2000. On September 4, 1998, the FBI issued a warrant for flight to avoid prosecution after being notified by Lincoln Parish authorities that defendant’s vehicle had been found abandoned in New Orleans. On November 10, 1998, defendant was located in Canada and arrested for illegal entry into that country. He was deported and held in New York. Lincoln Parish authorities were preparing 11sto file to have defendant returned to Lincoln Parish when he was extradited to Jefferson Parish on January 21, 1999. The Lincoln Parish authorities requested that Jefferson Parish place a hold on defendant on that date.

Defendant was held in Jefferson Parish in connection with two charges and remained in jail. Trial of the first charge was held in November 1999; defendant was acquitted of that charge. On October 30, 2000, defendant pled guilty to the second charge and was sent to Winn Parish Correctional Center.

Defendant was then indicted by a Lincoln Parish grand jury on December 6, 2000, and brought to that parish on December 28, 2000, at which time he was arrested and arraigned. Trial was set for March 19, 2001.

It was discovered that defendant had filed a pro se motion for speedy trial under La. C. Cr. P. art. 701 on August 8, 2000, prior to his indictment in Lincoln Parish. The defense sought to continue the trial so that this motion and a motion to quash which was filed by counsel on January 24, 2001, could be heard on May 7, 2001. A hearing was held on May 7, 2001; at that time, the defense again sought a continuance because one of its witnesses was not present. The motions were subsequently heard on July 5, 2001, and defendant’s pro se motion for speedy trial was granted on July 11, 2001. The motion to quash the indictment for failure to timely prosecute, however, was denied that same day. As noted in the minute entries, defendant sought two further continuances of the trial, one on July 12, |1fl2001, and one on October 15, 2001. Trial in this matter began on May 21, 2002.

Applicable Legal Principles

It is well-settled that there are two separate and distinct bases for a defendant’s right to a speedy trial: a statutory right granted by La. C. Cr. P. art. 701 and a constitutional right embodied in the Sixth Amendment to the United States Constitution and Article I, Section 16 of the Louisiana Constitution of 1974. The two are not equivalent. State v. Leonard, 499 So.2d 585 (La.App. 2d Cir.1986); State v. Price, 96-680 (La.App. 5th Cir.02/25/97), 690 So.2d 191.

La. C. Cr. P. art. 701 provides that the sole remedy for failure to commence trial within the mandated time period is pretrial release without bail. Once a defendant has been tried and convicted, his allegation that article 701 has been violated becomes moot. State v. Hebert, 29,062 (La.App.2d Cir.01/22/97), 688 So.2d 612; State v. Outley, 629 So.2d 1243 (La.App. 2d Cir.1993), writ denied, 94-0410 (La.05/20/94), 637 So.2d 476; State v. Johnston, 480 So.2d 823 (La.App. 2d Cir. 1985).

We will, however, analyze defendant’s constitutional right to speedy trial as to this delay and will address the denial of defendant’s motion to quash the indictment as well.

The right to a speedy trial is fundamental and is guaranteed to an accused. U.S. Const. amends. VI and XIV; La. Const. art. I, § 16; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123. The right | j,nattaches when an individual becomes an accused, either by formal indictment or bill of information or arrest and actual restraint. State v. Bodley, 394 So.2d 584 (La.1981); State v. Jordan, supra. Louisiana has adopted the balancing test set forth in Barker v. Wingo, supra, in which the conduct of both the state and the defendant are weighed. The four factors to be considered are: (1) length of the delay; (2) reason for the delay; (3)' defendant’s assertion of his right; (4) prejudice to the defendant, such as the possible impairment of the presentation of the accused’s defense. Id.; State v. James, 394 So.2d 1197 (La.1981); State v. Jordan, supra; State v. Johnston, 480 So.2d 823 (La.App. 2d Cir.1985).

Analysis

Although both defendant and his attorney argued that the institution of prosecution was on the date the arrest warrant was issued, it is the date of indictment, not the arrest warrant, date, which is considered to be the institution of prosecution. See La. C. Cr. P. art. 934(7); State v. Butler, 302 So.2d 585 (La.1974); State v. Jones, 34,542 (La.App.2d Cir.02/28/01), 780 So.2d 1234, writ denied, 01-2820 (La.08/16/02), 822 So.2d 613. Furthermore, even if an earlier date were to be used, defendant cannot complain that his statutory deadline was violated because his motion for speedy trial suspended the running of prescription. As held by this court in State v. Oliver, 34,292 (La.App.2d Cir.05/09/01), 786 So.2d 317, preliminary pleas suspend the running of prescription for bringing the case to trial under the speedy trial statute. Thus, the filing of defendant’s pro se- motion for speedy trial- and the motion to quash the indictment filed by his 1^ attorney suspended the running of time before commencement of trial. In the instant case, the trial began on May 21, 2002, which is within one year from the trial court’s ruling on the motions, which was on July 11, 2001.

The fundamental, constitutional right to a speedy trial discussed in Barker v. Wingo, supra, however, looks beyond the procedural points to determine whether the delays prevented the defendant from receiving a fair trial. The first factor, the.length of time it took the state to file the indictment then bring the case to trial is fairly long. Therefore, we turn to the next factor, the reason for the delay. In this case, the reason for the delay cannot be placed solely upon the prosecution. Whüe . defendant contends that he did nothing to cause the delay, the converse is actually true. Defendant’s out-of-the-country flight and the fact that there were pending charge's in Jefferson Parish are certainly unattributable to the prosecution in this matter. Furthermore, while Lincoln Parish authorities could have sought an indictment and brought defendant to trial earlier, his day-to-day activities, inasmuch as he was incarcerated in another parish, were not affected by this delay. In response to defendant’s argument that the detainer placed upon him by Lincoln Parish authorities kept him from bonding out in Jefferson Parish, the record shows that he either did not have the money to pay the bond in Jefferson Parish or simply chose not to pay for the bond, knowing he would at that time be taken to Lincoln Parish to face the instant charges.

Regarding the third factor set forth in Barker v. Wingo, supra, the defendant’s assertion of his right, we recognize that defendant attempted toj^assert his right when he filed the pro se motion for a speedy trial and his counsel filed the motion to quash the indictment. It is not solely upon the state, however, that these motions were not timely set for hearing. As noted above, defendant filed several motions to continue the trial after the trial date had been set.

Finally, we consider the fourth factor, prejudice to the defendant or the potential impairment of presentation of his defense. Defendant points out that one of his alibi witnesses died in 2000 before defendant was indicted. This witness, like Dr. Banks who did testify, was a Gram-bling State University employee and would presumably have testified that defendant was on campus the day of the crime. Defendant also asserts that had he been brought to trial earlier, Dr. Banks would have had a better recall of the specific details of the time frame for his alibi. Defendant also contends that another witness, Tiffany, the alleged driver of the green Toyota Tercel, had moved from thearea and was not available to testify at trial.

Dr. Banks testified to the same thing that the déceased witness would have allegedly stated: that he saw defendant on the campus at the approximate time of the crime. The crime, however, took place very close to the Grambling campus and any number of witnesses could have testified that they saw defendant on the campus at that time without ruling out the possibility that defendant could have committed the crimes, then gone to the campus. The pawn shop owner’s testimony definitively placed defendant at his pawn shop immediately after the time frame of the crimes, which | ¡«testimony was obviously given more weight by the jury. Finally, we note that the state’s case was weakened by the passage of time as well. As the record reflects, several key witnesses were unable to recall particular details of the date of the crime. This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendants’ convictions and sentences are AFFIRMED.

      . All of the men, including the victim, Patrick Scott, were related to each other either as cousins or brothers.

      . On cross-examination, Timothy related that instead of the window, he was in the doorway when the blanket was moved back.

      . Glenn also viewed a photo line-up and immediately identified defendant as the shooter.

      . A spent shell was found by officers outside the trailer in the area described by Mario.

      . Mario viewed a photo line-up the day after the shooting and identified defendant as the shooter.

      .Aquanita was subsequently arrested on drug charges and it was shown that around the time of the shooting, she was using cocaine and did not want to cooperate with the police.


author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Andrew J. JOSEPH, Jr.
    No. 02-KA-717.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Lisa B. Schneider, Assistant District Attorneys, Gretna, LA, for Appellee.
    Holli Herrle-Castillo, Marrero, LA, for Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

In our previous decision in this case, State v. Joseph, we found that Joseph failed to preserve adverse rulings for appellate review, and noted that the sentencing court’s failure to specify that the fifteen-year sentence was to be served without benefits of probation or suspension of sentence was an error patent.

Thereafter, the supreme court reversed our finding that defendant failed to preserve adverse rulings for appellate review, and remanded for this court to “afford defendant review of the trial court’s denial of his motion to suppress the evidence.” Other aspects of our original opinion, however, remain intact. For the following reasons, the judgment of the trial court is affirmed.

LAW AND ANALYSIS

| o,Joseph contends that the trial court erred in refusing to suppress the evidence found in the vehicle. The State replies that the trial court correctly refused to suppress the evidence.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement.

A search incident to a lawful arrest is one of the clearly recognized exceptions to a warrantless search. In a search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent destruction of evidence.

A second exception to the prohibition against warrantless searches is the “automobile exception.” In the recent United States Supreme Court decision of Maryland v. Dyson, the Court discussed this exception:

The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U.S. 386, 390-391, 105 S.Ct. 2066, 85 L.Ed.2d 406. As we recognized nearly 75 years ago in Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), there is an exception to this requirement for searches of vehicles. And under our established precedent, the “automobile exception” has no separate exigency requirement. We made this clear in United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) when we said that in cases where there was probable cause to search a vehicle ‘a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.’ In a case with virtually identical facts to this one (even down to the |4bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam) we repeated that the automobile exception does not have a separate exigency requirement: Tf a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.’ Id. at 940,116 S.Ct. 2485.

When the constitutionality of a warrantless 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.

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 on the motion and the trial. The trial judge’s determination on the motion to suppress will not be disturbed on appeal, unless it is clearly wrong.

In refusing to grant the motion to suppress the evidence, the trial judge stated the following:

THE COURT:
Okay, the Court finds that probable cause and exigent circumstances existed sufficient to justify not only the arrest, but the subsequent search that followed the arrest. Motion is denied.

On appeal, Joseph argues that the officers were not justified in searching the interior and trunk of the vehicle, as no exception to the prohibition against a war-rantless search existed. In this regard, Joseph infers that the automobile exception was inapplicable because there were no exigent circumstances since, at the time the vehicle was | ^searched, he had already been arrested and placed in the back of the police unit. Thus, Joseph suggests that the officer could have obtained a warrant or made a seizure of the vehicle and conducted an inventory search.

Joseph also assails the scope of the search, arguing that the dog alerted to a jacket inside the vehicle but the officer searched both the interior of the vehicle and the trunk.

The State replies that the evidence was seized from Joseph’s person pursuant to a search incident to a lawful arrest. Additionally, the evidence seized from the interior and trunk of the vehicle qualifies under the “automobile exception” to the prohibition against warrantless searches. In this regard, the State argues that the “automobile exception” is based upon the inherent mobility of the vehicle and the citizen’s reduced expectation of privacy. Finally, the State alleges that the extent of the search was justified.

Joseph, in brief, concedes that his initial stop for a traffic violation was justified. In a per curiam opinion, in State v. Waters, the Louisiana Supreme Court, quoting from Whren v. United States, noted that an automobile stop is reasonable where the police have probable cause to believe that a traffic violation has occurred.

In the present case, the officer indicated at the suppression hearing that he initially intended to issue Joseph a citation. The officer had the right to conduct a routine license and registration check.

After stopping Joseph, Officer Schuyler ran the vehicle license plate number in the computer and discovered that the plate belonged to a Mercedes Benz and not the Mazda driven by the defendant. Officer 1 (¡Schuyler asked Joseph for his driver’s license and the officer discovered the license had been suspended. Thereafter, Officer Schuyler ran Joseph’s name in the national crime computer. The computer results indicated the defendant was wanted on three outstanding attachments, including one for possession of crack cocaine. Based upon the outstanding warrants, Officer Schuyler advised Joseph that he was under arrest and gave Joseph his rights.

In addition to the numerous traffic offenses, the outstanding attachments provided probable cause required for Joseph’s arrest.

As previously stated, once under arrest, the officer had the right to search the suspect’s person and the area within his immediate control in order to remove weapons and prevent destruction of evidence. Such a search is clearly recognized as an exception to the constitutional prohibition against warrantless searches. The search of Joseph’s person revealed possession of narcotics (i.e., Oxycodone and Soma). Under these circumstances the seizure of this contraband was lawful.

The officer placed Joseph in the back of the police car and returned to retrieve the registration from the defendant’s glove compartment. Since the officer was aware that the vehicle’s plate was not registered to this vehicle, the officer had probable cause to search the glove compartment for the vehicle registration in order to ascertain if the vehicle was stolen (i.e., evidence of a crime). It was during this search that the drug paraphernalia was found and seized.

Since the officer was lawfully within a position from which he viewed the drug paraphernalia, and the incriminating character of the objects was ^immediately apparent, the officer had a lawful right to seize the objects without a warrant.

Although this discovery arguably gave the officer probable cause to search the vehicle for drugs, the officer nonetheless took the additional precautionary measure of calling for a drug detection dog.

A canine “sniff’ is not a search and officers do not need reasonable suspicion to conduct a dog “sniff’ search. The dog alerted to a jacket on the interior of the vehicle. This additional factor established probable cause for the search of the jacket and the seizure of the narcotics found inside. This discovery also provided probable cause for the search of the vehicle.

Once probable cause for the search of the vehicle exits, the officer has the authority to search those places in the vehicle in which there is probable cause to believe the object searched for may be found. As such, the warrantless search of the trunk of the vehicle and the bag contained therein for contraband was constitutionally sanctioned.

Joseph’s argument that the “automobile exception” to the warrant requirement was not met because there were no exigent circumstances, as the defendant had been arrested and was in the back of the police unit, is misplaced. As previously stated, the Supreme Court has repeatedly said the “automobile exception” does not have an independent exigency requirement and if probable cause exists for the search of the vehicle that is sufficient. The exigency is supplied by the inherent mobility of the vehicle and the | scitizen’s lesser expectation of privacy. Thus, since the officer had probable cause to believe the defendant’s vehicle contained drugs and drug paraphernalia, he was justified in searching it without a warrant.

Joseph’s argument that the scope of the search was overreaching, in that the drug detection dog only alerted to the jacket in the compartment of the vehicle and not the trunk, is also without merit. This Court, in State v. Jackson, , sustained the seizure of drugs from the car trunk, and reasoned:

[T]he United States Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within may conduct a search of the vehicle that is as thorough as a magistrate could require in a warrant.
For constitutional purposes, there is no difference between seizing and holding a car before presenting the probable cause issue to a magistrate and carrying out an immediate search without a warrant. .. .Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution.

For these reasons, we find that the search of the defendant and the vehicle were constitutionally permissible and that, accordingly, the trial judge correctly refused to suppress the evidence in this case. For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED

      . 02-717 (La.App. 5 Cir. 1/14/03), 839 So.2d 103.

      . State v. Manson, 01-159, pp. 6-7 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755.

      . State v. Manson, supra, at 757 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

      . Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

      . State v. Andrishok, 434 So.2d 389, 391 (La.1983); State v. London, 01-1015, p. 9 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 166.

      . 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999).

      . Maryland v. Dyson, 527 U.S. at 466-467, 119 S.Ct. 2013.

      . State v. London, 815 So.2d at 162, 164.

      . State v. Wilson. 00-0178, p. 3 (La.12/8/00), 775 So.2d 1051, 1053; State v. Manson, 01-159, p. 6 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755.

      . 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).

      . 00-0356, p. 6 (La.3/12/01), 780 So.2d 1053, 1056.

      . 517 U.S. 806, 810 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996).

      . State v. Charmaine, 00-1657, pp. 5-6 (La.10/26/01), 798 So.2d 947, 950.

      . State v. Andrishok, supra; State v. London, supra.

      . Chimel v. California, supra.

      . See, LSA-R.S. 32:51

      . State v. Henderson, 99-471, pp. 5-6 (La.App. 5 Cir. 10/26/99), 746 So.2d 173, 176, writ denied, 99-3485 (La.5/26/00), 762 So.2d 1102 (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)).

      . United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Romsky, 01-1067, p. 16 (La.App. 5 Cir. 4/10/02), 817 So.2d 186, 192.

      . California v. Acevedo, 500 U.S. 565, 570, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).

      . Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).

      . 00-1014, pp. 8-9 (La.App. 5 Cir. 12/14/00), 778 So.2d 23, 29, writ denied, 01-0162 (La.11/21/01), 802 So.2d 629

      . State v. Jackson, 778 So.2d at 29 (citations omitted).