author: 2CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Terrance ROYAL.
    No. 03-KA-439.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for State.

      Bruce G. Whittaker, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   2CLARENCE E. McMANUS, Judge.

On December 7, 2000, a Jefferson Parish grand jury indicted defendant, Terrance Royal, along with Gregory Lewis and Johnny White, for the second degree murder of Tahaira Chopin in violation of LSA-R.S. 14:3o.!. Defendant was also indicted for obstruction of justice in violation of LSA-R.S. 14:130.1. On December 15, 2000, defendant was arraigned on the charges and entered a plea of not guilty to both counts. After filing various pretrial motions, which were heard and denied, defendant proceeded to trial by jury on September 17, 2002.

After a three-day trial, a 12-person jury found the defendant guilty as charged. Thereafter, defendant filed a motion for new trial which was denied. After waiving all delays, defendant was immediately sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the conviction for second degree murder and 40 years at hard labor on the conviction for obstruction of justice with both sentences to run consecutively. |s Subsequently, defendant made an oral motion to reconsider his sentences which was denied. This appeal followed.

FACTS

Twenty-Six-year-old Tahaira Chopin was shot and killed leaving behind two young children. Renell Jackson testified that in the early morning hours of October 15, 2000, she and Tahaira were at Club James, a bar on the corner of Silver Lilly Street in Marrero. Jackson stated that an aitercation between a group of “guys” from Bridge City and a group from Villa de Ames Apartments occurred in the club that evening. Thereafter, Jackson and Ta-haira left to go to Tahaira’s mother’s home in the Villa de Ames Apartment complex. As they walked back to the apartment, they met a mutual friend, Wayne Keller, who offered to give Jackson a ride home. Jackson and Tahaira separated and Ta-haira continued to walk toward the Villa de Ames Apartments.

Darius Clement and Dwayne Nelson were also walking toward the Villa de Ames Apartments at the same time that evening. Clement testified he had been at Club James earlier that night when the altercation occurred between the individuals from Bridge City and Villa de Ames. During the altercation, an individual by the name of Gregory Lewis “flashed” a gun. As a result, Clement returned to his home at the Villa de Ames Apartments and armed himself. After waiting at his home for a period of time, Clement observed that the street had cleared around Club James and, believing that the situation was safe, put his gun away. He then left his home and, accompanied by Nelson, walked down the street to a Shell Station.

Both Nelson and Clement testified that, after leaving the Shell Station, they walked down Silver Lilly Street towards the Villa de Ames Apartments. While walking home, Tahaira walked up behind Nelson and Clement and got their attention. Thereafter, Nelson and Clement heard someone say, “What’s up, now.” As they turned around, Nelson and Clement saw Lewis and two other individuals |4with guns aimed at them. Lewis and then the other two individuals began shooting, prompting Clement to jump behind a Lincoln Townear and then run to a nearby apartment to ask someone to call the police. As a result of the shooting, Nelson suffered a graze wound to his head.

Jackson, who witnessed the shooting, testified that, after separating from Ta-haira, she waited in front of Club James for her ride home. She then saw a car stop in the middle of the street. Three guys got out of the car and retrieved guns from underneath the hood of the car, and walked down Silver Lilly Street toward the Villa de Ames Apartments and met up with Lewis. As Lewis and the others walked towards the apartment complex, they began firing.

Sergeant Dennis Thornton of the Jefferson Parish Sheriffs Office investigated the shooting death of Tahaira Chopin. During the course of the investigation, Thornton photographed and collected various items into evidence, including photographs of a Lincoln Towncar which had been struck by bullets while parked near where the victim’s body had been found and various cartridges and projectiles recovered from the scene.

In conjunction with the investigation, Dr. Susan Garcia, a forensic pathologist at the Jefferson Parish Forensic Center, performed an autopsy. She testified that Ta-haira died as a result of a gunshot wound to the chest, which entered near her right armpit, hit the right lung, aorta, and left lung before it exited near her left armpit. Garcia also testified she discovered a second gunshot to Tahaira’s leg where a bullet entered and exited her right thigh, subsequently entering and striking a bone in her left leg. Dr. Garcia was able to recover the projectile lodged in Tahaira’s left leg. The recovered projectile, as well as the other projectile fragments and bullet casings collected into evidence by Thornton, were submitted to the Jefferson Parish Sheriffs Office Crime Lab for analysis.

IsAs a result of Thornton’s investigation, Gregory Lewis, Johnny White, and defendant were arrested. Prior to the arrests, Lewis spoke to Thornton and stated that he wanted to provide Thornton with information and suggested that he would call defendant. Thornton agreed and a telephone call to defendant was placed and the conversation was recorded. During the conversation, which was played for the jury, defendant admitted firing a gun in the direction of Clement as evidenced by the following exchange:

Lewis: Who was you shooting at?
Defendant: I was shooting at the nigga too.
Lewis: Who you was trying to hit though?
Defendant: I was shooting at Darius.

Later in the conversation, Lewis asked defendant if he still had the gun and defendant responded, “F* * * no! Man I threw that bitch in the river.” Thornton also learned that Lewis used a .44 caliber weapon in the shooting. That weapon was later turned over to Thornton by Lewis’s father. Additionally, a nine millimeter semiautomatic pistol was recovered from the home of co-defendant, Johnny White. The weapons were then submitted for forensic analysis.

Captain Louise Walzer, a firearms examiner at the Jefferson Parish Crime Lab, analyzed the various bullet casings, projectiles, and the two weapons recovered. Walzer determined that the bullet cases found on the scene were fired by a nine millimeter but not by the nine millimeter recovered from the home of Johnny White. She also determined that the projectile recovered from Tahaira’s body was not fired by either of the two recovered weapons.

Detective Eddie Klein of the Jefferson Parish Sheriffs Office, who assisted in the investigation, interviewed defendant. After advising defendant of his constitutional rights and obtaining a waiver of those rights, Klein obtained three separate statements from the defendant. The two initial statements, defendant | ^denied involvement in the shooting; however, in the third statement he admitted that he, along with Lewis and Johnny White, were shooting at Clement who at the time was walking with a girl. Defendant stated that he fired two shots from a nine millimeter toward Clement and the victim. Defendant also stated that he threw his gun into the Mississippi River underneath the Huey P. Long Bridge.

Defendant called Officer Todd Revere of the Jefferson Parish Sheriff’s Office who testified he responded to a call of shots fired at approximately 4:53 a.m. He secured the scene and attempted to gather information from witnesses. Officer Revere located Nelson near the Villa de Ames Apartment complex and offered him medical assistance. Nelson informed Officer Revere that he had seen Lewis but did not mention seeing any other individuals with Lewis.

Defendant testified in his own defense that, on the night of the murder, he was in the company of Lewis, White and Jamal Pittman at Club James when he saw an argument between two customers. Defendant and his companions then left the club and observed Lewis “running up the street” with a few other guys “when all the fire started.” After the shooting began, he borrowed a gun from an individual standing outside of the club and observed gunfire coming in his direction from behind the Lincoln Towncar. Defendant testified that he fired two shots in the direction of the vehicle in order to give him enough time to run. He ran and got into a car with Lewis and White and went home. Defendant also testified that, although he told police he threw the pistol he was using into the river, he actually returned it to the individual that he had borrowed it from.

DISCUSSION

Defendant contends that the trial court erred in restricting his cross-examination of Clement about a lenient sentence Clement received for a prior conviction and about any deal Clement may have made with the State in this case. The State responded that the trial judge did not prevent defendant from questioning 17Clement about a deal but prevented him from questioning Clement about certain aspects of his sentence. The State noted that, even if defendant’s right to cross-examination was improperly restricted, the error was harmless.

A defendant’s right to demonstrate facts and circumstances, which might influence a witness’s perceptions or color his testimony (thereby lessening the weight the fact-finder might accord the testimony), is an important function of the right to confront and cross-examine embodied in the Sixth Amendment to the United States Constitution and La. Const, art. I, § 16. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Bowie, 00-3344 (La.4/30/02), 813 So.2d 377, 385, cert. denied, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002). The right to cross-examine includes the right to question the witness concerning any bias or self-interest attached to the witness’s testimony. However, the right to confrontation is not so unlimited as to require that a defendant be allowed on cross-examination of a State witness, to make any and all inquiries of whatever character. The inquiry must be relevant. State v. Howard, 01-5 (La.App. 5 Cir. 4/24/01), 786 So.2d 174, 180-181, writ denied, 01-1467 (La.4/26/02), 816 So.2d 846.

The possibility that the State may have some “leverage over a witness due to that witness’s pending criminal charges is recognized as a valid area of cross-examination.” State v. Rankin, 465 So.2d 679, 681 (La.1985). A witness’s hope or knowledge that he will receive leniency from the State in exchange for his testimony is highly relevant to establish bias or interest. State v. Bowie, supra. A witness’s bias or interest may arise from arrests, pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding the conduct. State v. Vale, 95-1230 (La.1/26/96), 666 So.2d 1070, 1072; State v. Schexnayder, 96-98 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, writ denied, 97-0067 (La.5/16/97), 693 So.2d 796, cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997). Moreover, even after pending charges have been resolved, bias may arise from a witness’s “vulnerable status as a probationer.” Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. at 1111.

On cross-examination, defense counsel questioned Darius Clement regarding his prior conviction for possession with the intent to distribute crack cocaine as follows:

Q. So you were arrested and convicted after the shooting for this?
A. Yes, sir.
Q. And when you went to — you were sentenced to seven years but you didn’t serve seven years?
A. No, sir.
Q. You got accepted to boot camp; is that right?
A. Yes, sir.
Q. Did you go to work offshore?
A. Yes, sir. That’s when I went to the work release.
Q. Okay. Does everybody in jail get to go to work offshore?

At that point, the State objected arguing that the question was speculative and irrelevant. After a discussion with defense counsel and the assistant district attorney, the trial judge sustained the objection reasoning that the decision to grant an individual work release lies with the Department of Corrections and not with the trial judge or the district attorney’s office. In further discussions, defense counsel stated his intention to question Clement as to whether the State objected to defendant receiving boot camp for his conviction. The State responded that the fact that Clement received boot camp was in no way the result of a deal made in exchange for his testimony. Thereafter, the trial judge concluded that absent any deal between the State and defendant, the questioning concerning Clement | ¡^receiving boot camp was irrelevant. Defense counsel then resumed questioning Clement on separate matters not related to his prior conviction.

In State v. Williams, 02-1406 (La.4/9/03), 844 So.2d 832, the Louisiana Supreme Court examined a similar case. In Williams, during cross-examination of a State’s witness, the defense counsel questioned the witness concerning a favorable plea bargain he had received in connection with a prior charge three months before the defendant’s trial. The prosecutor immediately objected to any questions about the nature of the witness’s plea bargain. After excusing the jury, both the prosecutor and the State’s witness denied that the plea bargain had any connection with the defendant’s case. On that basis, the trial court sustained the state’s objection and precluded defense counsel from asking the witness any more than whether he had a prior conviction. The Louisiana Supreme Court reversed and stated that “[E]ven assuming that [the witness] had no motive to protect a guilty plea premised on a specific condition (express or implied) that he would testify against relator and his codefendants, the witness may have subjectively believed that continued cooperation with the state was necessary to protect his probationary status and to forestall any chance of going to jail.” State v. Williams, 02-1406 at p. 7, 844 So.2d at 835. The Supreme Court further noted that without the full context of the proceedings set out before them, the jurors lacked any basis for assessing how much pressure the witness may have felt to cooperate with the prosecution.

Similarly in this ease, the State maintained that no deal had been made with Clement in exchange for his testimony in defendant’s trial. The State pointed out in its brief, that defense counsel was not prevented from specifically questioning Clement as to whether he had made a deal with the State for his testimony. However, the trial judge’s rulings could have precluded defendant from delving into the specifics of Clement’s sentence. We note that defense counsel was able to briefly question Clement concerning his prior conviction. Thus, were we to findlmthat the trial court erred in precluding defendant from questioning Clement about his sentence in an attempt to expose Clement’s potential bias or to reveal he was pressured to cooperate with the State, the denial of defendant’s right to confrontation is subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Sherman, 630 So.2d 321, 324 (La.App. 5 Cir.1993), writ denied, 94-0258 (La.5/6/94), 637 So.2d 1046; State v. Rosales, 498 So.2d 66 (La.App. 5 Cir.1986).

In determining harmless error it is “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of the cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, supra; State v. Sherman, supra.

In this ease, we conclude the jury’s verdict was not attributable to the error because Clement’s testimony was cumulative in nature. The testimony mirrored the testimony of Nelson and Jackson which established that Clement, Nelson, and Ta-haira were walking toward the Villa de Ames Apartments when Lewis and two other individuals began shooting in their direction. Neither Clement nor the other witnesses identified defendant as one of the shooters. Additionally, the State L introduced substantial evidence establishing defendant’s guilt, including defendant’s own recorded statements, in which he admitted shooting in the direction of the victim and later disposing of his weapon. As a result, we find that the trial judge’s denial of defendant’s right to cross-examination as to Clement’s testimony was harmless error.

Next, defendant contends that he received an excessive sentence because he was given the mandatory life sentence for his convictions. The State responded that the sentence was well within the trial judge’s discretion, considering the nature of the crimes. The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, art. I, § 20. Even a sentence within the prescribed statutory limit may violate a defendant’s constitutional right against excessive punishment. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Bradham, 94-71 (La.App. 5 Cir. 5/31/94), 638 So.2d 428; State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Daigle, 96-782 (La.App. 5 Cir. 1/28/97), 688 So.2d 158, 159 writ denied, 97-0597 (La.11/5/97), 700 So.2d 506; State v. Snyder, 97-226 (La.App. 5 Cir. 9/30/97), 700 So.2d 1082.

As a result of his conviction for second degree murder, defendant received the mandatory minimum sentence of life imprisonment for that crime. LSA-R.S. 14:30.1(B). However, despite having received the mandatory minimum sentence, defendant’s sentence may be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Armstrong, 99-925 (La.App. 5 Cir. 2/16/00), 756 So.2d 533, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182, cert. denied, 534 U.S. 1058, 122 S.Ct. 651, 151 L.Ed.2d 568 (2001). A mandatory sentence may be excessive if the sentence “makes no measurable contribution to acceptable goals of punishment or ... amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Armstrong, supra at 537. However, it is presumed that a mandatory minimum sentence is constitutional. State v. Dorthey, 623 So.2d 1276 (La.1993). To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show that: “ ‘[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances.’ ” State v. Johnson, supra, at 676 (quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528).

At his sentencing hearing, defendant failed to present any evidence or make any argument regarding a downward departure from the mandatory minimum sentence. Thus, it appears that defendant has failed to carry his burden under Johnson and, as a result, defendant’s life sentence does not appear excessive. See, State v. Bartley, 00-1370 (La.App. 5 Cir. 2/14/01), 782 So.2d 29, writ denied, 01-0717 (La.2/22/02), 809 So.2d 981.

Additionally, defendant argues that his 40-year sentence for his conviction for obstruction of justice is excessive. LSA-R.S. 14:130.1(B)(1) provides that, when the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than $1,000, imprisoned for not more than 40 years at hard labor, or both. Therefore, defendant’s 40-year sentence is the maximum term of imprisonment he could have received for a violation of LSA-R.S. 14:130.1. Generally, maximum sentences are reserved for cases involving the most serious violations of the 113offense charged and the worst type of offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982), aff'd on remand 446 So.2d 1210 (La.1984); State v. Styles, 96-897 (La.App. 5 Cir. 3/25/97), 692 So.2d 1222; State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. However, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212; State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. This Court should further consider three factors in reviewing a judge’s sentencing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, 1041.

In this case, the trial judge sentenced the defendant without giving any reasons for sentencing or referencing a pre-sen-tence investigation. Therefore, we must examine whether the record supports the sentence imposed and examine sentences imposed for similar crimes.

In State v. McKnight, 98-1790 (La.App. 1 Cir. 6/25/99), 739 So.2d 343, writ denied, 99-2226 (La.2/25/00), 755 So.2d 247, the defendant, a first time felony offender, was convicted for obstruction of justice in a first degree murder case and received the maximum sentence of 40 years of imprisonment at hard labor. In McKnight, defendant was the baby-sitter of a 22-month-old child who was discovered dead in a river. Although no one was charged or convicted for the death, it was revealed that, after the child had died in defendant’s home, she threw the child’s body into a river and persuaded her son and niece to he to authorities concerning the circumstances of the child’s disappearance. The First Circuit held that the sentence was not excessive reasoning that, although a first felony offender, |14the crime involved a heinous offense and caused the victim’s family great pain and suffering.

While the facts are not as heinous as those in McKnight, defendant did dispose of a weapon which was used in the shooting of Tahaira Chopin. Adding to the seriousness of the obstruction charge in the instant case, unlike the defendant in McKnight who was not charged with the victim’s murder, defendant was convicted for the murder of Tahaira Chopin. Based on the record before us, we conclude the trial court did not abuse its wide discretion in sentencing defendant to maximum of 40 years.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

CONCLUSION

Based on the foregoing, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The trials of defendant and his co-defendants were severed.

      . On appeal, defendant does not specifically address the consecutive nature of his sentences nor did he specifically raise the issue of the consecutive nature of his sentences in his oral motion to reconsider sentence.


source: Caselaw Access Project

author: 2THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Willis J. GRANIER.
    No. 03-KA-447.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.
    Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Kia Habisreitinger, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Mark E. Morice, Gretna, LA, for Defendant/Appellant.

      Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   2THOMAS F. DALEY, Judge.

Defendant, Willis Granier, appeals his conviction of driving while intoxicated, fourth offense. Granier entered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s denial of his Motion to Quash two predicate offenses. He assigns the following errors:

1. The trial court erred in failing to quash the predicate offense of Record No. 617465, Division “A,” Second Parish Court, because Mr. Willis Granier did not knowingly, intelligently and voluntarily waive his constitutional rights to be represented by counsel in that record.
2. The trial court erred in failing to quash the predicate offense of Record No. 617465, since Mr. Willis Granier was not informed of his constitutional rights so as to allow him to knowingly, intelligently and voluntarily enter a plea of guilty.
3. The trial court erred in failing to quash the predicate offense of Record No. 641594, Division “B,” Second Parish Court since Mr. Willis J. Granier did not enter a knowing, intelligent and voluntary waiver of counsel prior to being tried for the charge of DWI, second offense.
4. The trial court erred in failing to quash the predicate offense of Record No. 641594 since Mr. Willis J. Granier, [sic] was not informed of his constitutional rights prior to or during the trial on April 2, 1998.

| .After review, this court grants the Motion to Quash in part, finding that Granier’s guilty plea to one of the predicate offenses, that of Record No. 641594, Division “B,” Second Parish Court, is constitutionally infirm. The denial of the Motion to Quash as to predicate offense from Record No. 617465, Division “A”, Second Parish Court, is affirmed. We vacate the defendant’s sentence, and remand for further proceedings.

PROCEDURAL HISTORY

On December 18, 2001, the Jefferson Parish District Attorney’s Office filed a Bill of Information charging defendant with operating a motor vehicle while intoxicated (DWI), fourth offense. LSA-R.S. 14:98(E). Defendant was arraigned on January 7, 2002, and entered a plea of not guilty.

On January 15, 2002, defendant filed a Motion to Quash the Bill of Information. He argued that two of the predicate convictions alleged by the State were invalid because his guilty pleas in those cases were not knowing and voluntary. The trial court heard the motion on February 25, 2002, and took the matter under advisement. On February 27, 2002, the trial judge issued a judgment denying the Motion to Quash.

On July 11, 2002, defendant expressed his intention to withdraw his plea of not guilty, and to enter a plea of guilty as charged. Pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the trial court advised defendant of his right to trial by jury and confrontation, and his privilege against self-incrimination. The court also explained the charge against defendant, and the sentencing range to which defendant would be subject. Defendant stated that he understood his rights, and wished to waive them. Defendant further reserved his right to appeal the trial court’s denial of his Motion to Quash. State v. Crosby, 338 So.2d 584 (La.1976).

14The trial court accepted defendant’s guilty plea as knowing and voluntary, and the court sentenced defendant to ten years at hard labor, suspending all but the 60 days already served. The court also imposed a $5,000.00 fine, and placed defendant on five years’ active probation. As conditions of probation, the judge ordered that defendant undergo in-patient substance abuse treatment, that he serve two years’ home incarceration, and that he attend a court-approved driving program. The court further ordered that any car defendant drives be equipped with an ignition interlock device.

Defendant filed a Motion for Appeal on July 30, 2002. While that motion was not timely under LSA-C.Cr.P. art. 914, defendant’s statement that he wished to reserve his appeal rights under Crosby was sufficient to constitute a timely oral Motion for Appeal. See, State v. Romsky, 01-1067, p. 11 (La.App. 5 Cir. 4/10/02), 817 So.2d 186, 192, fn. 8. The trial court acknowledged defendant’s intention to appeal the denial of the Motion to Quash.

FACTS

In the Bill of Information, the State alleged that on October 15, 2001, defendant operated a motor vehicle while intoxicated, having been convicted of DWI on three previous occasions.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to quash the predicate offense of Record No. 617465, Division “A,” Second Parish Court, because Mr. Willis Granier did not knowingly, intelligently, and voluntarily waive his constitutional rights to be represented by counsel in that record.

ASSIGNMENT OF ERROR NUMBER TWO

IsThe trial court erred in failing to quash the predicate offense of Record No. 617465, since Mr. Willis Granier was not informed of his constitutional rights so as to allow him to knowingly, intelligently and voluntarily enter a plea of guilty.

By these assignments, defendant complains that the trial court erred in failing to quash the predicate conviction under Second Parish Court Record No. 617465, on grounds that his guilty plea was constitutionally unsound. Specifically, he complains that he did not knowingly and intelligently waive his right to counsel at the time of his guilty plea. He further argues that he was not properly advised of his constitutional rights and, consequently, that his plea was not knowing and voluntary. Defendant raised these arguments below in his Motion to Quash, and the trial court rejected them.

In State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, the Supreme Court extended the burden-shifting principles applicable to habitual offenders, as established in State v. Shelton, 621 So.2d 769, 779-780 (La.1993), to the recidivist provisions of the DWI statute. When a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the State bears the initial burden of proving 1) the existence of the guilty plea, and 2) that he was represented by counsel during the plea. Carlos, 98-1366 at p. 6, 738 So.2d at 559. If the State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. Id. If the defendant satisfies that requirement, then the burden of proving the constitutionality of the plea shifts back to the State. Id. This does not abrogate the longstanding jurisprudence requiring the State to prove that the defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI plea. State v. Kerwin, 02-103, p. 4 (La.App. 5 Cir. 5/15/02), 821 So.2d 28, 31.

[fiThe State met its initial burden by providing proof of the existence of a guilty plea. At the hearing on defendant’s Motion to Quash, the State produced minute entries and a guilty plea form, as well as a transcript of the plea proceedings in Record No. 617465. The transcript reflects that defendant appeared in Second Parish Court for the Parish of Jefferson on June 26, 1997 on a charge of first offense DWI, a misdemeanor. He informed the judge that he wished to enter a guilty plea under LSA-C.Cr.P. art. 894. The judge, reading from the guilty plea form, informed defendant that he had the right to trial by judge and to confrontation, and the privilege against self-incrimination. Defendant stated that he understood those rights. A minute entry included in State’s Exhibit 1 indicates that defendant pled guilty, and received a 30-day suspended sentence. State’s Exhibit 1 also includes a guilty plea/Waiver of Rights form on which “Art 894” is handwritten. At the hearing on defendant’s Motion to Quash, the prosecutor indicated that defendant had since been granted a judgment of acquittal under Article 894.

Defendant claims that the Waiver of Rights form indicates he did not intend to enter a plea of guilty, pointing out that the word “guilty” is marked out wherever it appears in the document. The State responds that the elimination of the word guilty on the form is simply an indication that defendant intended to take advantage of the provisions of Article 894. The State’s argument is supported by this Court’s ruling in State v. Frickey, 00-294, p. 5 (La.App. 5 Cir. 9/26/00), 769 So.2d 791, 794. In that case, the defendant challenged a predicate DWI conviction. This Court found that the waiver form pertaining to the earlier guilty plea supported the defendant’s understanding that he was pleading under Article 894, because the word guilty was stricken from the form.

As is required by Carlos, the State made a showing that defendant knowingly and intelligently waived his right to counsel. In State v. Strain, 585 So.2d 540, 543-544 (La.1991), the Louisiana Supreme Court stated:

|7When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial judge should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The judge should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include the age, education, experience, background, competency and conduct of the accused, as well as the nature, complexity and seriousness of the charge.... Determining the defendant’s understanding of his waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial.

It is apparent from the evidence that defendant was not represented by counsel at the time of his guilty plea in Record No. 617465. The judge informed defendant that he was entitled to the assistance of a lawyer, and that if he could not afford an attorney, the court would appoint one to represent him. Defendant stated he understood that right and wished to waive it. Defendant now claims his waiver of counsel was not knowingly and intelligently made, as the trial court erred in failing to ascertain his mental capacity, age, and background.

In State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, the Supreme Court noted that:

[although Strain observed that “factors bearing on the validity of [the waiver] include the age, education, experience, background, competency and conduct of the accused,” ... we did not thereby establish inflexible criteria or a magic word formula for determining the volun-tariness of a waiver. The inquiry into the validity of the accused’s waiver of counsel must take into account the totality of the circumstances in each case.

State v. Stevison, 97-3122 at p. 2, 721 So.2d at 844-845.

This Court’s analysis in State v. Pickett, 99-532 (La.App. 5 Cir. 10/26/99), 746 So.2d 185 is applicable to defendant’s argument. In that case, the defendant was convicted of DWI, third offense. One of the two predicate DWI convictions alleged by the State was the result of an uncounselled guilty plea. The guilty plea colloquy showed that the trial judge did not specifically inquire into the defendant’s background or ability to understand the proceedings. The transcript | «showed that the judge verbally advised the defendant of his right to the assistance of a lawyer. The defendant also met with the Assistant District Attorney prior to pleading guilty, and reviewed a guilty plea form detailing his constitutional rights.

Citing State v. Stevison, supra, the Pickett court stated:

The colloquy in each case gave the trial court an opportunity to measure the defendant’s capacity to understand the rights that he was waiving. Further, the waiver of rights form signed by both the defendant and the trial judge correctly listed the rights that were being waived. We conclude that the plea colloquy in the 1994 predicated conviction was sufficient to demonstrate that the defendant was properly advised of his right to counsel at all stages of the proceedings and to support a knowing waiver of his right to counsel.

State v. Pickett, 99-532 at p. 7, 746 So.2d at 189.

As in Pickett, it appears the trial court in the instant case had the opportunity, based on the colloquy, to measure the defendant’s capacity to understand the rights he was waiving. Defendant stated he had reviewed and signed the Waiver of Rights form. He also said a number of times during the extensive guilty plea colloquy that he understood the judge’s instructions. He indicated orally and in writing that he wished to enter his plea without the assistance of counsel. Upon concluding the recitation of rights, the trial judge asked defendant whether he had any questions. Defendant said that he did not. These factors provided the trial court with an adequate opportunity to assess “the extent of inquiry necessary to determine the knowing, intelligent and voluntary nature of the waiver of counsel as well as the guilty plea.” State v. Strain, 585 So.2d at 544. See also, State v. Hinson, 01-1548 (La.9/18/01), 797 So.2d 32 (per curiam); State v. Kerwin, 02-103 (La.App. 5 Cir. 5/15/02), 821 So.2d 28. Considering the record as a whole, it appears the trial court properly advised defendant prior to his guilty plea. It is of note that, on April 2, 1998, during trial on the DWI charge in Record No. 641594, defendant admitted under oath that he was guilty of DWI in Record No. 617465.

|flThe State satisfied its initial burden under Carlos. The burden thus shifts to defendant to make an affirmative showing of an infringement of his rights or a procedural irregularity. Defendant argues that his guilty plea in Record No. 617465 was not knowingly and voluntarily made. He complains the trial court failed to properly advise him that his conviction could be used to enhance a subsequent offense, and that the court did not advise him of the sentencing range to which he was exposed.

The judge did, in fact, inform defendant that the plea could be used to enhance a future DWI charge. Defendant indicated he understood this. As to defendant’s sentencing exposure, the judge simply informed defendant that he could be sentenced to the maximum term allowed by law. He did not specifically outline the sentencing range. LSA-C.Cr.P. art. 556.1, which statutorily mandates that a trial judge advise a defendant of the maximum possible penalty before accepting a guilty plea, was not in effect at the time of defendant’s June 1997 guilty plea. It did not become effective until August 15, 1997. Moreover, the Louisiana Supreme Court has held that advice pertaining to the defendant’s sentencing exposure may facilitate the taking of a voluntary guilty plea, but it has never formed part of the core Boykin requirements for the entry of a presumptively valid guilty plea. State v. Anderson, 98-2977 (La.3/19/99), 732 So.2d 517. Defendant’s argument lacks merit. Defendant has not successfully met his burden of showing procedural irregularities in the guilty plea.

Last, defendant submits that Judge Henry Sullivan granted his Motion to Quash convictions 617465 and 641594 as predicates in a previous DWI prosecution. The record contains a Motion to Quash in District Court Case No. 99-148 in the Twenty-Fourth Judicial District Court. The record also contains a minute entry indicating that Judge Sullivan quashed “the 1st offense DWI” and “the 2nd offense DWI.” The minute entry further notes the State’s intention of applying |10for writs from the court’s ruling. The record does not contain specifics regarding those proceedings, or the judge’s Reasons for Judgment. Judge Sullivan’s ruling is not binding on this Court, and because the documents provided contain scant information, they are of little or no significance to this Court’s analysis.

Based on the foregoing, these Assignments of Error regarding the predicate offense of Record No. 617465 have no merit.

ASSIGNMENT OF ERROR NUMBER THREE

The trial court erred in failing to quash the predicate offense of Record No. 641594, Division “B,” Second Parish Court since Mr. Willis J. Granier did not enter a knowing, intelligent, and voluntary waiver of counsel prior to being tried for the charge of DWI, second offense.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court erred in failing to quash the predicate offense of Record No. 641594 since Mr. Willis J. Granier, [sic] was not informed of his constitutional rights prior to or during the trial on April 2, 1998.

DISCUSSION

Defendant here complains that the trial court erred in denying his Motion to Quash the predicate DWI conviction in Second Parish Court Record No. 641594, on grounds that the judge failed to obtain a valid waiver of counsel prior to trial on the misdemeanor charge, and that the judge failed to properly inform him of his right against self-incrimination. A criminal defendant has the right to counsel at every critical stage of the proceedings against him. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); LSA-Const. art. I, § 13. The Sixth Amendment to the United States Constitution gives a defendant in a criminal hi prosecution the right to represent himself. Once informed of the right to counsel, a defendant may intentionally waive that right. State v. Strain, 585 So.2d at 542; State v. Luna, 00-858, p. 16 (La.App. 5 Cir. 10/31/00), 772 So.2d 249, 257, writ denied, 00-3244 (La.10/12/01), 799 So.2d 495.

Because an accused managing his own defense relinquishes many of the traditional benefits associated with the right to counsel, he must knowingly and intelligently forego those benefits in order to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Carpenter, 390 So.2d 1296, 1298 (La.1980). There are no minimum requirements for judging the sufficiency of a waiver of counsel. State v. George, 98-1149, p. 7 (La.App. 5 Cir. 3/30/99), 743 So.2d 685, 689. However, the trial judge must determine whether the accused who wishes to represent himself is competent to waive counsel and is voluntarily exercising his informed free will. Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541; State v. Santos, 99-1897, p. 3 (La.App. 5 Cir. 9/15/00), 770 So.2d 319, 321. In this context, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993).

The trial court’s inquiry should involve more than an interchange of “yes” or “no” responses from the defendant. State v. Kirsch, 01-1017, p. 3 (La.App. 5 Cir. 3/26/02), 815 So.2d 215, 218. A waiver of counsel in order that an accused may enter into self-representation must be clear and unequivocal. Kirsch, 01-1017 at p. 2, 815 So.2d at 218.

The question is whether the record reflects that there was a valid waiver of counsel prior to trial in Record No. 641594. Minute entries included in State’s Exhibit 2 at the hearing on the Motion to Quash indicate that defendant was advised of his right to counsel. It is unclear whether the court’s advisal pertained h¡>only to defendant’s right to counsel at arraignment, or at all critical stages in the proceedings. The State argues that the minute entries, along with defendant’s prior experience and familiarity with the court system, are sufficient to show that he made a knowing and intelligent waiver of his right to counsel. The State’s assertions lack merit.

There is nothing in the record from which this court can discern whether the trial court’s advisal was sufficient. The trial transcript provided does not contain a colloquy pertaining to the right to counsel. Moreover, there is nothing to show that defendant understood this right, and that he knowingly and voluntarily waived it. Compare, State v. White, 98-0343 (La.App. 1 Cir. 12/28/98), 727 So.2d 574, in which the defendant challenged an uncounselled guilty plea used to support his conviction for DWI, fourth offense. The First Circuit found the record was insufficient to show the defendant knowingly and intelligently waived counsel at the time of his guilty plea to the predicate offense. The State had provided only a minute entry and a Waiver of Rights form, but no transcript to show that there was an inquiry regarding defendant’s education, background, or competency.

Based on the foregoing, the trial court erred in failing to quash the predicate DWI conviction in Record No. 641594. We reverse, in part, the trial court’s ruling on the Motion to Quash as it applies to the predicate conviction in Record No. 641594 and affirm in part as it applies to the predicate conviction in Record No. 617465. We vacate the defendant’s sentence, and remand the case to the trial court for further proceedings. See, State v. Lowry, 01-111, p. 7 (La.App. 5 Cir. 6/27/01), 791 So.2d 765, 769.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: 2SOL GOTHARD, Judge.

text:
    Rosella HEBERT, et al v. CHATEAU LIVING CENTER, L.L.C., et al.
    No. 02-CA-462.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.
    Brett M. Dupuy, Metairie, LA, for Plaintiffs/Appellants.
    James E. Wright, III, Amy M. Winters, Conrad Meyer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, LA, for Defendants/Appel-lees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   2SOL GOTHARD, Judge.

This matter has been remanded to us for reconsideration in light of the recent opinion rendered by the Supreme Court in Richard v. Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460. The issue before us is whether the plaintiffs allegations under the Nursing Home Residents’ Bill of Rights (NHRBR) embodied in La. R.S. 40:2010.8, et seq. require submission to a medical review panel pursuant to the provisions of the Louisiana Medical Malpractice Act (MMA), La. R.S. 40:1299.41, et seq.

In our original opinion, Rosella Hebert, et al v. Chateau Living Center, L.L.C., et al, 02-462 (La.App. 5 Cir. 12/30/02), 836 So.2d 489, we reviewed a decision of the trial court to grant an exception of prematurity in an action brought under the NHRBR. In granting the exception, the trial court found that actions under the NHRBR were subject to the provision in the MMA that required presentation of the allegations to a medical review panel before the filing of a lawsuit in district court. This Court, in a split decision, reversed that ruling finding that:

IsWe find the legislature clearly intended to establish an independent cause of action for offenses listed in the NHRBR, which is separate from, and in addition to, any medical malpractice claims the patient may have. Therefore, we hold that an action arising under the NHRBR Law may be brought in district court without a requirement of submission to a medical review panel and we reverse the trial court on that issue.
Some of the allegations made against defendant in the instant case include failure to properly nourish and hydrate, and a failure to hire, train, supervise and retain competent staff. When, as in the instant case, it is alleged that a resident of a nursing home is sent to a hospital only after he is starved, dehydrated and allowed to deteriorate to the extent that he cannot be helped, a cause of action has been asserted under several sections of the NHRBR, at the very least as a violation of his right to be treated with dignity,.

Id. 836 So.2d at 492.

In Richard v. Extended Care Centers, Inc, supra, the Supreme Court considered the issue of whether an allegation under the NHRBR that plaintiff was negligently allowed to fall out of her wheelchair at a nursing home must be submitted to a medical review panel. In Richard, 835 So.2d at 469, the Supreme Court concluded:

. The Legislature’s enactment of the NHRBR was not intended to remove malpractice claims against qualified health care providers from the coverage of the MMA, but was instead intended to provide nursing home residents with important rights to preserve their dignity and personal integrity, and to provide a means by which they could enforce these rights. These rights however, do not include the right to bring a malpractice claim against the nursing home outside the confines of the MMA.
However, not all negligent acts by a nursing home will constitute medical malpractice under the MMA. To constitute a medical malpractice claim, the alleged negligent act must be related to the nursing home resident’s medical treatment at the nursing home under the requirements of Louisiana law.

Thus, we believe our conclusion that the trial court erred in granting the exception of prematurity to the entire action was correct. We further believe that, although Richard limits allegations that can be brought directly to the district court pursuant to the NHRBR, there still remains a cause of action separate and distinct from the MMA for the failure of nursing homes to treat its residents with dignity Land personal integrity. Those claims can be brought without the necessity of a medical review panel. In accordance with the directive in Richard, we remand this matter to the trial court for a determination of which of plaintiffs allegations of negligence against the defendant are medical malpractice claims under Louisiana law, and which are allegations under the NHRBR.

REMANDED.

      . Rosella Hebert, et al v. Chateau Living Center, L.L.C. 2003-C-0303 (La.4/21/03), 841 So.2d 774.


author: 2EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. James JENKINS.
    No. 02-KA-161.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Gevin Grisbaum, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   2EDWARD A. DUFRESNE, JR., Chief Judge.

On March 23, 2000, a grand jury for Jefferson Parish returned an eleven-count indictment against defendant, James Jenkins, and two others, Danon Barton and Keith Lipton, alleging that they committed one count of conspiracy to commit armed robbery (LSA-R.S. 14:26 and 14:64); one count of aggravated burglary (LSA-R.S.14:60); two counts of armed robbery (LSA-R.S.14:64); one count of simple burglary (LSA-R.S.14:62); two counts of attempted armed robbery (LSA-R.S. 14:27 and 14:64); three counts of aggravated kidnapping (LSA-R.S.14:44); and one count of possession of stolen property valued at more than $1,000 (LSA-R.S.14:69). At the arraignment on March 27, 2000, defendant pled not guilty. The state subsequently amended the indictment to change the aggravated kidnapping charges to three counts of armed robbery. Also, the state added count twelve, charging defendant and Barton with aggravated burglary (LSA-R.S.14:60).

Thereafter, on February 20, 2001, defendant withdrew his former pleas of not guilty, and pled guilty as charged to the twelve counts. The trial judge then sentenced defendant to twenty years at hard labor without benefit of probation, parole or suspension of sentence on each of the five counts of armed robbery. |sWith regard to the counts of conspiracy to commit armed robbery, aggravated burglary, and attempted armed robbery, the trial judge also sentenced defendant to twenty years at hard labor. In addition, the trial court sentenced defendant to five years at hard labor for the simple burglary and possession of stolen property convictions. All of the sentences were ordered to be served concurrently. Defendant now appeals.

FACTS

According to the factual basis recited by the prosecutor when defendant pled guilty, the charges stemmed from a conspiracy between defendant, Barton and Lipton to commit armed robberies upon Asian people leaving Wal-Mart stores, believing these people would have cash that could be readily stolen. According to the indictment, the crimes occurred between August 9, 1999 and August 17, 1999 in Jefferson Parish.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant contends that the trial judge erred in denying his motion to suppress statement because the state failed to prove that he was advised of his Miranda rights.

We first note that the state contends that defendant is precluded from raising the issues in this assignment as well as the next assignment because he pled guilty without reserving his right to appeal any adverse pre-plea rulings pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The state is correct in its assertion that defendant did not originally plead guilty pursuant to Crosby. However, subsequent to his guilty pleas, defendant moved the court to amend the February 20, 2001 minute entry to reflect that the guilty pleas had been entered pursuant to State v. Crosby. The prosecutor said that the state had no objection to the amendment. Further, the prosecutor stated that a co-defendant had already entered a Crosby plea, and that he would expect any defendant entering a plea in this matter to enter 14a Crosby plea. Therefore, the trial judge granted defendant’s motion to amend the minute entry. Considering that the state agreed to the amendment, we find no merit to the state’s argument that defendant is precluded from raising issues relating to the motion to suppress on appeal. We turn now to the merits of defendant’s argument.

Before a confession or inculpatory statement can be admitted in evidence, it must be established that the accused who makes the statement during custodial interrogation was first advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accord, State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537. The state must also affirmatively establish that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; LSA-C.Cr.P. art. 703(D); State v. Quest, 00-205(La. App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

At the suppression hearing, Detective Michael Cunningham of the Kenner Police Department testified that New Orleans Police Department officers arrested defendant on unrelated charges on August 27, 1999. Detective Cunningham and another Kenner police officer, Detective McGregor, went to the Magazine Street office in New Orleans where defendant was detained. Detective Cunningham testified that he told defendant that he was investigating some armed robberies. He advised defendant of his Miranda rights, including that he had the right to remain silent, that his statements could be used against him at trial, that he had a right to an attorney, and that if he could not afford an attorney, one would be appointed for him. ' Detective Cunningham stated defendant indicated that he understood his rights and was willing to make a statement. Thereafter, defendant made a statement and said that his girlfriend could verify the statement.

| sDetectives Cunningham and McGregor went to interview defendant’s girlfriend. However, Detective Cunningham testified that the girlfriend did not confirm defendant’s statement. Detective Cunningham testified that, upon returning to the Magazine Street office, he told defendant that the girlfriend did not corroborate his statement. At that time, Detective Cunningham again advised defendant of his rights and presented him with a waiver of rights form that defendant signed. Thereafter, defendant made an audio taped inculpatory statement.

Detective McGregor of the Kenner Police Department also testified at the suppression hearing. However, Detective McGregor did not testify about any of the circumstances surrounding the defendant’s statement on direct examination. Rather, his testimony related to photographic lineups involving Lipton. As discussed in the second assignment of error, the detective’s testimony terminates during his cross-examination by Lipton’s attorney because the tape of the hearing was lost.

Finally, the minute entry of the proceeding reflects that, after Detective McGregor testified, defendant invoked his right against self-incrimination, and co-defendant Danon Barton testified. Thereafter, the trial court denied the motion to suppress. Defendant now challenges this denial.

The thrust of defendant’s argument is that the state failed to prove he was advised of his Miranda rights because he did not sign a waiver of rights form before making the first statement. Defendant argues that the first statement is, therefore, inadmissible, rendering the second statement inadmissible as well. This court rejected a similar argument in State v. Normand, 98-1312 (La.App. 5 Cir. 5/19/99), 735 So.2d 901, writ denied, 99-1687 (La.11/12/99), 749 So.2d 653.

In Normand, the arresting officer testified at the suppression hearing that he verbally advised the defendant of his Miranda rights after which the defendant 16made an inculpatory statement. This court recognized that the lack of a signed waiver of rights form does not, alone, require the suppression of a defendant’s confession. Rather, when deciding the admissibility of a confession, the trial judge must consider the totality of the circumstances. State v. Normand, 735 So.2d at 904.

In reviewing the trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. The trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. State v. Evans, 97-1030 (La.App. 5 Cir. 4/15/98), 712 So.2d 941, 945, writ not considered, 98-2088 (La.12/18/98), 731 So.2d 276.

In the present case, the testimony of Detective Cunningham at the suppression hearing reflects that defendant was advised of and waived his Miranda rights before each statement. Under the totality of the circumstances, we find that the trial judge correctly denied defendant’s motion to suppress statement. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Notwithstanding the fact that defendant addressed the trial court’s denial of his motion to suppress in the previous assignment, he now asserts that it is impossible to review the court’s ruling because a portion of the transcript from the suppression hearing is missing. Defendant urges this court to set aside his guilty pleas because he cannot receive adequate review of the trial court’s ruling.

In the present case, it is clear that a portion of the transcript from the suppression hearing is missing. The minute entry for October 5, 2000 reflects that the transcript was lost. The court reporter filed a letter into the record stating that the last tape of the suppression hearing was lost and could not be transcribed. Specifically, the part that was not transcribed consists of a portion of Detective 17McGregor’s cross-examination, as well as the testimony of defendant and Barton. On January 16, 2001, the trial court held a hearing, at which Detective McGregor was available to testify, to address the missing transcript. The prosecutor stated that the state was prepared to submit on the motion to suppress based on the current condition of the transcript, but that the defense could cover “any relevant material matters” that were not covered during the transcribed hearing. The court inquired whether defendant Jenkins was “okay as far as Detective McGregor’s testimony.” Defendant’s attorney responded that she had no questions for Detective McGregor that had not already been addressed on the record. When the court asked whether Detective McGregor was free to leave, defendant’s attorney responded affirmatively. In the present case, defendant did not object to the trial court’s ruling regarding the missing transcript and represented that he had no further questions of Detective McGregor than what was already transcribed. Therefore, we conclude that defendant waived any objection to this portion of missing transcript.

In this assigned error, defendant emphasizes the fact that he cannot have adequate review of the motion to suppress in light of the fact that his testimony at the suppression hearing was lost. We find no merit to this argument. The minute entry and well as the transcript from the hearing on the missing transcript indicates that defendant invoked his right against self-incrimination and chose not to testify.

Based on the foregoing discussion, we find that the arguments raised by defendant in this assigned error are likewise without merit.

| ¿ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find no errors which warrant our attention at this time.

For the reasons set forth herein, we hereby affirm defendant’s convictions and sentences.

AFFIRMED.

      . We also note that co-defendant Barton’s testimony at the suppression hearing is missing. However, he was not present at the taking of Jenkins' statement, and therefore, his testimony would be irrelevant to the issues raised by defendant in this brief.


text:
    STATE of Louisiana v. Danon BARTON.
    No. 02-KA-163.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Gevin Grisbaum, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.

      James A. Williams, Butch Wilson, Gret-na, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   2EDWARD A. DUFRESNE, JR., Chief Judge.

On March 23, 2000, a grand jury for Jefferson Parish returned an 11-count indictment against defendant, Danon Barton and two others, James Jenkins and Keith Lipton, alleging that they committed one count of conspiracy to commit armed robbery (LSA-R.S. 14:26 and 14:64); one count of aggravated burglary (LSA-R.S. 14:60); two counts of armed robbery (LSA-R.S. 14:64); one count of simple burglary (LSA-R.S. 14:62); two counts of attempted armed robbery (LSA-R.S. 14:27 and 14:64); three counts of aggravated kidnapping (LSA-R.S. 14:44.4); and one count of possession of stolen property valued at more than $1,000 (LSA-R.S. 14:69). At the arraignment on March 27, 2000, defendant pled not guilty. The state subsequently amended the indictment to change the aggravated kidnapping charges to three counts of armed robbery, and to add count 12, charging defendant and Jenkins with aggravated burglary (LSA-R.S. 14:60).

Following a jury trial on March 15 through 17, 2001, defendant was found guilty as charged of conspiracy to commit armed robbery (count 1), both counts of attempted armed robbery (counts 6 and 7), and possession of stolen property valued at $500 or more (count 11). The jury returned responsive verdicts of simple robbery as to counts 8, 9 and 10 (armed robbery), and a responsive verdict of | .-¡burglary of an inhabited dwelling as to count 12 (aggravated burglary). Finally, the defendant was acquitted on counts 2, 3, 4, and 5.

On August 12, 2001, the trial judge sentenced the defendant to five years at hard labor without benefit of parole, probation or suspension of sentence for conspiracy to commit armed robbery and each count of attempted armed robbery (counts 1, 6, and 7). The trial judge also sentenced defendant to one year at hard labor for each count of simple robbery (counts 8, 9, and 10), possession of stolen things (count 11), and simple burglary of an inhabited dwelling (count 12), with that sentence to be served without benefit of parole, probation or suspension of sentence. All of the sentences were ordered to be served consecutively with each other. Defendant now appeals.

FACTS

The trial testimony revealed that crimes were committed on August 9, 1999, August 12,1999, and August 14,1999.

On August 9, 1999, at approximately 11:00 p.m., Detective McGregor of the Kenner Police Department responded to an armed robbery and a burglary at 3432 East Loyola Drive in Kenner, the home of Supatra Bass. According to Ms. Bass, three men entered the home and robbed the occupants at gunpoint after she and her eldest son, Supachart Uaroon, returned from Wal-Mart. Mr. Uaroon said that there were two black men who entered the house, and both Ms. Bass and Mr. Uaroon said they saw a dark, American-made car parked near their house before the men entered the home.

The next day, Ms. Bass found a cellular telephone that did not belong to anyone in the home. Detective McGregor subsequently learned that the telephone belonged to co-defendant, Keith Lipton, with an address of 1960 Elizardi Street in New Orleans. Detective McGregor showed photographic lineups of Lipton and [ 4another man, Ryan Henderson, to the victims. Both identified Lipton, and one of them tentatively identified Henderson. However, Detective McGregor later learned Henderson could not have been involved, since he was in prison at the time.

Detective O’Neil of the Jefferson Parish Sheriffs Office investigated the incident that occurred on August 12, 1999 at a Metairie Wal-Mart. The victims, Mr. and Mrs. Kiv, testified at trial that they had been vacationing in New Orleans and were on their way home to Texas. Between 12:30 and 1:00 a.m., they stopped at Wal-Mart. When the Kivs returned to their automobile, they discovered that the drivers’ side window was smashed and that her luggage and other belongings were missing.

Shortly thereafter, a dark-colored car with three men inside approached. Mrs. Kiv testified that a young man exited the car wearing a bandanna and a hat, pointed a gun at her, and demanded her purse. Mr. Kiv said that the man attempted to rob him as well. Mr. Kiv saw another man exit the car, while another person remained in the car. The couple successfully eluded the men by running inside of Wal-Mart. Mr. Kiv described the car as having a “loud” muffler, and Mrs. Kiv said the car was “noisy.”

Detective O’Neil forwarded photographic lineups containing photos of the defendant, and co-defendants, Lipton and Jenkins, to a police department in Texas. Detective O’Neil learned that Mr. Kiv was unable to identify anyone and that Mrs. Kiv was apparently afraid to even look at the lineups.

Detective Cunningham of the Kenner Police Department was assigned to investigate the August 14, 1999 incident involving Eric and Lien Tran, and Mrs. Tran’s sister, Rebecca Nguyen. Around midnight, after finishing their shifts as waitresses, Ms. Nguyen and Mrs. Tran went to Wal-Mart. They shopped and then ^returned to the Tran’s residence in Kenner. As the two women and Mr. Tran brought the purchases into the house, a car drove up and parked. Two men wearing bandannas on their faces approached and ordered everyone inside at gunpoint. The men told them to lie on the floor and demanded money. One of the men demanded Ms. Nguyen’s purse, but she had left it in the car. All she had in her pocket was her car key, which the man took. Ms. Nguyen saw a third man enter the house later. Although he was not wearing a mask, she was subsequently unable to identify anyone.

Mrs. Tran, who was four months pregnant at the time, said that the gunman demanded to see the “safe.” She showed them the safe in the bedroom, which did not contain any cash. Ultimately, Mrs. Tran handed over a check that she intended to deposit. The men continued to demand cash, and threatened to kill her. They also took Mr. Tran’s bag and his wallet.

The men ransacked the house and found a locked box under the bed. One of the Trans opened the box containing $50,000 in cash and a “V” shaped necklace (State’s Exhibit 2) belonging to Mr. Tran’s mother, which the men took. Mrs. Tran stated that a third man had entered the house and that all three men were rummaging through the box.

Ms. Nguyen and Mr. Tran said the car that pulled up at the house was a dark-colored car and Mr. Tran said the car had a loud muffler. None of the victims were able to identify anyone as the perpetrators from photographic lineups. However, Detective McGregor testified that Mr. Tran’s bag was subsequently recovered, and it contained fingerprints that were determined to belong to Lipton.

Later on August 14,1999, the defendant, Lipton, and Jenkins purchased automobiles at Affordable Used Cars. The owner of the business, John Bridges, testified that all three paid cash for the automobiles, specifically defendant paid $4350, Lipton paid $5200, and Jenkins paid $3500.

|c,On August 17, 1999, a search warrant was executed at 1960 Elizardi Street, which was listed as Lipton’s address by his cellular phone provider. There, the police recovered the necklace taken from the Tran’s residence. Detective Cunningham testified that there was a warrant for Lipton’s arrest and that they had information concerning Lipton’s whereabouts. New Orleans police officers subsequently stopped the defendant in his new car with Lipton, and Lipton was arrested pursuant to the arrest warrant.

Detective Cunningham went to the New Orleans Police Department to talk to the defendant. Detective Cunningham stated that he did not consider the defendant a suspect at the time, but that he only wanted to speak to the defendant to see if Lipton had said anything to the defendant about the case. Detective Cunningham testified that the defendant told him that Lipton had called that day to ask for help leaving town because he was wanted by the police. Detective Cunningham testified that he asked the defendant if he would give a statement in Kenner, and he agreed.

Detective Cunningham did not consider the defendant to be a suspect and did not have the defendant in custody in Kenner. The defendant said that he had told the truth in New Orleans, but that he had additional information that he wanted to relate. Detective Cunningham began talking to the defendant, but stopped to advise the defendant of his constitutional rights when the defendant said that he knew the police were looking for a blue Chevy Lumi-na, that he had blue Chevy Lumina, and that he had loaned his car to Lipton. After the defendant waived his rights, the defendant told Detective Cunningham in a taped interview that he had loaned his car to Lipton the preceding week around Thursday (August 12, 1999) and Friday (August 13, 1999). The defendant stated that Lipton told him, before taking the car on Friday, that he was going to Kenner to “get paid,” which the defendant said meant that Lipton was going to rob someone. Lipton returned the 17car at approximately 1:00 a.m., told the defendant he had robbed some “Chinese” people, and gave the defendant $2300 in cash. Thereafter, the defendant brought Lipton home. The defendant related that Lipton had given him $1400 in 100 dollar bills on August 17, 1999 to take him out of town and keep his “mouth shut.” Finally, the defendant denied knowing anything about any other robberies. Defendant said that he told his girlfriend to take the Lumina to Mississippi because it was a “hot” car.

Approximately three hours later, the defendant made a taped statement to Detective O’Neil in which he admitted he drove to Wal-Mart with Lipton and Jenkins on August 12, 1999 and spotted a couple from Texas (the Kivs). According to the defendant, he parked the car and went inside Wal-Mart while Jenkins and Lipton stayed outside to watch for the victims. Defendant said he went inside of Wal-Mart and returned to find Jenkins and Lipton rummaging through the victims’ automobile. The defendant said that Lipton and Jenkins returned to the car empty-handed. According to the defendant, all three of them waited ten or twenty minutes for the victims to exit Wal-Mart. As the victims exited, Lipton and Jenkins covered their faces with bandanas, and the defendant drove beside the victims when they reached their automobile. Lipton, armed with a black, metal BB gun, approached the man, while Jenkins, armed with a real handgun, approached the lady. Jenkins and Lipton ran after the victims, but returned to the car when the victims eluded them. According to the defendant, Lipton and Jenkins wanted to “go on another run,” but the defendant refused. Defendant said he allowed Lipton to borrow his car the following night, after which Lipton gave him $2300.

After Jenkins was arrested on August 27, 1999, the police interviewed his girlfriend, Laquwanda Dowell. Ms. Dowell admitted that the defendant and Lipton came to her home one night where she lived with Jenkins. According to Ms. IsDowell, the three left and returned late at night with money. She acknowledged that she heard the defendant count “thirteen ninety.” Ms. Dowell admitted she had told the police she saw money and jewelry, but that she made the statement under threats from Detective Cunningham that he would have Child Protection investigate her. However, Ms. Dowell testified that she did see a “V” shaped necklace on the same night they were counting money, and she identified State’s Exhibit 2 as a necklace that “looks like” the necklace she saw that night.

The state called Jenkins and Lipton to testify pursuant to a grant of immunity. Although the two admitted that they had entered guilty pleas in this case, they refused to inculpate anyone else and refused to testify even when threatened with contempt.

At trial, the defendant and his girlfriend testified for the defense. The defendant claimed that he lied in the statements because the police told him that he could go home if he implicated Lipton. Although he admitted that he was with Jenkins and Lipton at Wal-Mart, he denied having anything to do with the offenses. Both the defendant and his girlfriend, Aquilla Green, testified that they were planning to go to Mississippi to visit Ms. Green’s relatives. She denied that she drove the car to Mississippi to hide it from the police. Ms. Green said that she returned in the car once the defendant’s mother called her in Mississippi.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant contends that he was denied his right of confrontation because the trial judge allowed the state to introduce evidence of statements made by co-defendants, Keith Lipton and James Jenkins, that inculpated the defendant.

In the present case, the state filed motions to compel the testimony of James Jenkins and Keith Lipton pursuant to the grant of statutory immunity of LSA-C.Cr.P. art. 493.1, and the trial judge granted the motions. Jenkins and Lipton | ¡initially admitted their own culpability in the charged offenses, but refused to inculpate anyone else. Beyond that, both refused to testify even in the face of contempt charges.

The defendant objected when Detective McGregor testified that Jenkins had given a statement in which he said that defendant and Lipton told him that Sammy-Brown was in the car on August 9, 1999. The defendant also objected after the prosecutor asked Detective McGregor whether he had developed information from the statements of Lipton, Barton and Jenkins regarding whose vehicle was used in the August 9 and August 14 incidents. The court overruled the objections and Detective McGregor answered that the defendant’s four-door Chevy Lumina was the vehicle. The prosecutor asked the same question about the August 12, 1999 incident, but the detective never answered that question.

The prosecutor asked Detective Cunningham whether he had learned, through the statements of Lipton, Jenkins, and the defendant, that any vehicle other than defendant’s was used in these incidents, and Detective Cunningham replied negatively. The defendant’s objections were overruled. Finally, the defendant objected and moved for a mistrial after Detective O’Neil’s testimony that Lipton had implicated someone else in the August 12, 1999 incident, but that person was not Sammy Brown, Ryan Henderson, or Alvin Jarvis.

The defendant contends that the elicited testimony violated his constitutional rights of confrontation and cross-examination, citing Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In that ease, the defendant’s accomplice refused to testify at the defendant’s trial. Under the guise of cross-examining the accomplice, the prosecutor read the accomplice’s confession that implicated the defendant as the gunman. The Douglas court reversed the defendant’s conviction, holding that the prosecutor’s reading of the nontestifying accomplice’s confession that implicated the defendant as the triggerman denied the | indefendant the right of cross-examination guaranteed under the Confrontation Clause of the Sixth Amendment. Douglas v. Alabama, 380 U.S. at 419-120, 85 S.Ct. 1074.

The present case is distinguishable from Douglas in that the prosecutor did not read from either Lipton’s or Jenkins’ statement when questioning them. Nor did the prosecutor read from their statements when questioning the officers. Rather, the officers’ testimony regarding what they learned from all three (Jenkins, Lipton and Barton) about the car used in the robberies was properly admitted, since Barton said in his statement that he was driving the car on August 12, 1999, and that he loaned his car to Lipton so that Lipton could commit a robbery on August 14,1999.

The only testimony elicited from the officers regarding a co-defendant’s statement that inculpated the defendant came from Detective McGregor, who said that Jenkins told him that the defendant named the individual who was in the car on the August 9,1999 incident. Even if this testimony was improperly admitted, the United States Supreme Court and the Louisiana Supreme Court have recognized that the improper admission of an accomplice’s statement is subject to the harmless error rule. See, Lilly v. Virginia, 527 U.S. 116, 139-140, 119 S.Ct. 1887, 1901, 144 L.Ed.2d 117 (1999); State v. Lucky, 96-1687 (La.4/13/99), 755 So.2d 845, 858, cert. denied, 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000). Considering that the defendant was acquitted of the robberies and burglary relating to the August 9, 1999 incident, we find that any error in admitting this testimony was harmless. Further, there was other evidence presented at trial that established the defendant’s guilt in the crimes for which he was convicted.

In the final paragraph of his discussion in this assignment, the defendant asserts that reversible error occurred because the trial judge allowed the state to ask questions of Lipton and Jenkins in front of the jury when the state knew neither of them would answer the questions.

In State v. Haddad, 99-1272 (La.2/29/00), 767 So.2d 682, the Louisiana Supreme Court reaffirmed the principle that it is impermissible to knowingly call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege. In the present case, the prosecution did not call Lipton and Jenkins to the stand for the purpose of exercising a privilege. Rather, the prosecutor sought to elicit substantive testimony from both Lipton and Jenkins. Further, it is arguable that the state did not know Lipton and Jenkins would refuse to testify in light of the grant of statutory immunity. Indeed, both Lipton and Jenkins answered some of the questions even after they initially told their attorneys they would refuse to do so.

Based on the foregoing discussion, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, the defendant challenges the trial court’s denial of his motion to suppress statements. The defendant contends that his statements were the product of an illegal arrest, and therefore should have been suppressed. The defendant also claims that the state failed to rebut his allegation that he made the statements under duress after the police officers from New Orleans, Ken-ner and Jefferson Parish threatened him.

As noted by the state in its appellate brief, the defendant did not challenge the statements as the product of an illegal arrest at the suppression hearing. At the suppression hearing, the testimony of Detective O’Neil and Cunningham focused on the circumstances surrounding the statements, not the arrest. Detective Cunningham specifically testified that he did not know how the defendant ended up at the New Orleans Police Station, and Detective O’Neil stated that he first talked to the defendant at the Kenner Police Department. Both detectives denied that they had threatened or promised the defendant anything to compel his | Kstatement. Further, Detective Cunningham stated that, although the defendant was not advised of his rights, defendant was not under arrest and was not considered a suspect at that time. Subsequently, Detective Cunningham advised the defendant of his rights when he admitted loaning the car to Lipton, and a taped statement was taken thereafter. Detective O’Neil testified that he also advised the defendant of his rights before interviewing him, the defendant waived his rights, and gave a taped interview. At the conclusion of the hearing, the trial judge denied the motion to suppress.

A portion of this original suppression hearing was not transcribed because one of the tapes from the hearing was lost. The missing tape contained the defendant’s testimony as well as a portion of Detective McGregor’s testimony. On January 16, 2001, the trial judge held a hearing to address the missing transcript. It was at this subsequent hearing that defendant’s new counsel asserted for the first time that the statements should be suppressed because he was illegally arrested. The state argued that the defendant should be precluded from re-urging the motion on a new basis, and the trial court agreed. The trial judge reasoned that the facts and circumstances were known to the defendant at the time of the original motion to suppress and that a defendant should not be able to re-urge a new basis for the motion simply upon obtaining new counsel. Accordingly, the trial court refused to permit the defendant to call New Orleans police officers whom the defense had subpoenaed. However, at this hearing, Detective McGregor was available to testify. Defendant’s attorney did not question him, stating that he was satisfied with the record as it existed regarding the detective’s testimony. The trial judge also permitted the defendant to testify to reconstruct the record from the original suppression hearing. After the defendant testified, the trial judge found that he was not a credible witness and affirmed his former ruling denying the motion to suppress.

|13In the present case, the defendant did not argue at the original suppression hearing that the statements were the product of an illegal arrest. As a result, the record does not disclose any evidence of the circumstances preceding Barton’s arrival at the New Orleans Police Station. Therefore, this court is now precluded from reviewing this claim on appeal. For these same reasons, we are also precluded from addressing the defendant’s claim that the state failed to rebut his allegations of duress by the New Orleans police officers.

However, we will review the defendant’s original claim that the statements were not knowingly or voluntarily made. Defendant specifically asserts that his statements were involuntary as the product of duress by Detectives Cunningham and O’Neil and that the state failed to rebut this testimony.

Before a confession or inculpato-ry statement can be admitted into evidence, it must be established that the accused who makes the statement during custodial interrogation was first advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accord, State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537. The state must also affirmatively establish that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; LSA-C.Cr.P. art. 703(D); State v. Quest, 00-205, p. 9 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

At the suppression hearing, the defendant testified that plain clothes New Orleans police officers stopped his car and told him that there was an arrest warrant for Lipton. The defendant related that the officers handcuffed him and transported him against his will to the Seventh District Police Department in New Orleans. Defendant claimed that he told both the New Orleans officers and the Jefferson Parish officers that he wanted an attorney, but he was never allowed to speak with one. Defendant stated that he was handcuffed to a chair in Orleans, but 114was taken to another room where the handcuffs were removed. Defendant acknowledged that the New Orleans officers did not tell him that he was under arrest. The defendant stated that he was handcuffed when he was brought to Jefferson Parish, and he was not permitted to use the telephone there. The defendant claimed that he felt “coerced” and none of the officers would allow him to leave. Defendant also said that he did not tell the truth in his statement to Detective O’Neil because he wanted to go home.

To the contrary, the police officers testified that the defendant was not threatened or promised anything in return for making a statement. In reviewing the trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. The trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. State v. Evans, 97-1030, p. 11 (La.App. 5 Cir. 4/15/98), 712 So.2d 941, 945, writ not considered, 98-2088 (La.12/18/98), 731 So.2d 276. Based on the foregoing discussion, we conclude that the trial judge did not abuse his discretion in believing the officers’ testimony over the defendant’s. Therefore, there was no error in the denial of defendant’s motion to suppress. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assigned error, the defendant challenges the sufficiency of the evidence used to convict him. The defendant contends that the evidence was insufficient to prove the element of his identity as to all counts and insufficient to support his convictions for conspiracy, possession of stolen property, and the attempted armed robbery of Mr. Kiv.

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the [^essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82.

When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Captville, 448 So.2d 676, 678 (La.1984). This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence. of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982).

We will first address the defendant’s specific allegations of insufficiency. With regard to count one, the defendant alleges that the evidence was insufficient to support his conviction for conspiracy to commit armed robbery because there was no evidence to show the element of an “agreement.” The elements of the crime of conspiracy are: (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, plus (2) an act done in furtherance of the object of the agreement or combination. LSA-R.S. 14:26. Specific intent is an essential element of conspiracy. Proof of a conspiracy may be made by direct or circumstantial evidence. State v. Ellis, 94-599 (La.App. 5 Cir. 5/30/95), 657 So.2d 341, 361, writs denied, 95-2095 (La.12/8/95), 664 So.2d 421 and 95-1639 (La.1/5/96), 666 So.2d 300.

|1fiIn the present case, defendant drove the get-away car during the attempted robberies of the Kivs. He facilitated the robberies of the Trans by loaning his car to Lipton with the knowledge that Lipton intended to commit a robbery, by sharing in the proceeds of the robbery, and by counting money with Lipton and Jenkins on the night of the robbery of the Trans. Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the defendant entered into an agreement to commit the armed robbery and committed an overt act in furtherance of the conspiracy. See State v. Guillory, 540 So.2d 1212 (La.App. 3 Cir.1989), where the court held that the evidence was sufficient to support the defendant’s conviction for conspiracy to commit armed robbery although the defendant was not present during the actual robbery.

With regard to his conviction for possession of stolen property, the defendant asserts that the evidence was insufficient because the indictment fails to identify the stolen property and the person from whom it was stolen. The time for testing the sufficiency of an indictment is before trial by a motion to quash or an application for a bill of particulars. State v. Gainey, 376 So.2d 1240, 1243 (La.1979). A defendant may not complain of technical insufficiency in an indictment for the first time after conviction, when the indictment fairly informed him of the charge against him and the defendant is not prejudiced by the defect. State v. Michels, 98-608 (La.App. 5 Cir. 1/13/99), 726 So.2d 449.

In the present case, the defendant is precluded from raising this claim for the first time on appeal because he failed to challenge the sufficiency of the indictment in a motion to quash and because there is no prejudice. Specifically, the person from whom the property was stolen is not an element of the crime of possession of stolen property. LSA-R.S. 14:69. Further, the indictment identifies the stolen property as more than $1000 in U.S. currency.

_JjjRegarding this conviction, the defendant also contends that he was subject to the constitutional prohibition against double jeopardy because the stolen property must involve items taken during the charged robberies and burglaries.

The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. See LSA-C.Cr.P. art. 591. Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); State v. Washington, 95-771 (La.App. 5 Cir. 2/14/96), 670 So.2d 1255, writ denied, 98-0537 (La.9/25/98), 726 So.2d 7.

Louisiana courts have used two tests in examining violations of double jeopardy. The “distinct fact” test, commonly referred to as the Blockburger test, is taken from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) as follows:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Accord, State v. Knowles, 392 So.2d 651, 654 (La.1980).

The second test is the “same evidence” test. In State v. Steele, 387 So.2d 1175, 1177 (La.1980), the Louisiana Supreme Court explained that test as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial....

The “same evidence” test is broader than Blockburger, “the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.” State v. Steele, 387 So.2d at 1177. Although the Louisiana 11 «Supreme Court has accepted both the Blockburger test and the same evidence test, it has principally relied on the “same evidence” test to evaluate double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La.1990).

The thrust of the defendant’s claim is that his convictions for possession of stolen property and the three counts of simple robbery have put him in jeopardy twice for the same course of conduct. The indictment charges the defendant with possession of stolen U.S. currency of more than $1000 between August 14,1999 and August 17,1999.

The record reflects that the defendant admitted that Lipton gave him $2300 in cash on the night after the Tran robbery and that Lipton gave him $1400 in cash on August 17,1999 as payment to take Lipton out of town and for the defendant to “keep [his] mouth shut.” Although the defendant speculated that the $1400 was from the last robbery, the defendant stated that Lipton told him that he had been robbing people in his van. Accordingly, there was evidence, if believed by the jury, that the money the defendant was found to be in possession of on August 17, 1999, was not the subject of the Tran robberies.

On appeal, the defendant also contends that the evidence is insufficient to support his conviction of attempted armed robbery of Mr. Kiv. In the present case, the defendant drove Lipton and Jenkins to Wal-Mart and waited with Lipton and Jenkins in the parking lot for the victims to exit Wal-Mart. The defendant also admitted that he drove alongside the victims while Lipton and Jenkins, who had placed bandannas over their faces and armed themselves, confronted the victims, Mr. and Mrs. Kiv. Defendant drove away only upon Lipton and Jenkins’ return. Further, the defendant admitted in his statement that both Lipton and Jenkins chased Mr. and Mrs. Kiv. At-trial, when asked whether the man who approached him attempted to rob him, Mr. Kiv replied affirmatively. The defendant took no actions to prevent the crime, which occurred in his presence, nor did he leave the|-|9scene until after Jenkins and Lipton had safely returned to the vehicle. Based on the evidence, viewed in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the defendant was a principal to the attempted armed robbery of Mr. Kiv. See State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, writ denied, 01-3406 (La.10/4/02), 826 So.2d 1122, where this court affirmed the conviction, as principal to armed robbery, of a defendant who drove the gunman to the crime scene, waited as a lookout while the gunman got out of the car, robbed the victim, and then drove the car away after the gunman returned to the vehicle.

In addition to specific allegations of insufficiency, the defendant also makes a general allegation as to all counts that the evidence was insufficient to prove his identity as the perpetrator. In his appellate brief, the defendant asserts that no witnesses identified defendant as to any charge in the indictment, no evidence was seized from defendant’s possession, and no fingerprints belonging to defendant were lifted from any of the crime scenes.

Encompassed in proving the elements of the offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1054.

We have reviewed these general allegations presented by the defendant and find them to be without merit. As shown by the facts, as previously set forth in this opinion, we find that the state proved beyond a reasonable doubt that defendant committed the offenses of which he was convicted. The arguments raised by the defendant in this assigned error are likewise without merit.

| ^ASSIGNMENT OF ERROR NUMBER FOUR

In his final assigned error, the defendant requests that this court review the record for errors patent according to LSAC.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent.

For the reasons set forth herein, the convictions and sentences of the defendant are hereby affirmed.

AFFIRMED.

      . Although the defendant was acquitted of all counts relating to the August 9, 1999 offenses at the Bass home, the events are included in the factual statement to explain how the investigation led to the defendant’s arrest.

      . The defendant was convicted of attempting to rob the Kivs, but acquitted for the burglary of their vehicle.

      . LSA-R.S. 14:24 provides that "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly procure another to commit the crime, are principals.”