author: 1 .WILLIAM H. BYRNES, III, Chief Judge. | tPLOTKIN, J.,

text:
    STATE of Louisiana v. Kentrell HICKERSON & Brandon Hamilton.
    No. 2002-K-2117.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry P. Connick, District Attorney, Amanda Masset, Assistant District Attorney, Erin Guruli, Law Clerk, New Orleans, LA, for the State.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, and Judge TERRI F. LOVE).
   1 .WILLIAM H. BYRNES, III, Chief Judge.

The State requests a review of the trial court’s ruling that granted the defendants Kentrell Hickerson and Brandon Hamilton’s motion to suppress the evidence. The stay order is rescinded. We reverse and remand.

At the motion hearing on October 1, 2002, Officer Kermanshiah Perkins testified that he and his partner, Officer Edmond Riley, were on routine patrol in the Calliope Housing Development, in the rear driveway in the 3500 block of Thalia Street on April 17, 2002. The officers saw two subjects (not the defendants) engaging in a hand-to-hand drug transaction. When the officers exited the police car, the subjects ran into the courtyard area, and the officers chased them but the subjects disappeared.

During that time, when the officers entered the courtyard, Officer Perkins testified that: “about a second or two later, we heard maybe 40 to 50 shots ring out.” The shots were coming from South Galvez Street. Officer Perkins was wearing a uniform. The defendants were about 30 feet away when the shooting took place. The officer saw no one else in the courtyard. The defendants turned to hflee to the courtyard area before they saw the police. The officer stated: “When they decided to retreat, they ran directly towards us.” Officer Perkins saw both defendants fire guns. The officer related: “They were firing straight across Galvez, not up in the air.” Officer Perkins testified that when the defendants “notice[d] that we were police, they raised their guns and fired more shots towards us, at which time we retreated.”

The officers did not chase the defendants but called on the radio for additional units. In approximately a minute, 20 or 30 officers arrived on the scene. Officer Perkins stated:

We set up a perimeter and started searching buildings and hallways in the area .... we got K-9. We got Crime Lab. And they had units going up and down the buildings into the hallways, into the stair wells, at which time my partner went upstairs at 1408 South Miro, the building, and a concerned citizen flagged him down.

Officer Perkins did not directly see the tipster but learned about the concerned citizen who gave the tip of the address of the apartment where the perpetrators were. Although Officer Perkins was downstairs, he learned that the police entered 1408 South Miro, approximately 30 minutes after the request for additional units. Shortly thereafter, Officer Perkins went into the apartment. The officer stated: “once I entered the house, I immediately identified them [the defendants].”

When the State requested that the motion be held open for the testimony of Sergeant Duane Carkum and Officer Riley, the trial court set a hearing on October 10, 2002. On that date, the officers did not appear. The prosecutor explained that Duane Corkum no longer worked for the New Orleans Police Department. Officer Riley was served, but he worked on the night watch and had not been reached. |oThe trial court stated that it would not hold the hearing open where Officer Riley did not appear at the last hearing or the current hearing although he was subpoenaed for both.

The trial court granted the defendants’ motion to suppress. The trial court found no probable cause for the violation of a felon with a firearm with respect to both defendants. The trial court found probable cause for aggravated assault rather than attempted first-degree murder of a police officer.

The trial court stated:

Well, I’m basically basing it on the testimony of the last police officer. I don’t think any exigent circumstance was present and it definitely was not hot pursuit, because more than a half an hour to an hour had elapsed before the time the first sighting the first sighting the sightings of these Defendants by the police officer. So it wasn’t hot pursuit.

The defense attorney noted that the officers entered the house before they sent for a warrant.

At issue is whether Officer Perkins’ testimony is sufficient to determine whether probable cause and exigent circumstances existed for the officers to enter the residence and seize the weapons before acquiring the search warrant.

Standard of Review of a Motion to Suppress

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

Probable Cause to Arrest

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

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

The fundamental philosophy behind the probable cause requirement of the Fourth Amendment is that common rumor or report is not an adequate basis for the arrest of a person. State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179. It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. State v. Gates, 24,995 (La. App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied sub nom. Gates v. Jones, 94-0640 (La.6/17/94), 638 So.2d 1091.

15An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. Rodriguez v. Deen, 33,308 (La.App. 2 Cir. 5/10/00), 759 So.2d 1032, writ denied, 2000-1414 (La.6/23/00), 765 So.2d 1049. For an arrest, the law does not require that “reasonable cause to believe” be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. La.C.Cr.P. art. 213; State v. Weinberg, 364 So.2d 964 (La.1978). The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. Id.

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

Police are not required to arrest an individual at the point at which probable cause for arrest arises. State v. Coleman, 412 So.2d 532 (La.1982). An arrest occurs when the circumstances indicate an intent to effectuate an extended restraint |fion the liberty of an accused, rather than at the precise moment that the officer tells an accused that he is under arrest. State v. Jones, 31-613 (La.App. 2 Cir. 4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99) 748 So.2d 434.

First degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm upon a fireman or peace officer (including a police officer) engaged in the performance of his lawful duties. La. R.S. 14:30(A)(2, 6); State v. Girod, 94-853 (La.App. 5 Cir. 3/15/95), 653 So.2d 664, habeas corpus dismissed, affirmed sub nom. Magee v. Cain, 253 F.3d 702 (5 Cir. (La.) 4/11/01). The crime of attempted murder, whether first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Huizar, 414 So.2d 741, 746 (La. 1982); State v. Strother, 362 So.2d 508, 509 (La.1978); State v. Butler, 322 So.2d 189 (La.1975). The specific criminal intent required does not have to be proved as fact, but may be inferred from the circumstances and actions of the defendant. State v. Boyer, 406 So.2d 143 (La.1981). The discharge of a firearm at close range and aimed at a person is indicative of specific intent to kill or inflict great bodily harm upon that person, as required for a first-degree murder conviction. State v. Gay, 29,434 (La.App. 2 Cir. 6/18/97), 697 So.2d 642.

In Girod, supra, 94-853, p. 2, 653 So.2d at 666, the Fifth Circuit stated:

On August 22, 1993, at approximately 11:30 p.m., Officer Stephen Newitt was dispatched to Terrytown, an area of Jefferson Parish, to investigate reports of illegal gunshots being fired. Once there, the officer saw a vehicle, a two-door Cutlass type, which he slowly approached. The vehicle sped off. Newitt followed, and the vehicle stopped a short distance away. As Newitt began to exit his unit, a man, later identified as defendant Girod, left the stopped vehicle. The officer heard a loud boom and saw a large flash. He testified that he had no doubt that the blast came from the area where Girod was standing. Then, he observed Girod throw something behind his back. The officer took position behind an lyppen door of his vehicle and called for assistance. Newitt saw an assault weapon come out of the passenger door and slide a few feet toward Girod. No attempt was made by Girod to pick up this weapon. Two men remained in the vehicle; Magee, who was seated on the passenger side of the back seat, and Craig Williams, who was the driver. The officer ordered defendant Girod to lie on the ground and ordered Magee and Williams to exit the vehicle. At this point, three backup units arrived and all the men were arrested. The vehicle was searched and two more weapons were found inside the vehicle. As a result of a search, a shotgun was found in the area where Newitt had seen Girod throw an item. Additionally, the front of Newitt’s police unit was damaged by gunfire. The officer was not injured.

The appellate court noted:

... As to Girod’s conviction, defense counsel’s brief contends that the jury failed to exclude a reasonable hypothesis of innocence, particularly that the shotgun fired accidentally. Defendant Girod argues that, given his closeness to the officer, had he been pointing a shotgun in the officer’s direction, the officer would have been injured by the shot. Girod further argues that the fact that the officer was not injured proves a lack of intent to kill on his part. The State contends that Girod’s intent to kill Officer Newitt was shown by [94-853 La. App. 5 Cir. 5, [653 So.2d 664]] the fact that Girod shot toward the officer with a double-barrelled shotgun at a distance of only ten feet.
Id, 94-853, pp. 4-5, 653 So.2d at 667.

The trial court found Girod guilty as charged of attempted first degree murder of a police officer. The appellate court found sufficient evidence for Girod’s conviction.

The Fifth Circuit held:

... From the totality of the evidence submitted by the prosecution, a rational trier of fact could have found that Girod was guilty of attempted first degree murder. The State had to show that defendant Girod specifically intended to kill the officer. Herein, the jury obviously chose to believe the officer’s testimony instead of defendants’ testimony. Accepting the officer’s testimony as true, there is sufficient circumstantial evidence to prove that Girod had the requisite 1 Sspecific intent. " A blast, which was obviously gunfire, came from the area where Girod was standing toward the police unit from which the officer was exiting. This gunfire caused damage to the officer’s vehicle consistent with shots fired from a shotgun. Furthermore, immediately after the blast, the officer saw Girod throw “something” behind him. After a search of that area, a shotgun was found.
Id, 94-853 p. 7, 653 So.2d at 668.

In the above case, the defendant Girod was approximately ten feet away from the police officer when the shots occurred. In the present case, the officers were in uniform. Officer Perkins stated: “They were firing straight across Galvez, not up in the air.” When the defendants aimed and fired directly at the police in close proximity from across the street, the officers had probable cause to arrest the defendants for attempted murder of police officers. Under the totality of circumstances, it was reasonable for the officers to believe that both defendants had committed a crime of attempted murder of police officers. Based on the defendants’ records, probable cause existed as to both defendants for violation of La. R.S. 14:95.1, possession of a firearm by a convicted felon.

Pursuant to La.C.Cr.P. art. 213, the officers had probable cause to arrest the defendants. To legally enter the apartment and secure it while waiting for a warrant, the officers required exigent circumstances as well as probable cause.

Exigent Circumstances

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

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

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

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

In the present case, where rifles were involved in the Calliope project, and the subjects shot at the uniformed police officers, exigent circumstances existed for the detectives to enter and secure the apartment. Officer Perkins | intestified that the armed defendants shot their assault rifles at the officers who were in police uniforms. These facts provided a great risk for the officers, and exigent circumstances existed. Even though a half hour may have passed by the time a tip was received, exigent circumstances still existed under the facts in this case under the totality of circumstances. The officers did not enter the apartment randomly but based on a tip from a concerned citizen that focused on the apartment at 1408 South Miro in the project. Upon entering the apartment, Officer Perkins immediately identified the defendants as the perpetrators. To avoid a possible violent confrontation that could cause injury to the officers and the public, the officers legally could search for the weapons prior to obtaining a search warrant for their protection and the protection of others living in the project.

Inevitable Discovery

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

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

__LyIn the present case, even if the officers had seized the weapons from the defendants before obtaining the warrant, inevitably the police would have found the evidence in a lawful search of the apartment. Before entering the apartment, the detectives had probable cause to arrest the defendants, and exigent circumstances existed so that they could enter and secure the apartment. In entering the apartment, Officer Perkins immediately recognized the defendants, which supported the officers’ belief that weapons were present. The officers legally could secure the apartment by seizing the weapons under these circumstances.

Accordingly, the stay order is rescinded. The ruling of the trial court is reversed, the defendants’ motion to suppress is denied, and the case is remanded for further proceedings.

WRIT GRANTED; STAY ORDER RESCINDED; REVERSED & REMANDED.

PLOTKIN, J., dissenting.

| tPLOTKIN, J.,

dissenting.

I would deny the writ. This Court held in State v. Hamilton, 2000-1176, p. 5-6 (La.App. 4 Cir. 9/13/00), 770 So.2d 413, 417-418, that the standard of review for a Motion to Suppress Evidence is:

On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. United States v. O’Keefe, 128 F.3d 885 (5 Cir.1997), cert, denied,523 U.S. 1078, 118 S.Ct. 1525,140 L.Ed.2d 676 (1998).

The trial judge in the instant case granted defendant’s motion to suppress the evidence. The trial judge is correct that the officers did not have probable cause to search the apartment. The officers who searched the apartment received a tip from a concerned citizen approximately thirty minutes after Officer Perkins described the suspects to the other officers that were on the scene.

In State v. Thompson, 2001-0524, p. 6(La.App.4 Cir.1/2/02), 806 So.2d 150, 154, this Court cited State v. Fisher, 97-1133, p. 8(La.9/9/98), 720 So.2d 1179,1184, a case in which the Supreme Court discussed the factors to evaluate when the police rely on a tip from a confidential informant:

While probable cause must be determined on the totality of the circumstances, an informant’s reliability, veracity and basis of knowledge are “all highly relevant.” Illinois v. Gates, 462 U.S. 213[, 103 S.Ct. 2317, 76 L.Ed.2d 527](1983); State v. Ruffin, 448 So.2d 1274, 1278 (La.1984). A confidential informant may provide adequate information to establish probable cause for a warrantless | Parrest, so long as the basis for the informant’s knowledge and the informant’s reliability, when examined under the totality of the circumstances, are established.

In the instant case, there is nothing in the record to indicate that the tip was from a reliable informant or that the officers even knew this individual. Given that this informant was untested, that statement alone was not enough to justify the entry into the apartment.

The officers did not have a warrant prior to entering the apartment. As the majority notes, under these circumstances, exigent circumstances as well as probable cause was required in order to justify the search. The majority contends that the search was justified based on the officers’ interest in avoiding a possible violent confrontation. However, over thirty minutes elapsed from the time of the shooting until the officers entered the apartment. The officers believed that the people who shot at them were inside the apartment so there would not be an immediate threat to officer safety. The fact that someone shot at the officers does not alone create exigent circumstances sufficient to support a warrantless entry into the apartment. Thus, I would deny the writ application.

      . The events occurred at approximately 11:40 p.m. according to the State’s brief.

      . The officers entered apartment C according to the State’s brief.


source: Caselaw Access Project

author: | ?SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jeffrey D. HEBERT
    No. 02-KA-884.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Appellate Counsel, William C. Credo, III, Assistant District Attorney, Trial Counsel, Gretna, for Appellee, State of Louisiana.
    Gwendolyn K Brown, Louisiana Appellate Project, Baton Rouge, for Appellant, Jeffrey D. Hebert.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | ?SUSAN M. CHEHARDY, Judge.

On April 27, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jeffrey D. Hebert, with second offense possession of marijuana on or about April 6, 2001, in violation of LSA-R.S. 40:966(C). Defendant was arraigned on May 21, 2001 and pled not guilty. On July 9, 2001, defendant filed a motion to quash the bill of information alleging the predicate conviction was defective, which the trial court denied on May 13, 2002.

On May 15, 2002, defendant withdrew his plea of not guilty and entered a plea of guilty under Crosby, reserving his right to appeal the trial courts denial of his motion to quash. That same date, defendant also signed a waiver of rights form. The trial court sentenced defendant to imprisonment at hard labor for two years, suspended, and placed defendant on active probation for two years. The trial court also ordered defendant to pay a fine of $500, court costs and a Commissioner’s fee. Defendant filed a motion for appeal that day, which was also granted.

|3On appeal, defendant assigns two errors: the trial court erred by accepting his guilty plea without first advising him of his right to remain silent and, absent compliance with the requirements of Boykin, the trial court erred by finding that Mr. He-berts plea was knowing, intelligent and voluntary. Specifically, he claims the trial court failed to advise him of his right against self-incrimination as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and LSA-C.Cr.P. art. 556.1.

Interestingly, defendant does not challenge the denial of his motion to quash the bill of information. Here, he challenges his guilty plea to the instant offense, second offense possession of marijuana. While defendant did not move to withdraw his plea in the district court, we will address his allegations since a constitutionally infirm guilty plea may be set aside either by means of an appeal or post-conviction relief, even when a formal motion to withdraw a guilty plea is not filed. State v. West, 97-1638, pp. 2-3 (La.App. 1 Cir. 5/15/98), 713 So.2d 693, 695.

A guilty plea will not be considered valid unless the plea was a free and voluntary choice on the part of the defendant. State v. Nuccio, 454 So.2d 93 (La. 1984). Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered to be free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. There also must be an express and knowing waiver of those rights, State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), and the waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. State v. Nuccio, supra. While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to Usupport the plea. State v. Halsell, 403 So.2d 688 (La.1981); State v. Nuccio, supra.

In State v. Dunn, 390 So.2d 525 (La. 1980), the Louisiana Supreme Court determined that a “plea of guilty form” may be considered in determining whether the defendant was adequately “informed” of his rights. In Dunn, the trial judge failed to specifically refer to defendant’s privilege against self-incrimination, but the representations contained in a plea form initialed and signed by defendant were considered. The trial judge had questioned defendant about his understanding of the plea of guilty form, which contained an express waiver of his privilege against self-incrimination. The supreme court held that these facts supported a “sufficient affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self-incrimination.” State v. Dunn, supra, at 527.

In the instant case, the transcript shows that, on May 15, 2002, defendant withdrew his plea of not guilty and entered a plea of guilty to second offense possession of marijuana under Crosby, reserving his right to appeal the trial courts denial of his motion to quash. During the Boykin colloquy, the trial judge inquired as to defendants age and educational background. The trial judge explained the nature of the charge of second offense possession of marijuana, and that the maximum sentence defendant could receive would be five years at hard labor.

During the colloquy, the trial judge told defendant that no one could force him to plead guilty. He asked defendant whether his attorney had advised him that, if defendants plea was accepted, defendants sentence would be two years at hard labor, suspended, and two years active probation, a fine of $500, court costs Land commissioners fees. Defendant responded his attorney had explained that to him and he understood.

Further, the trial judge advised defendant that he had the right to a jury trial, the right to hire an attorney of his choice, and that if he could not afford an attorney one would be appointed for him at no cost to him. Defendant was also advised by the trial judge that he had the right to confront his accusers. The trial judge told defendant that if the court accepted his plea, he did not have the right to assert any allegations or defects such as an illegal arrest, an illegal search and seizure, an illegal confession or an illegal line-up.

Moreover, defendant was advised by the trial judge that he had the right to waive a trial by jury and be tried by the court alone, and that this conviction could be used to enhance a sentence in the event of a subsequent conviction. The trial judge asked defendant if he understood that by pleading guilty, he was waiving all of these rights, and defendant answered affirmatively. The trial judge asked defendant if he and his attorney had reviewed the conditions of probation form, and whether defendant understood what was contained in the form. Defendant again answered affirmatively.

Following the colloquy, the trial judge accepted defendants plea. The record contains defendants acknowledgment of constitutional rights and waiver of right on entry of plea of guilty form. The introductory paragraph of that form reads as follows:

Your attorney has indicated to me that he/she advised you of your rights (1) to a trial by jury or by the Court alone, (2) to confront your accusers, and (3) of your right against self-incrimination, and that by entering a plea of guilty, you are waiving or giving up these rights. He/ she has also indicated to me that you have advised him/her that you understand these things. Is that correct?

While defendant did not place his initials next to that introductory paragraph, he did place his initials next to the questions asked on the remainder of | fithe form. On May 15, 2002, the form was signed at the bottom by defendant, defendants attorney, and the trial judge and filed into the record. Further, defendant’s attorney attested that:

I, also, have informed the defendant of his or her rights, particularly the nature of the crime to which he or she is pleading guilty, the maximum sentence the Court could impose under the law, and the fact that the defendant, by entering this plea of guilty is waiving his or her right to a trial by jury or by the Court alone, his or her right to confront his/her accusers, his or her right against self-incrimination, and lastly, that his or her only appeal is for review of jurisdictional defects; and I am entirely satisfied that the defendant knowingly, willingly, intelligently and voluntarily has entered this plea of guilty, knowing the consequences. (Emphasis added).

Furthermore, the paragraph above defendants signature reads as follows:

I, as the defendant in this case, acknowledge that the foregoing has been read to me, that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty, all of my rights to me, and what rights I am waiving or giving up, as listed above, and that anything I do not understand and about all of the consequences regarding my plea of guilty. I am completely satisfied with the explanations of my attorney and the judge.
I, further acknowledge that my act of pleading guilty is a knowing, intelligent, free and voluntary act on my part. I know that no one can force me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing remains except for the judge to give judgment and give me my punishment. I waive all delays for sentencing and acknowledge I am ready for sentencing. (Emphasis added).

Although the transcript of the Boy-kin colloquy reveals that the trial judge did not specifically advise defendant of his right against self-incrimination, the transcript, nonetheless, shows that the trial judge thoroughly reviewed the entire guilty plea form with defendant before accepting his plea.

Based on the foregoing, we find that defendants plea colloquy along with the well-executed waiver of rights form constitutes a sufficient affirmative showing on the record that defendant knowingly waived his privilege against selfjmcrimination.7 See State v. Tucker, 405 So.2d 506, 508-509 (La.1981). Cf State v. Dejean, 94-459 (La.App. 5 Cir. 11/28/95), 694 So.2d 284, 287 (waiver of rights form without contemporaneous record of the proceedings insufficient to show knowing and voluntary waiver of defendant’s constitutional rights).

Finally, we have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920. We have found an error patent which requires remand. After imposing defendant’s sentence, the trial judge incorrectly advised defendant he had two years from todays date to seek post-conviction relief. La.C.Cr.P. art. 930.8 provides that a defendant has two years from the day the judgment becomes final in which to file an application for post-conviction relief. We, therefore, remand the matter for the district court to inform the defendant of the provisions of La. C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record.

Accordingly, the defendant’s conviction and sentence are affirmed. The case is remanded with instructions to the trial court to send written notice to defendant of the provisions of La.C.Cr.P. art. 930.8.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . In Dunn, the supreme court noted that, “The direct, three-right colloquy between the trial judge and defendant is preferable and should be encouraged ... [and] the continued use of printed "waiver of rights” forms is to be discouraged because 'there is a potential for abuse of the accused's constitutional rights.’ ” However, the use of printed "waiver of rights” forms was not prohibited. Further, their limited use is beneficial to defendants, lawyers, and judges.

      . The minute entry indicates otherwise. When there is a discrepancy between the minutes and the transcript, the transcript usually prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).


author: hDAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Dedrick GRIFFIN.
    No. 2002-KA-1703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.

      Harry F. Connick, District Attorney, Julie Tizzard, Assistant District Attorney, New Orleans, LA, For Plaintiff/Appellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   hDAVID S. GORBATY, Judge.

Dedric Griffin appeals his conviction for first degree murder claiming that the grand jury indictment should have been quashed, and that the trial court erred in allowing testimony from his first trial to be entered into evidence at the second trial. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF THE CASE:

Dedric Griffin was charged by grand jury indictment on March 2, 2000, with the first degree murder of Tiche Carter on December 11, 1999, when he had the intent to kill or inflict great bodily harm on more than one person, namely Carter’s cousin, Patrick Parker, who survived a severe gunshot wound to the neck. La.Rev.Stat. 14:30. Following his arraignment, Griffin retained Jasper Pharr as counsel. At a motions hearing, the trial court found probable cause, but granted Griffin’s motion to suppress the photo identification. The State filed a writ application with this Court, which this Court granted, reversing the trial court’s decision to suppress the identification.

| ^Because his client was charged with first degree murder, Pharr filed a motion to appoint an attorney to sit second chair at trial. The court appointed the Orleans Indigent Defender Office (OIDP). The first trial of this matter ended in a mistrial due to a deadlocked jury.

Evidently, on May 21, 2001, jury selection began in Griffin’s second trial. At the first break on May 22, 2001, defense counsel Pharr presented a notice of conflict of interest to the court and made a record of his prior involvement with Parker, the State’s star witness; Parker had been represented by Pharr in two prior guilty pleas and Pharr had signed the waiver of rights forms. The trial court ruled that the conflict of interest was evident and Pharr could not represent the defendant. The State then moved to remove all other offices, specifically OIDP, currently associated with the case because the attorneys were tainted with the conflict of interest as well. The trial court ruled that the OIDP attorneys and OIDP, as well as Pharr, were removed from the capital case.

Griffin filed a writ application with this Court, arguing that the trial court erred in removing the OIDP attorneys from the case. This Court granted the writ application and reversed the judgment of the trial court.

The case again proceeded to trial, and a twelve-member jury found Griffin guilty as charged and recommended life imprisonment. Griffin waived delays and was sentenced. He immediately filed a motion for appeal.

ERRORS PATENT:

A review of the record reveals none.

J^FACTS:

Detective Ricky Hunter testified that he found two separate blood trails at the scene: one leading to the apartment where Carter died, and the other leading to a place on the street where Parker had collapsed. He also found crack cocaine upstairs at 2525 Banks Street on a file cabinet. He took statements from the man who lived in the apartment, William Thomas, and from Elton Bolman, an eleven-year-old who had witnessed the incident. The next night, he met with Parker at the hospital. Parker, who could not speak, mouthed to the detective, “Talk to my girlfriend.” Catrina Colbert, Parker’s girlfriend, gave Hunter a note that read, “I want you to find out why did DD do this to me and my cousin Shipe.” Colbert took Hunter to “DD’s” house, 3230 Toulouse Street, where she said she and Parker had been on previous occasions. By researching the address, Hunter learned that Dedric Griffin lived there, and that he owned a champagne-colored Oldsmobile Aurora. After assembling a photographic line-up that included Griffin’s picture, Hunter returned to the hospital where Parker identified the defendant. Dedric Griffin later turned himself in to police.

Parker testified that he and his cousin, Tiche Carter, were spending the day together. They were standing in front of 2525 Banks Street, when Griffin, a childhood friend, pulled up in front of the house, driving a champagne-colored Aurora. Griffin asked Parker and Carter if they had seen an individual named Derrick. All of the men knew each other. Parker and Carter said they had not seen Derrick, so Griffin pulled away. About two minutes later, Derrick arrived. | ¿Griffin came walking from around the corner, and the four men began talking and laughing. While the men were talking, Parker’s father walked by with Parker’s stepbrother on the way to a shop on 5. Rocheblave Street. After his father left, Parker and Tiche Carter went upstairs at 2525 Banks so that Carter could “chop up” the crack that Carter purchased from Derrick. Parker admitted that he knew he was violating his parole by associating with people with drugs, but he took the risk because of his close relationship with his cousin. As Parker and Carter went up the stairs, Griffin and Derrick came down. Within minutes, Griffin returned upstairs. Parker and Carter were both facing the door when Griffin appeared in the doorway with a gun. Parker testified that he flinched, and Griffin shot him in the neck. Parker briefly lost consciousness, and when he “came to,” he saw Carter running from the room. Griffin was firing at Carter’s back as Carter ran to the back of the house. Parker hopped up and ran out of the house, with Griffin now chasing him. Griffin chased him down the street toward S. Rocheblave. Parker could hear the gun clicking, but no more shots were fired. Griffin then turned around and headed back towards S. Dorgenois Street.

Parker admitted that Carter had used heroin that morning, and that he himself was in jail on a contempt of court charge at the time of his trial testimony.

The State introduced testimony that Griffin had given in his earlier trial through the court reporter that had transcribed it. Defense counsel had elicited the testimony. Griffin testified that he had a prior conviction for possession of marijuana. He said he talked to Carter on December 9, 1999, about purchasing marijuana. Carter told him to pick up the drugs on December 11, 1999, at 2525 Banks Street. He parked and spoke to one of Carter’s female cousins who worked in a beauty salon on the corner. He did not notice anyone else in the area. He | ¡¿walked into 2525 Banks and up the stairs. He found Carter bagging a large amount of drugs on a file cabinet. Within a minute, he heard the floor crack and turned to see a man wearing a red handkerchief around his face with a gun drawn. Griffin admitted that he was carrying a gun, and that he shot the man wearing the handkerchief because he was scared. Griffin claimed he did not know the man. (He learned later in a newspaper report that he had shot the man in the throat.) Carter then pulled a gun, so Griffin shot at him several times and fled. All three men ran in different directions. He admitted he knew Parker and his girlfriend, Trina.

Under cross-examination, Griffin admitted he owned the Aurora. He asserted that he did not know the man referred to as Derrick. Griffin believed that Detective Hunter had lied and that, contrary to other reports, there had been no children playing in the street when he arrived. Griffin claimed that he shot Parker straight on, and that Carter was facing him when he shot him. He admitted he knew he was not supposed to carry a gun as a convicted felon.

The pathologist employed by the coroner’s office, Dr. James Traylor, said Carter had been shot twice. One injury was a graze wound. The other injury was a gunshot that “obviously” entered through the back, hit the heart and right lung, and exited out of the front of the body.

ASSIGNMENT OF ERROR ONE:

Griffin argues the trial court erred in failing to rule on a motion to quash the indictment filed by defense counsel sometime after June 22, 2001, and before this trial began. The motion was based on an argument that the indictment should have been quashed because the grand jury was selected in a racially or sexually discriminatory manner, citing State v. Langley, 95-1489 (La.04/03/02), 813 So.2d|r,356, and State v. Fleming, 2001-2799 (La.6/21/02), 820 So.2d 467. The record does not reveal whether or not the motion was ruled on, or if a hearing was held on the motion.

However, the case proceeded to trial with no objection, and thus any argument that the court did not rule on the motion was waived. La.Code Crim. Proc. art. 841.

ASSIGNMENT OF ERROR TWO:

Counsel for the defense filed a motion in limine to bar the State from using Griffin’s testimony from the first trial because the testimony was critically flawed in that a conflict of interest existed between Griffin and his attorney, Pharr. The trial court denied the motion, and Griffin argues that the court erred.

Some background information is critical to this assignment. In writ 2001-K-1137 discussed above, Richard Rydelek and Jeffery Smith, OIDP defense attorneys, assigned as error that the trial court summarily removed defense counsel with whom the defendant had a strong attorney-client relationship, without conducting an evidentiary hearing. The attorneys noted that implicit in the State’s motion to remove OIDP and the trial court’s decision was the assumption that Pharr disclosed Parker’s privileged communications to Smith and Rydelek. Yet the OIDP attorneys contended that they (the penalty phase attorneys) had practically no contact with Pharr until the first day of trial on May 21, 2001. Along with Pharr, they stated on the record as officers of the court that Pharr had made no mention of Parker or any attorney-client communications. They attached Pharr’s affidavit in which he declared that he never violated his obligation to Parker by divulging privileged communications. The defense attorneys argued that the State or the trial court provided no basis for the decision that OIDP had to be |7removed because the entire office was “tainted.” They contended that if the court had any legitimate concerns about a breach of an attorney-client privilege, a hearing should have been held to explore the violation. However, they contended that a hearing was not necessary in light of the assertions by Pharr, Smith, and Rydelek that no breach occurred. The OIDP attorneys argued that the trial court erred by severing a well-established attorney-client relationship in a capital case without cause. In reversing the trial court, this Court stated:

In the instant case it is not clear why the trial court decided that the OIDP attorneys on the case and the entire office should be removed from this capital case. The State had alleged that information about Mr. Parker had been shared by all the defense attorneys, but provided nothing to support its allegation. The defense attorneys persuasively argue that only Mr. Pharr had the conflict of interest because he had represented the State’s main witness, Mr. Patrick Parker, years before and had an attorney-client relationship; therefore, Mr. Pharr could not use privileged information about Mr. Parker to discredit his testimony. However, Mr. Smith and Mr. Rydelek had never represented Mr. Parker; they had never discussed Mr. Parker with Mr. Pharr; and they had never had an attorney-client relationship with Mr. Parker. They explained to the court that their knowledge of Mr. Parker was garnered from the public records of his prior guilty pleas, and they were not privy to any confidential information.
Although the trial court did not hold a separate evidentiary hearing on the motion to remove counsel, Mr. Smith and Mr. Rydelek responded to the State’s accusations and attempted to answer the trial court’s concerns. Mr. Pharr declared that only he had represented Mr. Parker, and he had a conflict of interest. It would make no sense to hold another hearing on the issue of the motion to remove counsel. They would not be able provide any additional information.
The State alleged no basis for requesting the removal of OIDP other than its claim that all the defense attorneys shared information about Mr. Parker and that the documents relating to Mr. Parker’s prior guilty pleas could only have been found if Mr. Pharr had shared privileged information. However, Mr. Pharr and the OIDP attorneys satisfactorily explained how the information was discovered. The trial court articulated no clear basis for removing OIDP as counsel when its attorneys had ^established an attorney-client relationship and developed a bond of trust, especially necessary in a capital case. The court mentioned the “protection of the individual’s rights” when it decided “out of [sic] abundance of caution” to remove “everyone operating on the defense.” Like the attorneys in Davis v. Cain, 662 So.2d at 453, OIDP attorneys, Mr. Smith and Mr. Rydelek, have spent many hours reviewing, researching, and preparing for the trial and penalty phase. If they are removed, other attorneys will be compelled to spend that time to become familiar with the case. This is a capital case, and the defendant’s relationship with his attorneys is crucial when he is fighting for his life. The defendant’s arguments have merit and deserve to be carefully considered.

Griffin now argues that the trial court erred in denying the motion in limine because his testimony in the first trial was critically flawed in that a conflict of interest existed between him and his attorney. However, there is absolutely no evidence that a conflict between Griffin and his attorney flawed his testimony. Pharr did not even realize at the time of the first trial that he had represented Parker in the earlier guilty pleas, and even if he had, it is difficult to understand how Pharr’s knowledge of Parker’s past in some way jeopardized his relationship with Griffin. After all, Parker was the State’s witness, and Pharr’s task was to attack his credibility.

Additionally, Griffin now argues that he had ineffective assistance of counsel in the first trial that led to his not being able to be properly represented in this trial. He argues that if Pharr had not allowed him to testify in the first trial, the State would not have had any statement by him to introduce in the second trial.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses | flsufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).

The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191,199 (La.App. 4 Cir.1992).

This Court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir. 1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s | inlevel of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

Here, it was clearly a matter of trial strategy to allow Griffin to testify in the first trial. There was no option of raising an identification defense. The only option was to assert self-defense and attack the credibility of Parker, given his record, his involvement in drugs, his involvement in a drug transaction in this case, his being on parole at the time of the crime, and his being in jail at the time of trial. The record in fact supports a finding that self-defense was indeed an intelligent defense to raise. There is no evidence that counsel was deficient. In addition, there is no evidence that Griffin was prejudiced given the strong case of the State, that is, a victim of the shooting, which Dedric Griffin had known for years, survived to tell the story.

Accordingly, for the reasons assigned, Dedric Griffin’s conviction and sentence are affirmed.

AFFIRMED.

      . Defendant's name appears in the record as both "Dedrick" and "Dedric.” For purposes of this appeal, we will use the name as it appears on the appellant brief.

      . 2000-K-l 158

      . The docket master is silent on this issue.

      . 2001-K-1137

      . The docket master is silent as to the defendant's trial and sentence, and there are no minute entries for those dates. The information is gleaned from the transcript.

      . "DD" is a nickname for Dedric Griffin.

      . Shipe is Carter's nickname.

      .Derrick’s last name is not reflected in the record.


author: I,MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Derrick WIX and Michael Smith.
    No. 2002-KA-1493.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.

      Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Michael Smith.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Derrick Wix.
    Harry F. Connick, District Attorney Of Orleans Parish, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    (Court Composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   I,MAX N. TOBIAS, JR., Judge.

The defendants, Michael Smith (“Smith”) and Derrick Wix ("Wix”), were each charged by bill of information on 3 March 2000 with one count of attempted second-degree murder, one count of attempted armed robbery, and three counts of armed robbery, respective violations of La. R.S. 14:(27)30.1, 14:(27)64, and 14:64. The defendants pleaded not guilty at their 13 March 2000 arraignment. On 22 June 2000, Wix elected to have a judge trial. On 28 June 2000, a twelve-person jury found Smith guilty of one count of attempted armed robbery, one count of attempted second-degree murder, and two counts of armed robbery. On 30 June 2000, the trial court found Wix guilty of three counts of attempted armed robbery, and one count of aggravated battery. On 15 December 2000, Smith was sentenced to twenty-one years for one count of attempted armed robbery, thirty years for one count of attempted second-degree murder, and thirty-seven years for each of the two remaining counts of armed robbery. On that same date, Wix was sentenced to seventeen years for one count of attempted armed robbery, seven years for one count of aggravated battery, and seven years for each of the remaining two counts of attempted armed robbery. On 5 April 2002, the trial court granted the defendants an out of time appeal.

| .STATEMENT OF FACTS

Warren Henderson testified that on 24 December 1999, he was outside his front door on Kent Street when two black men “came out of nowhere, and pulled a gun.” He described the gun as a gold 9 millimeter. Mr. Henderson ran to his front door to alert his mother when he heard gunshots. His brother, Germaine Henderson, who had been cleaning his truck, had been shot. Mr. Henderson identified the defendants as the two black male perpetrators. Mr. Henderson further testified that each of the defendants had guns that day.

Leola Henderson testified that at some point she heard a noise, looked outside, and saw her sons, Warren and Germaine, being held at gunpoint by two individuals. Ms. Henderson further testified that she immediately called the police. While calling the police she heard gunshots, she looked out and saw that her son, Ger-maine, had been shot. Ms. Henderson testified that she did not get a good look at the two gunmen.

Germaine Henderson testified that on 24 December 1999, he was robbed outside of his mother’s home. He further testified that the gunman shot him out of apparent frustration because he could not steal his vehicle. He identified the defendants as the gunmen who approached him and his brother. He further identified Smith as the gunman who shot him.

Detective John Duzak, of the New Orleans Police Department, testified that he prepared photographic line-ups and showed them to both Warren and Ger-maine Henderson. Both Henderson brothers selected Smith out of the line-ups. Mr. Germaine Henderson also picked Wix out of a photographic line-up. A search warrant was executed on Wix’s residence where an empty box of .38 caliber bullets and an AK-47 clip were seized.

11.Officer Sylvester Burke, of the New Orleans Police Department, testified that he responded to the shooting on 24 December 1999. Officer Burke spoke to Mr. Germaine Henderson who stated that he was robbed and shot.

Christopher Lesley testified that as he and his fiancée, Janet Meyer, while walking near the intersection of Alex and Sequin Streets in Algiers, encountered two men who passed them by wearing dark hooded jackets. Mr. Lesley stated that once the two men got a short distance away from them, the men turned around with guns in their hands demanding their money. He testified that each man had a 9-millimeter gun in his hand. One of the gunmen concentrated on him and the other on his fianeeé. Mr. Lesley gave the gunman his money and his watch, while his fianeeé gave her purse to the gunman and then lay on the ground with her face in the opposite direction. Mr. Lesley further testified that the man who held the gun on him pulled the trigger, but it jammed and did not fire. Once the gunmen left, the couple went to a nearby home and called the police. He testified that he was shown a photographic line-up, and he positively identified both of the defendants as the men who robbed them.

Janet Meyer gave corroborating testimony. She also testified that she was unable to identify the defendants as the gunmen who robbed her and Mr. Lesley because she lay on the ground and did not get a good look at their faces.

Officer Karl Marshall, of the New Orleans Police Department, testified that on 27 December 1999, he was dispatched to a robbery scene at Alex and Sequin Streets in the Algiers area. Upon arrival on the scene Officer Marshall spoke to the victims, Chris Lesley and Janet Meyer. Mr. Lesley told Officer Marshall that two black males with guns robbed them. |4 Mr. Lesley told him that the gunmen took thirty dollars from him, and Ms. Meyer gave them her purse.

Detective Troy Williams, of the New Orleans Police Department, testified that he noted a similarity between the robbery on 24 December 1999, and 27 December 1999, so he showed the photographic lineups from the Henderson robbery to Mr. Lesley and Ms. Meyer. Mr. Lesley positively identified both defendants from the line-up as the gunmen who robbed them. Ms. Meyer was unable make an identification.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to impose the defendants’ sentences for attempted armed robbery, armed robbery, and attempted second degree murder without the benefits of probation, parole, or suspension of sentence. Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restriction are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court. See State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. Hence, this court need take no action to correct the trial court’s failure to specify that the defendants’ sentences be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected. (La. R.S. 15:301.1A).

\ ¿DISCUSSION

DEFENDANT SMITH’S ASSIGNMENT OF ERROR NUMBER 1

Smith complains that the trial court erred in denying his motion for mistrial because the State introduced inadmissible and irrelevant evidence, to-wit, the AK-47 clip found in the co-defendant’s home. Specifically, Smith argues that the evidence had no probative value and its prejudicial effect deprived him of a fair trial.

Trial courts have great discretion in determining whether to grant a mistrial. Vicknair v. Dimitryadis, 93-0003 (La.App. 4 Cir. 1/13/94), 640 So.2d 275.

The New Orleans Police executed a search warrant of Wix’s home and confiscated an empty ammunition box and an AK-47 clip. Smith argues that the AK-47 clip was irrelevant to this case because the victims of the alleged crimes did not state that an AK-47 was used in the perpetration of the crimes. Therefore, Smith claims he was prejudiced by the admission of the evidence as it served no purpose other than to confuse the jury.

La. C.E. art. 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 402 provides that all relevant evidence is admissible. If the evidence supports an inference raised by relevant fact, the evidence is admissible. State v. Shepherd, 332 So.2d 228 (La.1976). To be admissible, demonstrative evidence must be identified and authenticated. La. C.E. art. 901; State v. Richardson, 96-2598 (La. App. 4 Cir. 12/17/97), 703 So.2d 1371, 1373. As a foundation for admitting demonstrative evidence, it must be established that the object sought to be introduced is more probably than not connected with the case. State v. Duncan, 99-0778 (La.App. 4 Cir. mining the relevance of evidence, much discretion is afforded the trial judge. State v. Sholes, 99-2414 (La.App. 4 Cir. 3/7/01), 782 So.2d 691. |,;4/19/00), 761 So.2d 586, writ den. 2000-1623 (La.6/22/01), 794 So.2d 778. In deter-

In this case, three of the four victims testified that the perpetrators used a 9-millimeter weapon. No evidence was presented that the perpetrators of the crimes used an AK-47. It appears that the AK-47 clip was irrelevant to the case, and the trial court erred in admitting it into evidence. However, 'it also appears that the error was harmless. The test used in deciding if a trial error is harmless is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967)

In the instant case, the State did not argue that the AK-47 clip was connected to the crime for which the defendants were on trial. Additionally, three of the victims in the case made out-of-court and in-court identifications of the defendants as the persons who robbed them at gunpoint. It is unlikely that the jury convicted Smith based on the AK-47 clip being admitted into evidence. Therefore, as any error in admitting the evidence did not contribute to the verdict. The assignment of error is without merit.

^DEFENDANT SMITH’S ASSIGNMENT OF ERROR NUMBER 2

Smith complains the trial court imposed excessive sentences for his armed robbery convictions.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La. 1983).

If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App.3 Cir. 6/5/96), 677 So.2d 532, 535, citing State v. Howard, 414 So.2d 1210 (La.1982).

I «In State v. Watson, 575 So.2d 411 (La. App. 4 Cir.1991), this court found a fifty-year sentence for a single count of armed robbery was not excessive. In State v. Jacquet, 96-1183 (La.App. 3 Cir. 2/19/97), 688 So.2d 1337, the Third Circuit found a sixty-year sentence for armed robbery was not excessive.

In the instant case, Smith was sentenced to thirty-seven years for each of his two armed robbery convictions. The sentences fall within the statutorily mandated sentencing range. Smith has failed to rebut the presumption that the sentences are constitutional. This assignment of error is without merit.

DEFENDANT WIX’S ASSIGNMENT OF ERROR NUMBER 1

Wix complains that the evidence was insufficient to support his conviction for attempted armed robbery and aggravated battery.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

In addition, 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). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a [ defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Patton, 479 So.2d 625 (La.App. 1 Cir.1985).

La. R.S. 14:34 defines aggravated battery as a battery committed with a dangerous weapon. La. R.S. 14:33 defines a battery as the intentional use of force or violence upon the person of another or the intentional administration of a poison or other noxious liquid or substance to another.

Aggravated battery is a crime of general intent, meaning that the State need only prove the offender must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. State of Louisiana in the Interest of H.L.F. and R.J.T., 97-2651, p. 3 (La.App. 4 Cir. 5/20/98), 713 So.2d 810, 812.

To support a conviction of aggravated battery the State has the burden to prove three elements: (1) that the defendant intentionally used force or violence against the victim, (2) that the force or violence was inflicted with a dangerous weapon, and (3) that the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Rai-ney, 98^36 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097,1102.

Wix argues that the shooting victim, Germaine Henderson, identified Smith as the person who shot him, and Wix as the person who held a gun to his head before he was shot by Smith. Therefore, he asserts that the evidence was insufficient to support a conviction of aggravated battery. However, this court in State of Louisiana in the Interest of Frank A. Ruschel, 411 So.2d 1216, 1217 (La.App. 4 Cir.1982), found:

One may be guilty as a principal to a crime if he directly commits the act constituting the offense, aids and abet its commission, or directly or | inindirectly counsels or procures another to commit the crime, whether he is present or absent. The law will impose criminal liability upon a principal for the same reason it imposed such liability upon a co-conspirator; that is, because both of these inchoate offenses are directed at persons who knowingly participate in planning or executing the crime.

Under general principles of acces-sorial liability “all parties [to a crime] are guilty for deviations from the common plan which are the foreseeable consequences of carrying out the plan.... Acting in concert, each man then became responsible not only for his own acts but for the acts of the other.” State v. Smith, 98-2078, p. 7 (La.10/29/99), 748 So.2d 1139, 1143, quoting 2 LaFave & Scott, Substantive Criminal Law, § 7.5, p. 212, and citing State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d 1223,1224.

In the instant case, the testimony of the Henderson brothers confirms that Wix was present and participated in the robbery of the victims. Additionally, it is foreseeable that an armed robbery victim may be shot during the perpetration of the robbery, particularly when both of the perpetrators, as in the instant case, held weapons on the victim. Therefore, the evidence was sufficient to prove Wix was a principal to the shooting of Germaine Henderson. See State v. Marshall, 94-1282 (La.App. 4 Cir. 6/25/95), 657 So.2d 1106, where this court found sufficient evidence that the defendant was a principal to a murder. See also State v. Hall, 98-0667 (La.App. 4 Cir. 12/22/99), 750 So.2d 1105, where this court affirmed the defendant’s second degree murder conviction.

n Wix also complains the evidence was insufficient to support his conviction of attempted armed robbery.

La. R.S. 14:64 defines armed robbery as the taking of anything of value belonging to another from the person of another, by use of force or intimidation, while armed with a dangerous weapon.

La. R.S. 14:27 provides that any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Attempted armed robbery is comprised of the following elements: (1) the specific intent to take something of value; (2) from another person; (3) using force or intimidation; (4) armed with a dangerous weapon; and, (5) the perpetrator further does or omits an act for the purpose of and tending directly toward robbery. State v. Johnson, 466 So.2d 741 (La.App. 4 Cir. 1985). In the two separate incidents for which Wix was charged, three of the four victims testified that Wix was one of the two men who used hand guns to demand valuables. The elements required for the crime of attempted armed robbery were satisfied. The assignment of error is without merit.

CONCLUSION

The convictions and sentences of both Smith and Wix are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED AS TO BOTH DEFENDANTS.

      . The Chapman standard was later refined in Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2079, 124 L.Ed.2d 182 (1993), as follows:

        Consistent with the jury-trial guarantee, the question [Chapman ] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.... The inquiry, in other words, 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 this trial was surely unattributable to the error.

      . Smith oral motion for reconsideration of his sentences was denied.

      . The defendant and another man were seen together at the time and place of the shooting. Both the defendant and the other man were armed, and one witness saw the other man shoot the victim. The defendant and the shooter fled together. On appeal, this court found this evidence sufficient proof that the defendant was a principal to the shooting, even though the State was unable to prove that he fired the fatal shot.

      . The defendant drove the actual shooter to the scene of the crime, waited in the car while the shooter repeatedly shot the victim, and then allowed the shooter back into the car and drove him from the scene.


author: JACHARLES R. JONES, Judge.

text:
    GEOIL, L.L.C. v. ONLINE RESOURCE EXCHANGE, INC.
    No. 2002-CA-1537.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.
    Writ Denied May 2, 2008.
    Richmond M. Eustis, Dorothea M. Su-thon, Eustis, O’Keefe & Gleason, L.L.C., New Orleans, LA, for Online Resource Exchange, Inc.
    John Y. Pearce, Justin H. Homes, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, LA, for Geoil, L.L.C.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS JR.).
   JACHARLES R. JONES, Judge.

This appeal arises out of Cross Motions for Summary Judgment filed in the district court by the plaintiff/appellant, GEOIL, L.L.C., and the defendant, Online Resource Exchange, Inc. (hereinafter “Online”). The district court denied the Motion for Summary Judgment filed by GEOIL, and granted the Motion for Summary Judgment in favor of Online, thus dismissing GEOIL’s claims against Online. GEOIL now seeks review of the judgment of the district court. We remand for a trial on the merits finding that there is a genuine issue of material fact.

GEOIL and Online engaged in the investing in oil and gas properties. In 1999, Online sought to invest in a development project in Caddo Parish, Louisiana known as the Greenwood Wascom Development Project. Online executed an acquisition and development agreement with Martin Production Company and Mineral Ventures, Inc. (hereinafter “MMV”), to drill and re-enter thirteen locations in the Greenwood-Waskom Field, or as referred to in the agreement, the drilling of the “Hornot # 1 Well” for re-entry of more than twelve oil and gas wells. Online needed $300,000 as a deposit to secure its involvement in the project, and sought interim financing of the $300,000 from GEOIL. A letter agreement between the parties was signed on August 20, 1999. The agreement provided:

laGEOIL agrees to loan Online $300,000 which amount is to be paid to MMV as a deposit to secure Online’s participation in the referenced project. Online agrees to repay GEOIL as soon as is practical after the completion of Online’s financing effort but not later than January 15, 2000. Online will grant GEOIL an overriding royalty in the amount of 3% on Online’s 75% working interest in the wells and leases specified in the April 1999 Project Development Book, prepared by Martin Production Company. GEOIL will have the right to participate as a working interest partner in the project by mutual agreement with Online; however, in such instances the overriding royalty would be proportionally reduced. If in the event Online brings another party as a working interest partner, the override of 3% will not be reduced.
As part of this agreement, Online also agrees that the costs borne by GEOIL in the drilling of the Hornot # 1 in the amount of $104,000 (and any additional amounts approved by GEOIL and Online) will be added to Online’s loan in the event the well is a dry hole. In the event the well does not reach payout, the loan amount will be reduced by revenues received. However, both Online and GEOIL agree that in the event the well is completed, then Online earns 50% of GEOIL’s 331/3% [sic] working interest at payout of the Hornot # 1. Payout means the recovery of land and lease acquisition costs, drilling and completion costs paid by GEOIL.

In connection with the agreement, Online executed a promissory note in favor of GEOIL in the amount of $404,000. The principal and interest was due on January 15, 2000. When Online failed to pay the promissory note on January 15, 2000, GEOIL filed suit to recover $300,000 plus interest. On March 30, 2000, Online paid GEOIL $300,000 plus interest.

In August of 2000, Online and GEOIL were informed by MMV that the Hornot # 1 would not reach payout. GEOIL paid $190,409.93 in drilling and completion costs, and then sought reimbursement for the costs from Online pursuant to the agreement of August 20, 1999. GEOIL filed a petition to enforce the letter agreement and collect the monies incurred by GEOIL that Online refused 13to pay. Online contended that it did not have any obligation to pay GEOIL for the costs incurred; as such reimbursement was to occur only if the Hornot # 1 had been a dry well.

Online filed a Motion for Summary Judgment alleging that the agreement provided that Online would only be liable to GEOIL for the drilling and completion costs if the Hornot # 1 was a dry well. GEOIL filed a Cross Motion for Summary Judgment suggesting that the agreement provided that Online would be responsible for the costs incurred, except that the amount would be reduced by the revenues received. After a hearing on the two motions for summary judgment, the district court denied GEOIL’s Motion for Summary Judgment and granted Online’s Motion for Summary Judgment, dismissing GEOIL’s claims against Online. In its reasons for judgment, the district court stated that “[f|rom a plain reading of the contract between the parties, Online is obligated to pay $104,000 in costs more than it has already paid if and only if Hornot # 1 is a dry hole. Hornot # 1 was not a dry hole. Online has no obligation to pay more than it has already paid.”

In its appeal, GEOIL argues that the district court failed to properly interpret the letter agreement of August 20, 1999 consistent with the parties’ conduct and the rules of contractual interpretation.

In accordance with La. C.C.P. Art. 966, summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If, as here, |4the mover "will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (LaApp. 4 Cir. 3/31/99), 731 So.2d 983. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31-258 (LaApp. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La. App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

La. C.C. article 2046 provides that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties intent.” Further, La. C.C. article 2047 provides that words of a contract must be given their generally prevailing meaning. “Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.” La. C.C. article 2048. “A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.” La. C.C. article 2049. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. C.C. article 2050. Unless the true intent of the parties cannot be ascertained by an |-analysis of the contract provisions because the terms are ambiguous, parol evidence is not admissible. White v. Rim-mer & Garrett, Inc., 340 So.2d 283 (La. 1976).

In the case at bar, the parties have two different interpretations of the paragraph concerning the payment of the drilling and completion costs associated with the Hor-not # 1. GEOIL argues that the second sentence of the paragraph requires Online to pay the costs minus the revenues received. Online contends that it would have been required to pay the costs only if the Hornot # 1 was a dry well. In support of its argument, GEOIL refers to the fact that Online executed a promissory note in the amount of $404,000 (the original $300,000 and the anticipated drilling costs of $104,000). The deposition testimony of J. Luis Banos, Jr., president of Online, revealed that he executed the promissory note in that amount only because GEOIL requested that he do so. GEOIL did not seek the additional $104,000 when it filed suit in early 2000 on the promissory note when the Hornot # 1 was still in production. This suggests that GEOIL considered that Online would be liable for the costs of the well if it did not meet payout.

Online, on the other hand, relies upon a strict, word-for-word, interpretation of the agreement. However, the action of Mr. Banos in executing the promissory note for more than the original loan amount does not support such strict interpretation. His actions support GEOIL’s contention that the $104,000 was added to the original loan of $300,000, and that the reference to “loan amount” in the second sentence refers to the amount of $404,000. We find that the first sentence cannot be read in isolation and must be read together with the other sentences in the paragraph in conjunction with the entire agreement. The evidence presented indicates that there is a genuine issue of material fact in regard to the | «intent of the parties in the confection of the agreement. Thus, the district court erred in granting summary judgment in favor of Online and dismissing the claims of GEOIL.

For the reasons stated herein, we vacate the judgment granting Online’s Motion for Summary Judgment, and remand this case to the district court for a trial on the merits.

JUDGMENT VACATED; REMANDED.