author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Robert Earl GAGE, Appellant.
    No. 42,279-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2007.

      Annette Roach, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, William Edwards, Jeremy Lacombe, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

|tA jury convicted Robert Earl Gage (“Gage”) of driving while intoxicated, fourth offense (“DWI Fourth”), in violation of La. R.S. 14:98(E). The trial court sentenced defendant to 10 years at hard labor, and ordered the sentence be served consecutively to the partially probated 10 year sentence previously imposed for another DWI Fourth conviction of defendant in 2004. Finding no error in the trial court proceedings, we affirm defendant’s conviction, amend the sentence to be served without benefits and consecutively with the balance of any other sentence imposed for a prior conviction for any offense, and affirm,the sentence as amended.

Facts.

On November 4, 2004, Detective J. Cromer was driving an unmarked police vehicle in Shreveport and observed a white pick-up truck speeding past him on the inside lane. Officer Cromer followed behind, watching defendant change lanes erratically and narrowly miss colliding with a taxi at a red light. He continued to follow defendant onto a neighborhood street,where Gage drove into a driveway. Cromer had already radioed for patrol back-up during his pursuit, before activating his lights and getting out of the unmarked police car. Cromer exited his unmarked unit to question the defendant. The detective was in plain clothes but wearing a dark vest marked “POLICE” and his badge. He identified himself as a police officer. He noticed a strong odor of alcohol and that defendant’s speech was slightly slurred. Gage’s comments concerned a sibling who had just died. Several patrol units arrived to handle the arrest. When Gage failed to produce his | gdriver’s license, Officer Cromer discovered defendant’s license was suspended and he had numerous prior convictions, including several offenses for DWI. Officer Cromer concluded the defendant was impaired and advised him of his Miranda rights. No field sobriety tests were conducted on Gage in the driveway. Officer Jones transported defendant to the Police Department Traffic Unit (or Selective Enforcement) for field sobriety testing.

The videotape recorded at the Police Department Traffic Unit captured the details of the attempts at chemical and sobriety testing of Gage before and after his invocation of the right to counsel. Officer Devries testified at trial that Gage’s speech was slurred and he detected the odor of alcohol. The horizontal gaze nys-tagmus (“HGN”) test conducted by Dev-ries reflected Gage’s intoxication. Some of the videotape was played for the jury.

At trial, defendant’s counsel stipulated three prior DWI convictions as described in the amended bill of information. These consisted of (1) Gage’s guilty plea to Second Offense DWI on February 5, 1997, in Shreveport City Court, Docket 762,331; (2) a guilty plea to Second Offense DWI on May 20, 2002, in the First Judicial District Court, Caddo Parish, Docket 216,875; and (3) a guilty plea to Fourth Offense DWI on March 30, 2004, also in Caddo Parish district court.

Gage testified at trial that he was extremely upset when he was arrested for the instant offense, due to his brother’s death, and other recent family deaths. His blamed his “loss of sanity” on overwhelming grief and |sdenied any connection between his behavior and drinking alcohol. He acknowledged the offenses detailed on his rap sheet and blamed this prior misconduct on drug addiction. Gage’s past convictions included possession of CDS, theft, public drunkenness, battery, criminal damage to property, driving under suspension and DWI. He acknowledged that his operation of a motor vehicle before his arrest for the present offense violated the terms of his probation for his March 2004 DWI Fourth conviction.

The six person jury convicted Gage of Fourth Offense DWI. Gage appeals.

Discussion

I.

Appellant assigns as error insufficient evidence for proof of his conviction for the offense, and instead attributes his impaired condition to bereavement over his brother’s death. He argues that the state failed to negate this hypothesis of innocence.

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The standard of appellate review for a sufficiency claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Murray, 36,137 _yLa.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165, 1166. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, 614, unit denied, 98-2723 (La.2/5/99), 737 So.2d 747; State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223, 227. To convict a defendant based upon circumstantial evidence, every reasonable hypothesis of innocence must be excluded. State v. Barakat, \f,surpra, citing La. R.S. 15:438. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, .06-1083 • (La.11/9/06), 941 So.2d 35; State v. Wiltcher, supra.

To convict a defendant of DWI Fourth, the state must prove that the defendant has had three other prior valid convictions, as defined by La. R.S. 14:98(F)(1), and that these convictions are not stale under La. R.S. 14:98(F)(2). State v. Pickard, 40,422 (La.App.2d Cir.12/14/05), 918 So.2d 485, 489, citing State v. Inzina, 31,439 (La.App.2d Cir.12/9/98), 728 So.2d 458. La. R.S. 14:98 provides in part that the crime of operating a vehicle while intoxicated is the operating of any motor vehicle when the operator is under the influence of alcoholic beverages or the operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per 100 cubic centimeters of blood. To convict an accused of driving while intoxicated, the state need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. Some behavioral manifestations, independent of any scientific tests, are sufficient to support a charge of driving while' intoxicated. State v. Harper, 40,321 (La.App.2d Cir.12/14/05), 916 So.2d 1252; State v. Courtney, 30,629 (La. App.2d Cir.5/13/98), 714 So.2d 176. It is not necessary that the conviction be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to |fiestablish guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Blackburn, 37,918 (La.App.2d Cir.1/28/04), 865 So.2d 912; State v. McDonald, 33,013 (La.App.2d Cir.3/1/00), 754 So.2d 382.

Officer Devries testified that defendant showed nystagmus at all six points when the HGN test was conducted. In addition to this poor performance, both police officers testified that defendant smelled of alcohol and slurred his speech. Officer Cromer initially observed defendant speeding, changing lanes of traffic repeatedly, and almost colliding with another vehicle. Gage’s conduct at the Traffic Unit shown on videotape also indicates his intoxication. The totality of these circumstances led both officers to conclude that Gage was impaired.

In State v. Harper, supra, the defendant did not submit to any field sobriety tests other than the HGN, but this court found the evidence was sufficient to support his conviction based on the totality of the evidence. Testimony concerning the defendant’s disoriented behavior, the smell of alcohol, evidence of spilled beer inside his vehicle, his verbal abuse of the officers, and poor performance on the HGN test, was sufficient to prove the essential elements of the charged offense.

In this case, the lack of additional field sobriety testing similarly does not hamper the state from proving this defendant was operating a vehicle while intoxicated. The testimony of the officers’ observations of the defendant’s condition and his recklessness amply support the conviction. Accordingly, this assignment is without merit.

Jj.IL

In his next assignment of error, defendant argues that the jury’s viewing of the Traffic Unit videotape violated his constitutional rights and prejudiced him in multiple ways. First, he asserts that Officer Devries continued to question him after he invoked his right to counsel, and those statements should have been suppressed. The videotape is contended to be testimonial in nature, which would have violated his Fifth Amendment right against self-incrimination. He also argues that portions of the videotape showing him waving his arms were overly prejudicial. Finally, during the course of the discussion on the video, defendant’s prior arrest record was alluded to by the officer.

The Traffic Unit videotape demonstrated defendant’s behavior during Officer Devries’ interrogation. Gage is shown being advised of the Miranda rights for a third time and further, the consequences of his refusal of chemical testing. Devries questions Gage as to his education level, medication he takes, and disabilities. Gage is standing near perpendicular white lines painted on the floor, with his hands in his pockets. Devries instructs him to put his feet together and remove his hands from his pockets. At that point Gage asserts he was already searched by Officer Jones, but removes change from his pants pocket. Gage acknowledges the camera, and then argues he was not searched. After Devries tells Gage to take the change off the table and put it back in his pocket, Gage deliberately counts the change before complying.

IsThe next portion of the tape shows Gage standing in the same place with his hands at his sides. He refuses to recite the alphabet when Devries requests him to do so. At that point, Gage says he is refusing “everything,” “ask [his] lawyer,” and “talk to my lawyer.” Hearing this, Devries clarifies that Gage wants a lawyer and the discussion stops momentarily. Officer Devries then goes to the table to calibrate the intoxilyzer. As he walks towards the spot where Gage stood, the officer waves his arms and says “whew,” to indicate an unpleasant odor. Gage immediately mimicks Devries’ motions with exaggerated gestures as Gage sits down in a chair.

Then, while working with the intoxilyzer, Officer Devries casually asks Gage “how many times have I arrested you?” Gage answers contemporaneously, “I don’t know,” as Officer Devries comments “too many.” Gage responds by saying “call your congressman.”

There is another momentary pause while Gage is still seated and Officer Dev-ries is calibrating the intoxilyzer. Gage begins tapping his feet and turns to Officer Jones, who is off-camera, asking him twice to “look me in my eyes.” Officer Devries is called “cool,” then a derogatory name, and Officer Jones is called “sad” after telling Gage how long he has been on the police force. Gage tells Devries he “looks great.” The banter continues before Gage is asked how old he is and whether he will take the intoxilyzer test. Officer Devries holds the tubing apparatus near Gage before Gage refuses the test. Finally, Gage gets out of the chair, pats Officer Devries on the back, and leaves the room.

| aOverall, the videotape presented evidence of a testimonial and- non-testimonial nature during the general booking and sobriety testing process leading to Gage’s ultimate refusal of the intoxilyzer test. The tape’s basis for relevance to the state’s case was its depiction of Gage and his speech. At times, Gage is seen in a somewhat overly animated state from which the fact-finder could infer his intoxication. Gage’s slightly wild hand gesture for which he now claims prejudice was not in response to any questioning by the officer. Also, the evidence of Gage’s refusal to submit to the intoxilyzer test was admissible. La. R.S. 32:666(A)(2)(c). Nevertheless, the defendant’s conduct on the tape was of marginal value to the state’s case. Because of Gage’s acquaintance with Officer Devries, his actions can be viewed as merely horseplay and rowdy exchanges. The tape contained however the significant problems of the officers’ failure to stop all questioning after Gage’s request for counsel and Officer Devries’ general statement of Gage’s prior arrests.

In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the United States Supreme Court examined the difference between testimonial and non-testimonial evidence when deciding the admissibility of a videotape depicting a DWI investigation. The defendant had not been given the Miranda rights before he was taken to a booking center and asked routine identification questions. The Miranda rights were given after defendant refused the breath test. Defendant made incriminating remarks while field sobriety tests were administered. The court analyzed the Self-Incrimination Clause of the Fifth Amendment. The court observed |inthat the privilege protects a criminal defendant from being compelled to testify against himself or otherwise provide evidence of a testimonial or communicative nature, but that it does not prevent the state from gathering real or physical evidence such as fingerprints, photographs, blood samples, or handwriting or voice exemplars. Id., 496 U.S. at 588-591, 110 S.Ct. at 2644-2645, citing United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 768, 35 L.Ed.2d 67 (1973), Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). The court noted that the Miranda procedural safeguards, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), protect a criminal defendant’s right against self-incrimination during custodial interrogation. Pennsylvania v. Muniz, supra, 496 U.S. at 589-590, 110 S.Ct. at 2643-2644.

For evidence to be testimonial, “an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Id., 496 U.S. at 588, 110 S.Ct. at 2644, quoting Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988). The court characterized the manner in which the defendant spoke as non-testimonial and described his slurred speech as incriminating evidence of his intoxication. Id., 496 U.S. at 590-591,110 S.Ct. at 2644-1645. Even so, the court noted that most verbal responses are testimonial because “there are few instances in which a verbal statement, either oral or written, will not convey information or assert facts.” Id., 496 U.S. at 597, 110 S.Ct. at 2648. Thus, the Muniz court found that defendant’s inability to answer a question h 7regarding his birthday should have been suppressed because the Miranda warnings had not yet been given and the response to the question was testimonial because it required a factual response. Id., 496 U.S. at 598-600, 110 S.Ct. 2638. However, the pre-Miranda responses to general booking questions were admissible, in spite of being testimonial because these routine questions are exempt from the requirements of Miranda. Id., 496 U.S. at 601-602, 110 S.Ct. at 2650. Defendant’s incriminating statements during field sobriety testing or refusal of the breath test were found admissible because they were not made in response to custodial interrogation. Id., 496 U.S. at 602-605, 110 S.Ct. at 2651-2652.

A defendant may invoke his Miranda rights at any time prior to or during questioning. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, at 124, citing State v. Taylor, 01-1638 (La.1/14/03), 838 So.2d 729, 739, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). If a defendant requests counsel during custodial interrogation, questioning must cease until counsel had been made available to him or unless the defendant reinitiates conversation. Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 2354-2355, 129 L.Ed.2d 362 (1994), citing Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981). Defendant’s remarks are admissible when they do not result from custodial interrogation or questioning “reasonably likely to elicit an incriminating response.” State v. Ross, 95-1798 (La.3/8/96), 669 So.2d 384, 386, citing Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980). While statements responding to police-initiated custodial | ^interrogation are inadmissible when the defendant has invoked his right to counsel, statements made by the defendant when he initiates further communication are admissible even if he has previously invoked his right to counsel. Id., citing Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981); see also State v. Caston, 40,054 (La.App.2d Cir.9/28/05), 912 So.2d 413, 416, citing Edwards v. Arizona, supra.

From our review of the videotape, Gage did invoke his right to counsel which was acknowledged by Officer Devries. However, other than the one question posed by Officer Devries regarding Gage’s prior arrests, which we will consider separately below, we find no further custodial interrogation on the tape. Gage gave no incriminating testimonial statements thereafter, and he subsequently reinitiated the friendly banter between himself and the officers during the routine process for the attempted administration of the sobriety tests. During that banter, the depictions on the tape of his manner and speech were not the product of custodial interrogation.

Regarding Officer Devries’ question, “how many times have I arrested you,” the comment was clearly a rhetorical question, made as the officer was standing next to Gage dealing with the intoxilyzer device, and not interrogation. Significantly, the comment was not singled out in any manner in the arguments for defendant’s motion to suppress, the tape. The general reference to other crimes should have been excised from the tape. Yet, the jury received knowledge of Gage’s prior arrests for the predicate 11SDWI offenses, and the presentation of his defense by his own testimony exposed him to a complete review of his criminal record.

This court has previously found that the “harmless error” test set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applies to analyzing statements admitted in violation of Miranda. State v. Finch, 31,888 (La. App.2d Cir.5/5/99), 733 So.2d 716, 724-725, citing State v. Gibson, 391 So.2d 421 (La. 1980). See also State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756; In applying the Chapman test, the reviewing court must determine “whether there is a reasonable possibility that the. erroneously admitted evidence might have contributed to the conviction and requires that the reviewing court be able to declare a belief that the error was harmless beyond a reasonable doubt.” State v. Finch, supra, 733 So.2d at 725, citing State v. Garris, 603 So.2d 277 (La.App. 2d Cir.1992), unit denied, 607 So.2d 564 (La.1992). Likewise, admission of evidence revealing other crimes of the defendant is subject to a harmless error analysis. State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141. ■.

Therefore, in any event, defendant’s assertions regarding the suppression of that portion of the videotape after his request for counsel would require the application of a harmless -error analysis. As reviewed above, the guilty verdict in this trial was surely unattributable to the asserted error. This assignment of error is without merit.

III.

Defendant next asserts the following claims of ineffective assistance of counsel: (1) stipulation of two predicate DWIs with tainted guilty pleas; |u(2) failure to object to improper or insufficient jury instructions; and (3) failure to object to the state’s closing and rebuttal arguments.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. See State v. Wry, 591 So.2d 774, 778 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his counsel was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland v. Washington, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. See State v. Moore, 575 So.2d 928, 931 (La.App. 2d Cir.1991). Secondly, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. See Strickland, v. Washington, supra. |1sThe defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. See Strickland v. Washington, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, 178, unit denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. See Strickland v. Washington, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, 1134, unit denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C.Cr.P. art. 930. State v. Lane, 40,816 (La.App.2d Cir.4/12/06), 927 So.2d 659, 669, unit denied, 06-1453 (La.12/15/06), 944 So.2d 1283. When the record is sufficient, however, allegations may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, supra.

Gage’s assertions regarding the two predicate offenses will be more appropriately addressed in the post-conviction relief process. The Boykin transcript of the guilty plea of one of those prior offenses is not in evidence, [1i;and an application for post-conviction relief will afford Gage the opportunity to develop further evidence regarding those guilty pleas.

The defendant next argues the trial court’s instructions to the jury were incorrect or insufficient and that trial counsel was ineffective for failing to object to them. Specifically, Gage contends that counsel should have requested an instruction concerning how refusal of the intoxilizer should be considered and the defendant’s right to refuse such a test, as well as instructions regarding the HGN test. Gage also argues that the trial court’s instructions detailing the elements of the offense failed to tell the jury that defendant must be under the influence while operating a motor vehicle, and these collective individual flaws in the instructions warrant reversal.

The failure to make a contemporaneous objection to jury instructions waives review of those jury instructions on appeal. State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 622, citing La.C.Cr.P. arts. 801(C), 841, State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, 181, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999), superseded by statute on other grounds, State v. Gomez, 00-566 (La.1/17/01), 778 So.2d 549. Even so, jury instructions may be reviewed on appeal in spite of the lack of a contemporaneous objection when the alleged error violates a fundamental due process right. State v. Ruffins, 41,033 (La.App.2d Cir.9/20/06), 940 So.2d 45, 52, citing State v. Williamson, 389 So.2d 1328 (La.1980); State v. Jarvis, 01-1277 (La.App. 4th Cir.2/13/02), 811 So.2d 38, unit denied, 03-248 (La.2/13/04), 867 So.2d 677; State v. Lowery, 33,905 |17(La.App.2d Cir.2/28/01), 781 So.2d 713, 729, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978.

Defendant counsel made no contemporaneous objection to the jury instructions. Nevertheless, we will examine these issues in addressing Gage’s claim of ineffective assistance of counsel.

According to La.C.Cr.P. art. 802, the trial court shall charge the jury of the following: (1) the law applicable to the case; (2) that the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and (3) that the jury alone shall determine the weight and credibility of the evidence. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807; State v. Lowery, supra, 781 So.2d at 730; State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Marse, 365 So.2d 1319 (La.1978).

In La. R.S. 32:666(A)(2), our law provides that a person under arrest for a DWI violation may refuse to submit to a chemical test for alcohol | ^“subject to” the countervailing effect of the introduction of the evidence of his refusal of such testing in any criminal action against him. A restatement of that law in a requested jury charge would arguably serve only to highlight in the minds of the jury the inference of guilt raised by Gage’s refusal, which the law indicates is admissible by the state as evidence against the defendant. Trial counsel’s election not to request a special jury charge concerning Gage’s refusal of chemical testing was not prejudicial so as to deprive him of a fair trial. Moreover, the videotape evidence demonstrates that the jury heard Officer Devries advising the defendant of his right to refuse the test and the consequences of refusing the chemical testing.

Defendant further argues that the jury should have been instructed regarding how the evidence of the HGN test should be considered and how the results of the test do not establish proof beyond reasonable doubt. In State v. Armstrong, 561 So.2d 883, 887 (La.App. 2d Cir.1990), writ denied, 568 So.2d 1077 (La.1990), this court found the HGN test meets the standard of admissibility and, with a proper foundation, may be admitted as evidence of intoxication. State v. Armstrong, supra. This foundation is laid when a showing is made that the officer who administered the test was trained in the procedure, was certified in its administration and that the procedure was properly administered.

At trial, the foundation of the officer’s training and experience for the HGN test was subject to cross-examination. Also, the meaning of the test as it relates to a person’s intoxication was explained and was subject to cross-examination. Our review shows that the jury was instructed that it was “up |iato them” to determine the weight and credibility of the evidence. This same instruction encompasses the jury’s determination of the weight and credibility afforded the results of the HGN test which Officer Devries performed on the defendant. Therefore, under Article 807, the jury was generally charged concerning the weight and credibility of evidence, and no further special charge was required.

Defendant next claims the trial court failed to instruct the jury that the state must prove that a DWI defendant “must be under the influence while driving.” The trial court specifically instructed the jury that “[t]he crime of fourth offense driving while intoxicated is the operating of any motor vehicle while under the influence of an alcoholic beverage after the defendant has previously been convicted of operating a vehicle while intoxicated on the three prior occasions.” The lack of any objection to this legal description of the elements of the offense is not ineffective assistance of counsel.

In his last argument regarding ineffective assistance of counsel, Gage argues that the prosecutor’s rebuttal statement “that people who drink and drive cause a lot of funerals,” was improper since no wreck or fatality was involved here and no evidence was presented to back up the assertion. The defendant also argues that the state improperly commented on defendant’s refusal of field sobriety tests, and his counsel was ineffective for failing to object.

No contemporaneous objections to the state’s closing or rebuttal arguments were made so the issue is not preserved for appellate review. LajC.Cr.P.20 art. 841; State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 900, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). However, because defendant couches the issue as another example of ineffective assistance of counsel, it is necessary to review the underlying claim.

Code of Criminal Procedure Article 774 defines the parameters of argument and rebuttal argument as follows:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Prosecutors are given wide latitude in making closing arguments, but that latitude is not without boundaries. State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, 1256, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), citing State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996), State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, 1285, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Lawrence, 40,278 (La. App.2d Cir.3/15/06), 925 So.2d 727, 748. The courts of this state have repeatedly “warned prosecutors they are not to turn closing arguments into a plebiscite on crime.” Id., citing State v. Eaton, 524 So.2d 1194, 1208 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989). Going beyond that latitude will not warrant 121reversal unless the reviewing court is “thoroughly convinced the remark influenced the jury and contributed to its verdict.” Id., citing State v. Eaton, supra, 524 So.2d at 1208. Even when the prosecutor’s statements are excessive or improper, “credit should be accorded to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments.” State v. Bridgewater, supra, 823 So.2d at 902, citing State v. Kyles, 513 So.2d 265, 276 (La.1987).

During closing argument, Gage’s counsel spoke at length about how defendant was mourning his brother’s recent death as well as five close relatives who had also died. In rebuttal, the state responded to defendant’s arguments regarding his grief:

The Judge is going [sic] instruct you with the charges. Part of those charges that in making your decision you are not to be influenced by sympathy, passion, prejudice, or public opinion. We have heard about five deaths in his family, and while those are tragic, those are not here to sway you. If that was the case then I could sit here and say to you that sways you about the fact that people who drink and drive cause a lot of funerals. That’s not what you are here to determine. You can’t be swayed by passion and sympathy. You have to observe the facts and the evidence presented in here today.

(Emphasis added.)

While the statement that drunk drivers cause funerals could be improper argument in a DWI case, in this context, the prosecutor was addressing defendant’s plea for sympathy due to bereavement. We do not consider this improper when viewed in context. In light of other evidence proving intoxication, the use of the phrase did not meaningfully contribute to the jury’s verdict, and it is not reversible error even if considered improper under the circumstances. See State v. Cowden, 04-707 (La.App. |221st Cir.11/30/04), 889 So.2d 1075, 1090-92, unit denied, 05-3201 (La.4/8/05), 899 So.2d 2 (Argument that defendant’s drunk driving could have put the lives of the jurors and their children at risk was outside the scope of proper rebuttal argument, but it did not constitute reversible error). Thus, the lack of an objection here did not constitute ineffective assistance of counsel.

Neither do we find the state’s comments on defendant’s refusal of chemical testing improper. The state noted in its closing argument that the videotape showed defendant’s opportunity to take the intoxilyzer test and his refusal; that defendant testified why he refused; that defendant also refused other standard field sobriety tests; and that defendant could not be forced to take the tests. The state later commented that as one part of the evidence, defendant’s refusal tended to prove intoxication.

As stated above, Louisiana law affords a defendant the right to refuse chemical testing for alcohol, yet allows evidence of such refusal to be admitted at trial. La. R.S. 32:666(A)(2). Considering this somewhat dichotomous situation, the jurisprudence has held that the refusal to take the chemical test is admissible as evidence of intoxication. State v. Walker, 05-875 (La. App. 4th Cir.3/29/06), 930 So.2d 94; State v. Loisel, 01-2018 (La.App. 4th Cir.3/6/02), 812 So.2d 822; State v. Conner, 02-363 (La.App. 5th Cir.11/13/02), 833 So.2d 396. Thus, the state’s closing argument was proper under La.C.Cr.P. art. 774 because it dealt with the evidence admitted at trial, conclusions drawn therefrom and the applicable law.

DaThese assignments dealing with ineffective assistance of counsel are therefore without merit.

IV.

Defendant’s final assignments concern alleged problems caused by the differing sentencing options under the DWI statute. Gage asserts that the sentence imposed by the trial court is illegal because it fails to comply with the applicable sentencing provisions articulated in La. R.S. 14:98(E). Defendant’s counsel further argues that Gage should have been sentenced under the provisions of La. R.S. 14:98(E)(l)(a), and that a portion of the sentence should have been suspended in light of subsequent modifications to the statutory language dealing with sentencing ranges. He also argues that he was never informed by the bill of information regarding the harsher penalty exposure. Additionally, it is argued that the trial court imposed sentence immediately after the denial of defendant’s motion for new trial, without obtaining a valid waiver of the sentencing delays. Finally, he argues one further ineffective assistance of counsel claim concerning the allegedly erroneous sentencing provision read to the jury during the jury charge.

The sentencing provisions of La. R.S. 14:98(E) state:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five | ¡^thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Correction, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.
(4)(a) If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.
(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

The trial court sentenced defendant to ten years at hard labor and a $5,000 fine for the instant offense. It reviewed defendant’s conviction stemming from the predicate DWI Fourth offense, for which Gage was on probation. The trial court revoked Gage’s probation for the prior DWI Fourth conviction, and imposed the original sentence for the predicate offense, noting that Gage was now ineligible for the accrual of the benefits of suspension or home incarceration provided for in the pri- or sentence. Finally, the trial court ordered that both sentences be served consecutively to each other, pursuant to the statute, with credit for time already served.

As noted above, the present offense was defendant’s second 12sConviction for DWI Fourth. The prior DWI Fourth conviction was stipulated as a predicate for the current charge. Because the benefits of suspension, probation, or parole as a fourth offender were already received by Gage, the appropriate sentencing provision here is contained in La. R.S. 14:98(E)(4)(b). State v. Corbin, 42,384 (La.App.2d Cir.8/15/07), 964 So.2d 481. La. R.S. 14:98(E)(l)(a) expressly excludes the present situation if one has been previously convicted of DWI Fourth, and is therefore not applicable. Likewise, Subsection (E)(4)(a), which Gage misleadingly asserts in brief, is not the governing sentencing provision.

Subsection (E)(4)(b) must be read in conjunction with La. R.S. 14:98(E)(l)(a) describing the sentencing range of ten to thirty years with or without hard labor and mandating the imposition of a $5,000 fine. See, State v. Jones, 41,242 (La. App.2d Cir.8/23/06), 938 So.2d 1080 (the minimum sentence which could be imposed under La. R.S. 14:98(E)(4)(b) is “ten years at hard labor without the benefit of parole, probation, or suspension of sentence and a fine of $5,000.00, to run consecutively with the balance of any other sentence imposed for a prior conviction for any offense.”) The provisions of Subsection (E)(4)(b) specifically disqualify a defendant previously convicted of DWI Fourth from receiving the benefits of suspension, probation, or parole and that the sentence for the subsequent conviction must be served consecutively to any other sentence. Therefore, the trial court’s sentencing of Gage under Subsection (E)(4)(b) was the correct sentencing provision, and the sentence is not illegal for failing to |;>fisuspend any portion thereof. To the extent, however, that the trial court failed to specifically articulate that Gage’s ten-year sentence would be without benefit of suspension of sentence, probation or parole, the sentence was actually illegally lenient under Subsection (E)(4)(b). Failure to impose sentence under Subsection (E)(4)(b) is considered error patent because it would otherwise be an illegally lenient sentence. State v. Jones, supra, 938 So.2d at 1083. Thus, in accordance with La. R.S. 15:301.1(A), the 10-year sentence imposed in the present case will automatically be amended so that it is served without the benefits of suspension of sentence, probation, or parole. State v. Corbin, supra. Further we amend the sentence to provide that it run consecutively with the balance of any other sentence imposed for a prior conviction for any offense, whether a DWI offense or otherwise, in accordance with Subsection (E)(4)(b).

Regarding the bill of information, Gage claims that it was insufficient to give him notice of the harshness of a potential sentence without benefits. He also argues that the jury should have made a determination of the previous penalties imposed and whether he had previously received the benefits of a prior suspended sentence for the predicate DWI Fourth offense.

For the purpose of charging a defendant with multiple offense DWI, it is necessary to allege prior convictions because those prior convictions are elements of the offense which elevate the level of punishment. However, the fact that a defendant has previously received the benefits of suspension of sentence, probation, or parole from a prior DWI Fourth conviction is not an element of a subsequent DWI offense. Subsection (E)(4)(b) simply ^removes the benefits of suspension of sentence, probation, and parole because of Gage’s prior DWI Fourth which is an established fact of prior conviction that becomes a sentencing consideration.

In State v. Hardeman, 04-760 (La.App. 1st Cir.2/18/05), 906 So.2d 616, 625-626, the First Circuit addressed this issue after defendant alleged it was error to impose sentence under Subsection (E)(4)(b) without alleging those sentencing facts in the bill of information:

The defendant further argues that the bill of information failed to allege conviction of a prior fourth offense DWI, thereby depriving the defendant of notice and an opportunity to refute the grounds for a harsher sentence. This argument assumes that if the defendant had previously received the benefit of suspension of sentence and probation as a fourth offender, this fact was an element of the offense, rather than a sentencing consideration. After careful consideration of the issue, we are convinced that the fact that the defendant had previously received the benefit of suspension of sentence and probation as a fourth offender was a sentencing consideration and not an element of the instant offense.
Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999). Elements of an offense must be charged in the indictment, submitted to a jury, and proven by the government beyond a reasonable doubt. Jones v. United States, 526 U.S. at 232, 119 S.Ct. at 1219. The statutory maximum, for Apprendi purposes, is the maximum sentence a judge may impose solely on the basis of the facts reflected in the verdict or admitted by the defendant. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
The rule of Apprendi made exception for prior convictions because they were the product of proceedings that afforded crucial procedural protections, particularly fair notice, the right to jury trial, and proof beyond a reasonable doubt. State v. Brown, 03-2788 (La.7/6/04), 879 So.2d 1276, 1290, [cert. denied, 543 U.S. 1177, 125 S.Ct. 1310, 161 L.Ed.2d 161]. The court in Brown held that, because juvenile | ¡^adjudications were not established through a procedure guaranteeing a jury trial, they were not excepted from the rule of Apprendi. State v. Brown, supra, 879 So.2d at 1290.
In the instant case, the fact that the defendant had previously received the benefit of suspension of sentence and probation as a fourth offender was the product of proceedings that afforded fair notice, the right to a jury trial, and proof beyond a reasonable doubt. Accordingly, that fact was excepted from the rule of Apprendi.
The subject matter of LSA-R.S. 14:98(E)(4)(b) further guides our decision. LSA-R.S. 14:98(E)(4)(b) punishes recidivism. Recidivism is one of the most frequently found factors that affect sentencing. Almendarez-Toms v. United States, 523 U.S. 224, 241, 118 S.Ct. 1219, 1229, 140 L.Ed.2d 350 (1998). Additionally, the structure of LSA-R.S. 14:98 indicates that LSA-R.S. 14:98(E)(4)(b) sets forth an additional penalty, not a new crime. LSA-R.S. 14:98(E)(l)(a), LSA-R.S. 14:98(E)(4)(a), and LSA-R.S. 14:98(E)(4)(b) must be read together.

Thus, State v. Hardeman, supra, treats Subsection (E)(4)(b) as a recidivism statute and relies upon federal case law under Apprendi which allows the enhancement of sentences by prior convictions without requiring that proof of such be presented to the jury. Accordingly, Subsection (E)(4)(b) is not a separate offense requiring additional facts to be alleged in the indictment; the holding of Apprendi was not violated; and trial counsel was not ineffective for failing to file a motion to quash the bill of information on this ground.

Defendant further contends that the imposed sentence is void because the trial court failed to wait the requisite three-day period between conviction and sentence without obtaining an express waiver as required by La.C.Cr.P. art. 873.

La.C.Cr.P. art. 873 provides:
If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a | asnew trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Regardless of the lack of sentencing delay in this case, La. C.Cr.P. art. 921 provides that a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. State v. Seals, 95-305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997) involved a mandatory death sentence case in which the trial judge held no discretion in the term of years to be imposed. The court held that delay or no delay, the sentence the judge was required to impose would have been the same. Thus, no prejudice could possibly have resulted from the failure of the court to comply with the delay. See State v. Robert, 42,036, 42,037 (La.App.2d Cir.5/9/07), 956 So.2d 750.

Finally, defendant argues that his trial counsel should have objected to the trial court’s inclusion in its charge to the jury of some of the sentencing provisions of La. R.S. 14:98(E)(l)(a) when Gage was ultimately sentenced under La. R.S. 14:98(E)(4)(a). This failure to object is cited as another example of ineffective assistance of counsel.

When a sentence for an offense contains “a mandatory legislative penalty with no judicial discretion,” the trial court must instruct the jury on this penalty on request of the defendant and allow the defendant to argue the penalty to the jury. State v. Jackson, 450 So.2d 621, 633-634 (La.1984) (internal citations omitted); State v. McBroom, 27,027 (La.App.2d Cir. J5/10/95),30 655 So.2d 705, 710, citing State v. Jackson, supra. Otherwise, if the sentence is not mandatory, the trial court has the discretion over whether to instruct the jury on the authorized penalty. Id.

This case did not involve a mandatory sentence. Nevertheless, the trial court included in the charge the portion of the sentencing language under Subsection (E)(1)(a) stating the sentencing range of ten to thirty years and the fine. This was necessary for an understanding of any sentence under Subsection (E)(4)(b). The court also read the sentence in Subsection (E)(1)(a) which states that “[s]ixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension,” even though the actual sentence called for under Subsection (E)(4)(b) allows no benefit of probation, parole or suspension for any part of the imposed sentence.

We find no merit in Gage’s argument that this reading of the “sixty day” provision of Subsection (E)(1)(a) was improper and therefore prejudicially led to his conviction. The main thrust of this jury charge clearly revealed the possibility of the harsh sentencing range of ten to thirty years. After the trial court elected to read that charge regarding the sentence, the defendant could argue the harshness of that sentencing range in the hope of a verdict of a lesser included charge. Any slight inaccuracy caused by the reading of Subsection (E)(l)(a)’s sixty-day provision did not inform the jury that Gage could only be sentenced to a sixty-day period of actual jail time. The possibility of ten to thirty years was stated to the jury, and the conviction was reached in that light.

| si These assignments of error regarding the applicable sentencing provisions are without merit.

Conclusion

For the foregoing reasons, defendant’s conviction is affirmed. Defendant’s sentence is affirmed and amended.

AFFIRMED AS AMENDED.

      . Officer Jones also informed Gage of his rights under Miranda.

      . Acts 2007, No. 227 amends and reenacts La. R.S. 14:98(A)(l)(e) which is not applicable in the case sub judice.

      . Gage’s further argument that a twelve-person jury was required in the case under La. C.Cr.P. art. 782 because of punishment with required confinement at hard labor is incorrect.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Ira Jerome ROSS, Appellant.
    No. 42,399-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2007.

      Kenota Pulliam Johnson, for Appellant.
    Paul Joseph Carmouche, District Attorney, Lea R. Hall, Jr.-, Dhu ■ Thompson, Tommy Jan Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

hlra Jerome Ross was convicted as charged of attempted second degree murder and sentenced to 50 years at hard labor without benefits. He appeals. We affirm.

FACTS

On October 5, 2003, Michael Parker was playing dominos with his nephew, Tawon, and cousin, Matthew, outside Vanessa Prim’s Shreveport home on 71st Street. A tan/brown SUV rolled slowly past the home, then returned minutes later, whereupon three masked gunmen jumped out and began shooting. Parker dropped to the ground, hid behind a column, and ran in the house. Parker and Tawon each saw two of the gunmen, but couldn’t see their faces. Parker suffered multiple gunshot wounds and underwent surgery, which left a bullet too near his heart to be removed.

Scott Marian of the Shreveport Fire Department was driving eastbound on East 70th Street near Thornhill when he heard loud popping noises and saw a tan SUV parked at the intersection of Thornhill and East 71st Street. Both passenger doors were open and two men were standing outside, firing weapons at a residence. Marian turned his vehicle around and watched the men leave the scene in the SUV. He called 911 and reported the shooting and the SUV’s tag number while following the vehicle onto 1-49 southbound where Shreveport Police Officer John Stratton, driving a marked police vehicle, took over the pursuit. Marian continued to follow the chase.

As Stratton pursued the SUV, it began traveling at a high rate of speed and exited 1-49 onto the westbound Highway 3132 ramp. Stratton’s | ^dashboard-mounted video camera documented the high-speed chase and the videotape was shown to the jury. As Stratton followed the SUV on the ramp, a rear passenger of the SUV leaned out and pointed a long weapon at Stratton’s vehicle. Stratton heard a loud pop, sounding like gunfire hitting his windshield. Stratton never stopped his pursuit, and never lost sight of the SUV, within which he clearly saw three men. The SUV twice swerved out of control on the wet roads, traveled against traffic on Saint Vincent Avenue, then abruptly stopped in a ditch on East 78th Street. One man jumped out and pointed a long gun at Stratton. The men fled on foot.

A K-9 unit tracked the men to a house on West 79th Street. The officers conducted a knock and talk, encountering William Hall, Derrick Grant, and this defendant, Ira Jerome Ross. The men, who were sweaty, nervous, and reluctant to talk, were advised of their Miranda rights. None of the three lived there, but the house belonged to Grant’s girlfriend, Laso-nia Haley. A protective sweep revealed muddy clothes and three pairs of muddy tennis shoes.

Ross had borrowed the rental SUV from Haley, with the understanding that he would go to the store. She next saw the SUV abandoned off West 78th Street. She consented to a search of her residence, which revealed an assault rifle and empty magazine clip. Magazines containing live cartridges were found in the console of the SUV. Haley testified that she had no prior knowledge of the existence of any of the weaponry.

| ¡¡Another assault rifle was recovered from under another house down the street, and a live cartridge and a purple bandana were found in the backyard. Ross was taken into custody and transported to LSU Hospital, where he was checked out and taken to jail. Det. Rod Johnson conducted an interview with him in his office, where Ross was again advised of his Miranda rights. Ross gave a DNA sample but made no statement at that time.

Det. Shawn Parker contacted Ross to discuss an earlier shooting that had injured him. After administering Miranda, Det. Parker asked the defendant if he knew who shot him on September 26. Ross said he did not know his name but he knew his face. Det. Parker asked the defendant if the person who shot him on September 26 was the same person who was shot on October 5. Ross answered affirmatively, saying he was afraid when he saw the man who had shot him and he “did what he had to do.”

At Prim’s house were found spent shell casings from the shoulder of the road, bullet holes in the home, and slugs recovered from inside the house.

The location of the shell casings indicated that two different caliber firearms were fired from the street towards the front porch area. Many of the fired casings and a bullet projectile were positively matched to the two assault rifles found under houses on West 79th Street. However, DNA analyses of the rifles were inconclusive.

| ¿The defendant was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:30.1 and 14:27. After his conviction, a PSI was ordered and reviewed by the trial court before sentencing. A timely motion to reconsider sentence was denied. Our review of this case centers on four issues.

Sufficiency

The defendant contends that:

• the evidence presented at trial was insufficient to support the defendant’s conviction;
• the evidence was insufficient regarding his identity as a perpetrator;
• the only evidence linking the defendant to the crime was his presence when the other co-defendants were arrested;
• no witnesses saw him during the commission of the crime;
• no witnesses could identify the defendant at trial;
• the victim could not identify the defendant as the individual who shot him;
• reasonable doubt exists as to his guilt; and
• his conviction should be reversed and the sentence vacated.

The state notes that:

• appellate courts do not assess credibility or reweigh evidence;
• the defendant left a trail of evidence that brought police to his doorstep within a short period of time following the shooting; and
• the evidence is sufficient to support this conviction.

Our law on sufficiency is well settled.

|fiLa. R.S. 14:24 regarding principals provides:

All 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 counsel or procure another to commit the crime, are principals.

Relative to these facts, second degree murder is a homicide committed with the specific intent to kill or to inflict great bodily harm, or when the offender is engaged in the “perpetration or attempted perpetration of ... [a] drive-by shooting ..., even though he has no intent to kill or inflict great bodily harm.” La. R.S. 14:30.1.

A “drive-by shooting” means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person. La. R.S. 14:37.1; State v. Gipson, 628,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

Our jurisprudence requires that attempted second degree murder requires the specific intent to kill. State v. Brooks, 499 So.2d 741 (La.App. 3d Cir.1986). Our jurisprudence relative to drive-bys and the specific intent to kill is well settled.

Viewed in the light most favorable to the prosecution, both the direct evidence and the conclusions that can reasonably be inferred from the circumstances are sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime of attempted second degree murder, including the specific intent to kill. See State v. Sutton, supra; State v. Owens, supra. The record further reflects that the state negated any reasonable probability of misidentification, thus carrying its burden of proof that the defendant was a perpetrator of the crime of attempted second degree murder. See State v. Powell, supra.

17Ineffectiveness

The defendant argues that:

• the defendant’s trial attorney, William Huguet, filed a motion to provide for effective assistance of counsel and of objection to appointment;
• Attorney Huguet advised the trial court of his inexperience in the area of criminal law and noted that he had only been licensed to practice law for 15 months prior to his appointment to represent Ross;
• Attorney Huguet lacked the requisite experience by which to adequately represent the defendant on this charge; and
• concludes that the outcome would have been different if he had been represented by an attorney with more experience.

The state argues that:

• the defense fails to point to even one factor that would suggest ineffective assistance of counsel;
• Mr. Huguet’s motion to withdraw is the only basis for the defense’s claim of ineffective assistance of counsel; and
• these general allegations are insufficient to support this assignment of error.

Our law on ineffectiveness of counsel is well settled.

IsRoss has not alleged and certainly didn’t prove any specific grievous errors of trial counsel. He has not shown the reasonable probability that, but for such error, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The state correctly argues that defense’s arguments under this assignment of error are vague and conclusory. Furthermore, the record supports the conclusion that Mr. Huguet’s representation of the defendant did not fall below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland, supra. He made appropriate arguments and objections, effectively cross-examined the state’s witnesses, and presented witness testimony on behalf of the defendant. Mr. Huguet provided Ross a more than adequate defense.

Suppression

| sThe defendant’s motion sought to suppress inculpatory statements taken on September 29, 2003, and October 6, 2003, as the result of alleged unlawful and unconstitutional questioning. The record reflects that the Ross was being treated at LSU Health Sciences Center for wounds he sustained in a shooting that occurred on September 26, when he was interviewed by Det. Shawn Parker and Det. Chris Ray on September 29. Det. Parker testified that Ross was coherent, alert and aware of his surroundings, and told him that the shooting occurred at 411 West 64th Street after two men came to his house, accused him of stealing some rims, then shot him four times. Det. Ray’s testimony matched that of Det. Parker.

Ross was arrested on October 5 after the second incident. Corp. Derrick Brown initially advised Ross of his Miranda rights. When Det. Rod Johnson arrived, he again read the defendant his Miranda rights and obtained a DNA sample from the defendant. Det. Johnson testified that Ross never invoked his right to remain silent or to an attorney. He was cooperative and signed a rights waiver form, but avoided talking about the October 5 shooting, and made no incriminating statements.

Det. Johnson then advised Det. Parker that Ross was in custody without discussing his (Johnson’s) conversations with the defendant. Det. Parker arrived at the city jail on October 6, Mirandized the defendant, and secured another signed rights waiver form, which was misplaced. Ross spoke voluntarily, was not promised anything, and said about what he had said in September.

|inDet. Parker asked Ross if the man who shot him in September was the same man who was shot on October 5. The defendant agreed, stating he only knew the man by his face. Det. Parker denied tricking Ross into talking, and affirmed that both statements were freely and voluntarily made.

The court denied the motion to suppress, ruling:

• that the September 29 statement was not the result of a custodial interrogation;
• even so, it was freely and voluntarily given and made with a knowing and intelligent waiver of the Miranda rights;
• that the state met its burden of proving that a knowing and intelligent waiver of the defendant’s Miranda rights was made before the October 6 statement, and that it was freely and voluntarily given.

Ross argues that:

• the trial court erred in denying his motion to suppress because the statements were obtained without proper waivers of rights;
• statements made by the defendant on September 29, 2003 (before the instant crime) and one week later (after the instant crime) were both involuntary;
• he was suffering from gunshot wounds at the time of the first statement;
• no Miranda warnings were given before the October 6 statement;
• that statement was unrecorded, vague, confusing, and misleading regarding which incident was being asked about;
• because of this significant break (one to 11 hours, after spending a night in jail) in the interrogation, the detective should have re-advised him of his rights;
• Det. Johnson’s recollection about his inculpatory statement was inconsistent with that of Det. Parker; and
• he is not highly educated.

The state notes that:

In* the first statement was taken at the hospital and not the police station;
• it was not a custodial interrogation and Miranda did not apply;
• the defendant was advised of his Miranda rights before he confessed;
• the defendant exhibited no signs of being under the influence of medicine at the time of the statement, nor did he exhibit any outward manifestations of duress or physical pain;
• the defendant gave a nearly identical statement to Det. Parker on October 6, belying his claim of lack of clarity of mind at the September 29 statement;
• with regard to the October 6 custodial statement, the defendant was advised of and waived his Miranda rights at least three times before the interview (first by Corp. Brown, then by Det. Johnson and finally by Det. Parker);
• the questioning by Det. Parker was not made under false pretenses or improper influences;
• the defendant had the option to not answer the questions; and
• at no time during the second statement did the defendant invoke his right to remain silent.

Our law on the admissibility of confessions is well settled.

_|j¿The state proved beyond a reasonable doubt the free and voluntary nature of the defendant’s statements, and that he knowingly and intelligently waived his Miranda rights. Additionally, the September statement was clearly non-custodial.

Excessiveness

Before sentencing, the trial court noted:

• its review of the presentence investigation report;
• the serious physical injuries sustained by the victim;
• the house being riddled with bullets;
• the high-speed chase during which a weapon was pointed at a law officer;
• the defendant’s continued denial of guilt and lack of remorse;
|1S« the sentencing considerations set forth in La. C. Cr. P. art. 894.1; and
• that justice required a sentence of 50 years at hard labor without benefits.

Ross claims that the trial court failed to particularize the sentence, resulting in an excessive sentence. He argues that this record does not warrant the maximum sentence, and it must be vacated and set aside as excessive. The state argues that the sentence does not shock the sense of justice, and there is no abuse of discretion, considering the violent nature of the crime and the potential for multiple victims.

Our law on review for exces-siveness of sentence is well settled. When the senselessness, danger, and reprehensible nature of defendant’s crime is considered, this sentence of 50 years at hard labor is clearly justified.

luDECREE

The defendant’s conviction and sentence are AFFIRMED.

      . It was determined that 13 of the fired cartridge casings in Exhibit S-76 were fired from the rifle in Exhibit S-101. The fired cartridge casings in Exhibit S-75 were consistent with the rifle in Exhibit S-104, but a positive match could not be made. A bullet projectile in Exhibit S-77 (3-E) was positively identified as having been fired from the rifle in Exhibit S-104.

      . The question of sufficiency of evidence is properly raised by a motion for post verdict judgment of acquittal. State v. Howard, 31, 807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190.
      When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992).
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La. 11/14/03), 858 So.2d422.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of mis-identification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

      . La. R.S. 14:27(A) 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; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66. It is of no consequence whether defendant, in firing his weapon into a group of people, intended to hit one person or several people. In State v. Tyler, 342 So.2d 574 (La. 1977), U.S. cert, denied, the defendant was convicted of first degree murder after firing a gun into a crowd. The Supreme Court found that the jurisprudence supported the proposition that shooting into a crowd indiscriminately with intent to kill someone was an assault with intent to kill each of them. See State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, U.S. cert. denied, ("clearly an offender who uses a high-powered assault rifle and shoots indiscriminately through a door at a group of people specifically intends to kill the victims”); State v. Severin, 04-326 (La.App. 5th Cir.9/28/04), 885 So.2d 609, writ denied, 2004-2805 (La.3/11/05), 896 So.2d 64 ("the testimony elicited at trial that the defendant fired his gun into a crowd of people is sufficient to satisfy the intent requirement of this statute”).

      . As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.
      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the ''counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).
      Second, the defendant must show that counsel's deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La. App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03),' 845 So.2d 1067.

      . In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Young, 39,546 (La.App.2d Cir.03/02/05), 895 So.2d 753, citing State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116.
      At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La. 1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. See La. C. Cr. P. art. 703.
      Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Roddy, supra.

      The question of voluntariness of a confession, including a determination of the defendant’s state of mind, must be resolved from the facts and circumstances of the particular case. State v. Demming, 40,033 (La.App.2d Cir.9/21/05), 911 So.2d 894.
      The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court's conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, U.S. cert. denied; State v. Dailey, 607 So.2d 904 (La.App. 2d Cir. 1992). Also State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1. Great weight is placed upon the trial court's factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Thibodeaux, supra; State v. Roddy, supra. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra; State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240.
      In proving an intelligent waiver of the rights to silence, protection against self-incrimination and counsel, the state need not show that a defendant was aware of the full evidentiary significance of his statements. See State v. Mitchell, 421 So.2d 851 (La. 1982); State v. Warren, 536 So.2d 529 (La. App. 1st Cir.1988). Moreover, as the United States Supreme Court noted, a suspect’s awareness of all the crimes about which he could be questioned is not relevant to waive the Fifth Amendment privilege against self-incrimination. See Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987).
      In State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, the court ruled that the defendant's statement to police was voluntary, even if they did not tell him that the officer had died and that defendant was a suspect in his murder. The court noted however, that failure to inform the defendant that he was a suspect in the officer's death was certainly a relevant factor in reviewing the totality of the circumstances under which defendant made the incriminatory remarks. Nonetheless, the court found the statement itself provided ample evidentiary support for the trial court's determination that the statement was made voluntarily.

        However, the Supreme Court has stated that ''[pjloys to mislead a suspect ... that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns.” Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990); State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, U.S. cert. denied.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. Here, the record shows an adequate articulation of the factual basis for the defendant’s sentence and ample compliance with La. C. Cr. P. art. 894.1.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379.


text:
    STATE of Louisiana, Appellee v. Gerald Lynn BURGESS, Appellant.
    No. 42,310-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 2007.
    W. Jarred Franklin, Louisiana Project Appellate, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Mike Craig, R. Lane Pittard, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

h Gerald Lynn Burgess was charged by indictment with the aggravated rape of a person under the age of 13 years in violation of La. R.S. 14:42. Burgess pled guilty to the reduced charge of simple rape in violation of La. R.S. 14:43 and received a sentence of 20 years at hard labor, without benefit of parole, probation or suspension of sentence. Burgess appeals the imposed sentence as excessive. Finding no merit to his argument, we affirm his conviction and sentence.

The factual basis for the plea shows that Burgess committed the act of rape upon the victim, T.M., a special needs child, between the dates of January 1, 1991 through December 31, 1995, when the child was between the ages of 6 and 10 years. During these years, Burgess resided at the child’s address in Bossier Parish, LA. Burgess admitted to a Bossier City detective that he had sexual intercourse with the child without the victim’s consent. As the result of these events Burgess entered a plea of guilty to simple rape and received a sentence of 20 years at hard labor, without benefits. He sought a timely motion to reconsider sentence which was denied by the trial court. Afterwards, this appeal ensued.

Burgess appeals the imposed sentence, arguing that the trial court failed to adequately consider the guidelines of La. C.Cr.P. art. 894.1 or state for the record how the factors specifically applied to his case. Burgess also complains that the trial court failed to give due consideration to the mitigating factors applicable to this situation, including his age and slight | gmental retardation which frustrated his ability to show remorse for his actions and distinguishes him from the typical sex offender. Burgess also contends that the 20-year term is effectively a life sentence for a 49-year-old which, when applied to him, is constitutionally excessive.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art 894.1. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641, 643. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Landos, 419 So.2d 475, 478 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, 753, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence |sviolates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/01/00), 754 So.2d 392, 394, unit denied, 00-1467 (La.2/02/01), 783 So.2d 385. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La. App. 2d Cir.1991). Further, a substantial advantage obtained by means of a plea bargain, such as a reduction of charge where the evidence shows that the defendant was guilty of a more serious offense, is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176, 179, citing State v. Smack, 425 So.2d 737 (La.1983); State v. Jackson, 27,056 (La.App.2d Cir.6/21/95), 658 So.2d 722. The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829, 831 (La.1981). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-27844 (La.5/31/96), 674 So.2d 957, 958, cert. denied, Cook v. Louisiana, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). While given wide discretion to impose sentence within the statutory limits, the sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, 16, citing State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Hardy, 39, 233 (La.App.2d Cir.1/26/05), 892 So.2d 710, 712-713. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 674 So.2d at 959.

For the crime of simple rape, Burgess faced a maximum sentencing exposure of 25 years with or without hard labor and without benefit of parole, probation or suspension of sentence. La. R.S. 14:43.

Prior to the imposition of the 20-year sentence, the trial court noted for the record that it had taken into account the fact that Burgess was a first felony offender. The court considered the victim’s statements, the sentencing memorandum submitted to the court by Burgess’s counsel and the defendant’s psychological evaluation. The court noted its consideration of the guidelines set forth in La.C.Cr. P. art. 894.1. The court mentioned that Burgess had become active in church-related activities. The court also noted the nature of the crime and the repeated abuse inflicted upon the special needs victim by Burgess. The court finally considered that the abuse was | .^committed with body parts and foreign objects and that Burgess has shown no remorse for his acts.

Clearly, the court stated for the record its consideration of the 894.1 factors. Moreover, the documents considered by the court prior to imposing sentence demonstrate the court’s awareness of Burgess’s age and mental status. The court also noted the facts of the offense, the defendant’s lack of remorse and the fact that the victim was a “special needs” person. These considerations present an adequate factual basis for the sentence imposed.

Likewise, our review of this record indicates that the sentence imposed is not excessive, considering the great degree of leniency and reduction in sentencing exposure obtained by Burgess through the reduction of the charge from aggravated to simple rape. The repeated and ongoing nature of the offense, and the youth and vulnerability of the victim are aggravating factors which justify the imposition of the chosen sentence. While this defendant is mildly mentally retarded, he is not so deficient that he is unable to work or maintain a relationship with the victim’s mother. Considering the advantage Burgess received as the result of the plea agreement and the repeated and violent abuse inflicted upon a vulnerable child, yte do not find the sentence to be shocking to the sense of justice or a needless imposition of pain and suffering.

We note that at sentencing, the trial court did not accurately advise Burgess of the commencement of the time period within which to apply for post-conviction relief pursuant to La.C.Cr.P. art. 930.8. Regarding the commencement of the two-year period, the defendant is advised that no | [-.application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La C.Cr.P. arts. 914 or 922.

Conclusion

For the foregoing reasons, Burgess’s conviction and sentence are affirmed.

AFFIRMED.

      . The initials of the victims are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).