author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Todd Vincent EDWARDS.
    No. KA 2006-850.
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2007.

      Laurie A. White, Laurie White & Associates, LLC, Orleans, LA, for Defendant, Todd Vincent Edwards.
    Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Plaintiff, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

liOn July 14, 2004, the Defendant, Todd Vincent Edwards, was charged by bill of information with the following offenses: count one-possession of a controlled and dangerous substance, Schedule II, more than 28 grams, but less than 200 grams, within a drug-free zone, a violation of La. R.S. 40:967(F)(l)(a) and 40:981.3, as a second or subsequent offender, having been previously convicted on February 1, 1993, in East Baton Rouge Parish, Docket No. 3-91-918, for possession of cocaine, a violation of La.R.S. 40:982; and, count two-conducting a financial transaction involving proceeds known to be derived from a violation of La.R.S. 40:966, et seq., a violation of La.R.S. 40:1049 .

On August 9, 2004, the Defendant entered a plea of not guilty to the charges. The Defendant then filed a motion to strike improper language from the bill of information, which was subsequently denied on May 5, 2005. The same day, he filed a motion to waive a trial by jury, which was granted, and a bench trial was held on May 18, 2005, in which the Defendant was found guilty, as charged.

The Defendant subsequently filed a Motion for New Trial. However, his motion was denied on December 12, 2005, and he was sentenced to serve ten years at hard labor on count one, and five years at hard labor on count two, with credit for time served awaiting disposition; the sentences were to run concurrently. The State filed a multiple offender bill following sentencing. However, at the time of this writing, no further action has been taken on the multiple offender bill. The Defendant now appeals his convictions and sentences setting forth three assignments of error.

jjFACTS:

Detective Chad Hazelwood of the New Iberia Police Department received information about the Defendant, a/k/a B.R. or Baton Rouge, from confidential informants for about ten years which indicated that the Defendant was transporting drugs from Baton Rouge, Louisiana to New Iberia, Louisiana for street sale. The Defendant was the center of an investigation on May 22, 2004, and Detective Hazelwood, along with Detective Barnett, were involved in a mobile surveillance assigned to prosecute the Defendant. The detectives received information that the Defendant had been conducting illegal narcotic activity at an abandoned residence located at 506 Corrine Street. The area was known to have a high rate of drug trafficking. Officer Scott Davis, a narcotics investigator, along with Sergeant Adcock, devised a plan that involved several officers placed in different locations to cover the area and wait for the Defendant’s arrival. Officer Davis was stationed in the brush along Corrine Street, where he had a visual of the Defendant during the operation. Detective Defelice was stationed in the grass behind the house.

After the Defendant arrived on the scene, Officer Davis and Detective Defelice witnessed what appeared to be the Defendant making a few narcotics exchanges and watched him store narcotics under the house and in the pipe of a metal clothesline. As officers moved in on the scene, the Defendant initially fled, but then ran toward Detective Hazelwood, who ordered him down to the ground and arrested him.

Approximately three hundred dollars were seized from the Defendant’s person; however, no drugs or weapons were found on him. Officer Davis retrieved plastic labags from inside a metal pipe and from underneath the residence, which were tested and determined to both contain crack cocaine.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant argues that he was denied his right to due process of law, as there was insufficient evidence to support the guilty verdict. As will be discussed below, there is an error patent in this case which will require that the Defendant’s conviction for possession of more than 28 grams but less than 200 grams of cocaine, second offense, be vacated and a conviction for possession of more than 28 grams but less than 200 grams be entered. We will first address the sufficiency of the evidence, as has been required by the supreme court, even in situations where a reversible trial error exists:

The court of appeal reversed relator’s conviction of DWI, third offense, based on the absence of evidence that relator knowingly waived his right to a jury trial.
Nevertheless, the court of appeal erred in pretermitting relator’s contention that the evidence was insufficient to prove the validity of the earlier convictions, which is an essential element of the charged crime. If relator prevails on these assignments of error, he is entitled to reduction of the grade of the charged offense and cannot be retried for the more serious crime. State v. Johnson, 541 So.2d 818 (La.1989).
Accordingly, the judgment of the court of appeal is set aside insofar as the judgment pretermitted a ruling on the sufficiency of the evidence. The case is remanded to the court of appeal to review the sufficiency of the evidence of the earlier convictions. If one or more of the earlier convictions was not proved beyond a reasonable doubt, the court of appeal should discharge relator accordingly and order retrial only on the lesser grade of the charged offense.

State v. Morris, 615 So.2d 327, 328 (La.1993) (footnote omitted).

Count 1

14The relevant statutes as to count one are: La.R.S. 40:967(F)(1)(a) and 40:981.3. Louisiana Revised Statutes 40:967(F)(l)(a) reads:

Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

Louisiana Revised Statutes 40:981.3, at the time of the offense, stated in pertinent part:

A. (1) Any person who violates a felony provision of R.S. 40:966 through 970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E.

School property is defined in La.R.S. 40:981.3(C)(2) as “... all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks.”

In making his argument, the Defendant alleges, first, that the State failed to prove that the crime occurred in a drug free zone. The Defendant contends that the State did not assert or prove that the area referred to as “Bunk Johnson” was a park or recreational area administered by the Louisiana Office of State Parks.

The bill of information indicates that the Defendant possessed cocaine within a drug-free zone, Bunk Johnson Recreational Park. At trial, Detective Hazelwood testified that he used a roller tape used by traffic investigators to measure the distance from where the Defendant was arrested and the Bunk Johnson Recreational Park. | ^According to Detective Hazelwood, the total measurement was less than one thousand feet; the point of arrest was ten feet from where the narcotics were found. However, as stated by the Defendant, no evidence was introduced at trial regarding whether Bunk Johnson was a park or recreational area administered by the Louisiana Office of State Parks, nor was there any evidence that proved the facility is used or operated by the City of New Iberia, a political subdivision of the State, as a playground or recreational facility as required by La.R.S. 40:981.3. Without any evidence regarding same, we find that the State failed to prove this essential element of the crime.

Next, the Defendant argues that the State failed to prove that he was a second or subsequent offender. More specifically, the Defendant avers that the State failed to offer any documents other than a certified copy of the bill of information and minute entry from East Baton Rouge Parish of his prior conviction as proof that the person named in the East Baton Rouge Parish bill of information was the same person involved in the instant litigation. The Defendant complains that there are no fingerprints in the bill of information to identify the Defendant as the same person in the East Baton Rouge Parish bill of information. The Defendant’s charge as a second or subsequent offender in the bill of information is an error patent and a discussion of same is discussed therein.

The Defendant further argues that the State failed to prove that he was in possession of narcotics. More specifically, the Defendant is critical of the three police officers that testified about their involvement in the surveillance of the Defendant. First, the Defendant complains that Detective Hazelwood did not see any of the alleged narcotics transactions, nor did he see the Defendant store the drugs | ^underneath the house or in the pipe. Although the record supports the Defendant’s allegation, it also indicates that Officer Davis and Detective Defelice were both in a position that allowed them to visualize the Defendant during the surveillance.

Next, the Defendant points out that no drugs were found on his person when he was apprehended by Detective Hazelwood. Although the Defendant had no drugs on his person, Officer Davis and Detective Defelice both observed the Defendant remove something from his crotch area and place something underneath the house and in the pipe of the clothesline. The items retrieved from the underneath the house and the pipe were later tested and were determined to be crack cocaine. Officer Davis testified that he continued his visual surveillance of the Defendant after he stashed the narcotics and that no other person was seen near the areas where the Defendant had stashed the narcotics. Further, Detective Defelice testified that he never lost sight of the Defendant and was positive that the man that was apprehended, the Defendant, was the same man that had placed the narcotics underneath the house ,and in the pipe.

With regard to Officer Davis’ testimony, the Defendant complains that Officer Davis admitted that he saw only what he believed to be narcotics transactions and asserts that the Defendant simply could have been shaking hands in the transaction. Because none of the alleged participants were stopped and questioned, the Defendant maintains that no evidence was offered to support the fact that these transactions occurred. Officer Davis described the suspect transactions as follows:

On two different — at two different points, they had another black male subject that would — that walked up to Mr. Edwards, made contact with him; Mr. Edwards walked to the back of the house, looked around as if checking the area, making sure everything was okay, bend down, picked up an item, fooled around in the pipe where the crack was later located, and then walked back up into the middle of the yard, not factually going all the way to the street, and very quickly, very easily, it appeared that he exchanged something with the black male subject.
Q. In the court — based on your training and experience as a Narcotics Officer, what did you — what did this — what did that transaction— those transactions appear to be?
A. It appeared to be an illegal narcotics transaction.

Considering Officer Davis’ detailed description of the two transactions and his experience as a narcotics investigator, along with the fact that narcotics were found in the areas visited by the Defendant during the transactions, we find that Officer Davis’ testimony adequately supports the Defendant’s conviction with regard to possession of narcotics.

Next, the Defendant is critical of Detective Defelice’s testimony wherein he describes the Defendant’s activity in the areas where the narcotics were found because Detective Defelice admitted that the area he was observing was dark, and he was unable to see the details of the Defendant’s facial features. Detective Defelice described what he could visualize from his location as follows:

Q. You were lying on the ground or were you crouched on the ground?
A. I was chest on the ground with my head positioned to where I could see.
Q. It was very dark behind there, was it not?
A. Yes, it was dark.
Q. And when you were crouched on the ground looking, you could see a figure of a man?
A. I could see his clothing; I could see what color his clothing were and I could tell it was a black male.
IsQ. You could not see his face, you could not see any facial features?
A. I couldn’t see his detailed features, no.
Q. You could not see that?
A. No.
Q You could see that he was a certain build, he was a black person; at the point that you were still back there, that’s about what you knew?
A. Correct.

Although Detective Defelice admits that the area was dark, he also testified that he never lost sight of the Defendant and had no doubt that the man he observed while behind the house was the Defendant who was arrested. Detective Defelice added that he was about thirty feet from the Defendant and was looking directly at him during his surveillance. Lastly, Detective Defelice further described what he could see as follows:

Q. But once — I take it that a person behind the house is in the most shadow that they have there?
A. Right. But the closer I got to him, correct, was when I started to actually identify him, I knew who he was — actually started to see his face; and he never saw me.
Q. So when the person was bending over and putting something in there, all you could see was the dark figure that was bending over?
A. I could see what he was wearing, too. I could see that much and I could tell that he was holding something in his hands. I mean, I was able to see him not in great detail, but I was able to see a good bit, not just a shadow.

|9Considering the entirety of Detective De-felice’s testimony, we find that he adequately identified the Defendant as the man who stashed the narcotics and who was subsequently arrested.

Finally, the Defendant complains that no information was presented at trial to establish the reliability of the confidential informants who provided tips to Detective Hazelwood and that none of them were produced to connect the Defendant to any drug transactions. Detective Hazelwood testified as to the reliability of his informants as follows:

Q. The information you received over this period of time, you received that information from confidential informants?
A. Yes, sir.
Q. Approximately how many different informants you with information with regard to BR of Baton Rouge’s activity?
A. Do you want an estimate number? I mean—
Q. The best that you can give.
A. About a dozen, I guess it could be.
Q. And had those informants proven to be reliable in the past?
A. Yes.
Q. Had they provided you with information that had led to a narcotics arrests?
A. Yes, sir.
Q. Arrests that led to convictions?
A. Yes, sir.
Q. So those informants had been proven reliable with regard to the information that they provided to you?
A. Yes, sir.

|inWe find that the Defendant’s complaint has little significance with regard to the element of possession in this case and is simply without merit.

Although the Defendant does not complain of the lack of conclusive DNA evidence, we note that all of the plastic bags containing the cocaine were swabbed for possible contact DNA and that some human DNA was obtained from plastic bags. The laboratory, however, was unable to obtain a DNA profile for comparison, and thus, could neither include nor exclude anyone, including the Defendant. Also, no latent prints with observable ridge detail were developed from the bags — no fingerprints were found.

Despite the lack of DNA evidence and fingerprints, we find that the evidence adduced at trial was sufficient with regard to the element of possession, as Detectives Davis and Defelice both identified the Defendant when he arrived at the location, and they maintained a visual on the Defendant until he was arrested.

In conclusion, we find that although the State did not prove all the elements essential of La.R.S. 40:981.3 regarding possession in a school zone, the remaining offense of possession of a Schedule II substance, in violation of La.R.S. 40:967(F)(l)(a), is supported by the evidence. However, the validity of that conviction hinges upon the treatment of an error patent, which will be discussed further.

Count 2

The next alleged error is included in the first assignment of error and pertains to the second count, conducting a financial transaction involving proceeds known to be derived from a violation of La.R.S. 40:966, et seq., a violation of La. R.S. 40:1049. Louisiana Revised Statutes 40:1049 reads, in pertinent part:

|nA. It is unlawful for any person knowingly or intentionally to conduct a financial transaction involving proceeds known to be derived from a violation of R.S. 40:966 et seq. when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or the control of the proceeds known to be derived from such violation or to avoid a transaction reporting requirement under state or federal law.

The Defendant argues that no evidence was presented by the State to prove that the money confiscated from his person was the result of drug proceeds. The Defendant adds that no controlled buys were conducted, no drugs were seized from his person, no other person was stopped who possessed drugs, and no confidential informants were present at trial. Further, the Defendant maintains that $305.00 is not an unusually large sum of money and does not automatically prove a sale of narcotics.

Detective Davis testified that other than the two transactions he saw which are described above, he had no proof that the money found on the Defendant was from drug proceeds. He further testified that he did not see the other person put drugs in his pocket, nor did he see the Defendant counting out money.

We were unable to find any jurisprudence which has applied this statute to the evidentiary facts of the case. However, because no money was seen changing hands, and because $305.00 is not an unusually large amount of cash, we find that the evidence is insufficient to find the Defendant guilty of this charge. Therefore, we overturn the .Defendant’s conviction for count two, transaction involving proceeds from a drug offense, in violation of La.R.S. 40:1049.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent.

|1sThe Defendant was charged in the bill of information as a second or subsequent offender in violation of La.R.S. 40:982. On August 16, 2004, defense counsel filed a Motion to Strike the language regarding the prior conviction from the bill of information. The motion was denied at a hearing held on April 5, 2005.

In State v. Skipper, 04-2137, pp. 25-26, (La.6/29/05), 906 So.2d 399, 416-17, the supreme court held:

[W]e hold that La. R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, like La. R.S. 15:529.1, and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drug-related offense nor may evidence of the prior offense be presented to the jury determining the defendant’s guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement under La. R.S. 40:982.
State v. Murray, 357 So.2d 1121 (La.1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under La. R.S. 40:982, are hereby overruled.
So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied La. R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.

At the time Skipper was rendered, the Defendant had been convicted and was awaiting sentencing. In State v. Ruiz, 06-30, 05-1098, 05-1261 (La.App. 3 Cir. 5/24/06), 931 So.2d 472, this court found Skipper retroactively applicable to the defendant who had been convicted, but not sentenced at the time Skipper was decided. In Ruiz, this court chose to vacate only the second-offense portions of the convictions because “La.R.S. 40:982 contains no proscriptions against the most recent conduct charged, i.e. possession and distribution of a controlled dangerous | ^substance.” Id. at 479. This court felt that the substantive portion of the offenses were “severable from the non-crimes of second-offense possession and second-offense distribution.” Id. at 479. To address the jury’s exposure to the defendant’s criminal history, this court conducted a harmless error analysis and concluded that the strong evidence in the case, i.e., the defendant’s act of selling cocaine to an undercover police officer, made the error harmless.

Our disposition of Ruiz stated:

Therefore, Defendant’s convictions for second-offense possession and second-offense distribution of cocaine and the attendant sentences, including the adjudication and sentence under La.R.S. 15:529.1, are vacated. However, we order the entry of convictions for the lesser offenses of possession of cocaine and distribution of cocaine, both in violation of La.R.S. 40:967. The case is remanded for further proceedings, in accordance with this opinion.

Ruiz, 931 So.2d at 484.

Our Louisiana Supreme Court granted writs in the Ruiz case and affirmed our decision. In that opinion, the Court indicated that harmless error analysis was proper when dealing with evidence of a prior crime appearing on the bill of information when it stated:

[T]he erroneous treatment of La.Rev. Stat. 40:982 as a substantive element of the offense, thus placing the defendant’s prior offenses in the charging instrument and before the jury, does not necessarily render the criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence .... The erroneous introduction of evidence of other crimes is a trial error, which may be qualitatively assessed in the context of the other evidence to determine whether its admission was harmless beyond a reasonable doubt. (Citation omitted.)

State v. Ruiz, 06-1755, p. 4 (La.4/11/07), 955 So.2d 81.

In this case, the Defendant was observed by two officers removing something from his crotch area and placing it underneath the house and in the pipe of a clothesline. These items were later tested and found to be crack cocaine. Therefore, |14we find that the judge’s exposure to the Defendant’s criminal history, in this case, was harmless as well.

Thus, in accordance with Ruiz, we vacate the Defendant’s conviction and sentence for possession of more than 28 grams, but less than 200 grams of cocaine, second offense, and enter a conviction for the lesser offense of possession of more than 28 grams, but less than 200 grams of cocaine. Further, we remand the case for resentencing on this conviction.

ASSIGNMENT OF ERROR NO. 2:

In this assignment of error, the Defendant argues that the State failed to give notice of its intent to introduce evidence of highly prejudicial and speculative other crimes evidence against him at trial in violation of La.Code Evid. art. 404(B), including alleged prior drug transactions. More specifically, the Defendant contends that the incidents, innuendo, and assumptions related by police at trial were not charged in the indictment and were offered to prejudice the trier of fact as prior bad acts, falling with the scope of La.Code Evid. art. 404(B). Additionally, the Defendant maintains that the State did not give notice of its intent to introduce alleged prior acts, nor was a Prieur hearing conducted in this case.

Article 404(B) reads, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In State v. Brewington, 601 So.2d 656, 657 (La.1992), the supreme court stated:

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed.1972). The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. 1 Wigmore, Evidence § 218 (3d ed.1940). State v. Haarala, 398 So.2d 1093, 1097 (La.1981).

The Defendant’s assignment of error centers around the testimony of Detective Hazelwood. First, the Defendant objects to Detective Hazelwood’s testimony that he had been receiving information about the Defendant from confidential informants for about ten years. When Detective Hazelwood was asked how long he had been receiving information, the Defendant objected as follows:

Q. Do you recall approximately how long you had been receiving that information?
MR. PEREZ:
Well, Judge, I am going to have to object to clearing it [sic] being hearsay. Not only hearsay but hearsay that makes an allegation strictly that my client has been transporting drugs.
I think if you go — I understand that they may be able to go up to certain types of background in order to, you know, explain why he did something. But I don’t believe that they can then go off into slanderous accusations that they heard from somebody on the street.
I object to the line of questioning and to the answers.
MR. VINES:
Certainly, Judge, as you are aware, we are also trying a Motion to Suppress. One of the things we have to be able to show during this is to |1fiestablish probable cause as to why the Officers stopped and detained Mr. Edwards, and ultimately searched Mr. Edwards, and seized evidence off of Mr. Edwards’ person — is that mind set that the officers.
That information that they had, that particular suspicion — to be able to make that stop, and detention, and ultimate search and seizure of evidence.
I think it is a perfectly legal line of questioning.
MR. PEREZ:
Well, if this was all that was happening that night, I would say that—
THE COURT:
—you have made your objection to hearsay. It is overruled for the basis stated by Mr. Vines and in addition I think it is clearly established in the jurisprudence that Police Officers have leeway by way of res gestae, explaining as to why they did what they did and when they did what they did. So overruled.
In addition to that, sir, we are trying the Motion to Suppress.

BY MR. VINES:

Q. How long had you been receiving information?
A. Probably ten years.
Q. The information that you received—
MR. PEREZ:
Excuse me. No, Judge, we are going to go back ten years in order to have probable cause in an arrest that was made inside here — we are going to go back ten years in order to begin that probable cause?
THE COURT:
That was a very specific question. I[sic] going to overrule it.
I am going to him some latitude on developing the case, sir.
That was a specific question; one answer.
We will see where we are.
1170verruled.

Next, the Defendant complains of Detective Hazelwood’s testimony that about a dozen confidential informants provided information to him. However, the Defendant made no objection to this testimony at trial.

Finally, the Defendant objects to Detective Hazelwood’s testimony about an incident involving an investigation of the Defendant prior to May 22, 2004. Detective Hazelwood testified that he had received information which indicated that the Defendant was transporting drugs for street sale to New Iberia. When the Defendant was observed loitering in front of Brenda’s Diner, Detective Hazelwood tried to stop him. A foot pursuit ensued, but Detective Hazelwood was unable to apprehend the Defendant. Detective Hazelwood further testified that a vehicle registered to a female in Baton Rouge, Louisiana located in a nearby parking lot was seized, as well as drug paraphernalia found on a black male who was sitting in the passenger’s seat. The passenger was subsequently taken in for questioning.

The Defendant objected to this testimony as follows:

MR. PEREZ:
Judge, we are going a little — if this was not Mr. Edwards in the vehicle and this was somebody in the car that did not belong to Mr. Edwards, then when are we going to get anywhere close to starting to try this case.
We are going back ten years — we have been given no 40B [sic]—
THE COURT:
Overruled. We fast-forwarded. We are at Brenda’s Diner.
MR. PEREZ;
Uh huh.
JjgTHE COURT:
He still has the right to explain what he did and why he did it.
MR. PEREZ:
You know, if somebody goes out and robs bank—
THE COURT:
—that’s argument. You have made your objection. I have ruled. It is noted for the record.

As stated by the trial court upon the Defendant’s first objection to this testimony, the purpose of the line of questioning was to establish probable cause. In addition to a trial on the merits, the trial court was also trying a motion to suppress evidence in which the Defendant alleged that he was forcibly stopped, detained and searched without a warrant or other legal justification. In State v. Scales, 93-2003, p. 6, (La.5/22/95), 655 So.2d 1326, 1331, cert.denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996), the supreme court stated:

Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the accused has committed an offense. State v. Elliot, 407 So.2d 659 (La.1981); State v. Wilson, 467 So.2d 503(La.), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). Probable cause to arrest is not absolute cause, and to determine its existence, courts must examine facts and circumstances within the arresting officer’s knowledge in light of the experience of reasonable people, not legal technicians. State v. Billiot, 370 So.2d 539 (La.), cert. denied, 444 U.S. 935, 100 S.Ct. 284, 62 L.Ed.2d 194 (1979).

We find that the testimony elicited from Detective Hazelwood was not used to prove the character of the Defendant, but was clearly the knowledge of Detective Hazelwood, which would establish probable cause. This testimony was not evidence of a prior arrest or conviction, but described the circumstances leading to the 11ssurveillance and ultimate apprehension and arrest of the Defendant. Accordingly, we find that a Prieur hearing was not required, and thus, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3:

In his final assignment of error, the Defendant argues that his sentence is excessive, arbitrary, capricious, and disproportionate based on the facts alleged and the crime charged. The Defendant’s argument focuses on the trial court’s ruling that he is a subsequent offender and that the enhanced sentence on count one is cruel, excessive and unusual. We have vacated the Defendant’s sentence for count one, and thus, this argument is moot.

In count two, the Defendant was found guilty of conducting a financial transaction involving proceeds from a drug offense, a violation of La.R.S. 40:1049, which states in pertinent part, “E. Any person who is convicted of violating this Section shall be imprisoned for not more than ten years, with or without hard labor, or fined not more than ten thousand dollars, or both.” The Defendant was sentenced to five years at hard labor.

This court has discussed the law regarding excessive sentences as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad 12i)discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958.(al-teration in original)

At sentencing, the trial court stated:

I note for the record, the pre-sentence investigation that I ordered upon conviction.
I do have before me a thirty-six year old, and I do have the pre-sentence investigation that I’ve gone over. I do have the information not only from the pre-sentence investigation but from sitting through the trial and with the evidence produced about the amount of drugs that were available.
With regards to the transactions involving the proceeds derived from drug activity, that’s zero (0) to ten (10).
So this Court is bound by what the statute says. And this Court has considered all of the information in front of me with regards to Mr. Edwards’ criminal history. This Court takes into consideration that he did plead guilty — he had two (2) felony convictions on the same day.
They also say that on September 28, 1995, his possession of cocaine case, that was under supervision or parole or whatever, was terminated unsatisfactorily.
But with regards to the seriousness of this offense, and I do not believe that all people that engage in drug activity are stupid. I don’t believe that. I know that there are no victimless crimes, and drug sale is not a victimless crime, as well.

As noted above, the Defendant does not make any specific arguments with regard to the excessiveness of this sentence on count two. Given the Defendant’s | criminal history and status as revealed in his Pre-sentence Investigation Report, we cannot say that the Defendant’s sentence of five years, one-half of the maximum sentence allowed by La.R.S. 40:1049, is excessive. Further, the Defendant did not receive a fine. Accordingly, we find that this portion of the assignment of error lacks merit.

CONCLUSION:

The Defendant’s conviction for possession of cocaine, greater than 28 grams, less than 200 grams within 1,000 feet of a drug free of a drug-free zone is vacated. Further, we vacate the Defendant’s conviction and sentence for possession of more than 28 grams, but less than 200 grams of cocaine, second offense, and enter a conviction for the lesser offense of possession of more than 28 grams, but less than 200 grams of cocaine. The case is remanded to the trial court for re-sentencing on this conviction.

Additionally, we overturn the Defendant’s conviction for transaction involving proceeds from a drug offense, as there is insufficient evidence to support the conviction.

VACATED AND REMANDED IN PART, AND REVERSED IN PART.

      . Currently a violation of La.R.S. 40:1041.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Tyrone A. JACKSON.
    No. 07-KA-84.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| ¡>The defendant was convicted of second degree murder in violation of LSA-R.S. 14:30.1 and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendant now appeals. For the reasons that follow, we affirm the defendant’s conviction and sentence.

The following was adduced at trial. On August 31, 2001, at approximately 9:00 p.m., Jefferson Parish police officers responding to a call regarding a shooting in the 4200 block of Yates Street, found the deceased victim, Ranee Brown, lying on his back with wounds to his upper torso area. It was determined that the manner of death was homicide and the cause of death was a shotgun wound to the chest with fragmenting injuries of the left lung and aorta. There was also a shotgun wound to the neck.

JPSO detectives arrived at the crime scene, interviewed witnesses, and collected evidence. During the investigation, the detectives learned that, on the morning of August 31, 2001, someone broke into defendant’s Cadillac and stole his radio. When defendant and another tenant, Kelly Taylor, spoke to Brian Robinson and his girlfriend, Michelle Dickerson, tenants in the apartment complex, they told defendant that Brown had broken into their apartment and, therefore, | .¡Brown may have broken into defendant’s Cadillac. Defendant went to Brown’s apartment several times during that day and knocked on the door, but no one answered.

At approximately 8:00 p.m., Dickerson and (Brian) Robinson moved out of their apartment because it had been burglarized twice. As their friend, Carlos Paz, was driving them out of the parking lot, the three of them saw Brown’s vehicle coming into the lot. Paz specifically saw Brown driving the vehicle. Shortly thereafter Brown made a 911 call from the apartment of Reginald Robinson to report a burglary of his apartment. When the police called back to verify the information, (Reginald) Robinson informed them that Brown was dead.

JPSO Det. Donald Clogher subsequently spoke to (Reginald) Robinson who stated that he saw the shooting. When Det. Clo-gher showed (Reginald) Robinson a photographic lineup, Robinson positively identified defendant as the shooter. At trial, (Reginald) Robinson recanted his statement and testified that he could not see who shot the victim because it was dark. Robinson explained that he was a paranoid schizophrenic, and that he had been drinking that night. He testified that the victim used his telephone that night, and that the victim told him afterwards he was going to throw his garbage away. He further testified that he heard a gunshot and saw someone running, and that he next saw the victim lying downstairs on the ground.

Another resident of the apartment complex, Kelly Taylor, gave two statements to detectives. In her second statement taken on September 6, 2001 at 2:25 a.m., Taylor said that on the afternoon of August 31, 2001, she overheard (Brian) Robinson tell defendant that Brown broke into defendant’s car. She also overheard defendant say that he was going to “get him.” Taylor left the apartment 14 complex to run an errand but returned at approximately 5:00 p.m. When she saw defendant, he told her that he was going to kill Brown. Taylor said that she then went into her apartment but came back outside. When she did so, she saw defendant with his shirt open and a cutoff shotgun tucked into his shorts. Afterwards, Taylor stated that defendant cut around the alleyway of the building, and she went back into the apartment. Det. Donald Meunier and Det. Clogher testified that they did not force Taylor to give a statement or threaten her or tell her what to say.

Defendant was arrested and, after waiving his rights, he gave four statements. In his first two statements, taken on September 6, 2001 at 8:55 p.m. and 10:38 p.m., respectively, defendant denied involvement in the murder. However, in his third statement taken on September 7, 2001 at 5:36 a.m., defendant admitted to accidentally shooting the victim one time with a shotgun. When defendant was advised that the victim had been shot twice, defendant admitted in his fourth statement, taken on September 7, 2001 at 6:17 a.m., that the shotgun went off twice. Det. Meunier and Det. Clogher testified that defendant was not beaten, forced, or coerced into giving a statement, nor was he told what to say.

After defendant gave his fourth statement, he agreed to assist the detectives in locating the murder weapon. Det. Clo-gher testified that defendant provided several false locations, but that he ultimately led them to an abandoned vehicle parked outside of 1365 Elm Street where his girlfriend, Dana Smith, rented a house. When the detectives could not locate any weapons in that vehicle, defendant told them to call Smith and ask her what happened to them. Det. Clogher contacted Smith who came to the scene and agreed to accompany the | .^detectives to the bureau, where she was advised of her rights and gave two statements.

In her first statement taken on September 7, 2001 at 10:41 a.m., Smith told the detectives that she and defendant’s father, Tyrone Jackson, Sr., went for a ride on I-10 after the shooting, and that at some point, Jackson pulled the car over, got out, popped the trunk, retrieved a big gun out of the trunk, and threw it over the 1-10 before the Hammond exit while she-sat in the car. When Jackson returned to the car he said that he thought that was one of the guns defendant had used. Jackson indicated to Smith that he threw more than one gun over, but she only saw one. She stated that Jackson then said, “no murder weapon, no trace,” but she denied that one of the weapons was a shotgun. Smith also said that defendant’s father told her that defendant had told him he shot Brown.

Smith explained in her first statement that, before the shooting, she was inside her apartment cleaning when defendant walked in and went to the children’s bedroom. Afterwards, defendant left the apartment. Smith then looked out the children’s bedroom window and saw Brown’s car, so she immediately ran downstairs looking for defendant because everybody had told him that Brown had broken into his car. As she did so, she heard the shots, ran back in the house, grabbed her baby, and left. Smith remembered that defendant took the clothes basket out of the bathroom and then dropped it by the door when he went out.

In her second statement taken on September 7, 2001 at 1:18 p.m., Smith said that her first statement was not completely true. Smith admitted that she stepped out of the car and looked into the water as the guns were being thrown. She said that Jackson threw an “AK”, a shotgun, a small handgun, and a black device into Ifithe water. She stated that, after she looked out the children’s window, she told defendant’s friend, Kevin, who was visiting, that defendant was about to get in trouble and that she was going to try and stop him. She then ran downstairs and heard two shots.

Afterward, she saw defendant go upstairs with the clothes basket in his hands. When she got to the door, defendant and Kevin left. She went into the house and looked out the window and saw Brown’s body lying there. Smith said that she had seen the shotgun before on Elm Street and at the apartment a few days before the shooting. Smith indicated in her second statement that defendant kept the shotgun at the top of their bedroom closet and sometimes in a blue bag on top of the dresser. Smith stated that she also saw the shotgun at her house on Elm Street on the floor of the back seat in an abandoned gray car in the driveway, along with the “AK” and another gun. Det. Meunier testified that he did not threaten or coerce Smith into giving a statement.

Louise Walzer, assistant director of the JPSO crime lab and senior firearms examiner, was qualified as an expert in the field of firearms identification. Walzer examined the projectiles in connection with this case and determined that they came from a .12 gauge shotgun. She testified that a pump shotgun could accidentally fire once, but not twice, and that the purpose of a sawed off shotgun was concealment.

Both Kelly Taylor and Dana Smith were called as witness by the defense and both averred that the detectives threatened and coerced her into giving a statement that was untrue.

Tyrone Jackson, Sr., defendant’s father, testified that he had a Winchester rifle and a Smith and Wesson .38 pistol in his house for protection, but that he |7decided to dispose of them after defendant was arrested. He explained that defendant was on probation, and that if the police were to come to his house and see those guns, defendant would have to go back to jail. Jackson became concerned that the police would search his house after Smith told him that the police had ransacked her apartment. He admitted that he and Smith went for a ride and that he disposed of those weapons between Loyola and Laplace. He denied throwing a sawed off shotgun into the water.

Defendant testified on his own behalf at trial and denied shooting Brown. He testified that, on the day in question, he and Smith saw (Brian) Robinson who told him that he thought Brown had broken into his (Brian’s) apartment. Defendant knocked on Brown’s door a couple of times to ask about his radio but no one answered. Defendant contended that at 9:00 p.m., he was at his apartment with Seals and Smith. He asserted that he went downstairs with a basket to wash some clothes, and that he was in the laundry room when he heard the gunshots. Afterwards, defendant indicated that he went upstairs, asked Seals if he heard the shots, and then said, “let’s get out of here.” Defendant testified that before they left, he looked out of his apartment window and saw someone lying on the ground and someone standing around the body.

Defendant testified that the detectives threatened and coerced him into confessing. He contended that the detectives did not allow him to eat, drink, or sleep during the lengthy interrogation. He claimed that the detectives forced him to say that he accidentally shot Brown. He also claimed that the detectives beat him; however, he answered “no” on the booking form when he was asked if he was injured or hurt.

IsAfter the defense rested, the state called JPSO Lt. Kenny Kline of the internal affairs division in rebuttal. Lt. Kline testified that he never received a complaint from Taylor, Smith, or defendant.

JPSO Lt. Gray Thurman, the supervising detective, testified in rebuttal that he was in the observation room at times during the interviews of Taylor and defendant, and that they were not threatened, beaten, or coerced, and that they were not denied food or a break.

In his first allegation of error, the defendant contends that the trial court abused its discretion in refusing to keep the hearing on the motion to suppress open for additional testimony, since the defense had the burden of proof and none of the witnesses that the defense had subpoenaed were present for the hearing.

The record reflects that on August 26, 2002, a hearing was held on defendant’s motion to suppress identifications and statements. Prior to the hearing, defense counsel said that he sent subpoenas to many witnesses who allegedly made photographic identifications, including Michelle Dickerson, Thomas Berryhill, Steven Fickes, Reginald Robinson, and others. Defense counsel stated that almost all of these people sought had addresses in the apartment complex, and that he did not think that any of these people were still there, because he already went out there. The clerk responded that the subpoenas went out, but there were no returns. Defense counsel then stated that he was ready to proceed with “what we have in the case.”

During the hearing, the state called Det. Clogher as a witness on the motion to suppress the five identifications. Det. Clo-gher testified that he showed a photographic lineup to Michelle Dickerson, Rena Sherrill, Steve Fickes, Reginald Robinson, and Thomas Berryhill, and that they positively identified defendant. He did not suggest that they identify defendant, nor did he coerce them into [ ^identifying defendant. Det. Clogher further testified that he showed a photographic lineup to Brian Robinson and Craig Legendre, but they were unable to identify anyone.

Defense counsel then requested that the hearing be held open until he located these persons, because he needed “all these witnesses to come in.” Counsel stated that he subpoenaed them and tried to locate them, but none of them were living on Yates Street anymore. In response, the State noted that the hearing had been continued on numerous occasions, and that defense counsel had ample opportunity to subpoena and bring in witnesses. After hearing arguments of counsel, the trial judge denied the motion (to keep the hearing open). The trial judge then denied the motion to suppress the five identifications.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution (1974) guarantee a criminal defendant the right to compulsory process and to present a defense. A defendant’s right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Gordon, 01-734 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 148, writs denied, 2002-0362 (La.12/19/02), 833 So.2d 336 and 2002-0209 (La.2/14/03), 836 So.2d 134.

LSA-C.Cr.P. art. 708 defines continuance and recess as follows:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

Pursuant to LSA-C.Cr.P. art. 709, a defendant must state the following in order to be entitled to a continuance for securing the presence of a witness:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
|10(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

A motion for recess is evaluated by the same standards as a motion for a continuance. State v. Warren, 437 So.2d 836, 838 (La.1983); State v. Rodriguez, 02-334 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, writ denied 03-0482 (La.5/30/03), 845 So.2d 1061. The decision to grant a recess lies within the discretion of the trial court and will not be overturned absent an abuse of that - discretion. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 877, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Stevenson, 02-0079 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 345.

In the instant case, the record shows that defendant did not satisfy the requirements of LSA-C.Cr.P. art. 709. Defendant failed to provide facts to which the absent witnesses were expected to testify. He only informed the court that he wanted the witnesses present for the hearing in order to test their veracity. He also failed to state facts and circumstances showing a probability that the witnesses would be available at the time to which the hearing was deferred. In fact, defendant told the trial court that the witnesses probably no longer lived at the addresses on the subpoenas. Additionally, defendant failed to use due diligence in an effort to procure the attendance of the witnesses. The record reflects that defense counsel represented defendant as of May 30, 2002 and, therefore, he had approximately three months to locate and subpoena the witnesses. However, defense counsel waited very late (five days before the hearing) to request that subpoenas be issued to the witnesses.

| n Furthermore, at the beginning of the hearing, defense counsel told the trial judge that he was ready to proceed even though his witnesses were not present. Finally, defendant has failed to show that he was prejudiced by the failure of the witnesses to testify. The record reflects that defense counsel had the opportunity to and did thoroughly cross-examine Det. Clogher at the suppression hearing.

We find that the trial court did not abuse its discretion in denying defendant’s motion for a recess to secure the presence of five witnesses.

In his second allegation of error, defendant argues that the prosecutor made improper comments that, when taken together, resulted in cumulative error that undermined his ability to receive a fair trial. Defendant stated that he moved for a mistrial each time, but his motions were denied.

Under LSA-C.Cr.P. art. 775, “[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

LSA-C.Cr.P. art. 770 provides as follows:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
|12An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

LSA-C.Cr.P. art. 771 provides the law regarding admonitions:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285.

Defendant’s first motion for mistrial occurred when the prosecutor offered to take out a line in defendant’s statement where he said that he had just come home from doing “four years flat.” Defense counsel argued that the entire paragraph containing that line should be excised. The trial judge agreed with the prosecutor that only the one line referring to defendant’s prison time should be excised. | ^During direct examination, Det. Clogher testified that State’s Exhibit 26A was the original audiotape cassette of defendant’s second statement, and that State’s Exhibit 26B was “the excised copy, a copy where a small portion was taken out. It’s an edited copy.” Det. Clogher further testified that a small portion was taken out at the request of the district attorney’s office. The prosecutor subsequently asked the trial judge to inform the jury what they discussed at the bench, i.e., that the defense was moving to have a certain portion of the statement taken out.

Defense counsel approached the bench and moved for a mistrial, arguing that the prosecutor should not have told that information to the jury. He contended that the prosecutor had directed the jury’s attention to the fact that the statement was excised, and that they were now going to wonder what had been in there. He further contended that this prejudiced defendant. The prosecutor asked the trial judge to instruct the jury to disregard her comment, but defense counsel reiterated his motion for a mistrial. The trial judge denied the motion, and told the jury that there was a small part of the statement that needed to be taken out, that they were not to be concerned with that, and to disregard the attorneys’ comments.

The prosecutor subsequently offered the statement into evidence noting that State’s Exhibit 26B had been edited. Defense counsel again objected. The prosecutor responded that she was trying to clarify for the record that they were playing the edited tape and not the original tape. Defense counsel said that he was going to ask the trial judge to admonish the prosecutor if she said something like that again.

The remarks in question were not within the scope of LSA-C.Cr.P. art. 770 and, therefore, a mistrial was not mandatory. Defendant was only entitled to an admonition under LSA-C.Cr.P. art. 771. A review of the record shows that the trial judge properly admonished the jury to disregard the remarks after he was I ^requested to do so by the state. As such, defendant was not prejudiced by the remarks. Furthermore, on cross-examination, defendant admitted saying in his statement that he had just come home from doing “four years flat.” The record does not reflect that defense counsel objected to that testimony. Therefore, we find no abuse of the trial court’s discretion in the denial of defendant’s first mistrial motion.

Defendant’s second motion for mistrial occurred during direct examination, when the prosecutor asked Det. Clogher whether the individual standing at counsel’s table was the person who confessed to murdering Brown. Det. Clogher responded affirmatively, and the prosecutor tendered the witness for cross-examination. Defense counsel then objected to the form of the question, stating that he believed the crime defendant admitted to committing was a negligent homicide and not a murder. The prosecutor stated, “Negligent homicide with two shots, Judge?”

Defense counsel moved for a mistrial, and a bench conference was subsequently held. During that bench conference, the prosecutor argued that this was an issue that was going to be argued in closing by defense counsel. The trial court commented, “[yjou’re not supposed to say anything like that.” The prosecutor responded that defense counsel made a motion, but then went further and said it was a negligent homicide. The prosecutor offered to rephrase the question. Defense counsel said that did not matter and he moved again for a mistrial. The trial judge denied defense counsel’s motion.

After the bench conference was over, the prosecutor rephrased the question by asking Det. Clogher whether the person sitting at counsel’s table was the same person who confessed to killing Brown. Det. Clogher responded affirmatively in a lengthy answer. Defense counsel objected, stating that the witness’ answer was 11Rnon-responsive. The prosecutor noted that the witness had already answered the question, and the trial judge said they were going to recess for lunch. During defense counsel’s subsequent cross-examination of Det. Clogher, the detective stated that “... certainly a pump shotgun cannot be accidentally discharged twice, you have to actually rack an extra round in.”

The remarks made by the prosecutor were not within the scope of LSA-C.Cr.P. art. 770 and, therefore, a mistrial was not mandatory. Defendant could have asked for an admonition to the jury to disregard the remarks under LSA-C.Cr.P. art. 771; however, he failed to do so. Additionally, defense counsel himself subsequently elicited the same remarks regarding negligent homicide from Det. Clogher that he complains the prosecutor made to the court, namely, that the shooting could not be considered a negligent homicide because the victim was killed by two shots fired from a shotgun. Accordingly, the trial court did not abuse its discretion in denying defendant’s second mistrial motion.

Defendant’s third motion for mistrial occurred when he was testified during direct examination that, after the shooting, he looked out of his apartment window and saw someone lying on the ground and “someone standing like around the body.” On cross-examination, the prosecutor questioned defendant as to why he did not provide that information to Det. Clogher when he gave his statement. She continued that line of questioning at length without objection before defense counsel moved for a mistrial.

During a bench conference, defense counsel argued that defendant had no obligation to tell anyone anything, and that the prosecutor’s questions violated defendant’s Fifth Amendment right to remain silent. The prosecutor responded that there were no grounds for a mistrial, as she had the right to cross-examine defendant on what he did not say in his statement. Defense counsel also argued 11Bthat the prosecutor should not be able to continue referencing the suppression hearing during her questioning, because defendant was not asked at that hearing about what happened that night. The prosecutor said she would move on. After the bench conference ended, the trial judge said it was time to take a break. The record reflects that the trial judge did not rule on the motion for a mistrial, and we consider that the motion was denied. See State v. John son, 05-180 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 583, writ denied, 2006-1254 (La.12/15/06), 944 So.2d 1282

Defendant did not timely object when the prosecutor began questioning defendant regarding why he failed to tell anyone he saw someone standing near the victim’s body after the shooting. In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. LSA-C.Cr.P. art. 841. See, State v. Johnson, 03-620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem, and to prevent the defendant from gambling on a favorable verdict, then resorting to appeal on errors, that might easily have been corrected by an objection. Id. Therefore, we find that defendant is precluded from raising this issue on appeal, considering that he failed to object when the comments in question were first made.

Defendant’s forth motion for mistrial occurred when Lt. Thurman testified on rebuttal that defendant and his mother were allowed to speak while defendant was seated in the back seat of the police car on Elm Street during the time the detectives were attempting to locate the murder weapon. Lt. Thurman further testified that he overheard defendant tell his mother “that he was sorry.” Defense 117counsel moved for a mistrial, noting that the state had never given him that information. Defense counsel argued that that statement was tantamount to a confession, but the prosecutor disagreed.

The prosecutor pointed out that Det. Meunier had already testified at trial that defendant told his mother he was sorry, that defense counsel objected, and that the trial judge had told the prosecutor to move on. The trial judge took a recess. When he returned, he said that the court had “thoroughly researched the matter” and was going to deny the motion. However, the trial judge allowed defense counsel to rebut the testimony. The prosecutor stated she had no further questions of the witness, and defense counsel then cross-examined him.

The record shows that defendant did not timely object when the prosecutor first asked Det. Meunier whether defendant had issued apologies and to whom. Additionally, the basis for defendant’s objection was hearsay, and not a discovery violation. He raises this issue for the first time on appeal. Defendant is limited on appeal to the grounds articulated at trial. A new basis, even if meritorious, cannot be raised for the first time on appeal. State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 950, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294.

In addition, we find that the admission of the statement, if erroneous, was harmless, and therefore did not constitute reversible error. State v. Nguyen, 05-569 (La. 5 Cir. 2/3/06), 924 So.2d 258, 265.

Defendant’s argument is that the cumulative effect of these “improper” statements and testimony was to undermine his ability to receive a fair trial. We find that the complained of statements, taken alone or together, did not so prejudice defendant that he was denied a fair trial. Therefore, defendant’s allegation of error is without merit.

|18In his third allegation of error, defendant argues that the trial court erred by failing to properly inform him of the time delays for fifing an application for post-conviction relief as required by LSA-C.Cr.P. art. 930.8. The state, in its appel-lee brief, agrees with defendant.

While the commitment fails to show that the trial judge informed the defendant of the delays for filing for post-conviction relief, the transcript reflects that the trial judge informed defendant that he had “two years to file for post conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761. Accordingly, we remand this matter with instructions for the trial court to inform the defendant of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant after rendition of this Court’s opinion and filing written proof that the defendant received the notice in the record. State v. Roche, supra.

We have reviewed the record errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which warrant reversal.

The state, in footnote 3 of its brief, contends that this appeal should be dismissed. It argues that the judgment became final once the return date expired. The record reflects that the state did not file a motion to dismiss into the record.

The record indicates that, on November 12, 2004, defense counsel filed a motion for appeal that was granted. The trial court gave defendant a return date of 60 days from November 15, 2004, or until January 14, 2005. The record reflects that an extension was not requested or granted. On May 26, 2006, defense counsel |18filed a motion to withdraw and to appoint the Louisiana Appellate Project to handle defendant’s appeal. That order was granted on June 26, 2006. The record in this matter was lodged in this Court on January 29, 2007.

LSA-C.Cr.P. art. 915.1 B provides in pertinent part that failure of the clerk of the trial court to mail notice of subsequent extensions of the return date to all parties shall not affect the validity of the appeal nor will any error or defect which is not imputable to the appellant affect the validity of the appeal. (Emphasis added). We find nothing in the current Code of Criminal Procedure that says a judgment is final when the return date expires. Once defendant timely moves for an appeal, which was done in the instant case, the clerk handles the matter thereafter. Therefore, the failure to lodge the record is not imputable to defendant. Despite the state’s assertion, there is no basis for dismissing the appeal.

The state cited the case of State v. Smith, 284 So.2d 576, 577 (La.1973), which concerned the state’s appeal from the granting of a motion to quash. In that case, defendant filed a motion to dismiss the appeal, asserting that since the extensions for filing the appeal were granted after the extended return date had expired, the extensions were null and void. The Louisiana Supreme Court, citing LSA-C.Cr.P. arts. 916 and 919, dismissed the appeal, finding that the judgment became final when the original return date expired without an extension. Id. However, Smith was decided under a previous version of LSA-C.Cr.P. art. 919 which was amended in 1980, 1984, 1987, 1988, and 1999. LSA-C.Cr.P. art. 916 has also been amended since Smith. Furthermore, LSA-C.Cr.P. art. 915.1 B was added to the Code of Criminal Procedure by Acts 1988, No. 525, § 1 and was not 12nin existence at the time of Smith. We therefore conclude that Smith is not applicable to the instant case.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed and the matter is remanded to the district court with instructions for the trial court to correctly inform the defendant of the prescriptive period for seeking post-conviction relief.

AFFIRMED AND REMANDED.

      . At trial Det. Clogher testified that Kerry Shy, a resident of the apartment complex, confessed to burglarizing defendant’s Cadillac earlier that day.

      . Det. Clogher testified that a dive team went out but could not locate the weapons.

      . Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . The Louisiana Supreme Court did not follow Smith in the case of State v. Kraft, 294 So.2d 219 (La. 1974), see dissent.


author: SUSAN M. CHEHARDY, Judge.

text:
    Christopher P. MARSHALL and Michel S. Marshall, individually and in behalf of their minor child, Jacob G. Marshall v. EAST JEFFERSON GENERAL HOSPITAL FOUNDATION and Medical Waste Services of America, L.L.C.
    No. 07-CA-25.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2007.
    Stuart H. Smith, Michael G. Stag, Lloyd S. Jolibois, Jr., Smith Stag, LLC, Attorneys at Law, New Orleans, Louisiana, for Plaintiffs/Appellants, Christopher P. Marshall and Michel S. Marshall, individually and in behalf of their minor child, Jacob G. Marshall.
    Hervin A. Guidry, Bastían & Associates, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee, Medical Waste Services Of America, L.L.C.

      Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

|«>This is a negligence and products liability action, in which the plaintiffs appeal a summary judgment that dismissed one of the defendants, Medical Waste Services of America, L.L.C. We affirm.

Christopher P. Marshall and Michel S. Marshall, appearing individually and on behalf of their minor child, Jacob G. Marshall, filed suit in November 2001 against East Jefferson General Hospital Foundation and Jefferson Parish Hospital Service District No. 1 d/b/a East Jefferson General Hospital (both hereafter “EJGH”), as well as Medical Waste Services of America, L.L.C. They alleged that on May 3, 2001 Jacob was at East Jefferson General Hospital with his father, visiting his mother following the birth of the Marshalls’ daughter. Jacob — then two years old-— was injured when he put his hand into an uncovered hazardous waste bin containing at least thirty to forty used hypodermic needles. When Mr. and Mrs. Marshall realized them son had been stuck on the finger by a contaminated needle, they both became very upset and fearful.

Jacob underwent blood tests for hepatitis and HIV infection, which were negative. Jacob’s pediatrician advised the Marshalls that Jacob would require follow-up testing for at least one year, including a six-month test and a test at one year. The plaintiffs asserted they sustained, and continue to sustain, severe | ¡¡emotional upset, fear, and anxiety, worrying about their son’s health and possible exposure to HIV and other diseases that may be incurable or cause severe, debilitating and permanent injury or death.

The Marshalls claimed they suffered severe mental anguish as bystanders, and as a result of witnessing the foreseeable act of their son having been stuck by used, contaminated syringes. They alleged the defendants were negligent in the following respects:

a. failing to insure that the hazardous waste bin was sealed;
b. failing to properly and routinely inspect the hazardous waste bin when the defendants knew or should have known that such failure presented an unreasonable risk of harm;
c. failing to discover in a timely manner that the hazardous waste bin top or seal had been lost, misplaced or not originally delivered with the bin;
d. failing to replace the top or seal to the hazardous waste bin when the defendants knew or should have known that the top or seal was missing;
e. failing to remove the bin and/or replace same in a timely and reasonable manner;
f. failing to empty the contents of the hazardous waste bin and allowing same to become so full of waste that the container posed an unreasonable risk of harm under the circumstances;
g. placing the hazardous waste bin in its location in the room such that the location posed an unreasonable risk of harm;
h. failing to properly train and supervise its employees in the maintenance, installation or use of the hazardous waste bin;
i. failing to report the absence of a seal or top on the hazardous waste bin;
j. inadequate training and hiring;
k. negligent promulgation, implementation and enforcement of policies and procedures to safely maintain the premises;
l. allowing a hazardous situation consisting of faulty or damaged equipment to exist on the premises;
m. failing to perform contractual obligations thereby creating an unreasonable risk of harm to plaintiffs;
n. failing to properly inspect its personnel on proper methods of incident investigation, so as not to |4cause intentional infliction of emotional distress to plaintiffs, by its employees;
o. acting in a careless and reckless manner without due regard for the safety of others;
p. and all other such acts and omissions of negligence and strict liability as will be proven at trial.

As to Medical Waste Services specifically, the plaintiffs alleged the hazardous waste bin at issue was designed, manufactured and/or installed by Medical Waste Services, and “was unreasonably dangerous in design and as presented in its use, as it contained no top or seal, had not been properly installed, maintained or inspected, and had not been regularly emptied, all of which presented an unreasonable risk of harm.”

Medical Waste Services filed a motion for summary judgment, seeking dismissal of the plaintiffs’ claims against it. Medical Waste Services argued it is not liable because the plaintiffs’ experts’ opinions are concerned only with the placement of this particular type of sharps bin in the hospital room at issue, and do not state the bin is inherently dangerous in design or that it should never be used anywhere. Medical Waste Services also argued that EJGH did not involve it as the supplier in the bin-selection process, and that it could have provided EJGH with an alternative design had it been requested by EJGH.

After a hearing, the district court granted summary judgment in favor of Medical Waste Services without assigning reasons. The plaintiffs appeal.

On appeal the Marshalls assert the district court erred in granting the motion for summary judgment because there are disputed issues of material fact related to the plaintiffs’ products liability claims, and because Medical Waste Services failed to establish its burden of proof as mover. They argue that the pleadings, | ^depositions, and affidavits create factual disputes concerning the unreasonable design and inadequate warning of Medical Waste Services’ biohazard container.

The plaintiffs contend that Medical Waste Services’ motion for summary judgment should have been denied because the plaintiffs produced factual support sufficient to establish their evidentiary burden of proof at trial under the LPLA. Specifically, they assert the record is replete with evidence, including the defendants’ own testimony, establishing that Medical Waste Services’ biohazards container was unreasonably dangerous in design because an alternate design was available to prevent the plaintiffs’ damage, and adopting such a design would not burden Medical Waste Services. Further, they argue there are material factual questions in dispute as to whether Medical Waste Services provided an adequate warning, if any.

In opposition, Medical Waste Services contends the trial court properly granted the motion for summary judgment, because the plaintiffs’ own experts concluded that the sharps disposal bin at issue should not have been used in the type of hospital room where the accident at issue occurred, but those experts did not conclude that it was inherently dangerous for use anywhere. Further, Medical Waste Services established that the decision to use this type of sharps bin in the room at issue was made solely by the hospital and Medical Waste Services had no role whatsoever in that decision. Medical Waste Services also argues the plaintiffs did not plead an adequate warnings claim and presented no evidence to support one.

Finally, Medical Waste Services points out that the plaintiffs did not submit a statement of contested factual issues, nor did they submit affidavits or deposition transcripts to contradict the evidence presented by Medical Waste Services. Instead, the plaintiffs adopted by reference the oppositions they had filed | ^previously to a motion for summary judgment by EJGH. Medical Waste Services contends its motion for summary judgment raised distinct factual and legal issues from the hospital’s motion, which the plaintiffs never addressed separately.

According to the documents in support of the motion, Medical Waste Services supplied the plastic bins to EJGH, picking up filled bins from a loading dock for proper disposal, and leaving clean bins. Two types of bins were available at the time of this incident. The type used here has a round hole in the top and a removable plastic cap. The other has a horizontally-hinged mailbox-style opening, with a guard that would prevent a child from sticking a hand inside. EJGH ordered the first type, with the round hole in the top, and EJGH decided where to install the bins.

Medical Waste Services relied on the deposition of Allan A. Cooper, Jr., who was Managing Member of Medical Waste Services at the time of the incident here. He testified his company did not manufacture the type of bin at issue here, which is plastic, reusable, and has a cap for the round hole, which he called a “vertical drop lid.” He said the other type of bin, with the horizontal slot opening, has a mailbox-type lid — an enclosure at the top, with an opening that swiveled back and forth. He said the official name for the second type of bin is “horizontal lid.”

Mr. Cooper stated that Medical Waste Services was not involved with the hospital personnel in making decisions concerning which sharps disposal containers were selected for their hospital facility. It was the customer’s decision not to involve Medical Waste Services in that process. He also stated that the service provided by Medical Waste Services to EJGH was supplying reusable waste bins, picking up filled bins at the hospital’s loading dock for proper disposal of the contents, and delivering clean bins to replace the filled ones that were |7removed. Medical Waste Services’ employees did not go inside the hospital to perform their duties.

Medical Waste Services also attached reports by the plaintiffs’ expert witnesses, infectious disease specialist Dr. Julio Figueroa and human factors expert Dr. Lila Lowe, as well as a deposition of Dr. Figueroa.

Dr. Figueroa stated that the horizontal-lid bin is preferable for use in a maternity room because of the types of people who might be present. Asked whether the vertical-drop-lid bin is inappropriate for any use in the hospital setting, Dr. Figueroa responded, “Not any use, certainly not.” He said it is appropriate for situations where health care workers are involved and there are no other individuals present who may potentially come in contact with sharps — rooms in which there is a high degree of control as to who is going in and out.

Dr. Figueroa said it would be more of a problem in high traffic areas with individuals who may not be aware of the nature of the box’s contents, such as pediatric areas, mental health areas, or maternity rooms if children are present. He said that the hospitals and clinics in which he practices have this type of bin in the rooms. In his opinion, however, in a maternity ward where one should anticipate the presence of children, the alternative design should have been used.

Similarly, in her report Dr. Lowe stated the design of the sharps disposal container in the room “was not appropriate for this location and setting because it did not prevent the introduction of the hand into the filled container.” Other appropriate sharps disposal container designs were readily available to the hospital. In addition, she stated, “the design of this sharps container created a significant and potentially deadly hazard for a foreseeable population who could be present” in that hospital room. Based on information provided to them, both experts also stated there was no warning label on the sharps disposal container involved.

|Jn opposition to the motion for summary judgment, the plaintiffs provided the affidavit of Christopher Marshall, who stated that Jacob was seated in a chair in the corner when their newborn daughter was brought into the room. He heard Jacob scream out in pain and saw he had reached into an unsealed needle disposal bin mounted on the wall of the room. The disposal bin did not have a protective cap to prevent someone from reaching into the bin, and it was unmarked, without any warnings of the dangers presented.

The plaintiffs also provided the affidavit of Jacob’s pediatrician, Hyman C. Tolmas, M.D. Dr. Tolmas stated he had come into Mrs. Marshall’s hospital room shortly after Jacob had contact with the contaminated needle; he understood the parents’ concern and felt their emotional responses were appropriate; he opined that Jacob should and has required additional testing, for at least two years, including repeat testing for Hepatitis B and C, HIV, and also administration of a liver profile. In his opinion such testing should be performed three times, or every four months, because the incubation period for such diseases can be protracted. In Dr. Tolmas’ opinion, the medical waste bin in Mrs. Marshall’s room should have been sealed and of a type that could prevent this type of incident as suggested by standards of NIOSH (National Institute for Occupational Safety and Health).

The summary judgment procedure is favored and shall be construed to secure the just, speedy and inexpensive determination of most actions. La.C.C.P. art. 966(A)(2). A motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La.C.C.P. art. 966(C)(1).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential 13elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.C.C.P. art. 966(C)(2).

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Moreover, the summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. [Citations omitted.]

Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/3/00), 766 So.2d 544.

Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

We find there is no dispute of material fact relating to the liability of Medical Waste Services. It is true there was an alternative disposal bin available that would have been safer, but the plaintiffs did not refute the evidence offered by Medical Waste Services that the choice of bin was entirely made by EJGH. The plaintiffs failed to show that the absence of a cap on the vertical-drop lid container here was attributable to Medical Waste Services. Further, the plaintiffs did not allege an inadequate warnings claim in the petition and did not support such a claim against Medical Waste Services, nor did they offer evidence to contradict Mr. Cooper’s testimony that Medical Waste Services did not manufacture the bins.

|inFor the foregoing reasons, we conclude the trial court did not err in granting the motion for summary judgment. The judgment is affirmed. Costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . Although the petition and supplemental and amending petition did not specifically refer to the Louisiana Products Liability Act ("LPLA”), La.R.S. 9:2800.51, Louisiana is a fact-pleading state and plaintiffs are not required to allege a theory of recovery. Royal Furniture Co. v. Benton, 260 La. 527, 256 So.2d 614, 616 (La.1972).