text:
    STATE of Louisiana, Appellee, v. Tommie A. BENTON, Appellant.
    No. 42,121-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Shirley M. Wilson Davis, Assistant District Attorney, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

h Tommie Benton was charged by bill of information with simple burglary, La. R.S. 14:62. After a jury found him guilty as charged, the district court adjudicated him a second felony offender and sentenced him to six years at hard labor. Benton now appeals, urging insufficiency of the evidence to convict and irregularities in the jury selection process. For the reasons expressed, we affirm.

Factual Background

Ray Anding Jr., a building contractor, was building four houses on the south side of Monroe in the fall of 2004. He experienced recurring incidents with theft of tools and materials from the house at 1816 Hickory Street, while the walls were up but no doors or windows were yet in place. He reported the thefts but police were unable to develop any leads.

Anding then installed two surveillance video cameras in the attic, aimed at the front and back windows. Early on October 6, one of these cameras captured the images of two men entering through the front window and then leaving, carrying a drill and some other tools. The video did not clearly capture the burglars’ faces, but one of the men was wearing a distinctive hat (Anding called it a “kangaroo hat”). The video also showed a Ford F-150 extended-cab pickup truck parked on the street.

Anding brought the video to Monroe Police Detective Tommy Rhodes, who agreed to install a “VARDA” alarm in the house. Det. Rhodes described this as a thermal-sensing device which, when activated, sends a silent alarm directly on police radio frequency, skipping the switchboard and allowing for faster response.

| ¡.Early on the morning of October 10, the VARDA alarm went off. Officer Douglas Lambert was nearby and responded within 30 seconds. As he pulled up, his spotlight beamed on a black man exiting the house and walking toward a truck parked on the street. There was a set of muddy footprints going into and out of the house; the suspect was wearing a distinctive “kangaroo cap” but was empty-handed. Officer Lambert took him into custody without a struggle; the suspect identified himself as Tommie Benton. Officer Lambert drove him to the Police Department while the Lieutenant photographed the scene, including the Ford F-150 truck parked on the street.

At the police station, Det. Rhodes advised Benton of his Miranda rights. Indicating that he understood, Benton signed a waiver and admitted that he had entered the building site “to retrieve plastic to cover a busted window” on his truck. The crime scene photos, however, did not show that any of the truck windows were broken, and no items of Anding’s were found in the vehicle.

As noted, the state charged Benton by bill of information with simple burglary; a six-member jury found him guilty as charged. Citing Benton’s 1996 guilty plea to felony-grade illegal possession of stolen things, the state then charged him as a repeat offender. The court adjudicated him a second felony offender and subsequently sentenced him to six years at hard labor, the minimum sentence under La. R.S. 15:529.1 A(l)(a) and 14:62 B.

| ^Discussion: Sufficiency of the Evidence

By his first assignment of error, Benton urges the evidence was insufficient to convict him of simple burglary. He summarizes the state’s case, emphasizing (1) neither burglar’s face could be discerned from the October 6 surveillance video, (2) the kangaroo hat .worn by Benton on the night of his arrest was only similar to that worn by one of the burglars on the surveillance video, (3) when arrested, Benton was not carrying any items stolen from the construction site, (4) he did not attempt to flee from Officer Lambert, and (5) his statement to Det. Rhodes expressed no intent to permanently deprive Anding of the piece of plastic he was seeking. While he concedes that he was present at the house on the morning of October 10, he argues that no burglary occurred on that date; he submits that somebody else, wearing a similar hat to his, must have committed the burglary captured on surveillance video four days earlier.

The state responds that Benton obviously entered the house, as shown by the set of muddy footprints going in and out and by the fact that he was exiting the structure only seconds after the VARDA system was activated. Further, the similarity of the kangaroo hat and the F-150 truck on both occasions proved that Benton was indeed the perpetrator; finally, his statement to police supplied the necessary intent to commit a theft inside the unfinished house.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a | reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). 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 trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

When circumstantial evidence is used to prove the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Ultimately, all evidence — both direct and circumstantial — must be sufficient under Jackson v. Virginia to prove guilt beyond a reasonable doubt to a rational jury. State v. Robinson, 2002-1869 (La.4/14/04), 874 So.2d 66.

Simple burglary is “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein[.]” La. R.S. 14:62 A. It is not necessary to prove an actual theft to establish a case of burglary. State v. Hall, 26,505 (La.App. 2 Cir. 12/7/94), 647 So.2d 453; State v. Hooker, 623 So.2d 178 (La.App. 2 Cir.1993).

|fiThis record easily establishes that the owner, Anding, gave nobody permission to enter the unfinished structure overnight. Benton challenges the jury’s implicit findings that he actually entered the structure and had the intent to commit a theft therein.'

Although no witness saw Benton inside the house on the morning of October 10, the VARDA system had been activated, showing that somebody entered. Seconds later, Officer Lambert arrived to find Benton walking away from the house, arid a single set of muddy footprints leading in and out of the open structure. These circumstances strongly suggest that Benton entered '(and left) the house. More directly, according to Det. Rhodes, Benton admitted coming to the construction site and entering to take some plastic. On this record, a rational juror was entitled to accept Benton’s admission that he entered the structure.

As for Benton’s intent, his statement to Det. Rhodes admits he was there to take plastic from the site for his broken truck window. A rational juror could interpret this as indicating an intent to deprive the owner of the plástic permanently, not just borrow it. Benton correctly shows that Lt. Harris could not recall if any windows on the F-150 were broken, and the photos do not appear to show any broken windows. Howev.er, a rational juror could easily discount this portion of the statement as a hasty and unconvincing effort to explain his presence at the job site, when in fact the real purpose was a theft which was thwarted ■ only by the timely appearance of the police. The evidence was sufficient to prove Benton’s intent to commit a theft therein. The evidence is sufficient and this assignment of terror lacks merit.

Peremptory Challenges of Prospective Jurors

By his second assignment, Benton urges the state improperly struck prospective jurors on the basis of race. He shows that the defendant is an African American male, and the victim a white male; that the state used all six peremptory challenges to excuse one black male, one white male and four black females from the panel; that the defendant made a timely objection before the entire final panel was sworn; and the final panel was all white. Benton contends that these facts created a prima facie showing of racial discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He submits that the state offered weak factual reasons for its first two peremptory challenges, of -Mr. Roggerson and Ms. Bass, a suspicious age-based reason for another, Ms. Nobles, and no reasons at all (a “gut feeling”) for the other two, of Ms. Turner and Ms. Price. He concedes that the district court’s evaluation of discriminatory intent is due great deference. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). He nevertheless concludes that the state’s reasons do not withstand Batson analysis and the case must be reversed.

The state responds that Benton failed to make a prima facie showing of discrimination, as the state accepted two black venire members whom the defendant later challenged peremptorily. The state reiterates its factual bases for challenging Mr. Rog-gerson, Ms. Bass and Ms. Nobles; contends that it relied on “gut instincts” and voir dire interactions to excuse Ms. Turner; and that the challenge of Ms. Price was irrelevant because.by that |7time, six jurors and one alternate had already been selected. The state also notes that in response to a question by the court, the prosecutor expressly denied any discriminatory intent. Finally, the state cites the great discretion afforded the district court’s rulings on Batson objections. Hernandez v. New York, supra; State v. Coleman, 41,764 (La.App. 2 Cir. 1/24/07), 949 So.2d 570. The state concludes there is no basis to disturb the ruling.

An equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. Batson v. Kentucky, supra. The familiar three-step Bat-son analysis was recently described in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

546 U.S. at 336-38, 126 S.Ct. at 973-974 (internal quotations and citations omitted).

Louisiana has codified the ruling of Bat-son in La. C. Cr. P. art. 795, which provides in pertinent part:

|SC. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the .court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
D. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

The district court’s evaluations of discriminatory intent are afforded great deference and will not be reversed unless clearly wrong. Hernandez v. New York, supra; State. v. Elie, 2005-1569 (La.7/10/06), 936 So.2d 791. The trial court is in a position to observe firsthand the demeanor, of the attorneys and the venire members, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on- the ultimate question of intentional discrimination, the preliminary issue of a prima facie |9showing becomes moot. Hernandez v. New York, 500 U.S. at 359, 111 S.Ct. at 1866; State v. Wilson, 40,767 (La.App. 2 Cir. 8/23/06), p. 20, 938 So.2d 1111, at 1126.

The state initially contends that because it elected not to challenge two black prospective jurors, this undermined Benton’s showing of a prima facie case of discrimination. However, a single strike based upon race supports a Batson claim and requires reversal no matter how ably the state has justified its other strikes. Batson v. Kentucky, 476 U.S. at 95, 106 S.Ct. at 1722; State v. Elie, supra; State v. Wilson, supra. Moreover, because the court required the state to provide race-neutral reasons for five of its challenges, and ruled on the issue, the question of the prima facie showing is moot. Hernandez v. New York, supra; State v. Robinson, supra; State v. Wilson, supra. We therefore will review the record with respect to each challenged juror.

The prosecutor stated that she challenged Mr. Roggerson because he served on two boards (labor union and Interstate highway development) on which Benton’s trial counsel also served as general counsel. The record supports this explanation. Familiarity with a party or an attorney in the case is a race-neutral basis for a peremptory challenge. State v. Baker, 34,973 (La.App. 2 Cir. 9/26/01), 796 So.2d 145; State v. Mamon, 26,337 (La.App. 2 Cir. 12/16/94), 648 So.2d 1347, writ denied, 95-0220 (La.6/2/95), 654 So.2d 1104.

The prosecutor stated that she challenged Ms. Bass because her mother’s house had been burglarized several times, including once when family members were in the house, and she felt the police did not adequately investigate the matters. Defense counsel replied that Ms. Bass’s ill feelings toward burglars might actually operate in the state’s favor. However, potential ill-will against the police is a valid, race-neutral basis for a peremptory challenge. State v. Mamon, supra; State v. Jones, 00-162 (La.App. 5 Cir. 7/25/00), 767 So.2d 862.

The prosecutor stated that she challenged Ms. Nobles because she was elderly, appeared inattentive, and only nodded in response to questions. The record supports these observations; lack of attention to the proceedings constitutes a race-neutral basis for a peremptory challenge. State v. Ellis, 28,282 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521; State v. Mamon, supra.

The prosecutor stated that she could not really articulate her reasons for challenging Ms. Turner and Ms. Price, other than, “when you’re talking to these people, [you] get a feel for them,” and “that’s just my gut instinct.” A “gut feeling” may well include discriminatory feelings and, without more, is not a sufficient race-neutral basis for a peremptory challenge. Alex v. Rayne Concrete Serv., 2005-1457 (La.1/26/07), p. 19, 951 So.2d 138, at 153; State v. Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293. However, Ms. Turner disclosed that, like Ms. Bass, her mother’s house hadlubeen broken into “at the end of last year,” with the result that money and jewelry had been stolen and the whole house “trashed.” She denied that this would affect her ability to be an impartial juror, but being a recent crime victim is a race-neutral basis for a challenge. State v. Thornton, 36,757 (La.App. 2 Cir. 1/29/03), 836 So.2d 1235, writ denied, 2003-0861 (La.10/31/03), 857 So.2d 474; State v. Burgess, 2004-121 (La.App. 3 Cir. 6/16/04), 876 So.2d 263.

The question is somewhat closer with Ms. Price. The cold record offers little guidance; at voir dire, in response to general questioning, she never volunteered an answer, and on four occasions when directly asked, she replied with a simple “yes” or “no.” After observing the proceedings, the district court may well have felt that this translated to lack of attention or responsiveness, a valid race-neutral explanation. State v. Ellis, supra. The court stated for the record that both prosecutor and defense counsel were African Americans, and the prosecutor confirmed that she was under no instructions to assure that the jury had any specific racial or gender makeup. In the totality of the circumstances, we cannot say the court’s decision to grant this peremptory challenge was an abuse of discretion. This assignment of error lacks merit.

Conclusion

In accordance with La. C. Cr. P. art. 920(2), we have reviewed the entire record and find nothing we consider to be error patent. For these reasons, Tommie Benton’s conviction and sentence are affirmed.

AFFIRMED.

      . The court minutes and counsel’s opening remarks at voir dire show that Benton was also charged by separate bill of information (No. 04-F2275) with another simple burglary, of which he was acquitted. The instant record contains no other details of that alleged offense.

      . It would have been helpful had the court followed the procedure of Batson (and of Art. 795) by first requiring the defendant to state on the record the factual basis of the objection, then finding a prima facie showing, and only then requiring the state to offer a race-neutral explanation for the challenges. As the court noted in State v. Robinson, 874 So.2d at 85 (fn.10), "the trial judge may effectively collapse the first two stages of Batson and rule on the question of discriminatory intent without deciding the question of whether the defendant established a prima facie case of purposeful discrimination.” < In the instant case, owing to the abridged procedure, the defendant made no comments about, or only pro forma denials of, the state's explanations for its peremptory challenges.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Derrick WILLIAMS, Appellant.
    No. 42,119-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      William J. Franklin, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Edward C. Jacobs, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

LA Bossier Parish grand jury returned an indictment charging the defendant, Derrick Williams, with the second degree murder of Calvin Alen, a violation of LSA-R.S. 14:30.1. The defendant pled guilty to the reduced charge of attempted second degree murder and was sentenced to serve 50 years in prison at hard labor with credit for time served. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On January 4, 2004, Brandy Carter (“Brandy”) invited guests to her apartment. Among the guests was the victim, Calvin Alen (“Alen”), who had come to the apartment to visit Brandy’s sister, Monique Carter (“Monique”). Alen was sitting next to Monique on the sofa. Alen stood up to start a movie, and as he was about to sit back down, approximately four gunshots were fired through a window. Alen sustained a gunshot wound to the back and later died as a result of the wound.

Monique told law enforcement officers that the defendant, her former boyfriend, had called her twice before the shooting and threatened to kill her if he saw her with anyone else. Law enforcement officers located the defendant who, after being Mirandized, confessed to the shooting. In doing so, the defendant told the officers that he and Monique were dating and having problems. He stated that he was looking through the back window of Brandy’s apartment and became angry when he saw Monique with another man. He admitted that he fired the shots, but he denied knowing that he had actually shot someone.

The Bossier Parish grand jury subsequently indicted the defendant for | ¡.second degree murder. The state and the defendant reached a plea agreement wherein the defendant agreed to plead guilty to the responsive charge of attempted second degree murder. The state agreed to allow the trial court to sentence the defendant after a pre-sentence investigation (“PSI”). The state also dismissed other pending charges and agreed not to file a habitual offender bill against the defendant.

At a hearing on January 11, 2006, the trial court informed the defendant that it would most likely impose the maximum sentence of 50 years due to the circumstances of this case unless the PSI report provided mitigating information regarding his personal history. Because the defendant would not absolutely concede to the state’s factual basis, instead saying, “I guess so, that’s what they say,” the trial court refused to accept the guilty plea on that date.

At a hearing held on January 23, 2006, the defendant conceded to the state’s factual basis and pleaded guilty to attempted second degree murder. The trial court ordered a PSI and subsequently sentenced the defendant to serve 50 years in prison at hard labor with credit for time served.

DISCUSSION

In his sole assignment of error, the defendant argues that his sentence 13⅛ excessive for him and this offense. He contends the trial court failed to consider his youthful age and the impact that the long incarceration would have on his family. According to the defendant, his actions were more negligent than intentional because the trial court characterized it as “carelessness.” Therefore, the defendant contends his actions were more consistent with manslaughter than second degree murder. Based upon that assumption, the defendant argues that he did not truly receive an actual benefit in regard to the reduction of potential exposure to confinement because manslaughter carries a maximum sentence of 40 years, while attempted second degree murder carries a maximum sentence of 50 years.

The defendant was sentenced on April 4, 2006, and defense counsel did not file a motion to reconsider sentence until October 6, 2006. Hence, the defendant’s motion to reconsider sentence was not timely filed within 30 days following the imposition of sentence.

When a defendant fails to timely file a LSA-C.Cr.P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

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 LSA-C.Cr.P. art. 894.1.' The trial judgé 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. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of LSA-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 LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, 2004-2380 (La.6/3/05), 903 So.2d 452. 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 the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 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, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates Art. 1, § 20 of the Louisiana Constitution 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 |Rthe 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. Lobato, 603 So.2d 739 (La.1992); State v. Bradford, 29,519 (La.App.2d Cir. 4/2/97), 691 So.2d 864.

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, citing State v. Smack, 425 So.2d 737 (La.1983). Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

In the instant case, during the sentencing hearing, the trial court noted that this crime stemmed from the defendant’s jealousy over his former | ^girlfriend being with another man. The defendant went to the residence armed with a gun and fired the gun into the apartment, killing a victim “who had no idea what was coming.”

The trial court also referred to information contained in the PSI report, noting that this was the defendant’s second felony conviction. The trial court further noted the age of the victim, who was 24 years old at the time- of his death, and the victim impact statement of the victim’s mother. The trial court stated that there was no way to bring back the victim’s life and reminded the defendant that he had previously been informed that the court would most likely impose the maximum sentence. The trial court noted some of the defendant’s criminal history from the PSI report and stated that his.criminal history indicated a definite pattern of violence culminating in the commission of this murder. The trial court stated that it was imposing the maximum sentence because of the need to protect the public, stating:

Anybody that did what you did through carelessness, anybody firing a gun into a dwelling where they know somebody is living you have got to know that the chances are great that somebody is going to be hurt or possibly killed, and that’s exactly what happened here. And we cannot, Mr. Williams, have someone that has those propensities roaming the streets of the United States.

Thus, a review of the record indicates that the trial court was cognizant of the sentencing considerations of LSA-C.Cr.P. art. 894.1.

Further, the PSI report revealed that the defendant had a criminal history of violent offenses against Monique arid others. In 2002, the defendant pleaded guilty to one count of aggravated assault, one count of ^simple assault, and one count of harassing phone calls with regard to Monique. He was also arrested for stalking along with the present charges, but the stalking charge was dismissed pursuant to his plea agreement. In 2003, the defendant pleaded guilty to attempted unauthorized entry of an inhabited dwelling and simple battery with regard to Monique for an incident that occurred on January 27, 2003. Out of that same incident, the defendant was also arrested for possession of Schedule II CDS with intent to distribute, but he pleaded guilty' to the reduced charge of attempted possession of cocaine.

When the defendant was arrested for the present offense, he was also charged with second degree battery with regard to an incident that occurred on August 14, 2003 involving Monique: The offense report from that date indicated that Monique had several bruises and lacerations on her forehead and neck; that her right eye was swollen shut, and that witnesses observed the defendant hitting, kicking and dragging her on the ground while she tried to resist. While incarcerated for the present offense, the defendant was also charged with another count of second degree battery for hitting an inmate several times in the eye with his fist; the inmate was subsequently treated for a detached retina and broken bones around the injured eye. Further, when the defendant confessed to the present crimes, the detectives interviewing him indicated that the defendant appeared to have the- opinion that the whole situation was the fault of Monique.

Pursuant to LSA-R.S. 14:27(D)(l)(a) and 14:30.1, the sentencing range for attempted second degree murder is imprisonment at hard labor for |snot less than 10 years nor more than 50 years without benefit of parole, probation, or suspension of sentence. The defendant’s sentence of 50 years for attempted second degree murder is not grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering. The defendant has an extensive criminal history of physical violence towards his former girlfriend and he actually killed a person out of jealousy over her. The defendant would have faced a mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence if he had been convicted of the original charge of second degree murder. Further, the defendant was a second-felony offender. In the light of these circumstances, a 50-year sentence does not shock the sense of justice. Thus, the trial court did not abuse its discretion, and the sentence is not constitutionally excessive. This assignment is therefore without merit.

.ERROR PATENT

We also examined the record for errors patent in accordance with LSA-C.Cr.P. art. 920. .A review of the record herein reveals one error .patent.

The sentence range for attempted second degree murder' is imprisonment at hard labor for not less than 10 years nor more than 50 years without benefit of parole, probation or suspension of sentence, pursuant to LSA-R.S. 14:27(D)(l)(a) and 14:30.1. The -defendant was sentenced to serve 50 years in prison at hard labor with credit for time served. The court did not state that |flthe sentence was to be served without benefit of parole, probation or suspension of sentence. The trial court’s failure to state that the sentence is to be served without benefits will be corrected automatically by operation of. LSA-R.S. 15:301.1. See State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790; State v. Klasek, 37,114 (La.App.2d Cir.4/11/03), 843 So.2d 646, writ denied, 2003-1359 (La.12/12/03), 860 So.2d 1149.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE-AFFIRMED.

      . The state set forth the factual basis as follows:
      Your Honor, on January the 4th of 2004, in the early morning hours at the Riverwood Apartments, 2211 Riverwood Circle, Derrick Williams fired approximately four shots through the window with a .38 caliber pistol. People were present inside that residence. Monique Carter was present there. A Calvin Allen was present. Mr. Allen later died of his gunshot wounds. After the shooting, Mr. Williams fled the scene. He was arrested later and admitted to the police shooting into the window. All this led to the charges against Mr. Williams.

      . LSÁ-R.S. 15:301.1 provides in pertinent part:
      A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service pf that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all of a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Michael Deondre WILSON, Appellant.
    No. 42,097-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Dhu Thopmson, William J. Edwards, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Michael Deondre Wilson, charged in an amended bill of information with armed robbery, was convicted by a jury of the simple robbery-of Adam Mingo. Thereafter, defendant was adjudicated a second felony offender and sentenced to eight years at hard labor. Defendant has appealed his conviction and sentence. Finding no error, however, we affirm.

Discussion

Sufficiency of the Evidence

According to defendant, the only physical evidence linking him to the robbery of the victim, Adam Mingo, was his (defendant’s) fingerprints on the victim’s car. Defendant claims that this evidence is unreliable because it is impossible to determine under what circumstances his fingerprints came to be on Mingo’s vehicle. Defendant also takes -issue with Mingo’s identification of him as one of the men involved in the robbery inasmuch as Mingo was unable to identify the other man involved.

The standard for evaluating the sufficiency of the evidence is whether, upon viewing the- evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This- standard was legislatively adopted in La. C. Cr. P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983).

lzThis court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or 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.08/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 14:65 defines simple robbery as the taking of anything of value belonging to another from the person of another that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.

The evidence introduced at trial established that on May 20, 2005, the victim, Adam Mingo, was lured into a house located at 1317 Andrew Street by Crystal “Rica” Owens where he was jumped by two men. “Rica” and Mingo were friends and involved in a sexual relationship. Mingo testified that one of the assailants had a slender build and the other had a stocky build. According to Mingo, the heavier man hit him once with a pipe, but discontinued at the smaller man’s insistence. Thereafter, Mingo was stripped of his shorts which held his car keys, then tied up with rope and dragged into a bedroom closet by the two men. As he was being dragged, Mingo was able to get a clear look at the slender man’s face, and the victim was able to positively identify this man as defendant.

laAfter escaping through a bedroom window, Mingo observed Rica and the larger man outside of the house, both of whom ran away when they saw him. Defendant, however, was nowhere to be seen. Realizing that his car had been stolen, Mingo ran to a nearby house and called the police. Once officers arrived, Mingo provided them with an account of what had occurred and a description of his vehicle.

Officer D.R. Sawyer testified that he spotted defendant driving Mingo’s vehicle and attempted to pull him over, but defendant refused to stop and a chase ensued. Officer Sawyer further testified that he observed defendant eventually bail from the car while it was moving and flee on foot. Officer Clint Cain testified that K-9 units were called in and tracked defendant to an abandoned house located at 1319 Andrew where he was subsequently found hiding in the attic. Officer Amy Muller testified that defendant’s fingerprints were found on the victim’s vehicle.

Mingo’s testimony was corroborated by evidence found at the crime scene, including the pipe, blood droplets in different locations, yellow nylon rope, and a notebook in which was written the names of Crystal “Rica” Owens and defendant. Furthermore, defendant made an incriminating and voluntary statement after he was placed into Officer Clark’s patrol car and given his Miranda warnings. Officer Clark’s car was equipped with a recording device that captured defendant stating, “Why didn’t they kill that [expletive]?” as Mingo came upon the scene to make an identification.

The jury heard this evidence and cross-examination of the victim and officers by defense counsel. Viewing the evidence in the light most | favorable to the prosecution, it was reasonable for the jury to find that the state proved all elements of simple robbery beyond a reasonable doubt.

Excessive Sentence

Defendant’s second assignment of error is that, in light of his prior criminal history (only one prior felony, aggravated flight from an officer) and the victim’s testimony (that defendant was not the one who struck him with the pipe, tied him up, or forced him into the closet), and given the sentencing range of 3½ to 14 years, his 8-year hard labor sentence is excessive.

Whether a sentence is too severe is determined by looking at the circumstances of the case and the defendant’s background. If it is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock one’s sense of justice, the sentence is considered to be a violation of La. Const, art. I, § 20. The trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

In the instant case, the trial court considered defendant’s prior criminal history, which included a felony conviction for aggravated flight from an officer, as well as defendant’s role in the robbery in relation to the other two participants, the testimony of the victim and his mother, and a letter submitted on behalf of defendant.

[5We are unable to say that defendant’s sentence is too severe in light of the circumstances of the case and defendant’s background. Defendant’s 8-year hard labor sentence is mid-range for a second felony offender, the range being 3 ½ to 14 years. Defendant’s actions, participation in a vicious and unprovoked beating, leading the officers on a high speed chase, and jumping out of a moving vehicle, suggest that he poses a significant risk to society. Defendant has tried to minimize his participation by noting the victim’s testimony that it was the other man who hit the victim with the pipe and that defendant urged the bigger man to stop .his assault. The fact remains, however, that defendant jumped Mingo, and, at the very least, stood by as Mingo was tied with rope and dragged into the back room closet. Finally, the statement made by defendant while in Officer Clark’s patrol car illustrates his lack of remorse for his actions as well as his indifference towards the victim’s life.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Thomas Breon BUTLER, Appellant.
    No. 41,985-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Thomas Breon Butler, pro se.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Shenequa L. Grey, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

|, The defendant, Thomas Breon Butler, was convicted of attempted obstruction of justice, adjudicated a second felony offender, and sentenced to ten years at hard labor without benefits of probation or suspension of sentence. We find no merit to the arguments asserted in this appeal, and we affirm the defendant’s conviction and sentence. Appellate defense counsel’s motion to withdraw is granted.

PACTS

The defendant was charged by bill of information with obstruction of justice for allegedly tampering with evidence in a criminal proceeding in which a sentence of death or life imprisonment may be imposed. He entered a not guilty plea, and a jury trial was held.

At trial, Detectives Russell Ross and Chuck Andrews of the Shreveport Police Department testified that the defendant’s brother, Timothy Butler, was a suspect in a robbery and homicide that was under investigation. Timothy was arrested pursuant to a warrant on January 4, 2002. At the time of the arrest, Timothy was in a vehicle with the defendant, his brother. Though not revealed at trial, the defendant was also arrested for possession of a firearm by a convicted felon and was brought in for questioning.

After being advised of and waiving his Miranda rights, the defendant was interviewed regarding any information he might have about his brother’s involvement in the robbery and homicide. The defendant agreed to submit to DNA testing. He signed an epithelial cells submission form reflecting his voluntary submission of epithelial cells for extraction of DNA. [¡¡Detective Andrews first obtained the epithelial cells from Timothy and then from Thomas. The swabs used to collect the cells were placed in respectively-labeled sample boxes, and the boxes were placed on a bookshelf in Detective Ross’s office where the defendant had been interviewed. Detective Andrews left the office after taking the sample. Shortly after, Detective Ross stepped outside his office and walked a few feet down the hall to look for Andrews, leaving the defendant alone for a period between twenty seconds to a minute.

When Detective Ross returned to his office, he saw the defendant bent over his desk with his head obscured from sight. When the defendant stepped away from the desk, Ross saw that he had a swab cupped in his right hand. The box labeled as containing Timothy’s epithelial cell sample had been opened and the swab removed. According to Ross, the defendant explained that he thought Timothy committed the murder, and he was trying to prevent the police from obtaining evidence by somehow contaminating or destroying the sample. Ross explained to the defendant that his story did not make sense, because they could easily obtain another sample from Timothy.

Both the defendant and his brother again voluntarily submitted epithelial cell samples. The offense report was written by Detective Ross four days after the commission of the offense. By then, the original samples had been thrown away.

|sThe state also presented the testimony of Corporal Clarence Van Wray regarding the execution of the warrant that led to the arrests of the defendant and his brother. The defense did not present any testimony.

The jury found the defendant guilty of attempted obstruction of justice, a violation of La. R.S. 14:27 and La. R.S. 14:130.1. The state filed a habitual offender bill alleging the defendant to be a second felony offender. The defendant pled not guilty. After a hearing, the trial court adjudicated him a second felony offender. On September 7, 2004, the trial court denied the defendant’s motions for a new trial and for post verdict judgment of acquittal and then imposed the sentence of ten years at hard labor without benefits of probation or suspension of sentence and with credit for time served. In imposing the sentence, the trial court noted that the defendant did not have an extensive criminal history and that his prior felony had not been a crime of violence. Thus, she imposed the minimum sentence allowable under the law.

On July 19, 2006, the defendant filed a pro se motion for an out-of-time appeal, which was granted, by the trial court. After noting the defendant’s self-representation, this court remanded the matter to the trial court for either valid waiver of counsel or determination of indigency and appointment of counsel. After the defendant indicated he desired counsel and was indigent, the Louisiana Appellate Project enrolled on his behalf. In the meantime, the defendant had filed a pro se brief,

Appointed counsel, Carey Ellis, filed an Anders brief and a motion to withdraw, alleging he found no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). He noted that the bills of information charging the defendant with obstruction of justice and the habitual offender bill were properly filed and signed by an assistant district attorney. Also, the defendant was present in court and represented by counsel at all important stages of the proceedings, including arraignment, the jury trial, the habitual offender hearing, and sentencing. Ellis requested that the defendant be allowed to file a supplement to his pro se brief, if necessary.

On February 22, 2007, this court issued an order holding defense counsel’s motion to withdraw -in abeyance and granting the defendant the opportunity to file a supplemental brief. The defendant filed both a pro se supplemental brief and “clarifications” of his brief raising the issues addressed below.

DISCUSSION

Sufficiency of the Evidence

. The defendant argues that the evidence was insufficient to support his conviction. He believes that the destruction of the swab and box from the first epithelial sample taken from his brother, Timothy, which he refers to as “State’s Exhibit Unknown,” deprived him of evidence in his favor and requires a reversal of the guilty verdict.

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 |Rdetermine 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); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The defendant was convicted of the responsive verdict of .attempted obstruction of justice. La. R.S. 14:130.1 defines obstruction of justice in pertinent part as follows:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place of review of any such evidence.

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. La. R.S. 14:27 A.

In State v. Hannon, 37,351 (La.App.2d Cir.8/20/03), 852 So.2d 1141, this court held:

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State v. Mitchell, 35,970 (La.App.2d Cir.5/08/02), 818 So.2d 807; State v. Bryant, 33,078 (La.App.2d Cir.3/1/00), 754 So.2d 387. Even if an offense is legislatively designated as responsive by La. C. Cr. P. art. 814, a defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. La. C. Cr. P. art. 814(C). State v. Mitchell, supra; State v. Johnson, 30,078 (La.App.2d Cir.12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054. Absent a contemporaneous objection, however, a defendant cannot complain if the jury returns a legislatively-approved responsive verdict, even where there is insufficient evidence to support such a verdict, provided that the evidence is sufficient to support the charged offense. State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990); State v. Mitchell, supra.

The defendant’s complaints regarding the “unknown” exhibit have no merit. The jury’s verdict was not based on DNA-related evidence, nor do the elements of the crime for which he was convicted require such evidence to prove the commission of the crime. In any event, the defense did not make any objection on the record to the responsive verdict of attempted obstruction of justice. When the evidence, including the testimony of Detectives Ross and Andrews, is viewed in the light most favorable to the prosecution, a rational trier of fact could reasonably conclude that all of the elements of the charged offense were proven beyond a reasonable doubt. |7The testimony established that the defendant and his brother voluntarily submitted epithelial samples for DNA testing and that the defendant, when momentarily alone in Detective Ross’s office, tampered with the evidence by opening the box containing Timothy’s sample and removing the swab to either destroy or contaminate the sample. Thus, we find the evidence sufficient to support the conviction for attempted obstruction of justice. This assignment is without merit.

Ineffective Assistance of Counsel and Related Claims

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 evidentia-ry 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. However, 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).

|sTo 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). See also State v. Tilmon, 38,003 (La.App.2d Cir.04/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant, of a fair trial, ie., 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 19been 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.

Counsel is ineffective when he fails to interview known witnesses. State v. Potter, 612 So.2d 953 (La.App. 4th Cir.1993), writ denied, 619 So.2d 574 (La.1993). The election to call or not to call a particular witness is a matter of trial strategy and ⅛ not, per se, evidence of ineffective assistance. State v. Lee, 39,969 (La.App.2d Cir.8/17/05), 909 So.2d 672, writ denied, 2006-0247 (La.9/1/06), 936 So.2d 195; State v. Morrison, 32,123 (La.App.2d Cir.7/22/99), 743 So.2d 232, writ denied, 99-3514 (La.5/26/00), 762 So.2d 1103.

The defendant alleges that all counsel who represented him were ineffective. He claims that his first court-appointéd attorney, Michael Bowers, failed to make him aware of the entrapment defense or any other valid defense strategy during his sole consultation. He also complains that Bowers failed to object to the filing of an amended bill of information and continuances in the trial court. The defendant complains that though he told Joe Clark, his second-court appointed attorney who represented him at trial, that he was handcuffed at the time of the alleged offense and could not have committed the crime, Clark “shockingly” concealed this fact from the jury. |inHe generally complains of the failure to prepare a defense, to call witnesses, and to conduct a reasonable investigation. The defendant also complains about appellate counsel’s filing of an An-ders brief, which he deems “outrageous.” Even the jailhouse lawyer is accused of ineffectiveness. In addition, the defendant complains about the qualifications of Detectives Ross and Andrews to collect the DNA evidence in the first place. Essentially, the defendant claims he was convicted as a scapegoat, because the investigation of the robbery and homicide became so bungled. He asserts that all of the above individuals, along with the trial court, were participants in a conspiracy he terms the “CACK” to bring bogus charges against him and obtain a conviction.

A review of the record reflects that the majority of the claims of ineffective assistance of counsel are' more properly raised in a PCR application 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, supra; State v. Williams, supra. The record does not contain any information regarding the number and extent of both defense attorneys’ consultations with the defendant, nor does it reflect the attorneys’ actions in conducting a reasonable investigation, the preparation of a defense and interviewing of witnesses.

We note that the defendant was under arrest for possession of a firearm by a convicted felon at the time he committed the offense of obstruction of justice. Although the defendant complains that Clark concealed the fact of his having been under arrest and allegedly handcuffed Inwhen the offense was committed, it can be presumed from the record that the fact of his arrest was purposefully not mentioned before the jury to avoid prejudice from reference to other crimes. Counsel Clark objected to comments made by the detectives testifying at trial and moved for a mistrial twice. The trial court denied both motions. It was within the trial court’s discretion to determine whether the comments would jeopardize a fair trial or whether an admonition would be adequate to assure a fair trial, and the trial court’s ruling is subject to scrutiny under the abuse of discretion standard. State v. Powell, 598 So.2d 454 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992). Defense counsel declined an admonition to avoid drawing further attention to the comments by the officers. We detect no prejudice to the defense from comments by the detectives that barely alluded to other crimes. However, Clark acted diligently in addressing these issues at trial. A reviewing court must give great deference to the trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. See State v. Moore, supra; State v. Tilmon, supra.

Furthermore, the only “witnesses” to the offense were Detectives Ross and Andrews; therefore, the defendant’s claims that his attorneys failed to interview witnesses are clearly without merit. Both officers testified at trial and were closely cross-examined by defense counsel.

Lastly, we point out that the defendant’s claims against his attorneys, the trial court, and the detectives appear largely as outlandish expressions of |1?his frustration at being convicted and his disregard for our legal system. We find no merit in his claims.

Claims of Illegal Incarceration Due to the Invalidity of the Proceedings, Including the Bills of Information, Trial, Sentencing, and Jurisdiction

The defendant claims his incarceration is illegal due to alleged problems with bills of information filed in this matter. On February 14, 2002, he was charged by bill of information with one count of obstruction of justice and one count of possession of a firearm by a convicted felon. On November 20, 2002, he was charged by an amended bill of information with one count of obstruction of justice. The defendant refers to a minute entry for July 31, 2002, that states, “Amended bill of information and supplemental discovery response were filed this day by the state.” He appears to believe that this reflects another bill filed in the matter.

However, it appears that the minute entry reference to an amended bill on July 31, 2002, refers to copies of a previous bill of information for simple burglary in 1996, which were filed as supplements to the state’s discovery response. The record does not include any new or amended bill filed on July 31, 2002.

Nevertheless, the defendant asserts that the bill referred to in the July 31, 2002 minute entry is void and that it invalidated the prior bill of information filed February 14, 2002. He further claims that the amended bill filed November 20, 2002, was never “disclosed” even though it was the “valid, legitimate bill going into trial” and that it invalidated all prior bills. Moreover, the “consolidation” of the bills from July 31, 2002, and November '20, 2002, created a “mongrel” bill at the arraignment. He | ^contends the arraignment on November 20, 2002, was illegal, because it exceeded the limitations by at least five to seven months. Further, he claims the bills of information did not advise of- all the elements of the crime. He asserts that his illegal, unconstitutional incarceration was caused by the invalidity of all three bills.

In the same vein, the defendant argues that the invalid bills resulted in him being sent to trial before a court that lacked jurisdiction. He accuses the trial court of illegally manipulating the bills of information and of malfeasance. Additionally, he argues that his trial was invalid due to his having no entrapment defense option. According to the defendant, all the invalid aspects of the trial makes his sentence invalid.

La. C. Cr. P. art. 384 provides that a bill of information must be filed by the district attorney in open court in a court having jurisdiction to try the offense, or in the office of the clerk of court for that court. Review of the minutes and record shows that this requirement was met. Where the wording of the bill of information is such that no prejudice or surprise is shown by the defendant, the information will be deemed sufficiently clear. State v. Sims, 426 So.2d 148 (La.1983); State v. Finch, 31,888 (La.App.2d Cir.5/5/99), 733 So.2d 716.

The technical sufficiency of the bill of information may not be questioned after conviction where the accused has been fairly informed of the charge against him by the bill, has not been prejudiced by surprise or lack of notice, has not raised an objection to the bill prior to the verdict, and is protected against further prosecution by examination of the pleadings and |14the evidence on the present conviction. State v. James, 305 So.2d 514 (La.1974); State v. Shelton, 545 So.2d 1285 (La.App.2d Cir.1989), writ denied, 552 So.2d 377 (La.1989).

A review of the record reveals that the November 20, 2002, amended bill of information was in proper form. The defendant was indeed fairly informed of all the elements of the crime of obstruction of justice. He has not been prejudiced by surprise or lack of notice. He did not raise an objection to the bill prior to the verdict. Moreover, he is protected against further prosecution by examination of the pleadings and the evidence on the present conviction. The record further shows that the defense acknowledged that the defendant was fairly informed of the charges when it deemed a motion for a bill of particulars satisfied at proceedings on November 20, 2002. Hence, the defendant’s claims regarding the unconstitutionality of his incarceration due to the alleged invalidity of the bill(s) of information are without merit.

Moreover, the defendant’s claim of an untimely arraignment is also lacking merit. The record shows that he waived formal arraignment and pled not guilty to the amended bill of information on November 20, 2002, all in accordance with La. C. Cr. P. arts. 551 et seq. Finally, the defendant’s argument that his trial was invalid because he had no entrapment defense option is nonsensical and therefore merit-less.

Tainted Pretrial and Trial Proceedings— Denial of Due Process

The defendant contends that the actions of the trial court were “repulsive” and that his constitutional rights were denied. He calls his case | ^incredibly tragic and pitiful, “especially considering the fact that the trial court aided and abetted the escape of armed robbers and murderers.” He argues that his conviction should be reversed, his sentence set aside, and his time served be put toward any subsequent conviction he might have.

Having closely examined the defendant’s filings and the record of the trial court proceedings, we conclude that the record does not support the defendant’s claims regarding the trial court proceedings. His complaints amount to bombastic ranting regarding the trial court’s rulings and the propriety of the trial court’s actions. They do not assert any legitimate basis for reversal.

CONCLUSION

In light of the foregoing reasons, we affirm the defendant’s conviction and sentence. The motion to withdraw filed by defense appellate counsel Carey Ellis is granted.

CONVICTION AND SENTENCE AFFIRMED.

MOTION TO WITHDRAW GRANTED.


author: LOLLEY, J.

text:
    Laura PARDEE, Plaintiff-Appellee, v. FOREST HAVEN NURSING HOME, Defendant-Appellant.
    No. 42,321-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Gold, Weems, Bruser, Sues & Rundell by Samuel N. Poole, Jr., Alexandria, for Appellant.
    Gary D. Nunn, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

h Forest Haven Nursing Home appeals a judgment from the Office of Workers’ Compensation, District 1-E, Parish of Ouachita, State of Louisiana in favor of Laura Pardee. For the following reasons, we reverse in part and affirm in part.

Facts

Medical History

Laura Pardee was working as a certified nurse’s assistant (“CNA”) at Forest Haven Nursing Home (“Forest Haven”), where she injured her left wrist while transferring a patient from a bed to a wheelchair on March 19, 2002. That same day she obtained treatment for her injury from Dr. John Overby. Her x-rays showed no evidence of fracture, dislocation, or soft tissue abnormality. She was then referred to Dr. Richard Ballard who treated her for pain and swelling to her wrist. After a CT scan was performed, Dr. Ballard diagnosed her condition as tendinitis of the wrist. Pardee had returned to Forest Haven on light duty, but Dr. Ballard later took her off work due to swelling in her left hand.

Pardee continued to complain regarding her wrist, so she was referred to Dr. Marion Milstead in September 2002. The diagnostic tests ordered by Dr. Milstead all came back negative, and he prescribed pain medication as well as anti-inflammato-ries to treat her symptoms. Additionally, he gave her a steroid shot and put her wrist in a brace. In December 2002, when Pardee’s wrist was still swollen and tender, Dr. Milstead ordered another battery of tests to look for rheumatoid arthritis, lupus, vascular disease, and diabetes. All of her lab work returned as normal, which ruled out the possibility of metabolic origin, leaving irritation solely from a sprain type activity as the source of Pardee’s problem. Pardee was referred to Dr. Larry Broadwell, a rheumatologist, to examine other potential | ¡.causes for her complaints; however, Dr. Broadwell did not find any cause for Pardee’s wrist ailment. He recommended that she continue treatment with Dr. Milstead, who continued Pardee on the same course of treatment — mainly anti-inflammatories.

By May 22, 2003, Dr. Milstead believe that Pardee had reached maximum medical improvement, and he recommended a Functional Capacity Evaluation and a possible disability rating. He also recommended arthroscopic inspection of the wrist so as to evaluate Pardee’s joint visually. In July 2003, Pardee was seen by a physician chosen by Forest Haven, Dr. Joe Morgan, an orthopaedic surgeon. He reviewed her medical history in connection with her wrist treatment and examined her. Dr. Morgan determined Pardee to be at maximum medical improvement from her on-the-job injury. He further did not find her in need of medication, bracing, splinting, or any type of surgery to her wrist. He did not assign any physical impairment rating to Pardee, and he did not place any functional restrictions on her. In fact, Dr. Morgan advised that Pardee could “resume her usual occupation of CNA without restriction based on any injury she may have sustained.... ”

On August 27, 2003, Forest Haven terminated Pardee’s temporary total disability (“TTD”) benefits on the basis of Dr. Morgan’s report. On September 9, 2003, Dr. Milstead prepared a letter report acknowledging his agreement with Dr. Morgan’s recommendations, except as to Dr. Morgan’s employment recommendations for Pardee. Dr. Milstead reported that because Pardee worked “... as a Nurse Assistant with the strenuous type activities required as a Nurse Assistant, I would recommend restrictions that would limit her to no lifting over approximately 5 to 10 pounds and avoid repetitive flexion , and extension of her | ¡¡fingers.” Dr. Morgan again mentioned the possibility of arthroscopic inspection of the joint, but had no other recommendations for other treatment.

Procedural History

On December 19, 2003, Pardee filed her Disputed Claim for Compensation. Due to the differing opinions of Drs. Morgan and Milstead, the third-party administrator for Pardee’s compensation claim requested an independent medical examination. Pursuant to that request, Pardee was examined by Dr. Carl Bilderback in March 2004', who was unable to find the cause of Pardee’s pain and reported no objective findings consistent with her complaints. He did not believe that arthroscopic surgery would be helpful, and he opined that she was at maximum medical improvement. Further, he did not believe she was in need of further medical or surgical treatment for her injury. Dr. Bilderback felt that Pardee could return to work as a CNA, even though it might cause her pain.

At the trial of the matter, the parties stipulated as to the work-related nature of Pardee’s injury, as well as her receipt of compensation benefits through August 27, 2003, at the rate of $160.00 per week, based on an average weekly wage of $240.00. Following the trial, the workers’ compensation judge (“WCJ”) entered judgment in favor of Pardee, awarding her TTDs from August 27, 2003 through October 30, 2003. Forest Haven was also determined to have acted arbitrarily and capriciously for failing to reinstate Pardee’s benefits following Dr. Milstead’s September .9, 2003 letter, and it was assessed a penalty in the amount of $2,000.00. Par-dee was also awarded attorney fees in the amount of $3,500.00. The trial court further determined that Pardee was entitled to arthroscopic surgery and continuing medical treatment for her injury. Finally, Forest Haven was ordered to pay for all |4costs of the proceedings, including Par-dee’s deposition costs. This appeal by Forest Haven ensued.

Discussion

. Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. The issue to be resolved by the appellate court is not whether the workers’ compensation judge was right or wrong, but whether the factual conclusion was reasonable. Accordingly, where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.07/01/97), 696 So.2d 551; Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/09/98), 722 So.2d 358, writ denied 1999-0073 (La.02/26/99), 738 So.2d 588. The question of whether the claimant is entitled to compensation benefits is ultimately a question of fact, and the workers’ compensation judge’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Nelson, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Lee v. Heritage Manor of Bossier City, 41,828 (La.App.2d Cir.03/14/07), 954 So.2d 276.

Indemnity Benefits

In its first assignment of error, Forest Haven argues that the trial court erred in finding Pardee entitled to TTD benefits from August 27, 2003 through October 30, 2003. Specifically, Forest Haven questions whether an employer is required to ^reinstate TTD benefits when no physician has unequivocally stated that the claimant could not return to work in any capacity, and the employer has been advised by an examining physician that the claimant could return to work without restriction. Forest Haven maintains that Dr. Milstead, in his September 9th letter, did not state that Pardee was unable to work, but that she could work with specified restrictions.

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(C); Brantley v. Delta Ridge Implement, Inc., 41,190 (La.App.2d Cir.06/28/06), 935 So.2d 308. This is the standard of proof which a claimant must satisfy when he files a disputed claim form seeking an award of TTD benefits after the employer or insurer terminates voluntary payments of TTD benefits. To prove a matter by clear and convincing evidence, as required to establish entitlement to TTD benefits, means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Id.

Here, we agree with Forest Haven that the WCJ was manifestly erroneous in finding that Pardee was entitled to TTD benefits for the period of time between August 27, 2003 and October 30, 2003. Simply put, Pardee failed to prove by clear and convincing evidence that she was physically unable to engage in any employment or self-employment. Notably, the WCJ offered little explanation in her oral reasons for judgment to support her conclusion, only stating that “[a] review of the evidence has persuaded this Court that the claimant is entitled to received [sic] temporary total disability benefits from August 27th, 2003, until ... October 30th, 2003.” However, our review of the same evidence, does not indicate | fithat Pardee was clearly physically unable to engage in any employment or self-employment during that period of time.

Specifically, Pardee argued that Forest Haven terminated her benefits based only on Dr. Morgan’s July 2003 report that Pardee could “resume her usual occupation of CNA without restriction based on any injury she may have sustained....” If Dr. Morgan’s report had been the end of the line, we might have agreed with Pardee. However, the story did not end with Dr. Morgan’s opinion, but with the September 9, 2003 report by Dr. Milstead in response to Dr. Morgan’s July 2003 report. Therein, Dr. Milstead agreed with Dr. Morgan’s impressions and recommendations, but whereas Dr. Morgan opined that Pardee could return to work specifically as a CNA, Dr. Milstead did not. Dr. Milstead, in his report determined that:

I do agree, as mentioned, with the reports of Dr. Morgan except for the part, since she did work as a Nurse’ [sic] Assistant with the strenuous type activities required as a Nurse’ [sic] Assistant, I would recommend restrictions that would limit her to no lifting over approximately 5 to 10 pounds and avoid repetitive flexion and extension of her fingers.

Dr. Milsteád’s letter is critical, because whereas Dr. Milstead did place restrictions on Pardee, he did not state explicitly that she was unable to work. In fact, the inference to be drawn from Dr. Milstead’s letter is that Pardee could work, not that she could not work. Importantly, the determination to make in the award of TTD benefits is not whether the claimant could perform the previous work, but whether the claimant could perform some sort of work. It is of no import whether Pardee could perform the job she had before-it is only required that she could perform some job. Furthermore, although Dr. Milstead stated he could not recommend that Pardee work as a CNA, he testified that he did discuss with her looking for a different type of job. Dr. Milstead obviously indicated that 17Pardee could perform some type of work (i.e., work where she did “no lifting over approximately 5 to 10 pounds and avoid[ed] repetitive flexion and .extension of her fingers”).

The restrictions stated by Dr. Milstead are a far cry from an order that Pardee could perform no work at all, and certainly fall short of proving that Pardee’s TTD benefits should have been reinstated. Obviously, the equivocal opinion by Dr. Mil-stead ⅛ not clear and convincing evidence that Pardee was unable to work. Therefore, the WCJ erred in concluding that the evidence before it supported a finding that Pardee could not work for the period in question and was, as a result, entitled to TTD benefits. Consequently, we reverse thé trial court’s award of TTD benefits for the period of August 27 through October 30, 2003.

Additionally, the trial court had also imposed penalties and attorney fees against Forest Haven for failing to reinstate Pardee’s TTD benefits after receiving Dr. Milstead’s September 9th letter. However, considering our findings herein that Forest Haven was not arbitrary and capricious for failing to reinstate Pardee’s TTD benefits, the awards of penalties and attorney fees for $2,000.00 and $3,500.00, respectively, were also in error.

Arthroscopic Surgery

Forest Haven also argues that the trial court erred in finding Pardee was entitled to arthroscopic surgery and continuing treatment for her left wrist. Here, Forest Haven maintains that the trial court erred in ordering the arthroscopic surgery, because the sole purpose of the arthroscopic surgery would be to confirm Dr. Milstead’s suspected diagnosis of chronic synovitis, which he was already treating Pardee for. Forest Haven notes that it is not obligated to pay for medical | treatment undertaken solely for the purpose of obtaining an opinion that does not affect the treatment of a claimant. We disagree that is the case here. •

An employer must furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of the state as legal. La. R.S. 23:1203(A); Collins v. Patterson Drilling, 39,668 (La.App.2d Cir.05/11/05), 902 So.2d 1264. Jurisprudence provides that an employee seeking payment for medical or surgical treatment must prove that the expenses are reasonably necessary for treatment of a medical condition caused by a work-related injury. Collins, supra; Tatum, v. St. Patrick’s Psychiatric Hosp., 32,616 (La.App.2d Cir.12/30/99), 748 So.2d 1276, writ denied, 2000-0288 (La.03/24/00), 758 So.2d 157.

Like the WCJ, we have carefully reviewed the deposition testimony of Dr. Milstead, and Forest Haven correctly characterizes Dr. Milstead’s testimony as well as his reasoning for the surgery. However, we do not consider the WCJ’s conclusion on this issue to be manifest error, because we understand how such a diagnostic procedure could be necessary and useful, even though it might only confirm the condition which Pardee was already being treated for. Specifically, we note the WCJ’s opinion that:

[t]he arthroscopic surgery will give Dr. Milstead a greater degree of understanding about [Pardee’s] injury. All other avenues were explored in an effort to reach a resolution. They were not successful. The arthroscopic surgery is not only for diagnostic purposes. It is recommended to allow revelation about the extent and source of [Pardee’s] problem. She’s entitled to have that revelation sought.

Primarily, we note that despite Dr. Mil-stead’s ongoing treatment of Pardee, she continued to have unexplained pain and swelling in the wrist — despite his diagnosis of her condition. Thus, irrespective of the diagnosis by Dr. Milstead, Pardee was not responding to the treatment she was receiving. Whereas Dr. |flMilstead thought the arthroscopic surgery would probably be consistent with his diagnosis, it is conceivable that the arthroscopy could come back with a different result. Notably, Dr. Milstead stated that “... based on the fact that she’s still hurting, the only thing left that may find something is to look in the joint.” Clearly, he had not ruled out the possibility that something else was causing Pardee’s pain and swelling.

Regarding the further medical treatment of Pardee other than the arthroscopic surgery, Dr. Milstead explicitly recommended in his deposition that if she continued to hurt, Pardee would need intermittent bracing and anti-inflammatory medication. Obviously, however, if the arthroscopic surgery resulted in a different diagnosis, it might be necessary to alter Pardee’s course of medical treatment.

Pardee was injured while performing her job at Forest Haven, and even following a significant period of time after, she was still experiencing pain and swelling-enough that she could no longer work in the field in which she was trained. Dr. Milstead believed her complaints, and there is nothing in this record to indicate that Pardee was malingering. In fact, the WCJ noted that the record seemingly indicated the various physicians’ beliefs that Pardee was a credible patient. Considering the record in its entirety and Pardee’s continued unimproved medical condition, we cannot conclude that the WCJ committed manifest error in ordering that Pardee was entitled to the arthroscopic surgery and continuing treatment for her left wrist. This assignment of error by Forest Haven is without merit.

_]¿¡¿Court costs

Finally, Forest Haven argues that the WCJ erred in assessing it with the costs of the litigation proceedings. The allocation of court costs among the parties is.a matter which is subject.to the discretion of the. trial court and its allocation of those costs will not be disturbed absent evidence of an abuse of that discretion. Shreveport Elec. Co., Inc. v. Oasis Pool Service, Inc., 38,776 (La.App.2d Cir.09/29/04), 889 So.2d 274, writ denied, 2005-0340 (La.04/01/05), 897 So.2d 613; see also La. C.C.P. art. 1920. In this case, Pardee had to bring suit against Forest Haven not only for the TTD benefits, but also for her ongoing medical treatment. Considering that Pardee ultimately prevailed- in a portion of her claim against Forest Haven, we do not find the WCJ’s award of all litigation costs against Forest Haven as being inequitable. Thus, we affirm that portion' of the judgment as it pertains to the assessment of costs against Forest Haven.

Conclusion

For the foregoing reasons, the judgment in favor of Laura Pardee is reversed as it relates . to the. award of temporary total disability benefits and the resultant award of penalties and attorney fees against Forest Haven. The judgment is affirmed as it regards Pardee’s arthroscopic surgery, continuing medical treatment, and costs of the trial proceedings. Costs of the appeal proceedings are to be divided by the parties equally.

REVERSED IN PART; AFFIRMED IN PART.