author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Darryl A. SMITH.
    No. 06-KA-557.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Thomas Block, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.

      Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| ./The defendant, Darryl Smith, entered a Crosby plea to charges of possession of cocaine. As is customary in a Crosby plea, defendant now challenges the trial court’s denial of his Motion to Suppress. For the reasons that follow, we affirm.

FACTS:

At the suppression hearing, Officer Todd Giacona of the Jefferson Parish Sheriffs Office testified that he had seven years of police experience. For the previous two years, he had been assigned to “Project STAR.” Officer Giacona explained that he was a community police officer for the Tallow Tree area, located on the West Bank of Jefferson Parish. In accordance with this position, he handed out business cards to people in the neighborhood and wore a pager. When residents wanted to report a problem, they would page him and relate information. [ ^Officer Giacona explained he received information from the community on a daily basis.

On March 24, 2006, Officer Giacona was involved in an ongoing investigation of Apartment C at 1037 Tallow Tree Lane, as well as an adjacent apartment. Earlier in the month, he had received information that there was drug activity at Apartment C. Although Officer Giacona had no specific information regarding the defendant, Officer Giacona testified that his confidential informant showed him a location on the second floor of an abandoned building at 1040 Tallow Tree Lane, which was across the street from the target apartment, and from which he could watch the drug activity. According to Officer Giacona, he had watched the building for a good while, and he had officers in the front of the building. When a “deal” was made, he would have the other units intercept the individuals. Officer Giacona had made prior arrests in this area, “dealing with guns and illegal narcotics”.

While Officer Giacona was watching the apartment with binoculars on March 24, 2006, he observed the defendant and another person ascend the staircase to meet with a third person, who exited from Apartment C. While the three men were outside on the balcony, Officer Giacona observed the defendant engage in a hand-to-hand transaction with the black male who exited from the apartment. Although the officer could not see what was being exchanged, he saw a hand-to-hand transaction where something was put in “their” pocket. Based on his experience, Officer Giacona believed he had witnessed a drug transaction.

The defendant and his companion descended the stairs and crossed the street, away from the other officers who were stationed downstairs. Officer |4Giacona went downstairs and “confronted them.” He walked up behind them, drew his gun, and ordered them to the ground. At that point, the defendant dropped something, which was later determined to be a clear bag containing rocks of crack cocaine.

The trial judge denied the Motion to Suppress with the following reasons:

THE COURT:

This Officer observed — he’s been experienced in this kind of thing, he’s familiar with the neighborhood, with an ongoing investigation. He sat and he observed what he believed to be a hand-to-hand sale. He’s got the experience to know what a hand-to-hand sale looks like. He indicated that something exchanged hands and then was put in the pocket. Said it could have been a handshake, but it wasn’t because something was exchanged; he had binoculars. He could see. It was light enough that he could see. They passed in front of him, I think. He had reasonable suspicion plus probable cause, in this Court’s opinion, to take him down. He did it appropriately. Cocaine was dropped from the Defendant’s hand.
For all those reasons I’m going to deny the Motion to Suppress the Evidence.

Thereafter, the defendant entered a Crosby plea, pled guilty to the multiple bill, and was sentenced as a second offender. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, the defendant argues the trial court erred in failing to grant the defense’s Motion to Suppress the evidence because the evidence was illegally retrieved. The defendant contends that he was arrested without probable cause when the officer ordered him to the ground at gunpoint. As such, he contends that the trial judge should have suppressed the cocaine as a product of an unlawful arrest. The State contends that the encounter was an investigatory stop and the defendant abandoned the cocaine before he was arrested.

| fiThe Fourth Amendment to the United States Constitution and Article I, § V of the Louisiana Constitution protect individuals from unreasonable searches and seizures. But, law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as by State and federal jurisprudence, to stop and interrogate persons whom they reasonably suspect of engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion to stop is something less than the probable cause required for an arrest. In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer “that might well elude an untrained person.” State v. Huntley, 97-965 (La.3/13/98), 708 So.2d 1048, 1049, citation omitted. An officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Davis, 00-278 (La.App. 5 Cir. 8/9/00), 768 So.2d 201, 212, unit denied, 00-2730 (La.8/31/01), 795 So.2d 1205.

The determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Katie, 96-2650 (La.9/19/97), 699 So.2d 879, 880, per curiam. The State has the burden, in a hearing on a Motion to Suppress evidence, of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s denial of a Motion to Suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Butler, 01-907 (La.App. 5 Cir. 2/13/02), 812 So.2d 120,124.

|fiThe initial question in the case at bar is whether there was reasonable suspicion of criminal activity to support an investigatory stop. In State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 527, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117, this Court held that an officer had reasonable suspicion to justify an investigatory stop after observing the defendant engage in what the officer believed was a hand-to-hand transaction.

We find the totality of the circumstances support the trial judge’s finding of reasonable suspicion of criminal activity. Although the record does not disclose that the officer had specific information about the defendant, he did have information that drugs were being sold out of the particular apartment the defendant visited. All of the factors together, including this experienced officer’s observation of the apparent hand-to-hand transaction outside of an apartment under surveillance for narcotics activity in a high crime area, and the fact that the officer had made other narcotics arrests there, formed reasonable suspicion of criminal activity to support an investigatory stop.

The next issue is whether Officer Giacona’s approaching the defendant from behind, drawing his weapon, and ordering the defendant to the ground, elevated the encounter to an arrest. An arrest occurs when the circumstances indicate intent to affect an extended restraint on the liberty of the accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Gibson, 97-1203 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276. A seizure is an arrest, rather than an investigatory stop, when a reasonable person in the defendant’s position would have understood the situation to be a restraint on freedom of movement of the degree that the law associates with a formal arrest. State v. Cojoe, 01-2465 (La.10/25/02), 828 So.2d 1101, citation omitted. However, the use of actual restraint does not, alone, transform a street encounter between the police and a citizen into |7an arrest because an investigatory stop necessarily “involves an element of force or duress, temporary restraint of a person’s freedom to walk away.” State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286, per curiam, (citation omitted).

In State v. Cojoe, supra, the Louisiana Supreme Court explained that there is no specific test to determine whether an encounter is an arrest or investigatory stop:

Although a seizure occurs for Fourth Amendment purposes either when an individual has been subjected to physical restraint or when he submits to the assertion of official authority, California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), no bright-line rule exists for distinguishing between investigatory stops, characterized by brief restraint imposed on a lesser showing of reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), from arrests based on probable cause.
Id. at 828 So.2d at 1103.

In United States v. Sanders, 994 F.2d 200 (5th Cir.1993), cert. denied, 510 U.S. 955, 114 S.Ct. 408, 126 L.Ed.2d 355 and cert. denied, 510 U.S. 1014, 114 S.Ct. 608, 126 L.Ed.2d 572 (1993), the court recognized that pointing a weapon at a suspect, ordering him- to lie on the ground, and handcuffing him, does not automatically convert an investigatory detention into an arrest. Id. at 206. Citing numerous cases, the Sanders court pointed out that, “other circuits have held uniformly that, in and of itself, the mere act of drawing or pointing a weapon during an investigatory detention does not cause it to exceed the permissible bounds of a Terry stop or to become a de facto arrest.” Id. at 205.

However, in State v. Raheem, 464 So.2d 293 (La.1985), the Louisiana Supreme Court held an arrest, rather than an investigatory stop, occurred when the occupants of a car were ordered out of the car with the officers’ weapons drawn. In Raheem, a confidential informant reported that certain individuals were selling |sdrugs in a known drug dealing area and were riding in a vehicle in that area. The officers went to the location and observed a car matching the description provided by the tipster. The Raheem court held that the defendants were arrested at the point when the officers stopped the car, drew their weapons, ordered the occupants from the car and had the occupants place their hands on the vehicle. Id. at 295-296.

Likewise in State v. Simmons, 95-309 (La.App. 5 Cir. 10/18/95), 663 So.2d 790, 794, this Court held that an arrest, rather than an investigatory stop occurred, when officers stopped the defendant’s car after leaving an apartment complex under surveillance for drug activity, had him exit and place his hands on his car. This Court cited to State v. Davis, 558 So.2d 1379 (La.App. 5 Cir.1990), which held that an arrest occurred when police officers, who observed what appeared to be a drug transaction, walked up to the defendant and his companion and ordered them to put their hands on their car.

Accordingly, based on this jurisprudence and the facts and circumstances of this case, we find that this investigatory stop was transformed into an arrest when Officer Giacona walked up to the defendant from behind and ordered him to the ground with his weapon drawn.

We now turn to the issue of whether there was probable cause to support the warrantless arrest. Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 141, writ denied, 03-1159 (La.11/14/03), 858 So.2d 417. An officer may make a warrantless arrest when the officer has probable cause to believe that the person to be arrested has committed an offense. Id., at 141-142; LSA-C.Cr.P. art. 213.

|9In State v. Shelton, 96-2322 (La.App. 4 Cir. 10/30/96), 682 So.2d 338, the court found that probable cause existed, where the officer saw the defendant and another man engaging in hand transactions, which officers believed to involve drugs because the area was known for drug activity. The defendant placed a clear plastic bag in his pocket when he saw the officers. The Shelton court held the warrantless arrest of the defendant was justified because the officer believed he had witnessed a narcotics sale. Id. at 339. See also, State v. Simmons, 95-309 (La.App. 5 Cir. 10/18/95), 663 So.2d 790, 793, 794, where this Court held that the officer had probable cause for a warrantless arrest after observing the defendant engage in “some type of exchange,” with a known narcotics offender outside of an apartment in a complex where the officer had made previous arrests and had information that drug activity was occurring there.

Thus, we find in the instant case, there was probable cause for a warrantless arrest because Officer Giacona witnessed what he believed to be a crime, i.e. a hand to hand drug transaction based on his knowledge and experience. In addition, there were prior complaints of narcotics activity regarding that apartment where the defendant visited and more specifically, the officer’s prior arrests involving narcotics and weapons from people leaving this particular apartment.

The defendant notes that Officer Giacona testified that it was light outside at the time he witnessed the transaction. At trial, the defendant’s attorney asked Officer Giacona what time he observed the alleged drug transaction and the officer responded that he was unsure of the time. The defense attorney pointed to the time of 6:42 p.m. on the arrest report and probable cause affidavit as the time of the offense and the time of arrest. Officer Giacona responded that he was unsure of the exact time of the offense, but he was certain that it was light outside. The defendant argues in essence that since it was not daylight savings time and, lintherefore, it was dark at the time Officer Giacona witnessed the alleged transaction, the trial court should not have considered Officer Giacona’s testimony to be credible. In her Reasons for Judgment, the trial judge stated that Officer Giacona used binoculars and that there was enough light for the officer to see the transaction. Credibility of witnesses is best determined by the trial judge and is not to be upset on appeal unless the trial judge abuses his or her discretion. State v. Riley, 98-830 (La.App. 5 Cir. 3/10/99), 731 So.2d 409, 412, writ denied, 99-1301 (La.10/15/99), 748 So.2d 464 and writ denied, 99-1324 (La.10/15/99), 748 So.2d 465. Officer Giacona was cross-examined thoroughly by the defendant’s attorney regarding whether it was light enough for Officer Giacona to see the transaction. We see no abuse of the trial judge’s discretion in believing Officer Gia-cona’s testimony.

For the foregoing reasons, we find no error in the trial court’s denial of the defendant’s Motion to Suppress.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that the transcript reflects that the trial judge properly advised the defendant of the prescriptive period for filing post-conviction relief, while the commitment/minute entry does not. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, this matter is remanded for the limited purpose of correcting the commitment/minute entry to agree with the transcript.

^CONCLUSION:

For the foregoing reasons, the defendant’s conviction is affirmed. This matter is remanded for the limited purpose of correcting the commitment/minute entry as discussed above.

AFFIRMED; MATTER REMANDED.

      . State v. Crosby, 338 So.2d 584, (La.1976) allows a defendant to plead guilty and reserve appellate review of the denial of his Motion to Suppress.

      . A court can take judicial notice of the high crime nature of an area. State v. Bums, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1078. In State v. Milton 02-272 (La.App. 5 Cir. 11/13/02), 833 So.2d 411, 413, the record showed the Tallow Tree neighborhood was known as a high crime area because of numerous violent crimes and drug transactions.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Melvin N. FAUCHEUX.
    No. 06-KA-496.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plain-tiffAppellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

^Defendant, Melvin N. Faucheux, filed this criminal appeal seeking review of his sentence. For the reasons that follow, we affirm.

On May 17, 2004, the Jefferson Parish District Attorney filed an eleven count bill of information charging defendant with ten violations of LSA-R.S. 40:967 A and one violation of LSA-R.S. 40:969 A. Specifically, the bill charged defendant with distribution of hydrocodone (counts 1, 2, and 5), methadone (counts 3, 6, and 11), oxycodone (count 4), and alprazolam (count 7); and possession with intent to distribute hydro-codone (count 8), methadone (count 9), and oxycodone (count 10). At his arraignment, defendant pled not guilty. The charges proceeded to trial before a twelve person jury on February 22, 23, and 24, 2005. After considering the evidence presented, the jury found defendant guilty as charged on each of the eleven counts.

On March 18, 2005, the trial judge sentenced defendant to twenty-five years on counts 1, 2, 5, and 8 to be served concurrently with each other, to twenty-five | ayears on counts 3, 6, 9, and 11 to be served concurrently with each other, to twenty-five years on counts 4 and 10 to be served concurrently with each other, and to five years on count 7. The judge ordered that the twenty-five year sentences run consecutive to one another and to, the five year sentence, for a total of eighty years imprisonment at hard labor. The trial court subsequently denied defendant’s motion for reconsideration of sentence.

Defendant now appeals contending that his eighty year sentence is excessive.

FACTS

Lieutenant Bruce Harrison of the Jefferson Parish Sheriffs Office testified that he became involved in an undercover operation at Melvin’s Barber Shop in Metairie based on information provided by a confidential informant that defendant, the owner of the shop, was distributing drugs. As part of this investigation, Harrison asked Officer Nicole Mitchell to go into the barber shop in an undercover capacity and attempt to buy drugs.

Having previously gone into the barber shop with the confidential informant, Mitchell returned alone, on March 4, 2004, and purchased ten hydrocodone pills from defendant for $50.00. • On March 10, 2004, she again went to the barber shop and purchased ten hydrocodone, four methadone, and four oxycontin pills for $200.00. On March 12, 2004, Mitchell returned to the barber shop and made a third purchase of pills from defendant. At trial, Mitchell testified that during these three transactions, she dealt solely with defendant.

Thereafter, on- March 26, 2004, the police executed a search warrant on the barber shop. Upon entering the shop, Lieutenant Harrison observed defendant discard a bag containing several prescription bottles with various kinds of pills inside. In addition, the officer caught a woman with four methadone pills in her hand leaving the room where defendant was observed with the bag. Harrison | ¿placed defendant under arrest, and a search incident to that arrest revealed that defendant had $972.00 on his person.

The police then searched the dumpster behind the barber shop and found five prescription bottles with the labels torn off which, according to Lieutenant Harrison, indicates an attempt to hide a doctor shopping situation. A subsequent search of defendant’s home revealed additional empty prescription bottles. Once in custody, defendant gave a statement to Sergeant John Drury in which he admitted that he had people working for him in a doctor shopping scheme.

Charles Krone, an employee with the Jefferson Parish Sheriffs Office Crime Lab, examined the pills recovered in this case. He testified that the substances he tested were positive for hydrocodone, methadone, oxycodone, and alprazolam.

Defendant testified that he has been a barber since 1961 and that he owns the barber shop in Metairie. As a result of health problems, he was prescribed oxy-contin and became addicted to it. During his testimony, defendant admitted that he sold drugs twice to Mitchell at the barber shop, but claimed he never sold drugs to anyone else. In addition, he admitted to participating in a doctor shopping scheme in order to finance his addiction. He claimed that the $972.00 found on his person when he was arrested was for giving hair cuts.

Natalie Hall, the defendant’s son’s fian-cée, testified that defendant went to a pain clinic for therapy and pain medication. She claimed that the medications made the defendant forgetful, and he allowed acquaintances to “just kind of take over” the shop. According to Hall, one of these acquaintances ran an escort agency and sold drugs. The defendant told her that he was addicted to drugs, and that he sold them to pay for his habit.

ASSIGNMENT OF ERROR NUMBER ONE

| sOn appeal, defendant challenges his eighty year sentence as excessive. The state asserts that the sentence is within the statute’s sentencing range and is not constitutionally excessive under the circumstances of the ease.

In the present case, defendant was convicted of ten violations of LSA-R.S. 40:967 A and one violation of LSA-R.S. 40:969 A. The maximum sentence for a violation of LSA-R.S. 40:967 A for distribution or possession with intent to distribute hydroco-done, oxycodone, and methadone is a term of imprisonment at hard labor for not more than thirty years, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence. In addition, the defendant may be sentenced to pay a fine of not more than fifty thousand dollars. The maximum sentence for a violation of LSA-R.S. 40:969 A for distribution of alprazolam is a term of imprisonment at hard labor for not more than ten years. In addition, the defendant may be sentenced to pay a fine of not more than fifteen thousand dollars.

In this case, the trial court sentenced defendant to a total of eighty years. Defendant did not receive the maximum sentence on any count and does not contend that any individual sentence is excessive. Rather, defendant argues that the aggregate or consecutive nature of his sentences is excessive. He asserts that, because he is sixty-three years old, his total prison term amounts to a life sentence. In addition to his age, defendant suggests that his long-term addiction to drugs, his non-violent offender history, and his troubled life should mitigate the length of sentence he receives.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for ex-cessiveness, the reviewing court must consider the crime and the punishment in 1 Jight of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Crawford, 05^494 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 669.

The three factors that are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Crawford, 922 So.2d at 670-671.

In this case, prior to sentencing defendant, the trial judge noted that he was aware of the evidence presented and its “extremely disturbing nature. The judge mentioned defendant’s own testimony and statements which indicated that he knew the dangers of mixing drugs, including the possibility of death due to overdosing on the drugs. In fact, defendant knew of five people who had overdosed on drugs. The trial judge further noted defendant’s long criminal history, which showed “a disturbing pattern throughout his life of a total disregard for the property, safety, and even the lives of other people.” The trial judge stated that the defendant’s sentence was specifically based upon the facts presented during the course of trial, to ensure that he would not present a “danger to the people of Jefferson Parish again.”

Based on our review, we find that the sentence, as imposed by the trial judge, was justified. We particularly note defendant’s long criminal history spanning from eighteen to sixty years of age, prior convictions involving drugs, his conviction for a check charge being served at the time of his sentence, and his involvement of others, in a doctor shopping scheme out of his barber shop, in order to finance his addiction. See State v. Hymes, 04-320 (La.App. 5 Cir. 10/12/04), 886 So.2d 1157, unit denied, 04-3102 (La.4/1/05), 897 So.2d 599, and 7State v. Dillon, 01-906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779, where this court upheld aggregate sentences that the defendants claimed were constitutionally excessive.

In light of the foregoing discussion, we find that the trial court did not abuse its sentencing discretion, and that the sentences imposed were not constitutionally excessive. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant requests that we review the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences.

CONVICTION AND SENTENCE AFFIRMED.


author: CLARENCE E..McMANUS, Judge.

text:
    STATE of Louisiana v. Randolph VANCE.
    No. 06-KA-452.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E..McMANUS, Judge.

[ gDefendant, Randolph Vance, was charged by bill of information with attempted first degree murder of Patrick Peppo in violation of LSA-R.S. 14:27 and LSA-R.S. 14:30 (count one) and with armed robbery of Tanyell Allen in violation of LSA-R.S. 14:64 (count two). The State severed the two counts and proceeded to trial on count two only. After trial, a twelve-person jury returned a unanimous verdict of guilty as charged. After the denial of defendant’s motion for new trial, he was sentenced for his armed robbery conviction to imprisonment for 75 years with the Department of Corrections, to be served without the benefit of parole, probation or suspension of sentence. Defendant was later granted an out-of-time appeal.

The following was adduced at trial. On Saturday, September 20, 2003 at approximately 9:30 a.m., Tanyell Allen, a teller at Bank One in Harahan on Jefferson Highway, was robbed. The bank reported a loss of $1,345.00.

Tanyell Allen identified defendant in court as the robber who came into the building and then to her teller station wearing a baseball cap and a tan shirt with a character on the front of it. According to Ms. Alen, defendant showed her a note that said “I have a gun” and then raised his shirt to show her the gun in his waistband. Ater she looked at the note, defendant took the note back, telling her to give him the money and to hurry. He left after she gave him all the money in the top drawer, including a dye pack. Ms. Alen then pressed the security button [ aand told her manager they had just been robbed. She gave a description of the robber to the police after they arrived.

Hope Favorite, a bank employee, testified that at about 9:30, Tanyell Alen yelled she had been robbed and pointed to the man leaving the doors. She described the man as wearing light brown, khaki colored clothing. She remembered the man was standing in line and recalled he was well-dressed. She recognized his face as someone who had been in the bank prior to that day, asking about Saturday hours. Ms. Favorite identified the robber through a photographic lineup after the robbery and identified defendant in court. She explained that she noticed him because he was black and as a black employee herself she did not see many black people come into that bank. She also admitted she was determining whether she thought him to be attractive.

On the day of the robbery at 9:00 a.m. or a little after, Patrick Peppo was driving his truck to work when he saw someone running with a bag with red smoke coming out of it. He saw defendant, whom he identified in court, throw something under a truck and then drive past him after he left in a blue Chevrolet truck going towards River Road. Mr. Peppo saw money on the ground and something red on the money and on the ground. Ater realizing what had happened, he followed defendant. He called 911 and tried to get close enough to see the truck’s license plate. Ater going at speeds probably over 80 miles per hour, defendant slowed down, almost coming to a stop and reached out of his window. Something hit the front of Mr. Pep-po’s truck, and the truck began hissing. Because he got the license plate number, Mr. Peppo felt this was enough and he pulled off of the road. Defendant looked at Mr. Peppo and then fled. Mr. Peppo stated that this person, the defendant, was the same one that he saw throw something underneath the truck. Mr. Peppo returned to the area where he saw the money and observed money | ¿flying in the street and grass. He picked up some of the money and the dye pack and called 911 again. When the police arrived, he told them what happened and gave them the money he recovered. There was a bullet hole in the grill of his truck where it had been shot. The bullet went through the radiator, and a bullet fragment was seized from on top of the engine inside of his truck.

After Mr. Peppo observed an individual coming from the area of the bank and got his license plate number, FBI Agent Wendell Cosenza developed a suspect in this case based on that information. The license plate was run and came back to a blue Chevrolet pickup truck registered to defendant. Defendant’s residence was placed under surveillance. On Monday morning, defendant called his wife’s cell phone and had a conversation with an FBI agent who was at the residence. Defendant provided his location in Mississippi. Defendant’s truck was located. The license plate which was on the truck was determined to be a stolen plate and was not the same number given by Mr. Peppo. Defendant was arrested in Mississippi at a Texaco station after turning himself in on Monday at about 12:30 p.m.

Defendant’s cousin, Deborah Parrish, testified that defendant came to Mississippi on a Sunday morning and said he was there on vacation. Another cousin, Oscar Womack, testified that defendant met him in Vicksburg on September 22, 2003 at Harrah’s casino. After gambling, they went to another casino. According to Mr. Womack, defendant used his cell phone to call his wife. After defendant got off of the telephone, defendant told him the FBI was at his house and that “he had shot at some n* ***** over there.”

In his first allegation of error, the defendant alleges that the trial court imposed an excessive sentence. He argues that his 75-year sentence amounts to life imprisonment for a property crime, given his age at the time of sentencing of ^approximately 33 years old. He contends that he is not the most blameworthy of individuals nor is the offense the most horrific. He notes that no one was hurt.

The State responds that the trial judge complied with the guidelines of LSA-C.Cr.P. art. 894.1, and that the sentence is not severe compared to the facts of the case. It provides that the record supports the sentence imposed, and the sentence is not excessive.

This Court has recognized that the failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243 (citation omitted). In the present case, defendant made an oral motion to reconsider sentence and provided he would file one in writing. Thereafter, the trial court denied defendant’s motion to reconsider sentence. Defendant’s oral motion did not state specific grounds for which his motion was based. Accordingly, defendant’s sentence is reviewed only for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Id. (citation omitted).

In reviewing a sentence for ex-cessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing |fithe sentence. State v. Allen, 868 So.2d at 879. (citation omitted). In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id. at 880. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192 (citations omitted). The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Allen, 868 So.2d at 879-880.

LSA-R.S. 14:64(B), provides that “[wjhoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Here, the trial court sentenced defendant to 75 years with the Department of Corrections without benefit of parole, probation or suspension of sentence. In sentencing the defendant, the court noted that he committed armed robbery with a firearm. The court further said that:

That type of conduct will not be tolerated by the Court in this parish. The people of Jefferson Parish, to the greatest extent that I’m able, will not be subjected to that type of intimidation or danger. My sentence is based squarely on the facts of this case as established at trial.

Defendant received a 75-year sentence for a crime which has a maximum sentence exposure of 99 years imprisonment. Defendant walked into a bank armed with a gun, putting bank employees and customers at risk of death or great bodily harm. In fleeing the crime scene, defendant discharged his weapon at a witness 17who was following him, striking the witness’ truck. At this point, defendant put this witness’ life in danger as well as the public in firing his weapon while driving on the road.

Armed robbery has been recognized by this Court as a serious offense against the person. State v. Francois, 01-807 (La.App. 5 Cir. 4/10/02), 817 So.2d 213, 216. We find that defendant’s sentence was within the statutory limits and does not shock its sense of justice, and therefore the trial court did not abuse its discretion in sentencing defendant to 75 years imprisonment for his armed robbery conviction. State v. Falkins, 04-250 (La.App. 5 Cir. 7/27/04), 880 So.2d 903, writ denied, 04-2220 (La.1/14/05), 889 So.2d 266.

In his second assignment of error, defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. We have reviewed the record and find no errors which warrant our attention.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . $250.00 was recovered from witness Patrick Peppo.

      . The nature and background of the offender is not reflected in the record. However, at the sentencing hearing the State notified the court and the defendant of its intent to file a multiple bill.

      . The record does not indicate that the jury was sworn as required by LSA-C.Cr.P. arts. 788 and 790; however, the issue of jury irregularities was not raised in the trial court or on appeal. Accordingly, we refuse to consider the issue. See, State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.
      Also, although the trial court did not say “at hard labor” when sentencing defendant, as reflected in the commitment, he did agree the sentence was to be served in the custody of the "Department of Corrections.” In State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 403, this Court determined that, while the transcript did not specifically state the sentence was to be served at hard labor, it did provide the sentence would be served in the Department of Corrections. "Only individuals actually sentenced to death or confinement at hard labor shall be confined to the Department of Corrections.” Id. (citing LSA-R.S. 15:824(C); State v. Boyd, 94-641 (La.App. 5 Cir. 12/28/94), 649 So.2d 80). Accordingly, we need not remand the matter for resentencing.


author: CANNIZZARO, J.

text:
    Janean CLARK v. LEGION INSURANCE COMPANY, et al.
    No. 2006-CA-0320.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 29, 2006.
    Rehearing Denied Jan. 16, 2007.

      Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Appellant, Janean Clark.
    Randall L. Kleinman, Hulse & Wanek, New Orleans, LA, for Defendant/Appellee, Mercury Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO, JR.).
   CANNIZZARO, J.

h The plaintiff, Janean Clark, appeals from a summary judgment rendered by the district court in favor of the defendant, Mercury Insurance Company (“Mercury”). We affirm.

FACTS AND PROCEDURAL HISTORY

On July 29,1998, Ms. Clark, a California resident, was injured while walking down Decatur Street in the French Quarter. At the time, Ms. Clark was crossing Decatur at the intersection of St. Louis Street when a taxi being driven by Shahid Abbasi struck her. As a result of the accident, she sustained injuries to her left leg and spine.

Ms. Clark filed suit against Mr. Abbasi; his employer, Coleman Cab Company or Rollins Cab Service; and its liability insurer, Legion Insurance Company (“Legion”), which provided $25,000.00 in liability coverage. Ms. Clark subsequently settled her case against Mr. Abbasi, the cab company and Legion for the sum of $24,250.00, $750.00 less than the full policy limits of the Legion ^policy. After reserving her rights, Ms. Clark filed the instant claim against Mercury, who had issued a policy of uninsured/underinsured motorist (“UM”) coverage to her in California.

Mercury subsequently filed a motion for summary judgment contending that the Louisiana Supreme Court’s decision in Champagne v. Ward, 2003-3211 (La.1/19/05), 893 So.2d 773, mandated that California law, not Louisiana law, was applicable to the matter. Mercury argued that under California law the failure of Ms. Clark to collect the full limits of the Legion liability policy precluded any UM claim she might have had against Mercury. Following a hearing, the trial court granted Mercury’s motion for summary judgment. Ms. Clark now appeals, arguing that the trial court erred in applying the Champagne decision retroactively.

STANDARD OF REVIEW

Appellate courts review grants of summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary; judgment. Schmidt v. Chevez, 2000-2456, p. 4 (La.App. 4 Cir.1/10/01), 778 So.2d 668, 670. Under that standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schmidt, 2000-2456 at p. 3, 778 So.2d at 670. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish [Sthese ends.” King v. Parish National Bank, 2004-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)).

DISCUSSION

The Supreme Court in Champagne v. Ward, supra, considered the issue of whether Louisiana law automatically applies to a foreign UM policy in a multi-state case when the accident occurs in Louisiana and involves a Louisiana resident, or whether a Louisiana court must engage in a choice-of-law analysis to determine which state’s law is applicable. In resolving a split among the circuit courts of appeal, the Court held that although Louisiana’s UM law, La. R.S. 22:1406(D), can be applied to foreign insurance policies in most state cases where the accident occurred in Louisiana and involved a Louisiana resident, the provisions of the statute do not apply automatically. Instead, the trial courts are instructed to conduct a choice-of-law analysis to determine which state’s law should apply. The Court acknowledged that the objective is to identify the state whose policies will be most seriously impaired if its law is not applied to the particular issue involved in the lawsuit. Champagne v. Ward, supra, at 777.

In the Champagne case, the plaintiff and the defendant were involved in an automobile accident that occurred in New Orleans. At the time, the plaintiff was a | resident of Mississippi, and the vehicle that he was driving was covered by a policy of insurance that provided $10,000.00 in UM coverage, which was negotiated and issued in Mississippi. The defendant was a resident of Louisiana and was driving a vehicle covered by a policy of insurance negotiated and issued in Louisiana that provided $10,000.00 in liability coverage. Under Mississippi law, and according to the terms of the plaintiffs policy, the UM insurer’s liability was reduced on a “dollar for dollar” basis by the amount of liability coverage available from the tortfeasor.

The plaintiffs UM insurer moved for summary judgment, arguing that if Mississippi law were applied to the interpretation of the plaintiffs UM contract, then UM benefits would not be available to the plaintiff. The plaintiff responded, arguing that Louisiana’s UM statute applied to the dispute, under which he was entitled to recover UM benefits. In granting summary judgment in favor of the UM insurer, the Supreme Court conducted a choice-of-law analysis, applying the provisions of Louisiana Civil Code arts. 3515 and 3537. The Court found that | ¡^Mississippi had a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana had in providing an insurance remedy to an out-of-state resident who was injured while transitorily within the borders of Louisiana. The Court concluded:

The application of Louisiana law to the insurance policy would result in the abrogation of a Mississippi contract. Moreover, plaintiffs premium for UM coverage was based on the application of Mississippi law to the contract. Under a conflict-of-laws analysis, we conclude that Mississippi’s policies will be the most seriously impaired if its law is not applied to the insurance policy.

Champagne v. Ward, supra, p. 27, 897 So.2d at 789.

The instant case, for all intents and purposes, is on point with Champagne v. Ward. The only factual distinction is that Ms. Clark was a resident of California at the time of the incident, not Mississippi. Nonetheless, she was a resident of a foreign state. Applying the relevant provision of the California Insurance Code, we conclude that Ms. Clark has no right to claim any UM benefits from Mercury. California Insurance Code § 11580.2(p)(l)-(3) reads as follows:

(p) This subdivision applies only when bodily injury, as defined in subdivision (b), is caused by an underinsured motor vehicle.
If the provisions of this subdivision conflict with subdivisions (a) through (o), the provisions of this subdivision shall prevail.
(1) As used in the subdivision, “insured motor vehicle” is one that is insured under a motor vehicle liability policy, or automobile liability insurance policy, self insured, or for which a cash deposit or bond has been posted to satisfy a financial responsibility law.
(2) “Underinsured motor vehicle” means a motor vehicle that is an insured motor vehicle but insured for an amount that is less than the uninsured motorist limits carried on the motor vehicle of the injured person.
|fi(3) This coverage does not apply to any bodily injury until the limits of bodily injury liability policies applicable to all insured motor vehicles causing the injury have been exhausted by payment of judgments or settlements, and proof of the payment is submitted to the insurer providing the underinsured motorist coverage, [emphasis added]

It is clear from the above referenced statute that the State of California requires that the limits of liability on the part of the underinsured vehicle must be completely exhausted by reason of payment or settlements before an underin-sured motorist claim can be made. In support of its motion for summary judgment, Mercury submitted its requests for admissions to Ms. Clark and her responses thereto. This evidence discloses that the Legion policy liability limits were $25,000.00 and Ms. Clark settled her claim against Legion for $24,250.00, less than the full amount of its liability limits. In view of her failure to obtain the full policy limits from Legion, Ms. Clark has, under California law, forfeited her right to UM benefits.

Furthermore, we note that the terms of the Mercury policy in question specifically provide for the application of California law. Condition 31 of the policy states as follows, “(31). CHOICE OF LAW: All legal disputes concerning this policy shall be governed exclusively by California law.” It is well established where the parties stipulate the state law governing the contract, Louisiana conflict of laws principles require that the stipulation be given effect, unless there is statutory or jurisprudential law to the contrary or strong public policy considerations justify not honoring the contract as written. Continental Eagle Corporation v. Tanner & Co., 95-295 (La.App. 3 Cir. 10/4/95), 663 So.2d 204, 206. A choice-of-law provision in a contract is presumed valid until proven otherwise. The party seeking to prove the invalidity of the contractual provision bears the burden of proof. Id. Thus, given the choice-of-law provision in the Mercury policy, the trial court correctly applied California law.

Finally, we find no merit to Ms. Clark’s argument that the decision in Champagne v. Ward should not have been applied retroactively.

In determining whether a decision should be given retroactive effect, the Louisiana Supreme Court said the following three factors are to be considered:

1. The decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed;
2. The merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation;
3. The inequity imposed by retroactive application must be weighed.

Lovell v. Lovell, 378 So.2d 418, 421-21 (La.1979).

With regard to the first factor, the decision in the Champagne case did not establish a new principle of law. Moreover, the issue is not one of first impression whose resolution was not clearly foreshadowed. The first, second and third circuit appellate courts previously held that a foreign state’s law should be applied in certain situations, see fn.2, infra, and the Court adopted their reasoning in Champagne.

As to the second factor, applying the choice-of-law analysis to the instant case certainly achieves the Court’s objective to identify the state whose policies will be most seriously impaired if its law were not applied to the particular issue | ^involved in the lawsuit. The application of Louisiana law, rather than California law, to the Mercury insurance policy would result in the abrogation of a California contract. Also, Louisiana law has long recognized and approved contractual choice of law clauses. Thus, California law should apply in this case.

The third factor, the inequity imposed by retroactive application, is of no consequence to this matter considering Ms. Clark was aware of Condition 31 of the Mercury policy that provided California law would govern in the event of a legal dispute.

In summary, we find that Mercury has met its burden of proving that California has a more substantial interest in this case, and Ms. Clark has failed to present factual support for her contentions. Thus, we find no error in the trial court’s finding that Mercury is entitled to summary judgment as a matter of law.

CONCLUSION

Accordingly, the judgment of the trial court in favor of Mercury Insurance Company is affirmed.

AFFIRMED

        . It is not clear from the record whether Mr. Abbasi's employer at the time of the accident was Coleman Cab Company or Rollins Cab Service. However, it is clear that Legion Insurance Company was his employer's liability insurer.

      . The first, second, and third circuit courts of appeal had held that courts must conduct a choice-of-law analysis to determine which state's UM law applies, even when the accident occurs in Louisiana and involves a Louisiana resident. See, Zuviceh v. Nationwide Ins. Co., 2000-0773 (La.App. 1st Cir.5/11/01), 786 So.2d 340; Adams v. Thomason, 32,728 (La.App.2d Cir.3/1/00), 753 So.2d 416; Anderson v. Olivier, 97-1102 (La.App. 3d Cir.1/7/98), 705 So.2d 301.
      The fourth and fifth circuit courts of appeal had held that Louisiana law automatically applies to any UM policy when the accident occurs in Louisiana and involves a Louisiana resident, including a UM policy issued and negotiated in a foreign jurisdiction. See, Dekeyserv. Automotive Casualty Ins. Co., 97-1251 (La.App. 4th Cir.2/4/98), 706 So.2d 676; Austin v. Western World Ins. Co., 99-2541 (La. App. 4th Cir.5/17/00), 765 So.2d 390; Crutchfield v. Landry, 2000-0070 (La.App. 4th Cir. 1/31/01), 778 So.2d 1249; and Drew v. Martello, 98-1141, 98-1142 (La.App. 5th Cir.2/23/99), 729 So.2d 90.

      . As noted by the Supreme Court in footnote 4 of its opinion, La. R.S. 22:1406(D) was redesignated as La. R.S. 22:680 by Act No. 456 of 2003, Section 3.

      . La. C.C. art. 3515 provides:
      Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied.
      That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
      La. C.C. art. 3537 provides, in part:
      Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
      That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Riynell JACKSON.
    No. 2005-KA-1281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 29, 2006.
    Rehearing Denied Jan. 31, 2007.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, Kimya M. Holmes, Assistant District Attorney, State of Louisiana, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Riynell Jackson.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   PATRICIA RIVET MURRAY, Judge.

hln this criminal case, both the defendant, Riynell Jackson, and the State appeal. The principal issue Mr. Jackson raises is whether the trial court abused its discretion in denying his motion to quash. Finding no error, we affirm his conviction. The sole issue the State raises is whether the trial court erred in dismissing its multiple bill on the court’s own motion. Finding error, we vacate the trial court’s dismissal of the multiple bill and remand for further proceedings on the multiple bill.

STATEMENT OF THE CASE

On August 6, 2003, Mr. Jackson was charged with one count of possession with the intent to distribute heroin. At his arraignment on August 19, 2003, Mr. Jackson pled not guilty. On September 17, 2003, the trial court heard and denied his motions to suppress evidence and statement. Mr. Jackson’s case was reset for trial several times. On November 10, 2004, Mr. Jackson’s first trial ended in a mistrial. The trial court thereafter reopened the motion to suppress. On December 9, 2004, the trial court denied the motion. On February 15, 2005, Mr. Jackson’s counsel filed a motion to quash the indictment. On February 17, 2005, the trial court denied the | gmotion. On March 28, 2005, the trial court denied Mr. Jackson’s pro se motion to quash, but ruled that the statements that were the subject of the December 9, 2004 ruling were inadmissible. On March 31, 2005, at the conclusion of a two-day trial, a twelve-person jury found Mr. Jackson guilty as charged. On April 4, 2005, Mr. Jackson filed motions to reconsider sentence, to quash the multiple bill, and for appeal. On April 12, 2005, the trial court sentenced Mr. Jackson to serve twenty years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court dismissed the State’s multiple bill, and granted the State’s and Mr. Jackson’s appeal.

STATEMENT OF THE FACTS

On the morning of July 16, 2003, Officers Jason Giroir and Gus James of the New Orleans Police Department (“NOPD”) were on proactive patrol in the area around Tulane Avenue. While on patrol, the officers observed a car traveling down Tulane Avenue that had an expired brake tag. Based on the traffic violation (the expired brake tag), the officers conducted a traffic stop. The three occupants in the car were Tamika January, the driver; Mr. Jackson, the front seat passenger; and Ms. January’s three-year old child, the rear seat passenger. The officers approached the car and ordered the front-seat passengers out of the car. Complying with the officers request, Ms. January and Mr. Jackson exited and walked to the back of the car. The officers allowed Ms. January’s toddler to remain inside the car. Although hthe officers requested that Ms. January produce her driver’s license, car registration, and proof of insurance, she was only able to produce a current identification card.

Officer Giroir returned to the police car to run Ms. January’s and Mr. Jackson’s names through the computer. He learned that Ms. January’s driver’s license was suspended. Meanwhile, Officer James walked over to the passenger door of the car, which Mr. Jackson had left open. Inside the car Officer James spotted a clear plastic bag containing rice and eleven tinfoil packets. The bag was lying on the front passenger seat next to the center console. Believing the tinfoil packets in the bag contained drugs, Officer James seized the bag. He then indicated to Officer Giroir, who had just exited the police car, that he had found drugs. The officers handcuffed Mr. Jackson and Ms. January and advised them that they were under investigation.

While Officer Giroir was advising Mr. Jackson and Ms. January of their Miranda rights, Mr. Jackson spontaneously stated: “The dope is mine. I don’t use it. I just sell it.” The officers then arrested Mr. Jackson and searched him, but found no drugs on his person. A canine search was conducted, but no further drugs were found.

After the officers finished advising him of his rights, Mr. Jackson signed a waiver of rights of arrestee form. On the bottom of the form, Mr. Jackson handwrote the following: “Yes. It’s my drugs.”

At trial, the parties stipulated that the substance found in the tinfoil packets tested positive for heroin and weighed 13.1 grams.

\ ¿DISCUSSION

A. Errors Patent

A review of the record indicates one patent error. Mr. Jackson was convicted of possession with the intent to distribute heroin. The sentence for this crime must be imposed without benefit of probation or suspension of sentence; however, parole eligibility is not prohibited. La. R.S. 40:966 B(l). The sentencing minute entry indicates that the trial court imposed Mr. Jackson’s sentence without benefit of parole, probation, or suspension of sentence. Because the sentence as imposed is illegally excessive, we amend the sentence to delete the prohibition of parole eligibility. There are no other patent errors.

B. Assignment of Error by the State of Louisiana

The State’s sole assignment of error is that the trial court erred by dismissing the multiple bill on its own motion. Although the multiple bill is not included in the record on appeal, the transcript of sentencing indicates that the bill charged Mr. Jackson with having three prior convictions: a 1995 manslaughter guilty plea, a 1995 armed robbery guilty plea, and a 1993 possession of cocaine guilty plea. Under La. R.S. 15:529.1 A(l)(c)(ii), if the State proves the allegations in the bill, the trial court will be required to impose a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. On its own motion, the trial court found that because Mr. Jackson was exposed to a mandatory life sentence, the State needed to bring an indictment against him and thus dismissed the multiple bill. Citing State v. Smith, 2005-0375, p. 3 (La.App. 4 Cir. 7/20/05), 913 5So.2d 836, 838, the State argues that the trial court erred by holding that it needed to bring an indictment. We agree.

In Smith, we addressed a similar issue. Citing La. Const. Art. 1, § 15 and La. C.Cr.P. art. 382, the defendant in Smith argued that the State was required to seek a grand jury indictment on the issue of the multiple bill because he was subject to being sentenced to life imprisonment as a quadruple offender under the bill. We held that the cited provisions apply “only to substantive offenses, not to multiple bill proceedings.” Smith, 2005-0375 at p. 3, 913 So.2d at 838 (citing State v. Jolla, 337 So.2d 197 (La.1976); State v. Alexander, 325 So.2d 777 (La.1976); and State v. Delandro, 2001-2514 (La.App. 2 Cir. 5/10/02), 818 So.2d 1011). In Jolla, cited in Smith, the Louisiana Supreme Court held that “[m]ultiple billing need not be by grand jury indictment in cases involving possible life sentences.” 337 So.2d at 201.

In this case, the allegations in the multiple bill are not substantive charges; rather, they are prior convictions that are being used to enhance Mr. Jackson’s sentence. Although under the multiple bill Mr. Jackson is exposed to a life sentence, the State could bring these charges by a bill of information. We thus vacate the trial court’s dismissal of the multiple bill and remand the case for further proceedings on the multiple bill.

C. Counseled Assignment of Error

Defense counsel’s sole assignment of error is that the trial court erred in denying the motion to quash the charge against Mr. Jackson because of prosecuto-rial misconduct. To place this issue in context requires we first review the circumstances that lead to the mistrial.

At the first trial, Officer Giroir, one of the arresting officers, was the State’s first witness. On direct examination, the Assistant District Attorney | fi(“ADA”) asked Officer Giroir whether Mr. Jackson at any point made any statements to him besides the statement that he made while his Miranda rights were being read to him (“The dope is mine. I don’t use it. I just sell it.”) and the statement he noted on the waiver of rights of arrestee form that he signed (“Yes. It’s my drugs.”) In response, Officer Giroir testified:

“Mr. Jackson, the whole time we were on the scene, the whole time en route to the station, and while we were at the station, I remember him mumbling, talking to himself, saying that ‘life is hard. We don’t understand. This is something he has to do for money, because life is hard, and the streets of New Orleans are tough. And that’s the only way to make ends meet.’ ”

The State did not give any pretrial notice that Mr. Jackson made the later statements, nor was there any reference in the police report to the later statements. At the 2003 suppression hearing, Officer Gir-oir did not testify; rather, only Officer James testified. The only statement to which Officer James referred at that hearing was Mr. Jackson’s initial statement that the drugs were his and that he sold, but did not use, drugs. It was not until Officer Giroir’s testimony at the first trial — conducted by a different ADA than the one who covered the 2003 suppression hearing — that the defense became aware of the later statements. In response, defense counsel moved for a mistrial, which the trial court granted.

After the first trial, the trial court held suppression hearings regarding Officer Giroir’s testimony that Mr. Jackson made the later statements. Although Officer Giroir maintained that he heard Mr. Jackson make the later statements, Officer James at a separate hearing denied hearing Mr. Jackson make any such statements. The court initially refused to suppress the later statements.

Defense counsel then filed a motion to quash the bill of information. Counsel argued that the ADA intentionally asked Officer Giroir about the |7later statements (for which the State provided no prior notice) in order to provoke a mistrial. Denying the motion, the trial court reasoned that the State reaped no benefit by introducing Mr. Jackson’s later statements. The court reasoned that the later statements were similar to the initial statement Mr. Jackson made while his Miranda rights were being read to him.

Thereafter, Mr. Jackson filed a similar pro se motion to quash the indictment. Mr. Jackson contended that the State sought to provoke the mistrial because the jury empaneled at the first trial was unfavorable to the State. In addressing the motion, Mr. Jackson requested that the court review the voir dire transcript from the first trial. The court denied both the request to review the transcript and the motion to quash, stating:

“I just don’t see any connection between jury selection in this case and the subsequent questions by the DA and eventual move for mistrial.... I don’t see any connection in the sense of it being such that by it, or by the voir dire and the jury selection, that the State again goaded your counsel into moving for a mistrial.”

Although the trial court denied Mr. Jackson’s motion, it ruled that the State could not use the later statements at Mr. Jackson’s subsequent trial. In so ruling, the court reasoned:

“I gave the State an opportunity to reopen the motion hearings; and, of course, the Court denied the motion to suppress those statements. I think that ruling was wrong; wrong because the State would have had an opportunity on the front end to present those statements and didn’t. And then the case proceeded to trial and was mistried because the State tried to elicit those statements at trial. That resulted in a mistrial. But then to give the State subsequently the opportunity to present those same statements in a motion to suppress the statements, and then to allow the State to use those statements in a subsequent trial, this Court believes is wrong.”

The State did not object to this ruling.

|sThe issue defense counsel raises on appeal is whether the State, through its questioning of Officer Giroir about Mr. Jackson’s later statements, intentionally provoked a mistrial.

In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), which defense counsel cites, the Supreme Court explained that the reviewing court must look to the intent of the prosecutor in his actions to determine whether the prosecutor’s actions in causing a mistrial rise to the level of prosecutorial misconduct that bars a retrial. The importance of the prosecutor’s intent, the Court explained, is that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Oregon, 456 U.S. at 676, 102 S.Ct. at 2089. The Court also instructed that the reviewing court must give deference to the trial court’s findings as to whether the prosecutor’s actions were intended to goad the defendant into requesting a mistrial. Oregon, 456 U.S. at 679, 102 S.Ct. at 2091.

On appeal, defense counsel, in essence, adopts the argument Mr. Jackson raised in his pro se motion to quash. He contends that the ADA asked Officer Giroir about the later statements in order to provoke a mistrial because the jury was pro-defense. Stated otherwise, he contends that the State provoked the mistrial because it did not like the jury that had been seated. Counsel acknowledges that a trial court’s decision on whether the State acted intentionally in goading the defendant into moving for a mistrial is ordinarily a question of fact that is entitled to deference on appeal. Counsel, however, contends that the trial court’s finding in this case is not entitled to deference because the court failed to review the voir dire transcript before ruling on the motion. A review of the transcript, he | cicontends, would have shown that the jury ultimately chosen for that trial contained at least two jurors who were adverse to the State.

Counsel extensively chronicles the questioning at voir dire that elicited responses by several prospective jurors regarding the following concerns:

• the inability to convict without testimony from an independent witness,
• the inability to convict for possession with the intent to distribute without evidence of an actual distribution,
• the perception that police officers lie,
• the issue of whether drugs should be legalized, and
• the prospective jurors’ relationships with family and friends who had been involved with drugs.

A review of the voir dire transcript indicates that although many prospective jurors voiced the above concerns, almost all of those who did so were excused, either by the defense or by the State, or by challenges for cause. Indeed, the trial court excused many jurors for cause on the State’s motion. Only three of the jurors that defense counsel mentions by name in his brief to this court were ultimately sworn as jurors — Paula Davis, Catherine Delaune, and Huong Pham.

First, Ms. Pham indicated that she had a friend who had been charged with distribution of drugs. The State sought to have her removed for cause, but the trial court refused the challenge. Defense counsel argues- that Ms. Pham remained on the jury because the State had already exhausted its peremptory challenges by the time the court reached her. Although it is unclear if the State had exhausted its challenges by that time, the voir dire | mtranscript indicates that when first asked by the State if the fact that her friend had been charged would affect her ability to be fair, she replied that it would not. When the State sought to excuse Ms. Pham for cause, the court held an in-chambers hearing in which it asked her if the fact that her friend had been charged with distribution of drugs would affect her ability to be fair. She replied: “I don’t think so.” The following colloquy then took place:

BY THE COURT:
If, in fact, you have to listen to the testimony of witnesses, you believe the State of Louisiana proved beyond a reasonable doubt that Mr. Jackson possessed with the intent to distribute heroin, could you find him guilty of it?
BY JUROR PHAM:
It would depend on how the case is going and the witness.
BY THE COURT:
If, in fact, you thought that was such and he, in fact, was guilty, would you find him guilty?
BY JUROR PHAM:
Yes. If the witness I see in my judgment, if I see that.
BY THE COURT:
On the opposite side of that, if you believe, in fact, that he wasn’t guilty of the crime, would you have a problem finding him not guilty?
BY JUROR PHAM:
If there’s not proof or no evidence, no. BY THE COURT:
Would you be able to find him not guilty?
BY JUROR PHAM:
In Yes. If there’s no proof, I wouldn’t. If there’s no proof that I can find him guilty, no, I wouldn’t prove [sic] that he’s guilty. No.

The court then refused the challenge for cause. Thus, although Ms. Pham knew someone who had been charged with distribution of drugs, she expressly indicated that this relationship would have no affect on her ability to convict Mr. Jackson if the State proved his guilt.

The second, and only other, juror who was included on the jury that defense counsel addresses in its argument is Ms. Delaune. During voir dire, Ms. Delaune indicated that she would have needed to see the crime herself to convict and that she was partial. She also indicated that the State would have to prove its case beyond a reasonable doubt. At the conclusion of the first round of jury selection, the State for some reason challenged for cause another juror who had a similar first name to Ms. Delaune, but who did not give any answers showing a bias against the State, Kathleen Eziene. The State’s reason for challenging Ms. Eziene was her statement that “seeing is believing.” This statement, however, was made by Ms. Delaune. Nonetheless, the court granted the State’s challenge of Ms. Eziene. The State did not challenge Ms. Delaune, and she was selected as a juror.

Defense counsel theorizes that the State did not notice the mix-up until the following day after jury selection had been completed. At that point, counsel speculates, the State realized that it had a hostile jury. For that reason, counsel further speculates, the prosecutor intentionally asked Officer Giroir about Mr. Jackson’s later statements in order to provoke a 112mistrial. This theory, however, is based solely on speculation. The State would have known at the end of the first round of jury selection it excused the wrong juror— if indeed it did so — when Ms. Eziene exited and Ms. Delaune remained as a juror. At that point, the State still had peremptory challenges that it could have exercised if it mistakenly excused the wrong juror. Thus, it is only counsel’s speculation that the State did not realize its mistake until the second day of trial when it caused the mistrial. Defense Counsel also speculates that “it would not be surprising” that the jurors who were actually seated would have been influenced by the pro-defense statements made by the prospective jurors who were excused, either for cause or by the State. Again, this is solely speculation on counsel’s part.

Although the trial court did not review the voir dire transcript before denying the second motion to quash (Mr. Jackson’s pro se motion), the trial judge was present during voir dire; he, therefore, possessed personal knowledge of those proceedings.

In order to hold that Mr. Jackson was entitled to a dismissal of the charges due to a violation of his right against double jeopardy, this court must find that the State’s action in questioning Officer Giroir about Mr. Jackson’s later statements was a bad faith attempt to stop the trial. While the trial court did not make an explicit finding on this issue, it made an implicit finding that the State did not act in bad faith. The court’s finding is implicit in its statement that it could see no advantage the State would have reaped by intentionally causing the mistrial.

This court’s prior holdings in State v. Elzey, 2005-0562 (La.App. 4 Cir. 1/11/06), 923 So.2d 182, writ denied, 2006-0395 (La.9/15/06), 936 13So.2d 1253, and State v. Johnson, 1995-2626, 1995-2801 (La.App. 4 Cir. 11/27/96), 684 So.2d 554, are distinguishable. In both those cases, the trial court found the State intentionally provoked a mistrial, and we affirmed those findings. In this case, the trial court, albeit implicitly, found to the contrary.

The ADA who covered the 2003 suppression hearing, at which only Officer James testified, was not the same ADA who presided over the trial and who questioned Officer Giroir about Mr. Jackson’s later statements. Rather than showing that the question was an intentional act to provoke a mistrial, the act could just as likely have been the product of an ADA who was not properly prepared for trial and who was unaware that the later statements had not been brought out before trial. Given these circumstances, we cannot say that the trial court erred in finding the defense failed to prove the ADA asked the question in bad faith in order to provoke a mistrial. Absent a showing of bad faith, the Due Process Clause was not violated. We thus find this claim unpersuasive.

| UD. Mr. Jackson’s Assignments of Error

Mr. Jackson assigns three errors. First, he contends that his conviction and sentence must be vacated because the State presented perjured testimony — Officer Giroir’s . testimony about the later statements. We disagree.

Mr. Jackson argues that Officer Giroir was allowed to present this testimony at the first trial, but the jury in that trial was not allowed to hear testimony from Officer James, who indicated that he did not hear the later statements. However, the trial court granted the defense motion for mistrial, and the jury was dismissed after Officer Giroir’s testimony.

Mr. Jackson further argues that the State engaged in prosecutorial misconduct by presenting Officer Giroir’s testimony regarding the later statements at the suppression hearing held a few weeks after the first trial. In support of this argument, he relies on the lack of any reference to the later statements in the police report and the failure of Officer James to mention these statements in his testimony at either the 2003 suppression hearing or the December 2004 hearing.

The presentation of Officer Giroir’s testimony regarding the later statements did not prejudice Mr. Jackson. Before the subsequent trial, the court suppressed the later statements. No evidence of the later statements was presented at Mr. Jackson’s second trial. His conviction was not a product of any prosecutorial misconduct or perjured testimony.

By his second assignment of error, Mr. Jackson contends that his counsel was ineffective for failing to object to the allegedly perjured testimony given by Officer Giroir concerning the later statements. Mr. Jackson argues that counsel should have objected at the first trial to this testimony and should have used Officer James’ testimony from the 2003 | ^suppression hearing to impeach Officer Giroir’s testimony on this point. He also argues that counsel was ineffective for failing to object to Officer Giroir’s testimony concerning this matter at the December 2004 suppression hearing on the statements. He maintains that his right to a fair trial was violated by his counsel’s inaction.

Ordinarily, an ineffective assistance claim is better addressed in an application for post-conviction relief filed in the trial court in which a full evidentiary hearing can be held. However, when the record is sufficient to permit a determination of counsel’s effectiveness at trial, the claims may be addressed on appeal. Indeed, when the appellate record is sufficient, judicial economy justifies considering the issue on appeal. Such is the case here.

The standard for assessing an ineffective assistance of counsel claim is well-settled; the two-prong standard enunciated in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), must be applied. In order to prevail, a defendant must establish both that counsel’s performance was deficient and that the deficiency prejudiced the defendant. As to the former, the defendant must show that counsel made errors so serious that counsel was not functioning as the “counsel” the Sixth Amendment guarantees. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As to the latter, the defendant must show that his counsel’s errors were so serious as to deprive him of a fair trial — a trial the result of which is reliable. To carry his burden, the defendant must show that there is a reasonable probability that; but for counsel’s deficient performance the result |1fiof the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 669, 104 S.Ct. at 2056

An “effective counsel” has been defined as “not errorless counsel, and not counsel judged ■ ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” State v. Anderson, 1997-2587, p. 7 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 19 (citing State v. Seiss, 428 So.2d 444 (La.1983))'. Given that “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Crowell, 1999-2238, p. 8 (La.App. 4 Cir. 11/21/00), 773 So.2d 871, 878 (quoting State v. Brooks, 505 So.2d 714, 724 (La.1987)). Trial strategy type errors do not constitute ineffective assistance of counsel. Id.

In this case, defense counsel neither specifically objected at the first trial to Officer Giroir’s testimony regarding the later statements made by Mr. Jackson, nor tried to use Officer James’ ■ suppression hearing testimony to impeach this testimony. Instead, counsel moved for and obtained a mistrial after the State presented this testimony. The jury that heard this allegedly perjured testimony was dismissed. Mr. Jackson was not prejudiced by his counsel’s actions.

|17Nor was counsel ineffective for failing to object to the State’s introduction of this testimony at the suppression hearing. The- purpose of that hearing was to rule on the defense motion to suppress the later statements, and the State presented this testimony in an attempt to defeat the motion. In addition, defense counsel cross-examined Officer Giroir regarding the lack of any reference to these statements in the police report. The defense also established at the second suppression hearing that Officer James did not hear the later statements, even though he was present at the places where Officer Giroir testified Mr. Jackson made them. The trial court ultimately suppressed the later statements, and the statements were not introduced at the second trial in which Mr. Jackson was convicted. Again, Mr. Jackson was not prejudiced by his counsel’s actions or alleged inactions.

We understand Mr. Jackson’s final claim to be that his counsel was ineffective for failing to advise him that he had to consent to the mistrial motion before it was granted. He cites La.C.Cr.P. art. 775, which provides in pertinent part that “[a] mistrial may be ordered, and in a jury case the jury dismissed, when; (1) The defendant consents thereto.” He also cites the official comment to Article 775, which refers the reader to the provisions of La. C.Cr.P. art. 591, which provides in pertinent part: “No person shall be twice put in jeopardy of life or liberty for the same offense, except ... where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.” Moreover, he cites State v. DeGrate, 25,732 (La.App. 2 Cir. 3/30/94), 634 So.2d 965, for the proposition that mistrials granted without the defendant’s consent and not under the other circumstances set forth in art. 775 (none of which applies to this case) constitute illegal dismissals and trigger the principles of double jeopardy.

|1sMr. Jackson appears to argue that had his counsel not moved for the mistrial, the evidence, including what he terms the perjured testimony, would have gone to the jury. He theorizes that the jury would have acquitted him, thereby obviating a need for a second trial. Because he did not consent to the mistrial motion made by his counsel, he argues that the mistrial was an illegal dismissal and that his retrial violated his right against double jeopardy.

Although it is unclear from the record whether defense counsel discussed the mistrial with Mr. Jackson before he made the motion, Mr. Jackson has not shown any prejudice from counsel’s actions. It is mere speculation that the first jury would have acquitted him had the case proceeded. Counsel’s motion for mistrial was trial strategy, which does not constitute ineffective assistance of counsel.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed. The defendant’s sentence is amended to delete the prohibition on parole eligibility. The trial court’s dismissal of the State’s multiple bill is reversed, and the case is remanded for further proceedings on the multiple bill.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND REMANDED.

      . This court denied Mr. Jackson's writ application noting that he had an adequate remedy on appeal if ultimately convicted. State v. Jackson, 2005-0380 (La.App. 4 Cir. 3/14/05 )(unpub.).

      . This court denied Mr. Jackson’s writ application noting that he had an adequate remedy on appeal. State v. Jackson, 2005-0482 (La.App. 4 Cir. 3/29/05){unpub.).

      . The statements the trial court held inadmissible, as discussed elsewhere, are previously undisclosed statements that Officer Jason Gir-oir testified at the first trial that Mr. Jackson made after he was given his Miranda rights. Mr. Jackson allegedly made these statements at the scene, in the police car, and at the station. Officer Giroir’s testimony regarding these statements — -which for ease of reference we refer to in this opinion as the "later statements” — was the reason the first trial ended in a mistrial.

      . The transcript of sentencing also indicates the trial court so ordered.

      . Although Mr. Jackson filed a motion to quash the multiple bill, he did not allege this ground as a basis to quash the bill. Mr. Jackson's motion raised three issues: the State failed to prove he was the person who was previously convicted of the listed crimes, the State failed to prove he was adequately Boykinized in these prior cases, and the State failed to comply with the requirements of La. R.S. 15:529.1.

      . Although the minute entry of the first trial indicates that the State exercised only eleven peremptory challenges, the jury sheets indicate that the State used all twelve of its challenges by the time the jury was chosen.

      . Defense counsel mentions in passing Ms. Davis, who indicated she had seen a drug transaction and had not contacted the police to be a witness. She also stated she had family members who had drug problems. She insisted, however, that this fact would not affect her ability to listen to the trial. Counsel makes no argument about her inclusion in the jury.

      .The State referred to this juror as both "Catherine Eziene” and "Kathleen.” The State’s objection was that "Catherine said that seeing is believing. She said some other stuff, Kathleen.”

      . Ms. Delaune was seated during the first round of voir dire. The jury sheets indicate the State used peremptory challenges in the second round; thus, it could have used one to excuse Ms. Delaune before the second round of jury selection.

      . In Elzey, the defendant was charged with the attempted murder of his estranged wife's new boyfriend. The court ruled that the State could not elicit any testimony concerning the outcome of a domestic disturbance between the defendant and his wife because the charge had been dropped and because the State had not given pretrial notice of its intent to produce evidence of that incident. Although the State was allowed to elicit testimony concerning a "stay away” order the wife obtained, on rebuttal the State recalled the wife and asked her if she had called the police concerning the incident that resulted in the issuance of the order. At that point, the defense moved for a mistrial, which the court granted. The court later granted the defendant’s motion to quash the charge, finding that the prosecutor intentionally violated its ruling as to evidence of the municipal charge. This court affirmed, upholding the trial court’s ruling that the State's actions intentionally provoked the mistrial. This court noted that the transcripts of trial and the post-trial hearing did not support the State's allegation that it had misunderstood the trial court's ruling as to this evidence.
      In Johnson, the defense presented a character witness, the defendant's uncle. The uncle admitted his drug use, but he insisted that the defendant was never involved with drugs. During cross-examination, the prosecutor asked the witness if he knew that the defendant had a drug conviction. The court granted the defendant's motion for mistrial, despite the prosecutor's insistence that his question was inadvertent. The court later granted the defendant's motion to quash, finding that the prosecutor's other questions to the witness concerning the defendant’s drug use showed that the question was asked intentionally. This court affirmed, finding the transcripts supported the trial court’s finding.

      . See State v. Howard, 1998-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802; State v. Bordes, 1998-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147; State v. McGee, 1998-1508, p. 4 (La.App. 4 Cir. 3/15/00), 758 So.2d 338, 341; State v. Causey, 1996-2723, p. 10 (La.App. 4 Cir. 10/21/98), 721 So.2d 78, 84; State v. Kanost, 1999-1822, p. 6 (La.App. 4 Cir. 3/29/00), 759 So.2d 184, 188.

      . See State v. Fuller, 454 So.2d 119 (La.1984); State v. Brooks, 1994-2438, p. 6 (La. 10/16/95), 661 So.2d 1333, 1337 (on reh’g); State v. Robinson, 1998-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126; State v. Jackson, 1997-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741; State v. Ash, 1997-2061, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669; McGee, 1998-1508 at p. 5, 758 So.2d at 342.

      . State v. Guy, 1997-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236; State v. Mims, 1997-1500 pp. 44-45 (La.App. 4 Cir. 6/21/00), 769 So.2d 44, 72; State v. Crawford, 2002-2048 (La.App. 4 Cir. 2/12/03), 848 So.2d 615.

      . See also State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986); State v. Bordes, 1998-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147 (quoting Bienemy, 483 So.2d at 1107 and noting that "[t]his court has previously recognized that if an alleged error falls ‘within the ambit of trial strategy' it does not 'establish ineffective assistance of counsel’ ”); State v. Brooks, 505 So.2d 714, 724 (La.1987); State v. Griffin, 2002-1703, pp. 9-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40; State v. Myers, 2004-1219 (La.App. 4 Cir. 11/3/04), 888 So.2d 1002, writ denied, 2004-2475, 2004-2946 (La.2/4/05), 893 So.2d 85, 86.

      . The transcript of the in-conference hearing at which counsel made the mistrial motion does not indicate whether Mr. Jackson was present, nor does the minute entry for that day of the first trial.