author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Ronnie DAVIS, Appellant.
    No. 41,180-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2006.

      Louisiana Appellate Project by Sherry Watters, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART, and MOORE, JJ.
   STEWART, J.

hThe defendant, Ronnie Davis, was convicted of possession of a Schedule II controlled dangerous substance, cocaine, and possession of a Schedule I controlled dangerous substance, MDMA (Ecstasy). He was sentenced to serve consecutive sentences of five years for the cocaine conviction and one year for the Ecstasy conviction. The defendant now appeals. For the reasons that follow, we affirm his convictions and sentences.

FACTS

At approximately 4:00 a.m. on July 20, 2004, Shreveport police officers Justin White and Robin Robinson were patrolling the Allendale area of Shreveport when they observed a physical confrontation between two black males. Because it seemed as if the two were about to get into a fight, the officers confronted them. As Officer White grabbed one of the men, Officer Robinson gave several loud verbal commands to the other, who was later identified as the defendant. Officer Robinson testified that he ordered the defendant to place his hands on top of his vehicle, and the defendant complied. As Officer Robinson performed a patdown of the defendant, he observed an object fall from the top of the vehicle down to the ground. Officer White also observed the object fall. The defendant appeared to conceal the baggy on the ground with his foot, and attempted to mash it into the ground with his foot. Officer Robinson described the object as a plastic baggy containing three pills.

The defendant began to resist as the officers attempted to handcuff him. The defendant elbowed Officer Robinson in his chest and fought to |2get free. Officer White drew his Taser and ordered the defendant to stop and get on the ground, but the defendant broke free and fled. Officer White recovered the baggy from the ground and pursued the defendant. The defendant was ultimately confronted again by Officer White. He was apprehended, handcuffed, and taken into custody. The baggy was later determined to contain cocaine and Ecstasy. The defendant denied possessing any drugs.

No motion to suppress evidence was filed on behalf of the defendant. During the bench trial on the merits, both officers and the defendant testified regarding the facts and circumstances surrounding the crime. The exhibits were admitted into evidence without objection. The defendant was found guilty as charged on both counts.

No motion to reconsider sentence was filed on behalf of the defendant. At the sentencing hearing the trial court first took a guilty plea from the defendant on a simple escape charge. Thereafter, the defendant was sentenced to serve five years imprisonment at hard labor for possession of a Schedule II controlled dangerous substance, cocaine, and one year at hard labor for possession of a Schedule I controlled dangerous substance, Ecstasy. The sentences were ordered to be served consecutively.

DISCUSSION

Motion to Suppress

The defense argues that the trial court erred in denying the defendant’s motion to suppress. The state correctly notes that no motion to suppress was ever filed on the defendant’s behalf. Furthermore, a review of lathe record reflects that no objections to the admission of the evidence were made during trial.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Smith, 89,698 (La.App.2d Cir.6/29/05), 907 So.2d 192; 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; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992). Hence, this assignment of error will not be considered because this alleged error was not preserved for appellate review.

This assignment is therefore without merit.

Waiver of the right to jv,ry trial

The court minutes for August 19, 2004, reflect that the defendant was present in court with counsel when he waived arraignment and pled not guilty. The trial court informed the defendant that he may waive trial by jury and elect to be tried by the court. The court minutes for January 25, 2005, reflect that the defendant, present with counsel, waived his right to a jury trial and elected to be tried by a judge.

The transcript for January 25, 2005, reveals that the defendant’s case was called for a jury trial and through defense counsel, Mr. Lester, the defendant waived the right to a jury trial:

Mr. Lester: We are prepared, Your Honor. We are going to waive the jury trial. I talked to my client last night. I found out last night that, Your Honor, did not do the probable cause hearing for Mr. Davis and Judge Bryson was on the bench then. We would ask for a transcript of it. We would ask to start maybe tomorrow morning or tomorrow afternoon?
| ¿The Court: Wait a minute. Let me get this straight. This is my jury trial week.
Mr. Lester: Yes, sir.
The Court: That you, now, at this last minute decide that you want to waive my jury trial and you have the audacity to tell me now you don’t want— now, you want—
Mr. Lester: We are asking, Your Hon- or. We are not telling you anything. We are asking.
The Court: Mr. Brown, what’s the deal?
Mr. Brown: The State is ready to have a jury trial, Your Honor. The jurors are waiting.
The Court: They sure are. But he has a right to waive the jury trial. I haven’t found anything in the law, yet, that allows me to deny that.
Mr. Brown: That’s within the Court’s discretion, Your Honor, as to whether or not to do that. It certainly is beyond the motion dates or any motion dates would be within fifteen days of arraignment.
The Court: That’s the problem. Unfortunately, the Court has to set, if we are to do it — and I don’t know whether or not I even did it. We would have to set a time limit to make that election and we don’t generally do that. We just say you have a right to a jury trial.
Mr. Brown: That’s true. There is one by statute, Your Honor. There is fifteen days by statute unless the Court determines otherwise, or as general practice we sometimes will do a late date to allow defense counsel an opportunity to file any motions.
The Court: All right. So then basically, what you need to do is — are you objecting to his request for a bench trial?
Mr. Brown: I think it is á delay tactic, Your Honor, from defense counsel to go to trial.
Mr. Lester: Until tomorrow?
| ¿The Court: My question is regarding the jury trial.
Mr. Brown: Oh. The question regarding the jury trial?
The Court: Yes. Did you see in the statute that he has fifteen days to make the election?
Mr. Brown: Well, the normal motions, the time limitations on motions are within fifteen days of arraignment to file any motions, any motion to suppress, motion for a bench trial and the like; however, it’s within the Court’s discretion. A defendant may make a motion at any time and the Court may choose to hear that.
The Court: I have you covered, Mr. Brown. I just thought you said something else. Okay. I was about to find the law but I can see right now there is no such law. Okay. Now, having taken care of that. Now, when are we going to set this matter for a bench trial?

The defense argues that the record does not contain any notation that the court personally addressed the defendant regarding the waiver of a jury trial, and notes that the trial court never undertook a colloquy with the defendant. It contends that without the express waiver, after a colloquy on record, it was error to conduct a bench trial. The defense concludes that the conviction and sentence must be reversed.

The state argues that the record is not silent on the issue of waiver. It observes that the defendant, through counsel, waived a jury trial on the date of trial, apparently as a strategy to gain a delay. The state argues that the record indicates that the defendant did not want a trial by jury. It argues, in the alternative, that a remand for an evidentiary hearing would be preferable.

1 fiA defendant may waive his right to a jury trial and elect to be tried by the judge. La. C. Cr. P. art. 780. Generally, the waiver is to be entered at arraignment. However, the trial judge may accept a waiver of a jury trial at any time prior to the commencement of trial. La. C. Cr. P. art. 780(B). A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, writ denied, 2005-0845 (La.11/29/05), 916 So.2d 165; State v. Lokey, 04-616 (La.App. 5th Cir.11/30/04), 889 So.2d 1151, writ denied, 2004-3195 (La.5/6/05), 901 So.2d 1093. Because of the importance attached to the right to a jury trial, a trial judge must exercise great care in allowing a criminal defendant to waive the right. La. C. Cr. P. art. 780; State v. Kahey, supra; State v. Richardson, supra.

The court in State v. Wilson, 437 So.2d 272 (La.1983), elaborated:

The right to trial by jury is protected by La. Const. Art. I, § 17 (1974). Except in capital cases, the defendant may knowingly and intelligently waive trial by jury and elect to be tried by the judge. As in the case of other significant rights, however, waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. In order to protect this valuable right, as well as to prevent postconviction attacks on the waiver, the better practice is for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record. By this procedure, the trial judge not only insures that an express waiver is recorded, but also assures that the waiver is made voluntarily and knowingly. (Citations and footnote omitted.)

Although it remains the preferred method for the district court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. State v. Pierre, 2002-2665 (La.3/28/03), 842 So.2d 321. Likewise, it is preferred, but not necessary, for the defendant to waive the right to jury trial personally. State v. Pierre, supra; State v. Wolfe, 98-0345 (La.App. 4th Cir.4/21/99), 738 So.2d 1093, 1097, writ denied, 1999-1460 (La.12/10/99), 756 So.2d 281. Counsel may waive the right on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently. Id. Also see State v. Kahey, supra; State v. Phillips, 365 So.2d 1304 (La.1978); State v. Muller, 351 So.2d 143 (La.1977); State v. Arnold, 30,282 (La.App.2d Cir.1/21/98), 706 So.2d 578.

This court in Arnold, supra, discussed situations in which defense counsel waived the right to a jury trial on behalf of the defendant:

In the Muller case, cited in Kahey, the supreme court affirmed a lower court’s reversal of a conviction where an attorney waived the defendant’s right to a jury trial in. the absence of the defendant and the defendant thereafter had a bench trial. In State v. Morris, 607 So.2d 1000 (La.App. 3rd Cir.1992) (Footnote omitted), writ granted and reversed on other grounds, 615 So.2d 327 (La.1993), the third circuit reversed a defendant’s conviction in a case where the record, as here, contained only an attorney-filed motion to waive trial by jury. The court distinguished this case from other cases where attorney-filed motions to waive jury trial were found sufficient on the grounds that, in those cases, the record reflected the defendant’s presence in court at the time the motion was made. In the [State v.] Clay [,623 So.2d 211 (La.App. 2d Cir.1993)] case, supra, this court recognized that a waiver of trial by jury is likely to be effective whenever it is made by the defendant personally.

Where no valid jury waiver is found in the record, Louisiana appellate courts have traditionally set aside the defendant’s conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5th Cir.1987), writ denied, 523 So.2d 1335 (La.1988). However, in more recent decisions, the preferred procedure is to | ¿remand the case to the trial court for an evidentiary hearing on the issue of whether a valid jury waiver was obtained. State v. Brual, 98-657 (La.App. 5th Cir.1/26/99), 726 So.2d 1112; State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963; State v. Stoltz, 98-235 (La.App. 5th Cir.8/25/98), 717 So.2d 1243; State v. James, 94-720 (La.App. 5th Cir.5/30/95), 656 So.2d 746.

It can be argued that the record sub judice is not silent regarding the defendant’s waiver of his right to trial by jury, and, in fact, indicates his voluntary and knowing waiver. The minute entries reflect that the defendant was present with counsel at arraignment when the trial court informed the defendant that he may waive trial by jury and elect to be tried by the court, and' was also present with counsel in court on January 25, 2005, when he waived his right to a jury trial and elected to be tried by a judge. There is no discrepancy between the transcript of the January 25, 2005, proceeding and the minute entry. The transcript indicates that defense counsel talked with the defendant the night before and, informed the court that “we are going to waive the jury trial.” Although we caution the trial court against conducting colloquies with the defense counsel without a personal waiver from the defendant himself as it is preferable and more explicit for the court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. See State v. Pierre, supra. Likewise, it is preferred, but not necessary, for the defendant to waive the right to jury trial personally. State v. Pierre, supra; State v. Wolfe, supra;. Defense counsel may waive the right-on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently. Id. Also see State v. Kahey, supra. The record shows that the defendant waived a jury trial to gain an advantage — a delay before commencement of trial. In fact, there was much discussion by the trial court regarding whether this waiver could' be denied. Under the particular facts of this case, the record supports a finding- that the defendant made a valid waiver of his jury trial. This assignment is without merit.

Excessive Sentence

The defense argues that the sentences are excessive considering the small amount of drugs involved and the fact that his last criminal conviction was more than ten years earlier. It notes that the sentencing court mentioned none of the sentencing factors. The defense also claims that the imposition of consecutive sentences in this case was unconstitutionally excessive. It concludes that the sole basis for the sentence appears to be that the defendant chose to go to trial.

The state notes the defense’s failure to file a motion to reconsider sentence. It submits that the pre-sentence investigation report contains sufficient information to support the sentences imposed. The state also notes that the defendant resisted arrest and ran from the scene.

Possession of cocaine is punishable by imprisonment with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars. La. R.S. 40:967(C)(2). Possession of Ecstasy is punishable by imprisonment at hard labor for not |inmore than ten years, and may in addition, require the payment of a fine of not more than five thousand dollars. La. R.S. 40:966(C)(3). Hence, the defendant received the maximum sentence of imprisonment for possession of cocaine, but a low-range prison sentence for possession of Ecstasy.

The defendant’s sentences were ordered to run consecutively. “Although La. C. Cr. P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background ... justify treating him as a grave risk to the safety of the community.” State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Feaster, supra.

When, as here, a defendant fails to file a La. 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. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

InA review of the entire record, including the defendant’s pre-sentence investigation report and the facts and circumstances surrounding the instant offenses, supports the finding that the defendant’s sentences are not constitutionally excessive. These legal sentences are neither grossly disproportionate to the severity of the offenses, nor are they shocking to the sense of justice for this repeat offender who admitted no guilt. See State v. Lobato, supra; State v. White, supra. Finding no abuse of discretion, we will not set aside the sentences as excessive. See State v. Square, supra; State v. Feaster, supra.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentences.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Lateea TOSTON, as Curatrix of Syvella Toston, Plaintiff-Appellant v. NATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA, Defendant-Appellee.
    No. 41,567-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2006.
    Deal & Wheeler, by Philip T. Deal, Lewis O. Unglesby, Baton Rouge, for Appellant.
    Gieger, Laborde & Laperouse, L.L.C., by Robert I. Siegel, Krystena L. Harper, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

h Lateea Toston, the curatrix of Syvella Toston, appeals a judgment denying her demand for the Louisiana Department of Transportation and Development (“DOTD”)’s excess insurer, National Union Fire Insurance Company of Louisiana (“National Union”), to pay prejudgment interest on DOTD’s self-retained limit of liability. We affirm.

Procedural Background

Syvella Toston was the passenger in a Mercury Cougar that was involved in a serious “T” intersection collision with a Ford truck in East Carroll Parish in April 1997. Syvella was severely and catastrophically injured; her mother, Annette Toston, filed suit against the drivers of both vehicles, their insurers, the East Carroll Parish Police Jury and DOTD. After all other parties were dismissed, Annette Toston proceeded to jury trial against DOTD. The jury found DOTD solely at fault for faffing to remedy sight obstructions at the intersection, and awarded damages of over $11 million. Applying the statutory damage caps, the district court reduced the award to slightly over $7.1 million.

On appeal, this court reversed, ascribing all fault to the drunk driver of the Ford truck. Toston v. Pardon, 36,880 (La.App. 2 Cir. 5/14/03), 847 So.2d 119. On application for certiorari, however, the supreme court found that the “T” intersection posed an unreasonable risk of harm and assessed DOTD with 80% fault. Toston v. Pardon, 2003-1747 (La.4/23/04), 874 So.2d 791. It rendered judgment effectively fixing DOTD’s share of the judgment at $5,502,372.00.

laDOTD was self-insured under a commercial general liability policy written by the State of Louisiana Office of Risk Management (“ORM”) for $5 million per occurrence. ORM’s coverage is referred to as the “self-retained limit.” DOTD had an excess liability policy with National Union for amounts over the $5 million self-retained limit, with a maximum of $20 million. National Union intervened in DOTD’s appeal.

In June 2002, while the matter was still on appeal, DOTD and Annette Toston executed a receipt and release whereby DOTD paid her the $5 million self-retained limit (allocated as $4.75 million for Syvella and $250,000 for Syvella’s minor child). As part of the agreement, Annette Toston waived her right to pursue further recovery against DOTD but reserved her rights against DOTD to the extent necessary to pursue her claim against National Union for the excess. DOTD assigned to Annette Toston all its rights, claims and causes of action against National Union.

In July 2004, Lateea Toston (the new curatrix after the death of Annette Toston) filed the instant suit against National Union. She alleged that the interest due on the $5.5 million award was nearly $1.4 million, and that applying the $5 million settlement to the interest first, she calculated she was still due $2,141,422.26, which was National Union’s responsibility.

In September 2004, National Union paid the plaintiff $1,101,394.31, representing the excess judgment of $502,372.00 plus interest on that amount only. National Union maintained that it did not owe interest on the self-retained limit, and had thus completely discharged its obligation under the excess policy. National Union also argued that ORM customarily paid |3interest and costs that exceeded the self-retained limit, but that the plaintiff had waived this by the receipt and release executed by Annette Toston.

At a bench trial in January 2006, the parties submitted the matter on exhibits and arguments, principally the two policies, ORM’s Commercial General Liability Declarations and National Union’s Straight Excess Following Form Declarations, and the receipt and release. In oral reasons, the court found that the ORM policy obligated ORM to pay up to $5 million plus prejudgment interest, and that payment of this interest would not reduce the limits of insurance. Because prejudgment interest was an obligation of DOTD’s, it was unaffected by the receipt and release, which assigned to the plaintiff only DOTD’s rights, claims and causes of action against National Union. Finally, the court found that National Union’s policy obligated it to pay interest only on its own portion of the final judgment. The court rendered judgment dismissing the plaintiffs claim for interest on the self-retained limit.

The Parties’ Contentions

Lateea Toston has appealed, raising one assignment of error:

Appellant contends that the Trial Court erred in concluding that DOTD owed $5 million plus legal interest rather than $5 million including legal interest and in failing to conclude that National Union owed Appellant the amount of the previous judgment in question in excess of $4,750,000 ($250,000 paid to a co-plaintiff) including interest rather than the amount of the principal of the previous judgment in excess of $4,750,000 plus legal interest.

She first contends that because the case was tried solely on documentary evidence, appellate review should be de novo. She also argues that ORM’s policy is not at issue in the case, only National Union’s policy.

^Factually, she contends that of the $5 million receipt and release, only $4.75 million was earmarked for Syvella Toston, so that is the base figure at which National Union’s excess obligation begins. She calculates that the excess due is $1,337,030.35.

She argues that the general coverage statement obligated National Union to pay the state’s “ultimate net loss,” and that Endorsement No. 11 obligated it to pay interest that exceeded the self-retained limit. Further, DOTD’s ultimate net loss included the interest it would have paid on the $5 million retained limit, and National Union must pay that interest on DOTD’s behalf. She concludes that Endorsement No. 11 clearly obligates National Union to pay the state’s interest, and suggests that if the provision is ambiguous it should be construed to find coverage. In support she cites the rule of plain construction, La. R.S. 22:654 and Mayo v. State Farm, 2003-1801 (La.2/25/04), 869 So.2d 96.

National Union responds that DOTD, through ORM, was responsible for the interest on its own self-retained limit, according to the ORM policy’s Supplementary Payments — Coverage A and B, ¶ 6. In short, it contends the state was liable for prejudgment interest on the $5 million it paid to Annette Toston. It cites numerous cases involving self-insured political entities for the proposition that each insurer is responsible for its own layer of coverage. Moon v. City of Baton Rouge, 522 So.2d 117 (La.App. 1 Cir.1987), writs denied, 523 So.2d 1319, 523 So.2d 1320, 523 So.2d 1327 (1988); Doty v. Central Mutual Ins. Co., 186 So.2d 328 (La.App. 3 Cir.), writ denied, 249 La. 486, 187 So.2d 451 (1966); Glazer v. Louisiana Trailer Sales Inc., 313 So.2d 266 (La.App. 4 Cir.), writ not cons., 318 So.2d 47 (1975); McGowan v. Sewerage & Water Bd. of New Orleans, 555 So.2d 472 (La.App. 4 Cir.1989); O’Donnell v. Fidelity General Ins. Co., 344 So.2d 91 (La.App. 2 Cir.1977); NOPSI v. Southern American Ins. Co., 1990 WL 103679 (E.D.La.7/12/90). National Union concludes that its policy is unambiguous and does not provide for the payment of prejudgment interest on DOTD’s self-retained limit.

Discussion

At the outset, we must reject Ms. Toston’s contention that the ORM policy is not at issue in the case. National Union’s policy is clearly labeled “straight excess following form liability declarations.” The “follow form” designation means that it follows the conditions and agreements of an underlying policy. Rivere v. Heroman, 96-1568 (La.App. 4 Cir. 2/5/97), 688 So.2d 1293. Unless there is an express exception to the form of the underlying insurance, the excess carrier in a follow form policy must act according to the underlying insurance policy’s terms. Hartford Accident & Indem. Co. v. Pacific Employers Ins. Co., 862 F.Supp. 160 (S.D.Texas 1994). The ORM policy is an integral part of the state’s insurance scheme and is relevant to the case.

The pertinent portion of the ORM policy is under the heading “Supplementary Payments—Coverage A and B,” whereby ORM agreed to pay:

|fi6. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. * * *
These payments will not reduce the limits of insurance.

This provision clearly imposes on the state, through ORM, the obligation to pay prejudgment interest on its own portion of the judgment without reduction of the limit of insurance.

Also of crucial importance to the case is the receipt and release executed by Annette Toston. By this document, she accepted from the state an even $5 million, without interest. They further provided:

[PJursuant to this Agreement, Plaintiff * * * will collect the underlying self-insured limits of the State of Louisiana in the amount of Five Million and no/100 ($5,000,000) Dollars, reserving Plaintiffs rights against the State of Louisiana, but only to the extent necessary to preserve Plaintiffs claims against National Union Insurance Company of Louisiana, the excess insurance carrier for the State of Louisiana, and that any additional sums to which Plaintiff may ultimately be entitled will be collected only from National Union Fire Insurance Company of Louisiana, and not from the State of Louisiana, directly or indirectly. To the extent necessary to effectuate this Agreement, the State of Louisiana will assign to Plaintiff all of its rights, claims and causes of action against National Union Fire Insurance Company of Louisiana.
(Emphasis added)

The parties to the receipt and release apparently believed that the state, through ORM, had the right to recover prejudgment interest on the self-retained limit from National Union; however, for the reasons already discussed, this portion of the prejudgment interest was the obligation of ORM. Before she executed the receipt and release, Annette Toston had the right to demand this interest from ORM; after the receipt and release, she |7owned by assignment all rights and claims of ORM. In effect, she received the right to demand prejudgment interest from herself. When the qualities of obli-gee and obligor are united in the same person, the obligation is extinguished by confusion. La. C.C. art.1903; A & M Pest Control Serv. v. Fejta Const. Co., 338 So.2d 946 (La.App. 4 Cir.1976). The district court was not plainly wrong to find that the assignment of claims “would not constitute an assignment of a claim for interest on the five million dollars because that was an obligation that DOTD had[.]”

In addition, we find that National Union’s policy provides that the underlying insurer will be responsible for prejudgment interest on its own self-retained limits. Endorsement No. 11 provides, in pertinent part:

We will pay on behalf of the insured that portion of the ultimate net loss in excess of the retained limit as hereinafter defined, which the insured [DOTD] will become legally obligated to pay as compensatory damages because of personal injury or property damage liability, caused by an occurrence to which this insurance applies * * *. The sum total which the insured becomes obligated to pay by reason of personal injury or property damage claims, either through adjudication or compromise, and shall also include * * * interest * * *.

Although this provision could have been more artfully drawn, its meaning is reasonably plain: DOTD was responsible for its self-retained limit plus interest in accordance with the ORM policy, and National Union was responsible only for damages that exceeded that total. The district court did not err in so finding.

National Union correctly shows that the scheme of the ORM and National Union policies is consistent with the jurisprudence. As the court summarized in Moon v. City of Baton Rouge, supra:

| rLSA-R.S. 13:4203 provides for the payment of legal interest from the date of judicial damage on all judgment, sounding in damages “ex delictu.” Pursuant to this statute, the courts of this state have, on numerous occasions, held insurers liable for interest and costs which exceed the policy limits. * * * The jurisprudence has interpreted R.S. 13:4203 to require the insurer, in the event of judgment, to pay, in addition to policy limits, judicial interest on such policy limits from the date of judicial demand. This applies to primary as well as excess insurers, making each liable for the interest attributable to their proportionate share of the total judgment. The fact that an excess policy is in effect does not alter the legal duty of a primary insurer to pay its pro-rata share of interest. * * * Therefore, we find that the trial court correctly allocated the payment of pre-judgment interest according to each defendant’s proportionate share of the total judgment.
(Emphasis added; citations omitted)

The federal district court in NOPSI v. Southern American Ins. Co., supra, analyzed Moon and other Louisiana cases, and extracted the following rule:

Where an adverse judgment is rendered against an insured in a tort action, then the insurer, absent an agreement to the contrary, is not liable to the insured for any prejudgment or postjudgment interest on the portion of the principal amount that does not exceed the insured’s self-retained limit relative to that particular insurer.
(Emphasis added)

In the instant case, there is no “agreement to the contrary”: ORM agreed to pay its self-retained limit and any prejudgment interest thereon; National Union agreed to pay any excess over that total, up to $20 million. Under these policies, each insurer was responsible for interest on its own layer of coverage. The district court was not plainly wrong to reach this conclusion.

Finally, the parties stipulated that National Union paid the principal judgment in excess of $5 million, including interest owing on that amount |3on September 15, 2004. This completely discharged National Union’s obligations. The assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Lateea Toston, curatrix of Syvella To-stón.

AFFIRMED.

      . By applying Ms. Toston's method of calculation and the dollar values supplied, this court would find the "bottom line” or excess due figure to be only $1,090,027.95, but the arithmetic discrepancy is not important to this opinion.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Deandre Laroy BROKENBERRY, Appellant.
    No. 41,481-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2006.

      William C. Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brady D. O’Callaghan, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

_JjThe defendant, Deandre Laroy Brok-enberry, was charged by bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1. Following a bench trial, he was convicted as charged. He was sentenced to serve a prison term of 10 years at hard labor without benefit of parole, probation or suspension of sentence and was ordered to pay a fine of $1,000. The defendant now appeals. For the following reasons, we affirm the conviction and sentence.

FACTS

On July 8, 2005, Corporal Robert Robinson, III of the Shreveport Police Department was patrolling the Fairfield Avenue — East 76th Street area of Shreveport. At approximately 12:00 a.m., Cpl. Robinson observed a white Chevrolet Caprice traveling in the wrong lane at a high rate of speed. When Cpl. Robinson approached the vehicle and activated his siren and lights, the driver continued for approximately two more blocks and then stopped. There were four male occupants of the vehicle: the defendant was the driver, and Tavarus Hines, Ryan Petteway and Demetrius Brokenberry (“Demetrius”), were passengers.

Corporal Jeff Nelson arrived on the scene in a separate police unit to assist with the stop. The occupants of the vehicle were ordered to place their hands in plain view, and the defendant was ordered to exit the vehicle. Cpl. Robinson handcuffed the defendant and advised him of his rights pursuant to Miranda v. Arizona. Cpl. Robinson asked the defendant whether there were any weapons in the vehicle, and the defendant | ¡^responded affirmatively. Cpl. Robinson secured the defendant in the backseat of a police unit, ordered the other occupants to exit the vehicle, handcuffed them and secured them in marked police vehicles. None of the occupants had weapons on their persons.

Cpl. Robinson looked into the vehicle and observed a “MAC 90” assault rifle, with its barrel propped between the front seats and the stock on the backseat floorboard. A 75-round drum magazine was observed on the floorboard next to the rifle. A “dock 40” handgun was observed on the front passenger floorboard. The handgun was loaded with a 15-round magazine, and a holster containing an additional magazine and magazine holder was also found in the vehicle. Cpl. Robinson testified that the front floorboard of the vehicle was “flush,” so both weapons were in plain view and within reach of the defendant. Cpl. Nelson corroborated the location of the firearms in the vehicle and testified that both weapons were within the defendant’s reach.

Cpl. Robinson testified that the defendant informed the officers that he did not own the firearms and that the weapons had been purchased by his brother and father. The defendant admitted that he knew the weapons were in the vehicle and added that he was not supposed to be around firearms due to his previous felony conviction. According to Cpl. Robinson, after the defendant was confronted with the fact that he was, in fact, near the weapons, the defendant retorted, “Man, these streets are dangerous; you can’t blame me for carrying these.”

Cpl. Robinson requested police headquarters to run a background Rcheck on the defendant and proceeded to question the other occupants of the vehicle. Demetrius, the defendant’s brother, informed Cpl. Robinson that he had purchased the firearms. Cpl. Robinson secured and seized the firearms and ammunition.

The defendant’s criminal background check revealed that he had previously been convicted of possession of cocaine, a schedule II narcotic, and his sentence for that conviction had ended on September 29, 1999. The defendant was placed under arrest for possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1.

The defendant waived his right to a trial by jury. During the bench trial, Cpl. Robinson and Cpl. Nelson testified with regard to the above related facts and circumstances.

Demetrius testified that the firearms were in the vehicle because he was moving them from his grandmother’s house to his father’s house. According to Demetrius, both guns were in the backseat on the floorboard, beyond the reach of the defendant. Demetrius asserted that, during the course of the traffic stop, he informed the officers that the weapons belonged to him. He stated that he had purchased them at a gun show under his father’s name. Demetrius explained that he was sitting in the backseat on the passenger’s side, and he placed the Glock on the back floorboard. He maintained that the gun must have shifted to the front floorboard during the stop. Demetrius also denied the officers’ claim that the rifle was observed between the front seats of the vehicle. Demetrius stated that when he entered the vehicle, he placed the rifle on the floor of the backseat.

|4The defendant testified in his own defense. He admitted that he knew Demetrius had entered the vehicle with guns in his possession. However, the defendant denied telling Cpl. Robinson that the streets were dangerous and he could not be blamed for carrying the firearms. He also denied ever having either possession of or easy access to the weapons. The defendant stated that the rifle could not have been situated between the front seats because the vehicle had a bench seat with an armrest. The defendant further testified that when he was ordered to exit the vehicle, the handgun was in the possession of Demetrius, who was seated in the backseat, and Demetrius must have placed it on the floorboard thereafter.

The defendant was found guilty as charged of possession of a firearm by a convicted felon. He was sentenced to serve a prison term of 10 years at hard labor without benefit of parole, probation or suspension of sentence, and he was ordered to pay a fine of $1,000. This appeal followed.

DISCUSSION

In his sole assignment of error, the defendant contends the evidence was insufficient to support a conviction of possession of a firearm by a convicted felon. Specifically, the defendant maintains the state failed to prove that he had actual or constructive possession of either firearm and that he possessed the requisite intent to possess the weapons.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442.

To prove a violation of LSA-R.S. 14:95.1, the state must establish beyond a reasonable doubt: (1) the defendant possessed a firearm; (2) a previous conviction of an enumerated felony; (3) the absence of the 10-year period of limitation; and (4) general intent to commit the offense. LSA-R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Qualls, 40,630 (La.App.2d Cir.1/27/06), 921 So.2d 226; State v. Morvan, 31,511 (La.App.2d Cir.12/9/98), 725 So.2d 515, writ denied, 1999-0186 (La.5/28/99), 743 So.2d 659; State v. Tatum, 27,301 (La.App.2d Cir.9/27/95), 661 So.2d 657.

In the instant case, the defendant’s prior conviction and the absence of the 10-year period of limitation are not in dispute. The controverted issue herein is whether the defendant had the requisite intent to possess the weapon, either through actual possession or through constructive possession. Whether the proof is sufficient to establish possession turns on the facts of each case. State v. Johnson, 2003-1228 (La.4/14/04), 870 So.2d 995; State v. Harris, 1994-0970 (La.12/8/94), 647 So.2d 337. Further, guilty knowledge may be inferred from the circumstances of the transaction and proven by direct or circumstantial evidence. State v. Johnson, supra; State v. Hearold, 603 So.2d 731 (La.1992); State v. Trahan, 425 So.2d 1222 (La.1983).

Constructive possession of a firearm occurs when the firearm is |7subject to the defendant’s dominion and control. State v. Johnson, supra; State v. Mose, 412 So.2d 584 (La.1982); State v. Lewis, 535 So.2d 943 (La.App. 2d Cir.1988). A defendant’s dominion and control over a weapon constitutes constructive possession, even if it is only temporary and even if the control is shared. State v. Johnson, supra; State v. Lane, 33,059 (La.App.2d Cir.3/3/00), 755 So.2d 368, writ denied, 2000-1380 (La.4/20/01), 790 So.2d 15. Constructive possession contains an element of awareness or knowledge that the firearm is there and a general intent to possess it. State v. Shrader, 38,327 (La.App.2d Cir.8/18/04), 881 So.2d 147; State v. Lane, supra; State v. Evans, (La.App.2d Cir.9/24/97), 700 So.2d 1039, writ denied, 1997-2942 (La.1/9/98), 705 So.2d 1121. General intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10. Although the existence of intent is a question of fact, it may be inferred from the circumstances of the transaction. State v. Shrader, supra; State v. Joseph, 2002-1370 (La.App. 3d Cir.4/17/03), 854 So.2d 914.

Several Louisiana courts have considered cases involving constructive possession of firearms discovered in vehicles. In State v. Johnson, supra, the defendant was a passenger in the backseat of a vehicle which was stopped for a traffic violation. When the defendant exited the vehicle, a police officer noticed a small automatic pistol on the floorboard where the defendant’s feet had been located. The supreme court upheld the 1 ^defendant’s conviction, ruling that a rational trier of fact could have concluded that the defendant knew the weapon was in the vehicle, and he had exercised dominion and control over it by attempting to conceal it from the police officers.

In State v. Dabney, 2002-0934 (La.4/9/03), 842 So.2d 326, police officers removed a firearm, gun case, clip and nine cartridges from a vehicle parked in the middle of a street. The defendant, who was standing near the vehicle, informed the officers that he had driven the vehicle to the location. The defendant testified that he did not know the firearm was under the driver’s seat of the vehicle until he attempted to retrieve an item from under the seat. The court held that the evidence was sufficient to show that the defendant had constructive possession of the firearm.

In State v. Storks, 2002-754 (La.App. 5 Cir. 12/30/02), 836 So.2d 638, police officers conducted an investigatory stop of a vehicle in which the defendant was a passenger. After the driver of the vehicle was ordered to exit the vehicle, the officers discovered that a firearm was in the vehicle. Consequently, the three passengers were ordered to exit the vehicle one at a time. Once the vehicle was empty, the officers observed a loaded handgun in the middle of the seat where the defendant and another passenger had been sitting. The officers determined that the defendant was a convicted felon and placed him under arrest. The defendant was convicted of attempted possession of a firearm, a responsive verdict under LSA-R.S. 14:95.1. The appellate court affirmed the conviction, finding that the jury had sufficient evidence to conclude that the defendant was aware that the | flgun was in the vehicle and that the gun was under his dominion and control at the time the vehicle was stopped.

In State v. Phillips, 35,554 (La.App.2d Cir.1/23/02), 806 So.2d 964, during a pursuit of the defendant, a police officer observed a shotgun in the front seat of the defendant’s vehicle. The officer testified that the gun was lodged between the two front seats of the vehicle, with the butt of the gun protruding up and the barrel facing the floor. The defendant’s wife controverted the officer’s testimony, stating that the firearm was located on the backseat floorboard of the car, and items were on top of the gun. This court affirmed the defendant’s conviction, finding any rational trier of fact could have reasonably found that elements of LSA-R.S. 14:95.1 were proven beyond a reasonable doubt.

In the instant case, after hearing the testimony and observing the demeanor of the witnesses, the trial court stated:

Even by his own testimony alone and/or that of his brother, I believe that Deandre Brokenberry had sufficient criminal intent and specifically possessed a firearm that evening. I think by his own testimony or that of his brother’s, he had constructive possession sufficient for his guilt to be proven beyond a reasonable doubt.
However, in making the appropriate credibility determinations, I believe that the State’s theory of the case is correct. I believe specifically Corporal Robinson and Corporal Nelson with respect to the areas in the car where the guns were located.
Certainly, at the very least, even though I believe there was actual possession, I think at the very least it has been proven beyond all doubt that Mr. Deandre Brokenberry had constructive possession because these weapons were ImCertainly under his dominion or control with knowledge of these weapons and the control of these weapons at the very least existed through another person.

After reviewing the record in its entirety, we conclude that the evidence was sufficient to support the defendant’s conviction. Even accepting the defendant’s testimony with regard to the presence and location of the firearms in the vehicle, a rational trier of fact could have determined that the weapons remained subject to his dominion and control by virtue of the defendant’s knowledge that the firearms were in the vehicle, as well as the proximity of the firearms to the defendant at the time of the stop. Accordingly, we find that the evidence was sufficient to prove the elements of LSA-R.S. 14:95.1 beyond a reasonable doubt.

CONCLUSION

For the reasons set forth herein, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . LSA-R.S. 14:95.1 provides, in pertinent part:
      A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(13) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instru-mentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or any violation of the Uniform Controlled Dangerous Substances Law [LSA-R.S. 40:961 et seq.] which is a felony, or any crime which is defined as a sex offense in R.S. 15:541(14.1), or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
      B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

      . The defendant does not deny his prior felony conviction. Furthermore, during the trial, the state introduced into evidence a bill of information, to which the defendant entered a guilty plea to possession of a schedule II controlled dangerous substance, cocaine, on September 29, 1997. The state also presented the testimony of Shreveport Police Cpl. Tommy Rachal, an expert in fingerprint identification and analysis. The defendant was fingerprinted in open court and the fingerprint card was introduced into evidence. Cpl. Rachal compared the defendant's fingerprints to the fingerprints contained on the back of the previous bill of information and determined that they were made by the same person.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Cecil C. JONES, Appellant.
    No. 41,299-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 2006.

      Louisiana Appellate Project, by Sherry Watters, New Orleans, Paula Corley Marx, Lafayette, Cecil Cleo Jones, for Appellant.
    Jerry L. Jones, District Attorney, John Michael Ruddick, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   DREW, J.

h Convicted as charged of second degree murder, Cecil C. Jones, a.k.a. Cleo Jones, appeals his conviction and sentence of life imprisonment without benefits. We affirm in all respects.

FACTS

On Saturday night, January 9, 1999, Chad Guy and his brother, Christopher Guy, were at Faces Lounge, a nightclub in Monroe. Sometime after midnight, Chad and Christopher were standing outside in front of the club when Monya Stewart, who was the girlfriend of Danny Wilson, a.k.a. “Debow,” walked past Chad to reenter the club through the front door. Chad grabbed Monya’s hand and flirted with her. Monya, who was not personally offended, let Chad know that she had a boyfriend and walked back inside the club. Debow, Cecil Jones (defendant), and a young man known as “Keydo” were also standing outside the club in a location where they could see the brief exchange between Monya and Chad. While outside the club, a bouncer heard the sound of breaking bottles and saw a fight between five or six people, which prompted him to go inside the club to call the police. About a minute after Monya went back into the club, she heard a “pop.” She looked outside and saw the victim on the ground in front of the club entrance.

Chad died from a single gunshot wound to his lower back. A large caliber silver-jacketed bullet was recovered from Chad’s abdominal cavity during the autopsy.

Monroe Police Officer James Willis responded to the call and observed many people outside the club. The victim lay on the ground about |R10 to 15 feet from the club’s entrance. After calling for an ambulance, Officer Willis interviewed the victim’s brother, and also recovered one (and only one) 9mm shell casing from the general vicinity of the body.

Detective Thomas Staten took photographs of the scene, and recorded statements from Monya Stewart, Carlitha Jones, Fermia Mack, and Lolitha Mitchell. Mitchell and Mack identified defendant as the shooter in their recorded statements. Both gave contradictory trial testimony (six years later) that they did not actually see defendant shoot the victim. At trial, they testified that they only told the police what they had heard.

After listening to her recorded statement at trial, Mitchell admitted telling police that when the fight was over, defendant “just came out of the blue” and started shooting the gun. Mitchell further admitted telling police that the victim was not armed. Likewise, after hearing her recorded statement at trial, Mack admitted telling police that defendant “came around and shot the boy,” who did not have a gun and was not threatening anyone.

Carlitha Jones testified at trial that she did not witness the shooting, but admitted telling police in her statement (contemporaneous with the shooting) that Mitchell told her that she (Mitchell) saw defendant with a gun. She further testified at trial that after the fight began, she saw the victim’s brother, Christopher, run off and return with a gun. At trial, Stewart, Jones, and Mitchell all placed defendant at the club on the night of the shooting.

There were other examples of forgetfulness or perjury at the trial.

IsOn the Monday after the shooting, Det. Staten received a telephone call from Ben Gibson, who had discovered a black 9mm Glock pistol and bullets hidden in a bag under a bed in his home. Gibson testified:

• Defendant arrived at his home on Sunday evening to spend the night, and left early Monday morning.
• Gibson had cleaned his house that week and knew that there was not a gun under the bed before defendant came to his house.
• He discovered the gun when his cigarette lighter rolled under the bed and he felt a bump under the carpet.
• He immediately called the police to retrieve the weapon.
• Nobody but defendant had been in his house that weekend.

Michael Stelly, an expert in firearm identification, performed tests and concluded that the 9mm Glock pistol found in Gibson’s house fired the shell casing found outside the club on the night of the shooting and the slug recovered from the victim’s body.

A warrant was issued for defendant’s arrest, but the Monroe Police Department could not locate him. In January 2003, Tulsa, Oklahoma Police Officer Jeff Gat-wood notified Monroe police that defendant was in their custody. While awaiting the results of a fingerprints search to determine defendant’s identity, the defendant had admitted to Gatwood that:

• he was Cecil Jones from Monroe;
• he was wanted for murder in Louisiana;
• he was drunk, got into a fight and pulled out his gun only because the other man pulled out his gun;
• his gun went off during a physical struggle between them; and
14* the bullet struck the man in the side, killing him.

DISCUSSION

Sufficiency of evidence

Defendant argues that his conviction should be reversed because:

• no witnesses at trial identified him as the person who shot the victim, or even that he participated in the fight which led to the shooting;
• though he was at the club at the time of the shooting, the only evidence implicating him was the statement made to the Tulsa police and the gun that he allegedly left at Gibson’s house;
• the state failed to meet its burden of negating the possibility of misidentifi-cation beyond a reasonable doubt;
• the out-of-court statements of the women who testified identifying him as the shooter were unreliable and should not have been admitted; and
• the state failed to meet its burden of proving that he shot the victim and that the shooting did not occur in self-defense.

Our law on sufficiency is well settled.

IsThe first of the four types of second degree murder is defined as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). To support a conviction of second degree murder, the state must prove these elements. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Stringfellow, 28,074 (La.App.2d Cir.5/8/96), 674 So.2d 1036.

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Stringfellow, supra.

The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Brooks, 36,855 (La.App. 2d Cir.3/05/03), 839 So.2d 1075, writ denied, 2003-0974 (La.11/07/03), 857 So.2d 517.

Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20 A(l); State v. Cotton, 25,940 (La.App. 2d Cir.3/30/94), 634 So.2d 937. The state has the affirmative duty of proving beyond a reasonable doubt that the killing was not in self-defense. State v. Arnold, 30,282 (La.App. 2d Cir. 1/21/98), 706 So.2d 578.

A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could reasonably conclude that all of the elements of second degree murder were proved beyond a reasonable doubt. The defendant’s statement alone proves his identity as the shooter of the victim. Firearm identification evidence and related expert testimony, and the facts inferred from the circumstances established by that evidence, further support the defendant’s conviction of second degree murder and refute any self-defense claims. Additionally, the prior identifications made of defendant by the witnesses, Mitchell and Mack, were admissible when they claimed at trial that they could not identify the shooter. We find that the state negated any reasonable probability of misidentification in carrying its burden of proof. The state met its burden of proving that the shooting was not in self-defense for the oldest reason in the world: the victim was shot in his back, slightly to the right of the backbone.

| y Timeliness of the prosecution

Defendant contends that the trial court erred in denying his motion to suppress based upon the state’s failure to timely bring his case to trial.

La. C. Cr. P. art. 578(2) provides that no trial shall be commenced after two years from the date of institution of the prosecution in non-capital felony cases. The offense charged determines the applicable limitation.

Regarding the suspension of time limitations, La. C. Cr. P. art. 580 provides:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

When prescription is suspended, the relevant period is not counted toward the two-year time limitation. The suspension lasts from the time that the defendant’s preliminary plea is filed until the court rules thereon. State v. Pratt, 32,302 (La.App. 2d Cir.9/22/99), 748 So.2d 25.

For purposes of Article 580, a preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial. State v. Allen, 2003-2815 (La.4/23/04), 871 So.2d 1097. Such pleadings include properly-filed motions to quash, motions to suppress, motions for a continuance, as well as applications for discovery and bills of particulars. Id.

In State v. Pratt, supra, the defendant’s motion to suppress was never ruled on by the trial court; therefore, the two-year time period was ^suspended on the date the motion to suppress was filed, and never began to run again.

A review of the minutes in this instant case reveals the following pertinent time line for this inquiry as to timeliness:

• March 14, 2003: Indictment filed.
• August 25, 2003: Defendant filed a pro se motion to quash arrest warrant.
• November 3, 2003: Trial court ruled on motion.
• August 5, 2004: Defense counsel filed a motion to suppress confession/continuance.
• August 17, 2004: Defense counsel filed another motion to suppress confession.
• September 26, 2005: Ruling on motions to suppress, and commencement of trial on the merits.

There was a period of 164 days from March 14, 2003 (indictment filed) to August 25, 2003 (pro se motion to quash arrest warrant). Prescription was then suspended until November 3, 2003, when the trial court ruled on the motion. The prescriptive period then ran for 276 days until August 5, 2004, when defense counsel filed a motion to suppress confession/continuance. At that point, prescription had run for a total of 440 days. Prescription was then suspended until September 26, 2005, when the trial court ruled on the motions to suppress. That was also the date that the trial commenced.

The defendant’s August 25, 2003, motion to quash the arrest warrant and his August 5, 2004, motion to suppress the confession/continuance were both “preliminary pleas” for the purpose of Article 580. As such, they | ^suspended the running of the time limitation set forth in that article and the relevant periods are not counted toward the two-year time limitation. As can be seen by the above timeline, the total counted is 440 days — a total number of days obviously less than the two-year time limitation set forth in Article 578(2). Hence, the trial court correctly denied the motion to quash.

Denial of the motion to suppress defendant’s Oklahoma statements

The defendant contends that his confession was involuntary and obtained in violation of his Miranda rights while he was under the influence of marijuana. At the motion to suppress, Det. Gatwood testified that he arrested defendant in a motel room during a drug task force operation. When officers knocked on the door, a co-occupant opened the door. Upon entering, the officers immediately noticed the smell of marijuana. Both defendant and the co-occupant consented to a search of the room and their persons. Upon finding a small bag of marijuana in the defendant’s pants, officers arrested defendant who refused to cooperate with the officers and twice gave false identification.

Det. Gatwood testified that:

• while they were in a hallway at the Tulsa police headquarters awaiting the results of defendant’s fingerprints search, defendant stated, approximately two hours after his arrest, that he was Cecil Jones;
• defendant became “real upset,” started to cry, and declared that they were going to find out that he was wanted in Monroe, Louisiana, for a murder that occurred outside a nightclub;
• defendant admitted being drunk and getting into a fight with another man, and when the other man pulled a handgun, he pulled out a 9mm Glock and shot the individual in the side;
|in« defendant’s statements were spontaneous, and not in response to any questioning or interrogation;
• he (the detective) was focused solely on determining defendant’s true identity;
• prior to defendant’s comments, the detective had no idea that defendant was wanted for murder in another jurisdiction;
• he did not advise defendant of his Miranda rights ; and
• defendant appeared coherent during his comments.

Defendant testified at the suppression hearing that:

• he was arrested on January 7, 2003 in Tulsa and transported to the Tulsa Police Department;
• Det. Gatwood learned that there was a warrant for his arrest from another officer;
• he gave no statement to Det. Gatwood or any other officer; and
• he had three prior felony convictions.

The trial court determined that Det. Gatwood was the more credible witness. The trial court noted defendant’s criminal history, and that the officer had no reason to lie to the court. Finding that defendant’s statements were spontaneous and not given as the result of interrogation or compelling influence, the trial court found defendant’s statements were voluntary. Further, defendant’s assertion that his statements were given under the influence of marijuana was unfounded on the record submitted.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Roddy, 33,112 (La.App. 2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Roddy, supra.

Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible into evidence without Miranda warnings even when the defendant is in custody. State v. Robinson, 384 So.2d 332 (La.1980); State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993).

Interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom or action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Interrogation includes words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). There is a difference between police-initiated custodial interrogation and communications, exchanges, or conversations initiated by the accused himself. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Bowers, 39,970 (La.App. 2d Cir.8/19/05), 909 So.2d 1038. Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. Id. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. Id.

Through the testimony of the police officer, the state met its burden of proof by presenting credible evidence that the statements were spontaneous, voluntary, and not given as a result of police interrogation or compelling influence. As such, they are admissible into evidence without Miranda warnings even when the defendant is in custody. The police officer’s testimony was sufficient to prove that the statements were made, and were given freely and voluntarily. The trial court’s conclusions are supported by the evidence and will not be overturned on appeal.

Self-representation and contempt

Defendant argues that he repeatedly attempted to represent himself, and the trial court erred in failing to conduct an adequate inquiry and make a determination as to the exercise of his right to self-representation. He further complains about the trial court’s admonishments not to make any more pro se filings.

The state filed a motion to supplement the record with the transcript of the proceeding in which defendant’s motion to represent himself was addressed. The supplement shows that, after a detailed discussion between the trial court and defendant regarding self-representation, defendant freely chose to be represented by an attorney and instructed his attorney to withdraw the motion for self-representation.

|13The pertinent procedural history as regards representation of defendant follows:

• March 19, 2003: Counsel appointed to represent defendant (IDB).
• August 25, 2003: Defendant filed a pro se motion to quash arrest warrant, which was denied by the trial court in a written ruling on November 3, 2003.
• February 26, 2004: Defendant filed a pro se motion for speedy trial.
• March 11, 2004: The trial court received defendant’s letter asking it to accept his pro se motion.
• March 12, 2004: Defendant filed a second motion for speedy trial.
• May 20, 2004: Defense counsel filed a motion for speedy trial.
• August 5, 2004: Defense counsel filed a motion to suppress confession or, in the alternative, for a continuance.
• August 17, 2004: Defense counsel filed another motion to suppress confession.
• December 9, 2004: Defense counsel filed a motion to reduce bond.
• January 28, 2005: Defendant filed a pro se motion for reduction of bond.
• March 22, 2005: Defendant’s pro se letter to the court filed into the record.
• March 22, 2005: A hearing was held on defense counsel’s motion for bond reduction, which was denied, with the trial court noting that defendant had previously been cautioned not to engage in ex parte communications with the trial court and to communicate through defense counsel, but that defendant had continued to send letters to the trial court.
• May 25, 2005: Defendant’s pro se writ of habeas corpus for the state’s failure to institute prosecution.
• May 31, 2005: Defendant’s pro se writ of habeas corpus for the state’s failure to timely file bill of information/indictment.
• June 10, 2005: Defense counsel filed a motion to continue.
|14* June 13, 2005: Defense counsel’s motion to continue was addressed in open court, and the matter was reset.
• September 13-14, 2005: Defendant’s pro se motions to quash were filed.
• September 19, 2005: Defendant’s pro se motions to quash were taken up and denied, with the trial court finding that the state was within its time limitations to bring the case to trial.
• September 22, 2005: Defendant filed a pro se letter with the trial court requesting a copy of his ruling on the motion to quash, and indicating he planned to “appeal” the decision.
• September 22, 2005: Defendant’s pro se letter was noted by the trial court, and defendant was reminded that he had been cautioned that he cannot both represent himself and be represented by an attorney, with the trial court further noting that it had not approved defendant representing himself. After defendant repeatedly interrupted the trial court, he was sanctioned and ordered to serve 160 days in the parish jail for contempt of court, to run consecutively. Defense counsel advised the trial court he would speak to defendant, and if defendant wished to file a motion to represent himself, he would do so. Defense counsel then filed such a motion, requesting that defendant be allowed to represent himself at trial.
• September 26, 2005: Defendant’s motion to represent himself at trial was withdrawn in open court, and trial commenced.

In State v. Bodley, 394 So.2d 584, 593 (La.1981), the supreme court held that “[w]hile an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative.” However, the supreme court in State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466, directed lower courts to accept and consider filings from represented defendants in a pre-verdict context whenever doing so would not lead to confusion at trial. The Melon court further noted that all courts retain the discretion to grant or withhold co-counsel status, before or after verdict.

11fiDefendant repeatedly made pro se filings despite admonitions from the court that he was already represented by counsel and had not been approved to represent himself. Even if the dictates of Melon were not followed by the trial court, the record does not show that defendant was in any way deterred by the trial court’s admonitions. Defendant continued to pursue pro se relief, and some filings were adopted and supplemented by defense counsel. The defense has not argued nor shown on appeal that defendant was in any way harmed by the trial court’s admonitions.

The contempt ruling was clearly made because defendant, despite warnings, repeatedly interrupted the judge, not because of the pro se filings.

Hearsay testimony

Defendant contends that the trial court erred in allowing hearsay and double hearsay testimony from Lolitha Mitchell, Fer-mia Mack, and Carlitha Jones.

The record reflects that on direct examination, Mitchell admitted telling police that she saw defendant shoot the victim, but testified at trial that she did not see the shooting. When she denied telling police that the victim was unarmed, a bench conference was called, the jury was removed and Mitchell’s recorded statement was played to refresh her memory. Mitchell’s testimony continued. No hearsay objections appear on the record.

The records shows that during direct examination, Mack testified as follows:

Mr. Ruddick: You did not say that Cleo came around and shot the boy?
|1fiMs. Mack: No, I didn’t. I said I guess he shot him.
Mr. Ruddick: Why do you say you guess he shot him?
Ms. Mack: Cause that’s what I was told. That’s what everybody else was saying, so, know, once you hear a story at night you go with it.
Mr. Courteau: I’m going to object to her testifying to what she heard.
Trial Court: Objection overruled. I think she was trying to explain her answer. It wasn’t offered for the truth of the matter asserted but simply that it was said and therefore effected her understanding.

During direct examination of Jones, the following questioning occurred:

Mr. Ruddick: Did you tell the police that Lolitha told you that she saw Cleo shoot the boy?
Ms. Jones: Yes, that’s—
Mr. Courteau: I’m going to object to hearsay.
Mr. Ruddick: Your Honor, this goes to the impeachment of the other witnesses as well as—
Trial Court: It’s not — The objection is overruled. It’s not hearsay because it’s not being offered for the truth of the matter. It’s asserted simply whether or not it was said.
Mr. Courteau: Note my objection for the record.
Trial Court: Your objection is noted.
He He *
Mr. Ruddick: All right. Did Lolitha Mitchell tell you that she had seen Cleo with a gun?
Ms. Jones: She said what—
Mr. Courteau: Object to a hearsay.
117Mr. Ruddick: I’m — I—the same grounds that the prior question was asked, I’m using the same grounds this time.
Trial Court: Objection overruled.
Ms. Jones: She said what everybody else said, yeah.

After a lengthy discussion outside the presence of the jury, the tapes of the police statements by Mitchell and Jones were admitted into evidence by the state, without objection by the defense, as extrinsic evidence to attack the credibility of the witnesses. It was agreed that the tapes would not be played for the jury.

The defense notes that no single witness at trial identified defendant as the shooter. It cites applicable law and argues generally that erroneously admitted hearsay statements were made by Mitchell, Mack and Jones. The defense contends that the state did not provide any exception to the hearsay rule that would make the hearsay statements admissible. Specifically, the defense contends that under La. C. Cr. P. art. 801(D)(1)(a), the out-of-court statements are admissible solely to attack credibility and not for their assertive or substantive value. The defense further argues that such use violates defendant’s right of confrontation. The defense contends that because the erroneous admission of the hearsay statements was not harmless as they were the only identity evidence presented, the conviction must be reversed and a new trial ordered.

The state notes that the defense made no objections during Mitchell’s testimony and, therefore, has not preserved this alleged error for review on appeal. It summarizes the statement given by Mack and argues that the | isstatement was not hearsay because it was offered to explain her answer to the state’s question regarding what she meant by “I guess.” The state also points to pertinent portions of Jones’ testimony and argues that the statements were allowed for impeachment purposes under La. C.E. art. 607. The state notes that the proper procedure was followed when Jones’ attention was called to the recorded statement and she was given an opportunity to acknowledge the prior statement. In the alternative, the state argues that the recorded statements are non-hearsay pursuant to La. C.E. art. 801(D)(1)(a), and that the proper procedure was followed. The state notes that the witnesses were present during trial and available for cross-examination. The state adds that additional evidence corroborates the identity of defendant as the shooter.

Hearsay is a “statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). Generally, such out-of-court statements are inadmissible. La. C.E. art. 802; State v. Logan, 36,042 (La.App. 2d Cir.6/14/02), 822 So.2d 657, writ denied, 2002-2174 (La.9/19/03), 853 So.2d 621.

If a statement is not introduced to prove the truth of the matter asserted, then that statement, by definition, is not hearsay. State v. Tate, 25,765 (La.App. 2d Cir.2/23/94), 632 So.2d 1213, writ denied, 94-1218 (La.8/23/96), 678 So.2d 33.

Before a witness’s credibility may be attacked, La. C.E. art. 613 requires that the witness’s attention be called to the inconsistency and the |19witness be given the opportunity to acknowledge the prior statement. State v. Logan, supra.

In State v. Johnson, 1999-3462 (La.11/3/00), 774 So.2d 79, the supreme court discussed attacking the credibility of a non-party witness through the use of prior inconsistent statements incriminating the accused. The court stated:

Assuming a proper foundation, the credibility of any witness may be attacked by extrinsic evidence, including prior inconsistent statements. La. C.E. art. 607(D). Admission of the evidence, which bears solely on the issue of credibility, turns on a judicial determination that the probative value of the extrinsic evidence is not substantially outweighed by undue consumption of time, confusion, or unfair prejudice. La. C.E. art. 607(D); State v. Owunta, 99-1569, p. 1 (La.5/26/00), 761 So.2d 528, 529; State v. Cousin, 96-2673, pp. 12-13 (La.4/14/98), 710 So.2d 1065, 1071. When a non-party witness’s credibility is attacked through prior inconsistent statements incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt. Owunta, 99-1569 at 1, 761 So.2d at 529; Cousin, 96-2673 at 8-9, 710 So.2d at 1069. An exception to this general rule exists for cases in which the witness’s prior inconsistent statement also constitutes a prior statement of identification for purposes of La. C.E. art. 801(D)(1)(c), Louisiana’s counterpart of Fed.R.Evid. 801(d)(1)(C). See United States v. Brink, 39 F.3d 419, 426 (3rd Cir.1994) (“If at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect.”) (quoting Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence, § 801(d)(1)(C) [01], at 801-222(1993)); see also State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485 (prior identification made of the defendant by the witness in his testimony before a grand jury was admissible when the witness testified at trial that he could not identify the defendant), writ denied, 99-0802 [ (La.10/29/99) ], 748 So.2d 1157.

State v. Johnson, 1999-3462 at pp. 2-3, 774 So.2d at 80-81.

UnA prior statement by a witness which is one of identification of a person made after perceiving the person may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made, even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Tumblin, 2002-1643 (La.App. 4th Cir.9/17/03), 857 So.2d 1045. The failure to recall a statement constitutes a failure to distinctly admit having made it. State v. Logan, supra.

The state correctly notes that the defense failed to preserve for argument on appeal any alleged errors regarding testimony given by Mitchell because no contemporaneous objections were made on the record. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Smith, 39,698 (La.App. 2d Cir.6/29/05), 907 So.2d 192.

Furthermore, a thorough review of the record reveals that the trial court did not err in overruling the defense’s hearsay objection to statements made by Mack. The record supports the finding that her statement, “That’s what everybody else was saying,” was not offered for the truth of the matter asserted, but to explain why she qualified her answer to the initial question with, “I guess.” Since the statement was not introduced to prove the truth of the matter asserted, then that statement, by definition, is not hearsay.

Finally, Jones’ testimony is the only instance in the case (that was objected to at trial) in which a prior inconsistent statement was used to impeach the witness’s credibility. The record reflects that after the proper 12ifoundation was established, the credibility of this witness was attacked by her prior inconsistent statement under La. C.E. art. 607(D). However, as a non-party witness whose credibility was attacked through a prior inconsistent statement incriminating the accused, this evidence is generally not admissible for its assertive value as substantive evidence of guilt.

It is arguable that Jones’ statement was a case in which an eyewitness’s prior inconsistent statement was also a prior statement of identification, which under La. C.E. art. 801(D)(1)(c) can be given substantive effect. See State v. Johnson, supra. See also, State v. Tumblin, supra. However, her prior statement was that she told the police that Mitchell told her that the defendant was the shooter, and was not her prior identification “after perceiving the person,” as required by La. C.E. art. 801(D)(1)(c). Hence, Jones’ statement was properly admitted into evidence to attack her credibility, but the statement should not be considered as substantive evidence. Defendant’s arguments are without merit.

The state’s special jury instruction on the aggressor doctrine

Contending that the victim was the aggressor in approaching Stewart, defendant asserts that the trial court erred when giving a special jury instruction on the aggressor doctrine over his objection. Defendant also asserts that there was no evidence about how the fight started or that defendant was involved in the fight. Defendant notes that there was testimony that the victim’s brother had a gun. The state argues that the testimony given by Mitchell and Mack after listening to their recorded statements supported the special charge regarding the aggressor doctrine.

122La. C. Cr. P. art. 807 provides in pertinent part that a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Regarding a claim of self-defense, La. R.S. 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

After listening to her recorded statement at trial, Mitchell admitted telling police that when the fight was over, the defendant “just came out of the blue” and started shooting the gun. She further admitted telling police that the victim was not armed. Also, after Mack listened to her recorded statement at trial, she admitted telling police that the defendant “came around and shot the boy,” and the person he shot did not have a gun and was not threatening anyone. The state argues that these statements are evidence sufficient to justify the special instruction on the aggressor doctrine. However, the portions of these statements regarding lack of provocation were not related to identity and should therefore not be given substantive effect. In any event, the defendant’s own statement that the shooting was in self-defense is evidence sufficient to support the special instruction. These arguments are therefore without merit.

19oOther crimes

Defendant argues that the trial court erred in denying the motion for mistrial based upon the evidence of other crimes that was presented to the jury. The relevant testimony concerning this issue was Det. Gatwood’s testimony that: (i) he came into contact with defendant as a member of the Tulsa Police Department’s special investigations division; (ii) defendant gave him two false names; and (iii) he learned that defendant was wanted for this charge (second degree murder) and a probation violation.

A review of the record reveals that the defense made only one contemporaneous objection, and that was to the last statement regarding a probation violation. The jury and witness were removed from the courtroom, and the defense made a motion for mistrial based on the reference to other crimes evidence. The state argued that a police officer is not a court official for purposes of La. C. Cr. P. art. 770, and, therefore, a mistrial is not mandatory. The defense argued that the officer had been “admonished” or warned beforehand not to refer to any prior convictions by the district attorney, but not by the court. The defense decided not to request an admonition to the jury to avoid emphasizing the other crimes evidence to the jury. The trial court denied the motion for mistrial and agreed to instruct Det. Gatwood not to make any additional references to other crimes.

The defense argues on appeal that Det. Gatwood’s testimony was replete with inadmissible “other crimes” evidence, and cites the comments set forth above. It argues that the statements were attributable to the ^prosecutor because they were deliberately elicited when the prosecutor knew what the answer would be and intended to place the information before the jury.

The state notes the lack of contemporaneous objection to all but the one reference to a probation violation. The state argues that the prosecutor’s questioning was not an attempt to elicit information about other crimes, but was aimed at setting up the sequence of events leading to defendant’s arrest.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Smith, supra. Defendant failed to preserve for argument on appeal the first two described alleged errors because no contemporaneous objections were made.

Evidence of other crimes, wrongs, or acts is generally not admissible to prove the character of a person in order to show that he acted in conformity therewith. See La. C.E. art. 404(B). The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Gatti, 39,833 (La.App. 2d Cir.10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511; State v. Salter, 31,633 (La.App. 2d Cir.2/24/99), 733 So.2d 58, writ denied, 99-0990 (La.9/24/99), 747 So.2d 1114. Mistrial is a drastic remedy that is warranted only when substantial prejudice would otherwise result to the accused. State v. Cooks, 36,613 (La.App. 2d Cir.12/4/02), 833 So.2d 1034.

125A mistrial is mandatory when a judge, district attorney or court official refers to inadmissible other crimes evidence in the presence of the jury. La. C. Cr. P. art. 770. For the purposes of art. 770, a police officer is not a “court official.” State v. Carter, 412 So.2d 540 (La.1982); State v. Gene, 587 So.2d 18 (La.App. 2d Cir.1991), writ denied, 604 So.2d 993 (La.1992).

Factors which may be considered in determining whether a mistrial is warranted are whether the statement was deliberately elicited by the district attorney, whether it was responsive to the question, and whether the witness purposely uttered it to prejudice the defendant. State v. Williams, 26,655 (La.App. 2d Cir.3/1/95), 651 So.2d 331, writ denied, 95-0777 (La.9/15/95), 660 So.2d 448. Generally, ambiguous or obscure references to other crimes made without explanation or elaboration do not prejudice the defendant. State v. Williams, supra; State v. Gene, supra.

The trial court has discretion to determine whether a fair trial is impossible, or whether an admonition is adequate to assure a fair trial when the alleged misconduct does not fit into the provisions for a mandatory mistrial, and the ruling will not be disturbed on review absent an abuse of discretion. State v. Powell, 598 So.2d 454 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

Here, as in Gatti, supra, the trial court found the officer’s statement was inadvertent and did not warrant a mistrial. It does not appear that the officer intended to unfairly prejudice the defendant. There was no pattern of seeking to place before the jury inadmissible testimony about defendant’s 12fipast. What the officer said does not appear to be an intentional violation of defendant’s rights. Furthermore, the defense declined to have an admonition given.

Good time

Defendant argues that the trial court erred in denying him good time eligibility. La. R.S. 15:571.3 provides in pertinent part:

C. Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:
(b) Second degree murder.

Because the defendant was convicted of second degree murder, the trial court properly noted the application of La. R.S. 15:571.3 to the defendant.

DECREE

Defendant’s conviction and sentence are AFFIRMED.

      . The club’s bouncer testified at trial that he heard "about" two or three gunshots. However, when confronted at trial with his prior statement, contemporaneous with the shooting, that he only heard one shot, he did not deny having said this to the police on the night of the shooting.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); 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.
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of mis-identifícation in order to carry its burden of proof. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

      . See discussion regarding these identifications later in this opinion.