author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Patrick B. THOMAS.
    No. 06-KA-654.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Martin A. Belanger, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Thibodaux, LA, for Defendani/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡.Defendant, Patrick Thomas, appeals his conviction and sentence on a charge of distribution of cocaine, a violation of La. R.S. 40:967 A. For the reasons that follow, we affirm the conviction and sentence and remand the matter for compliance with instructions herein.

On October 15, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant with distribution of cocaine within one thousand feet of a school, a violation of La. R.S. 40:981.3. On June 24, 2004, the State amended the charge to distribution of cocaine. Defendant was arraigned on the amended charge, and pled not guilty. On the same day, the trial court denied defendant’s motion to suppress identification, and defendant was tried before a twelve-person jury and was found guilty as charged.

| oOn July 19, 2004, the trial court sentenced defendant to imprisonment at hard labor for eighteen years, the first two years of which would be served without benefit of parole, probation, and suspension of sentence. On that day, the State filed a habitual offender bill of information, alleging defendant was a third felony offender. Defendant denied the allegations in the habitual offender bill. Following a habitual offender hearing, the trial court found defendant to be a third felony offender. On May 31, 2005, the trial court vacated defendant’s original sentence, and imposed an enhanced sentence of life imprisonment without benefit of parole, probation, and suspension of sentence. This timely appeal follows.

Agent Josh Bell of the Jefferson Parish Sheriffs Office testified that on September 9, 2003, he was part of an undercover narcotics operation. He was instructed by his supervisor, Detective Billy Matranga, to attempt drug purchases in the area of Eisman and Field Streets in Marrero. Agent Bell testified that he drove an unmarked vehicle to that area at 3:10 p.m. The vehicle was equipped with a hidden video camera and an audio transmitter.

Agent Bell observed defendant on the street and asked him if he had two “twenties,” street slang for two rocks of crack cocaine. Defendant responded that he could get the crack nearby at Meyers and Fourth Streets. The agent testified he drove to that location to meet defendant, who rode a bicycle there. Defendant first met with a woman, and then handed Agent Bell two “rocks” of crack cocaine. Agent Bell gave defendant two prerecorded twenty-dollar bills.

When the purchase was complete, Bell left the area. He radioed a description of defendant to surveillance officers. Agent Kim Blanche testified that fifteen minutes after the transaction, she and Deputy David DGreen went to the 6600 block of Field Street and located defendant based on Bell’s description. The officers conducted a field interview with defendant, and collected his personal information. Agent Blanche testified that defendant became irate during the interview, yelling and using profanity. When defendant refused to calm down, the officers arrested him on a charge of disturbing the peace.

On the following morning, Agent Ma-tranga presented Agent Bell with a photographic lineup. Agent Matranga testified that Agent Bell identified defendant as the man who had sold him two rocks of crack cocaine.

Defendant assigns three errors on appeal. He first complains that Agent Bell’s photographic identification was tainted because the lineup was suggestive, and the trial court erred in denying his motion to suppress it. Defendant argues he was singled out because he was the only one of six subjects in the lineup without a prominent mustache. The State responds that all of the photographs in the lineup depicted similar looking men, and the identification procedure was not suggestive.

A defendant who seeks to suppress an identification must prove that the identification itself was suggestive, and that there was a likelihood of misidentification. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000); State v. Thomas, 04-1341 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 901, writ denied, 05-2002 (La.2/17/06), 924 So.2d 1013. An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Thibodeaux, supra.

Fairness is the standard of review for identification procedures and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 113-114, 97 S.Ct. 2243, 52252-53, 53 L.Ed.2d 140 (1977). The factors to be considered in assessing reliability include: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. at 2253. Any corrupting effect of a suggestive identification procedure is to be weighed against these factors. Id.

In determining whether the trial court’s ruling on a defendant’s motion to suppress was correct, an appellate court is not limited to the evidence adduced at the hearing on the motion to suppress but may also consider pertinent evidence given at trial. Thomas, 904 So.2d at 902.

Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134, 1145; State v. Bartley, 03-1382 (La.3/30/04), 871 So.2d 563, 573, writ denied, 04-1055 (La.10/1/04), 883 So.2d 1006. This determination is made by examining articulable features of the persons pictured such as height, weight, build, hair color, facial hair, skin color and complexion, and the shape and size of the nose, eyes, and lips. State v. Guillot, 353 So.2d 1005, 1008 (La.1977).

Agent Matranga testified at the suppression hearing that Agent Blanche provided him with defendant’s name. He then prepared the photographic lineup by retrieving defendant’s photograph from the “APEX” computer and obtaining five photographs of men with characteristics similar to defendant’s. Agent Matranga further testified that he showed the photographic lineup to Agent Bell, and that Bell positively identified | (¡photograph number two, the one depicting defendant. Matran-ga said he did not indicate to Agent Bell which individual he should identify.

Agent Bell testified at the hearing that Agent Matranga showed him the photographic lineup the morning after the undercover buy. He stated that Agent Ma-tranga did not do anything to suggest to him which individual he should identify. Agent Bell identified photograph number two as the individual from whom he bought the narcotics, and he positively identified defendant in court. When asked on cross-examination whether the individual who sold him the cocaine had a mustache, Agent Bell replied, “He may have had a small one, just unshaven.” Agent Bell noted the subject in photograph number six also had a smaller mustache, while some of the other subjects had bushier mustaches. Following the hearing testimony, the trial judge denied defendant’s motion to suppress identification without giving reasons.

We find that the photographic lineup in this case consists of six photographs of African-American men with similar hairstyles and facial features. The backgrounds of the photographs are similar, and three of the men, including defendant, are shown wearing white t-shirts. Although the subjects’ mustaches vary in thickness, the photographic lineup does not unduly focus attention on defendant.

Even if, arguendo, the lineup was suggestive, we find, based on the Manson criteria, that defendant has failed to show a substantial likelihood of misidentification. The testimony at the hearing and at trial demonstrates that Agent Bell had ample opportunity to view the perpetrator at the time of the sale. Moreover, the sale took place during daylight hours. The agent made the identification less than twenty-four hours after the transaction. Bell’s and Matranga’s testimony shows that Bell was certain of his identification at |7the time it was made, as well as when he viewed defendant in court. Defendant’s first assignment of error has no merit.

In his second assignment, defendant contends the trial court erred in finding him to be a third felony offender, and moves this Court to vacate the trial court’s finding. Defendant argues the trial court erred in finding his 1994 armed robbery conviction was a valid predicate offense, because there was insufficient evidence to link the fingerprints on the arrest card with the conviction. Defendant further argues the State failed to produce the Boy-kin transcripts from either of the two alleged predicate guilty pleas. The State responds it was not required to produce the Boykin transcripts, as the guilty plea forms from the two prior convictions were sufficient proof that the prior guilty pleas were constitutionally sound.

To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions, and that defendant is the same person who was convicted of the prior felonies. State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 455, writ denied, 05-1715 (La.2/10/06), 924 So.2d 161. The latter can be established by expert testimony matching the defendant’s fingerprints with those from the prior proceedings. Id. When the State relies on a prior conviction that is based on a guilty plea in proving defendant’s habitual offender status and defendant denies the State’s habitual offender allegations, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when they were taken. State v. Shelton, 621 So.2d 769, 779-780 (La.1993).

Under Shelton, it is the State’s burden to initially prove (1) the existence of the prior guilty pleas, and (2) that the defendant was represented |sby counsel when the pleas were taken. If the State meets that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant succeeds in making that showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State introduces a “perfect” transcript of the taking of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived his right to trial by jury, his privilege against self-incrimination, and his right of confrontation. Id.

If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver' of the three Boykin rights.” Shelton, 621 So.2d at 780.

On July 19, 2004, the State filed a habitual offender bill of information, alleging defendant to be a third felony offender. The prior felonies the State alleged were a 1994 armed robbery conviction in case number 93-6518, and a 1997 aggravated battery conviction in case number 96-1136. Both predicate convictions resulted from guilty pleas. Defendant denied the allegations in the habitual offender bill.

At the habitual offender hearing on May 10, 2005, the State produced State’s Exhibit 2, in globo, which included a bill of information in case number 96-1136, along with a waiver of rights/guilty plea form, a habitual offender waiver of rights form, and an August 14, 1997 minute entry detailing defendant’s guilty plea to aggravated battery. The State also produced State’s Exhibit 3, in globo, which included a bill of information for | Scase number 93-6518, a fingerprint card, an arrest register, a waiver of rights/guilty plea form, a “hard labor plea sentencing form,” and a “JPSO Arrest Report and Probable Cause Affidavit.”

Lieutenant Patricia Adams, an expert in fingerprint examination, testified that the fingerprints she had taken from defendant that day matched the fingerprints on the bill of information in case number 96-1136. Lieutenant Adams also testified that the fingerprints matched those on a copy of a fingerprint card in case number 93-6518. At the conclusion of Adams’ testimony, defense counsel submitted the matter, noting he had filed an opposition and objections to the habitual offender bill. Counsel questioned whether defendant had been properly “Boykinized” at the time of the predicate guilty pleas. The trial court nevertheless found defendant was a third felony offender.

Defendant now argues, as he did below, that the State failed to prove he was properly “Boykinized” before entering guilty pleas to the predicate felonies. When defendant denied the allegations in the habitual offender bill, the burden shifted to the State to prove the existence of the prior guilty pleas, and that defendant was represented by counsel. The State was not, as defendant contends, required to produce Boykin transcripts to meet that burden. The certified copies of the predicate guilty pleas (including waiver of rights forms listing the three Boykin rights) produced by the State established both the existence of the guilty pleas and that defendant was represented by an attorney when he entered them. The State’s production of the pertinent waiver of rights/ guilty plea forms was sufficient to satisfy its burden of proof.

The burden then shifted to defendant to produce some affirmative evidence of a procedural irregularity in connection with his guilty pleas, h (¡Defendant failed to do so. Therefore, the burden did not shift back to the State to prove the guilty pleas were constitutionally sound.

Defendant further argues that there was insufficient linkage between the fingerprint card and the 1994 predicate conviction. This Court has found sufficient linkage where the State connects the fingerprint card to the arrest register and/or the bill of information by matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, or docket numbers. See, State v. Muhammad, 03-419 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 33, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669, citing State v. Breaux, 00-236 (La.App. 5 Cir. 8/29/00), 767 So.2d 904, 909-910, writ denied, 00-2874 (La.6/29/01), 794 So.2d 808.

In the instant case, the fingerprint card and the arrest register were linked in several respects. Both contain the defendant’s name, height, weight, sex, race, eye color, hair color, date of birth, and Bureau of Identification number. The documents also list the charge as armed robbery with a gun. The arrest register is linked to the bill of information, in that both documents contain defendant’s name, the charge, police item number, and “DA” number. The bill of information is linked to the hard labor plea sentencing form by defendant’s name, case number, date of birth, and item number.

Based on the foregoing, we find the trial court did not err in finding defendant to be a third felony offender.

In his final assignment of error, defendant maintains his life sentence is constitutionally excessive, considering his underlying offense was not a violent offense, and he sold only two rocks of crack cocaine. Defendant suggests the trial court should have deviated below the mandatory minimum sentence under the Habitual Offender Law. Defendant also contends the Intrial court erred in failing to articulate reasons for the sentence in accordance with La.C.Cr.P. art. 894.1. The State responds that the trial judge did not abuse his discretion in sentencing defendant to life imprisonment, since the law required him to do so.

The record in this case does not show that defendant filed a written motion to reconsider sentence in accordance with La.C.Cr.P. art. 881.1. He did object to his sentence as excessive at the time it was imposed, but he failed to state a specific ground upon which his motion was based. He is, therefore, only entitled to a bare review for constitutional excessiveness. State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.

The Louisiana Supreme Court has held that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 521. On September 9, 2003, when the underlying offense was committed, La. R.S. 15:529.1(A)(l)(b)(ii) provided:

If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Aggravated battery and armed robbery, the predicate offenses alleged in defendant’s habitual offender bill, are both violent offenses under R.S. 14:2(13). The underlying felony, distribution of cocaine, is a violation of the Uniform Controlled Dangerous Substances Law punishable by | ^imprisonment by more than twelve years. Therefore, the trial court was required by law to impose a life sentence.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 676; State v. Simmons, 03-1458 (La.App. 5 Cir. 5/26/04), 875 So.2d 1018, 1022, writ denied, 04-1702 (La.11/19/04), 888 So.2d 194. The Louisiana Supreme Court has recognized, however, that a mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional exces-siveness. Johnson, supra.

In State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993), the supreme court held that when a trial court determines the minimum sentence mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge has a duty to reduce the sentence to one that would not be constitutionally excessive.

A court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the presumption of constitutionality. Johnson, supra. The burden is on the defendant to rebut the presumption of constitutionality by showing:

[h]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

13Johnson, 709 So.2d at 676 (quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223). The Supreme Court has cautioned that downward departures from mandatory sentences should only be made in rare instances. Johnson, 709 So.2d at 676-677. The trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 384. A defendant’s record of non-violent offenses cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive. Johnson, 709 So.2d at 676.

Defendant did not attempt to demonstrate below any exceptional circumstances to support a departure from the statutory minimum. In fact, he did not make any argument in the district court with regard to a downward departure in sentencing under Dorthey. He has, therefore, failed to carry his burden under Johnson. There is no basis for finding the habitual offender sentence constitutionally excessive. This assignment of error lacks merit.

We have reviewed the record for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). We note the following.

The trial court did not properly inform the defendant of the commencement date of the two-year period within which to file an application for post-conviction relief. At the time of the original sentencing, the court told defendant he had “two years from the date this conviction becomes final to seek post-conviction relief.” At the habitual offender sentencing, the court instructed defendant that he must apply for post-conviction relief “within two. years of your sentence, that your sentence | ubecomes final.” La.C.Cr.P. art. 930.8 actually provides that a defendant has two years from the date the “judgment of conviction and sentence has become final” in which to apply for post-conviction relief. We remand this matter to the trial court to properly inform defendant of the prescriptive period by sending him written notice within ten days of the rendition of this opinion and to file written proof in the record that defendant received such notice. See, State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1174.

We affirm defendant’s conviction and sentence and remand the matter to the trial court for compliance with the instructions herein.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Daniel Waguespack, an expert in the field of forensic science, testified that he analyzed the two pieces of off-white material defendant gave Agent Bell, and the result was positive for cocaine.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . La. R.S. 40:967 A provides that any person who distributes cocaine shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Eric COLLINS.
    No. 06-KA-575.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Appellate Counsel, Donald Rowan, Trial Counsel, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   FREDERICKA HOMBERG WICKER, Judge.

In this criminal matter defendant, Eric Collins, appeals a judgment of the trial court that denied his motion to withdraw his guilty plea. Because this Court cannot ascertain to which count defendant’s guilty plea applies, nor whether a second count of charged criminal activity is still outstanding, we revoke defendant’s guilty plea, vacate the sentence, and remand the matter for further proceedings.

The record before us shows that the Jefferson Parish District Attorney filed a bill of information on November 17, 2004 charging seven counts of criminal behavior, and naming two defendants, Eric Collins and Jerald J. Jenkins. Collins is charged with one count of attempted armed robbery, and one count of attempted second degree murder. The remaining five counts relate to Jenkins. A supplement to the record shows the bill of information was amended on April 20, 2006 to | ^reflect a charge under La. R.S. 40:967 A, distribution of cocaine. However, there is no indication as to which defendant or to which charge the amendment applies. A waiver of constitutional rights and plea of guilty form also dated April 20, 2006 indicates that Collins plead guilty to a single charge of violating La. R.S. 40:967 A, distribution of cocaine and will receive a sentence of two years in exchange for his testimony against Jenkins at trial.

The transcript of the proceedings of April 20, 2006 indicates that the defendant withdrew “any pleas of not guilty” and entered “a plea of guilty to 49:67(A).” The defendant was properly advised of his rights and the sentence, and defendant’s agreement to testify in a trial against co-defendant Jenkins was explained. In the end, the trial court accepted the plea as being a “knowing, intelligent, free and voluntary act of pleading guilty.” Sentencing was scheduled for June 26, 2006.

The entire tone of the transcript as it relates to a guilty plea is in the singular, and there is no indication as to which count the guilty plea applies. To complicate matters, the minute entry for April 20, 2006 contradicts the transcript and shows that the defendant pled guilty to two counts of distribution of cocaine.

Subsequently, defendant filed a motion to withdraw his guilty plea. On June 26, 2006, that motion was denied and the trial court sentenced defendant to fifteen years in the custody of the Department of Corrections. In making that decision the trial court stated:

Mr. Collins, when this case first came up and we pre-tried it, you were offered fifteen years in the custody of the Department of Corrections, because you had a charge of armed robbery. You agreed to testify for the State, and the State dismissed the armed robbery charge, and just left you with the distribution of a controlled dangerous substance. |4You were offered two years if you testified, and I told you at the time that if you did not testify, that would not be binding on the Court.

The minute entry for that day states that the defendant withdrew a plea of not guilty and tendered “a plea of guilty on counts 1, 2.” The minute entry and the commitment also state that the court sentenced defendant to imprisonment at hard labor for fifteen years “on counts 1, 2 concurrently.”

We are aware of the rule of law that generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). However, this Court is presented with the problem of a defendant who was originally charged with one count of attempted armed robbery and one count of attempted second degree murder. There is an amended bill of information which does not name the defendant or indicate which count of the seven counts charged was amended. Further, the transcript only refers to a charge of armed robbery that was amended. Even if we assume the trial judge misspoke and intended to sentence the defendant on a charge amended from an attempted armed robbery charge, the issue of the second count of attempted second degree murder is still unresolved.

La.C.Cr.P. art. 559 provides that a court may permit a defendant to withdraw a guilty plea prior to sentencing. While the trial court has great discretion with regard to the withdrawal of a guilty plea, it may not exercise that authority arbitrarily. State v. Jenkins, 419 So.2d 463, 466 (La.1982). Generally, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and that the plea was entered into voluntarily. State v. Stewart, 03-976 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, 1275.

|sThe assignments of error and response thereto relate to the validity of the condition of the plea agreement that defendant testify against Jenkins at trial. We do not have to reach that issue; however, because we find that under the circumstances of this case defendant could not have given a knowing and intelligent plea of guilty.

Clearly if this Court is unable to determine from the record whether one or both of the offenses charged were amended, and whether defendant has pled guilty to, and sentenced on, one or two counts, the defendant could not have given a voluntary and knowing plea of guilty.

Accordingly, we find the trial court erred in denying defendant’s motion to withdraw his guilty plea. We vacate the sentence, revoke the defendant’s plea of guilty and remand the matter for further proceedings.

SENTENCE VACATED; GUILTY PLEA REVOKED; MATTER REMANDED.

      . It is assumed that the transcript contains a typo and the guilty plea is actually on a drug charge under La. R.S. 40:967 A.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)

      . By this opinion we do not mean to comment one way or the other whether the trial court is limited to the original plea agreement with its attendant two year sentence.


text:
    STATE of Louisiana v. Brandon KING.
    No. 06-KA-554.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, Edgard, Louisiana, for Plaintiff/Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and GREG GERARD GUIDRY.
   FREDERICKA HOMBERG WICKER, Judge.

| ..Defendant, Brandon King, appeals his conviction and sentence for manslaughter, a violation of La. R.S. 14:31. Defendant and co-defendant, Corey Williams, were charged by grand jury indictment with the first degree murder of Carol Hunt. Defendant entered a plea of not guilty at his arraignment. The State later amended the indictment, reducing the charge to second degree murder, La. R.S. 14:30.1. Defendant was arraigned on the amended charge and pled not guilty. Defendant was tried separately by a jury on February 23, 24 and 25, 2005, and was found guilty of the lesser included offense of manslaughter, La. R.S. 14:31. Defendant filed a motion for new trial, and the district court denied it. He was then sentenced to serve thirty years at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal follows.

J^FACTS

On the afternoon of August 5, 2002, fifteen-year-old Corey Williams met the seventeen-year-old defendant near Williams’ home in the Park Place Subdivision in Laplace. Defendant’s grandmother lived in that neighborhood, although defendant’s own home was in the area of Laplace known as Milesville. Williams testified that he and defendant walked to the adjacent Laplace public housing development to obtain a car. Upon failing to get the car they sought, they walked through the middle of the complex. The victim, Carol Hunt, drove past them twice in a black sports car. When she passed a third time, defendant flagged her down. Ms. Hunt told them she wanted to buy crack cocaine. Williams testified he had met Ms. Hunt on previous occasions, and he had sold her drugs. Defendant was also acquainted with her.

According to Williams, defendant had some “rocks” in a clear plastic wrapper from a cigarette package. Defendant gave one of the rocks to Ms. Hunt. She tasted it, said it was not real, and attempted to give it back to defendant. Defendant pulled out a gun. Williams testified he had seen defendant with the weapon several times in the past, but he did not know defendant was armed that day. Ms. Hunt grabbed defendant’s gun while she attempted to drive away, and a shot was fired. Williams said the victim’s car kept going until it ran into a nearby house. He and defendant fled on foot. Williams testified that he saw defendant’s former girlfriend, Kelli Kliebert, at the scene with members of her family at the time of the shooting.

Williams testified he met defendant that night at the home of Jimmy Creecy, defendant’s cousin. Williams and defendant agreed that, if questioned by police, they would say they were in Milesville at the time of the shooting. On the following morning defendant asked Williams to take his gun and hide it, and |4Williams complied. Williams was taken to the detective bureau two days after the shooting, and was interviewed by Detective Kenneth Mitchell of the St. John the Baptist Parish Sheriffs Office.

Detective Mitchell testified he was assigned to supervise the investigation of Ms. Hunt’s death. He arrived at the scene at about five o’clock on the afternoon of August 5, 2002, to find the victim dead in the driver’s seat of her ear. He observed a bullet hole that went through her left arm and into her chest. There were two twenty-dollar bills on the driver’s side floorboard of the car.

Detective Mitchell testified he attended the victim’s autopsy, which was performed by Dr. Susan Garcia. He learned a projectile had entered the victim’s arm and her left side, piercing a lung, the liver, and the heart. Dr. Garcia removed the projectile from the victim’s body and turned it over to crime scene technician Michael Davis.

Detective Mitchell testified that his investigation led him to 165 Joe Parquet Circle, fifteen-year-old Kellie Kliebert’s home address. The residence was near the scene of the shooting. At the detective’s request, Ms. Kliebert met with him on August 6, 2002. at the detective bureau. Ms. Kliebert told Detective Mitchell that at the time of the shooting, she was carrying shopping bags from her family’s vehicle into their residence. She saw defendant and Williams down the street near the victim’s car. While she was inside, she heard a noise that sounded like breaking glass. When she went back outside, she saw the victim’s car resting between buildings. Ms. Kliebert told the detective she walked to the car and saw the victim had been shot. Ms. Kliebert’s police statement was played for the jury during Detective Mitchell’s testimony.

In her trial testimony, Ms. Kliebert again indicated she heard the shooting, but did not see it. She only saw defendant and Williams approach the victim’s car. ]¿Ms. Kliebert testified that defendant telephoned her on the night of the shooting, and she told him the victim was dead. She said she received a second telephone call from defendant, during which he accused her of ratting him out. Ms. Kliebert testified that she’s known defendant to have a gun, but that she did not see him with one on the day of the shooting.

Detective Mitchell testified he interviewed defendant on August 6, 2002. Defendant told him he happened upon Corey Williams while Williams was selling narcotics to the victim. Defendant said Williams asked him to stop, so defendant stayed there and waited. According to defendant, Williams told the victim, “Give it up.” Then defendant heard a gunshot, and he and Williams ran away. Detective Mitchell testified that defendant reported Kellie Kliebert had seen the shooting. In a second statement, defendant told the detective the weapon used in the shooting was located at Keva Duronslet’s residence. Detective Mitchell testified the weapon was found in the place defendant described.

Patrick Lane of the Louisiana State Police Crime Lab was accepted by the court as an expert in the field of forensic science. Mr. Lane testified at trial that the projectile recovered from the victim was fired from the weapon recovered at Ms. Duron-slet’s residence.

Eric Smith testified he was a fellow inmate of defendant’s at the St. John the Baptist Parish jail two to three years prior to trial. He heard defendant singing and “rapping” one night with some other inmates. Smith testified that defendant said, “I bust a cap in these bitches head and the bitch ran out, I knew she was dead.” Smith also heard defendant say, “ T shot the bitch and I got away across the ditch.’ ”

Defendant testified at trial that he was with Corey Williams during the early morning on August 5, 2002. He next saw Williams that evening while walking in Lthe housing project. Defendant said he saw Williams flag down the victim in her car. When defendant passed him, Williams asked where he was going. Defendant replied that he was going to his house in Milesville. Williams asked defendant to wait for him. Defendant testified that while he waited for Williams, he saw Kellie and Chris Kleibert down the street. While he tried to get their attention, he heard a gunshot. He asked Williams why he had shot the victim, and Williams told him she should have “upped it.” Defendant testified that after the shooting he went to Milesville and Williams ran through the project carrying the gun.

Defendant testified he next saw Williams thirty minutes later at Jimmy Creecy’s house. Williams informed him everyone was saying he (defendant) had shot the victim. Defendant testified he did not give Williams a gun to hide for him, and that he informed police where Williams had hidden the weapon. At trial, defendant denied having any prior knowledge that Williams would attempt to sell narcotics to the victim.

Chris Kliebert, Kellie’s brother, testified for the defense at trial. He said he saw Williams and defendant standing near a car down the street from his house. Klie-bert called out to defendant and walked towards him. He heard a small noise that sounded like “pow,” and then he saw Williams and defendant running. Kliebert testified he saw a gun in Williams’ hand.

Jimmy Creecy, another defense witness, characterized Williams as a “thug” who sold marijuana and crack cocaine, and burglarized houses. He further testified that Williams carried a gun, and that the gun recovered at Duronslet’s residence was the one he had seen in Williams’ possession. Creecy said that when Williams arrived at his house on the night of the shooting, he appeared nervous. Williams repeatedly peered out the windows and asked whether there were any police around. According to Creecy, Williams said, “ ‘Dude, I f* * *ed up, you know. |7What I’m going to do? I f* * *ed up.’ ” Carl James testified he was at Creecy’s house on the day of the shooting, and he heard Williams say something like “ ‘I F’ed up.’ ” When called by the State on rebuttal, Detective Mitchell testified Carl James told him Williams did not, in his presence, say that he “f* * *ed up.”

LAW

Defendant assigns four errors on appeal. We will first consider defendant’s second claim, that the evidence at trial was not sufficient to support his manslaughter conviction. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In cases involving circumstantial evidence, the trial court must instruct the jury that, “ ‘assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’ ” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must “determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.

All persons concerned with the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to | ^commit the crime, are principals. La. R.S. 14:24. Only those persons who “knowingly participate in planning or execution of a crime” are principals to that crime. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. Id. The mental state of one defendant may not be imputed to another defendant. Thus, mere presence at the scene of a crime does not make one a principal to the crime. State v. Coleman, 02-0345 (La.App. 5 Cir. 9/18/02), 829 So.2d 468, 471. It is, nonetheless, “‘sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intention.’ ” State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1225.

Defendant was charged with second degree murder, but was convicted of manslaughter, a violation of La. R.S. 14:31. While R.S. 14:31 A sets forth two possible theories of manslaughter, the trial court instructed the jury only as to that section’s second subpart, which provides, in pertinent part:

A. Manslaughter is:
(2) A homicide committed, without an intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 [first degree murder] or 30.1 [second degree murder], or of any intentional misdemeanor directly affecting the person; or.

Specifically, the court instructed the jury that they could find defendant guilty of the lesser offense of manslaughter if they found the State had proved that defendant killed Carol Hunt; and that the killing took place while defendant was engaged in distribution or attempted distribution of cocaine or counterfeit cocaine.

| gDefendant argues the evidence showed he was merely present at the scene at the time of the shooting. He contends a rational trier of fact could not have found guilt beyond a reasonable doubt based on the self-serving testimony of his co-defendant, Corey Williams, and the biased testimony of defendant’s former girlfriend, Kellie Kliebert. Therefore, defendant argues, the jury’s finding constitutes manifest error. We find no merit to defendant’s argument.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier-of-fact, who may accept or reject — in whole or in part — the testimony of any witness. State v. Baker, 01-1397 (La. App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier-of-fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. A Jackson sufficiency review does not require the court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt. State v. Barnes, 98-932 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099. Rather, the reviewing court, considering the record as a whole, must determine whether any rational trier-of-fact would have found guilt beyond a reasonable doubt. Id.

Williams and defendant laid the blame for the shooting on each other. Defendant claimed complete innocence in the matter, and Williams admitted his participation. Williams testified he had pled guilty to manslaughter and was serving a ten-year sentence. He said he agreed to testify at defendant’s trial as part of a plea agreement.

The jury obviously found the testimony of Williams and other State witnesses more credible than that of the defense witnesses. We find that under the UeJackson standard, a rational trier-of-fact could have found defendant was guilty beyond a reasonable doubt.

In his first assignment of error, defendant complains the trial court violated his Sixth Amendment right to a fair trial by curtailing his efforts to evaluate prospective jurors’ understanding of the concept of “mere presence” during voir dire.

An accused has a constitutional right to a full and.complete voir dire examination. La. Const, art. I, § 17. Nevertheless, the scope of voir dire lies within the sound discretion of the trial court, and its rulings will not be disturbed by the reviewing court absent clear abuse of that discretion. State v. Roy, 95-0638 (La.10/4/96), 681 So.2d 1230, cert. denied, 520 U.S. 1188, 117 S.Ct. 1474, 137 L.Ed.2d 686 (1997); State v. Francis, 95-194 (La.App. 5 Cir. 11/28/95), 665 So.2d 596, 601.

While limitations on voir dire may not be so restrictive as to deprive counsel of a reasonable opportunity to determine grounds for challenges for cause and for the intelligent exercise of peremptory challenges, an appellate court should review the voir dire as a whole in deciding whether the defendant has been afforded sufficient latitude in examining potential jurors. State v. Hamilton, 92-1919 (La.9/5/96), 681 So.2d 1217, 1222, cert. denied, 520 U.S. 1216, 117 S.Ct. 1705, 137 L.Ed.2d 830 (1997).

On the first day of defendant’s trial, during his voir dire examination of the first panel of prospective jurors, defense counsel told them, in pertinent part:

One of the laws that the State talked to you about was the law of principals. And they correctly said that all persons involved in the commission of a crime can be charged with the commission of that crime. All persons involved.
Also in that statute is a sentence that they didn’t tell you about. And the sentence says that mere | ^presence, mere presence at the scene of a crime, mere presence at the scene of a crime is not sufficient to convict a person of a crime.

The prosecutor objected, and argued at side-bar that defense counsel had misstated the law of principals. The prosecutor asked the trial judge to so admonish the prospective jurors. The judge denied the State’s request, but said she would order defense counsel’s explanation stricken from the record. Counsel asked the judge when he would be allowed to refer to the concept of “mere presence,” and the judge said she would not allow him to do so until after she had researched the matter. Counsel objected to the court’s ruling, and asked for time to apply for supervisory writs. The judge responded, “You’ll have to send somebody, we’re not stopping here.”

When the side-bar discussion concluded, the judge told the prospective jurors to “disregard the last statement of Mr. Bel-field [defense counsel] regarding the mere presence at the scene.” Defense counsel moved for a mistrial, and the judge denied it. Counsel continued his voir dire examination with the following example:

In terms of principals, all persons involved in the commission of a crime. You’re at the bank cashing your paycheck over at the Hibernia Bank. Somebody that you know comes in and robs the bank. You’re standing at the teller line. They reach over you and point a gun at the teller and take the money from the teller and run out the bank. In order for you, who’s cashing your check, to be a principal in the crime of bank robbery the State of Louisiana has got to present to you evidence that you weren’t there just cashing your check, you had some involvement in the planning and the commission of the bank robbery. Do each of you understand that?
(Affirmative response)
If the State of Louisiana gives you the facts as I’ve just given them to you, that you were there, that’s not sufficient. Simply being there is not sufficient. Do each of you understand that?
| ^Principals involve an act of doing something towards the furtherance of the crime. You understand that? You planned it, you drove the getaway ear, you were the lookout, you were peeping out the door to see if the police were coming. You weren’t there simply at the counter cashing your check. Do each of you understand that? Do each of you have, any, any of you have a problem with that concept? Just wasn’t there.
(No response)

Later in the proceedings, after prospective jurors were removed from the courtroom, defense counsel again argued defendant’s right to discuss the concept of “mere presence” before prospective jurors. The trial judge responded that counsel had amply explained the concept when he gave prospective jurors the bank robbery example. She told counsel, “So I’ve made my ruling, you can follow-up on it if you want to but we’re going to move on.” Counsel again moved for a mistrial, and the judge denied the motion.

Jury selection continued on the second day of trial, at which time defense counsel filed a written motion for reconsideration of the court’s ruling barring the defense from questioning jurors regarding the concept of “mere presence” at the scene of a crime. The trial judge denied counsel’s motion to reconsider her ruling, explaining that he had been given an opportunity to explain to prospective jurors what he meant by “mere presence.” Defense counsel objected, and again moved for a mistrial. The trial court denied the motion.

When the second panel of prospective jurors was called, both the prosecutor and defense counsel explained the law of principals to them, noting that the State was required to prove more than the fact that a person was at the scene of a crime in order for him to be considered a principal. To the third panel of prospective jurors, the prosecutor again explained the law of principals, stating that just because someone is present at the scene of a crime does not mean he is guilty of the crime; that the person must be involved in some way. Defense counsel told the 11spanel the State was required to show “more than a person being just there at the scene of the crime.”

A review of the voir dire as a whole shows no abuse of discretion by the trial court. The judge gave defense counsel sufficient latitude to ensure the prospective jurors were fully informed of the law of principals. The judge limited counsel’s examination only to the extent necessary to ensure that he did not pass on an incorrect statement of the law to the prospective jurors. Additionally, the record shows that the trial court charged the jury as to the law of principals. The court instructed the jury, in part, that “[mjere presence at the scene of the crime does not ... make one a principal. Mere knowledge of a co-perpetrator’s intent is not sufficient to make one a principal.” Based on the foregoing, defendant’s first assignment of error has no merit.

In his third assignment of error, defendant complains the trial court erred in denying his motion for mistrial during the testimony of Patrick Lane, the State’s expert in the field of forensic science. Defendant maintains that Lane’s comments regarding his practice of preparing duplicate DNA swabs made available for testing by both the State and defense implied to the jury that defendant had the burden of proving his own innocence.

During cross-examination by defense counsel, Lane testified he creates DNA samples by running two sterile cotton swabs on the surface of the object being tested. In this case, the object was the alleged murder weapon. Lane explained, “The purpose of that is to allow one to be consumed by the laboratory and to have a second available for defense if they wish to conduct their own examination.”

Defense counsel subsequently asked Lane whether it was possible that DNA evidence could be contained on one swab and not the second one, and Lane responded |uin the negative. The following exchange ensued between defense counsel and the witness:

Q. The only way that we could be sure would be to test both the swabs. We’d be absolutely sure then, right?
A. I would not argue with you that by testing the other one you would answer the other part of that question.
Q. And that didn’t happen in this case, both swabs were never tested?
A. Your swab—
Q. To the best of your, to the best—
A. Your swab is still—
Q. Not mine—
A. — waiting for you.
Q. First of all, did I ask you to do a swab? You said just now my swab. Did I ask you to do a swab? It’s a yes or no, yes or no answer. Did I ask you to do a swab?
A. No, you didn’t.

During redirect examination, the prosecutor asked Lane what he meant when he referred to the second DNA sample as “your swab.” Defense counsel approached the bench and argued Lane should not be allowed to imply that defendant had a duty to examine the second swab and present evidence. The prosecutor responded that the jury needed to know the purpose for which the second swab was prepared; that the State did not purposefully neglect to have the swab tested. Defense counsel commented that he had discontinued that line of questioning with Lane because he knew the witness was on “shaky ground.” Counsel moved for a mistrial.

|1sThe trial judge told the attorneys she recognized Lane’s comments implied there was a second swab that someone did not test. She discussed with them ways in which the situation might be rectified. Defense counsel again argued he was entitled to a mistrial. Finally, the judge told the prosecutor he would be allowed to ask Lane what he meant when he said “your swab.” She first instructed Lane out of the jury’s hearing that he was not to mention defendant in his response to that question. This exchange between the prosecutor and Lane followed:

Q. Please answer the question.
A. Okay. The way that our laboratory protocol is set up we must maintain half of the sample in the event that someone may, they may or may not choose to use it but we have to maintain it, and that’s what we did.
Q. If somebody wants to test it?
A. If they do or if they don’t. I mean, the requirement for us is—
Q. It’s there either way?
A. Sure.

Defense counsel objected and moved for a mistrial. The trial judge denied the motion. Defense counsel requested time to apply for supervisory writs, and the judge denied the request.

Mistrial is a drastic remedy, and is warranted only where remarks result in substantial prejudice sufficient to deprive the defendant of a fair trial. State v. Overton, 618 So.2d 439, 441 (La.App. 5 Cir.1993). A determination of whether prejudice has resulted lies within the sound discretion of the trial judge. State v. Smith, 430 So.2d 31, 44 (La.1983). The decision to grant or deny a mistrial is within the sound discretion of the trial court. The denial of a motion for a mistrial will not be reversed on appeal unless the trial court has abused its discretion. State v. Ratcliff, 98-101 (La.App. 5 Cir. 2/23/99), 731 So.2d 356, 363, writ denied, 99-1112 (La.9/3/99), 747 So.2d 541.

|1fiThe mandatory mistrial provisions of La.C.Cr.P. art. 770 do not apply here, since Lane was not a judge, district attorney, or court official. The provisions of La.C.Cr.P. art. 771 do not apply here either, because neither the State nor defendant requested an admonition. Thus, the authority for a mistrial in this instance would have to come from La.C.Cr.P. art. 775(3), which provides:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.

We do not find that the trial court-abused its discretion in denying defendant’s mistrial motions. Although Lane’s objectionable answers were unsolicited and unresponsive, defense counsel did not immediately move for a mistrial. Moreover, it appears defense counsel himself called additional attention to the unwanted responses with his persistent questions to Lane about the two swabs. Instead of moving to another topic, defense counsel continued his line of questioning. In any ease, the trial court rectified the matter to a large extent by allowing the prosecutor to elicit testimony from Lane on re-direct examination that the second swab was available for anyone who wished to test it, not just the defense. This assignment of error has no merit.

In his fourth and final assignment of error, defendant argues the trial court erred in denying him a mistrial based on the State’s failure to comply with discovery. La.C.Cr.P. art. 729.5 A. Defendant references three pieces of evidence: a tape recording of defendant’s interview with Detective Mitchell, scientific analysis reports from the State crime lab, and handwritten notes Detective Mitchell made during his investigation.

Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to respond to the State’s case, and to allow a proper assessment of the strength of the State’s case. 17La.C.Cr.P. arts. 716-729; State v. Brazley, 97-2987 (La.9/25/98), 721 So.2d 841, 842 (per curiam); State v. Williams, 03-942 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1010, writ denied, 04-0450 (La.6/25/04), 876 So.2d 832. When a defendant is lulled into a misapprehension of the strength of the State’s case through the State’s failure to fully disclose, basic unfairness may result. State v. Brazley, supra.

La.C.Cr.P. art. 718 provides for discovery, on motion of the defendant, of documents and tangible things which are in the possession, custody, or control of the State when the items sought are (1) favorable to the defendant and material and relevant to guilt or punishment, (2) are intended for use by the State as evidence at trial, or (3) were obtained from or belong to the defendant. Id. Discovery is not limited to what is contained in the district attorney’s file. Id.; State v. Lee, 531 So.2d 254 (La.1988) (per curiam).

The State’s duty to disclose is a continuing one, and if the State discovers additional evidence that may be subject to discovery, or decides to use a particular item as evidence, it must notify the defendant of the existence of the additional evidence and its intended use at trial. La. C.Cr.P. art. 729.3; State v. Ray, 423 So.2d 1116, 1118 (La.1982).

La.C.Cr.P. art. 729.5 sets forth sanctions for failure to comply with discovery requests:

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

The State’s failure to comply with discovery procedures does not automatically require reversal. The appellate court must examine the circumstances of the case to [ isdetermine whether the defendant was prejudiced, and whether any prejudice resulting from the State’s non-compliance with discovery procedure caused the trier-of-fact to reach the wrong conclusion. State v. Sweeney, 443 So.2d 522, 527 (La.1983).

On August 19, 2002, defendant filed a “motion to preserve evidence,” requesting that all handwritten notes of investigating officers regarding witness interviews be preserved. The trial judge signed the order the following day.

On September 5, 2002, defendant filed a “motion for bill of particulars discovery and inspection.” In item number 26, paragraphs j and k of that motion he requested that the State “disclose all recordings, transcriptions or written summaries of each oral statement” of defendant and produce each written statement of defendant. Defendant asked the State in item number 31 whether any scientific tests had been performed and, if so, to disclose the results.

On November 6, 2002, the State filed an “answer to motion for bill of particulars discovery and inspection.” In its combined answer to numbers 20 and 21, the State informed defendant an anonymous person had told Detective Young that suspect number 1 was wearing a white t-shirt and dark pants and was approximately 5 feet, 5 inches tall and weighed approximately 140 to 150 pounds. The State also indicated suspect number 2 was described as wearing a red shirt and black pants and was approximately 5 feet, 6 inches to 5 feet, 7 inches tall and weighed approximately 150 to 160 pounds.

In response to defense request number 26, the State provided a narrative of defendant’s statement, and attached a transcript of the statement to the answers. In response to request number 31, the State said it would provide results of scientific tests when they became available. On October 20, 2003, the State filed a “notice of intent to use and introduce a certificate of analysis.” Attached to the notice was a crime lab report pertaining to fingerprint processing and firearm analysis completed in connection | iawith the murder investigation. A second such notice was filed on March 8, 2004. Attached to it were lab reports regarding fingerprint and DNA analysis done in connection with the investigation.

At trial defense counsel objected when the prosecutor indicated he would play defendant’s tape recorded interview with Detective Mitchell for the jury. Counsel argued he had asked for the tape in discovery, but the State had failed to provide it. The trial judge noted that counsel had a copy of the transcript of the tape recording. Counsel countered that he had a right to listen to the tape to ensure it was consistent with the transcript. Counsel also argued that the tape contained evidence of other crimes. The judge then ordered the objectionable portions of the transcript excised, and the edited tape was played for the jury.

Defense counsel objected at trial when the prosecutor attempted to question Detective Mitchell regarding a scientific analysis report from the state crime lab. Counsel argued he had never seen the report, although he had asked for all such reports in discovery. The prosecutor responded that the document was attached to the “notice of intent to use and introduce a certificate of analysis” the State filed on March 8, 2004. The judge overruled counsel’s objection and allowed the document to be admitted in evidence.

Detective Mitchell testified during cross-examination that he interviewed several individuals as part of his investigation, including Jimmy Creecy, Trenise Felton, Carl James, and Myrna Davis. He indicated he did not tape record those interviews, but wrote down the witnesses’ responses, compiled them in a single report, and then shredded the original notes of the interviews. During redirect examination, Detective Mitchell explained that each witness’ interview was contained in his report regardless of whether the individual gave him information that was favorable or unfavorable to the State.

| ¡^Defense counsel informed the court he had never received Detective Mitchell’s thirty-one page report, and objected when the prosecutor attempted to question the officer about it. The trial judge responded that both attorneys had referred to the report during the course of the trial. When the defense called Detective Mitchell as a witness, he testified he was not aware of the trial court’s August 20, 2002 order that all handwritten notes of the investigating officers be preserved.

We do not find that the trial court erred in failing to grant defendant a mistrial based on discovery violations. The record shows defense counsel did not move for a mistrial based on any of the alleged violations, nor did he request a trial continuance in accordance with La.C.Cr.P. art. 729.5. Moreover, defendant does not show he was prejudiced by any discovery failure on the part of the State. Defendant received transcripts of his two recorded statements well in advance of trial, and the tape that was played for the jury was redacted to remove references to other crimes. The record shows defendant also received copies of the lab reports at issue prior to trial. As for Detective Mitchell’s notes, it appears defense counsel had possession of the report that was compiled from those notes.

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920, and find that the trial court imposed an illegal sentence. Defendant was sentenced to thirty years at hard labor without benefit of probation or suspension of sentence. However, La. R.S. 14:31 B only provides for restriction of benefits in cases where the victim died as a result of a battery and was under the age of ten. Because that special circumstance does not exist in the facts of this case, the trial court erred in restricting defendant’s sentence.

| ai Therefore, we vacate defendant’s sentence and remand the matter for re-sentencing in accordance with La. R.S. 14:31 B. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

      . When the issues on appeal pertain to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992).


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Kevin M. DELAUNE.
    No. 06-KA-682.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

12Pefendant-appeIlant, Kevin M. Delaune (“Delaune”), appeals his conviction for armed robbery in violation of LSA-R.S. 14:64. We affirm.

His case was tried before a twelve-person jury which found him guilty as charged. Delaune was originally sentenced to imprisonment at hard labor for ninety-nine years without benefit of parole, probation, or suspension of sentence. The State of Louisiana (“the State”) filed a multiple bill alleging Delaune to be a fourth felony offender, a bill to which De-laune stipulated. The trial court vacated the original sentence and re-sentenced him to imprisonment at hard labor for ninety-nine years without benefit of probation or suspension of sentence.

The victim, seventy-nine-year-old Philip Bultman (“Mr. Bultman”), testified at trial that, on September 23, 2004, he visited his wife at a nursing home and then went to his house at approximately 6:15 p.m. When he went into his bedroom, he | ..¡noticed that his windows were unlocked. Mr. Bultman walked over to two coffee cans where he kept quarters and pennies and observed that a handful of the quarters were missing. Mr. Bultman asked Delaune, a young man whom he had befriended eighteen years earlier, and who had been staying with him for the past week, if he had borrowed his quarters.

After Delaune denied having taken anything, Mr. Bultman took a shower and went to a movie with a friend. However, Mr. Bultman indicated that he locked his bedroom door prior to leaving the house. When Mr. Bultman returned home from the movie at approximately 10:45 p.m., he saw Delaune outside the house smoking a cigarette. Mr. Bultman went inside and sat down at the dining room table to make a telephone call. As Mr. Bultman picked up the telephone, he saw “something coming down” out of the corner of his eye.

Mr. Bultman testified that Delaune hit him on the head -violently with a club, and that the blood began gushing from his wound. Mr. Bultman fell off the chair and screamed, “Kevin, what are you doing, son?” Delaune raised his hand again and hit Mr. Bultman in the back of the head with the club. Mr. Bultman screamed at defendant to stop hurting him, but defendant continued beating him and saying, “Where is the money? I want the money.” When Mr. Bultman understood that De-laune wanted money, he pointed toward his bedroom and half crawled, half staggered there while reaching for his keys to open the bedroom door.

Before Mr. Bultman could open the door, Delaune kicked the door in, breaking the door frame in the process. Delaune pushed Mr. Bultman over to one of the twin beds and forced him to grab the bed post. He then took Mr. Bultman’s belt and an extension cord and tied him up. Afterwards, Delaune put duct tape on Mr. Bultman’s mouth and again asked, “Where is the money?” Mr. Bultman noted Rthat Delaune must have placed the extension cord and duct tape in the bedroom, because Mr. Bultman did not have those items in there before.

In response to the questions regarding the money, Mr. Bultman pointed to his wallet, which Delaune took, afterwards leaving the premises. Mr. Bultman laid there a while, and when he did not hear anything, he arose from the bed and staggered to the home of his neighbor, Kenny Graef (“Mr. Graef’), who called 911. When the police arrived, Mr. Bultman informed them of what had transpired. Mr. Bultman was taken to East Jefferson General Hospital where he received fifteen stitches in his head and remained there until the following afternoon.

Mr. Graef testified at trial as to the details of Mr. Bultman’s condition once he arrived at the Graef house, and that the victim told him that Delaune had hit him.

Detective Dax Russo (“Det. Russo”) of the Jefferson Parish Sheriffs Office testified that he went to the hospital to meet with Bultman, who identified Delaune as the perpetrator. After locating Delaune in Florida, he and another officer went there, picked up Delaune and drove him home. When they returned to the detective bureau, Det. Russo read him his rights. De-laune waived them and gave a statement which was played for the jury.

In his statement, Delaune said that he did not remember much regarding the incident with Mr. Bultman. He stated that Mr. Bultman came home and they were talking about a movie Mr. Bultman had seen. Delaune stated that he and Mr. Bultman “got into it I guess” and that he might have hit Mr. Bultman one time. He indicated that he then took Mr. Bultman’s vehicle without his permission and left after the incident (although he did not remember leaving), and when he woke up, he was on the side of the road in Alabama. Delaune did not remember how many times he hit Mr. Bultman, and he did not think he had anything in his hands when | Bhe did so. He also did not remember taking any money from Mr. Bultman, nor did he remember tying Mr. Bultman’s hands together and tying him to the bed and gagging him. Delaune said he did not remember much because he had smoked five or six rocks of crack cocaine (worth between $50 and $100) that night. Since the night of the incident, he had kept Mr. Bultman’s car and was working in Florida.

After the State rested its case, the defense called Mr. Bultman as a witness. When asked how the duct tape and electrical cord could have gotten into his bedroom prior to the attack, Mr. Bultman opined that Delaune could have put them in there when he went to take his shower prior to leaving for the movie.

After hearing the testimony and considering the evidence, the jury found Delaune guilty as charged.

The only issue on appeal is De-laune’s contention that the trial court improperly denied his motion for a mistrial necessitated by defense counsel’s conflict of interest. He argues that the trial court erred by not declaring a mistrial pursuant to LSA-C.Cr.P. art. 775(3) or (5), urging that the trial judge should have granted the motion and appointed new counsel for him after his counsel expressed hesitation in his ability to fully represent him.

After Mr. Graef, the first witness, testified during the state’s case, Mr. Soignet, defense counsel, said he wanted to place something on the record. He explained that, when he first came in that morning, a gentleman approached him and said he was sorry and that they needed to get together and have lunch. Defense counsel said that he “somewhat” recognized the gentleman, but did not have a full recollection of who he was. After they recessed for lunch, he realized that the victim, Mr. Bultman, was the same gentleman whom he had spoken to that morning. He talked to Mr. Bultman again and asked him to refresh his recollection |fias to when they had met. Mr. Bultman reminded him that he had come forth in the past, in another case in which counsel represented De-laune, to speak on behalf of Delaune. Defense counsel then told the trial judge:

I know if I go forward with this trial I will do everything I can to represent the interest of my client, but it’s going to require possibly an aggressive cross examination of the victim, whom I have a good respect for basically what he had done in the past. I think I can do what I have to do. I can’t guarantee it. Uh, based upon that, Your Honor, and the potential conflict, I would ask for a mistrial and have this matter be reset and another attorney appointed.

The prosecutor responded that he did not see a conflict of interest, and he pointed out that there was nothing that defense counsel was being prevented from doing in his cross-examination of the victim or in his defense of this case. He conceded that there might be a conflict if defense counsel had represented the victim in an ongoing case wherein defense counsel might have information about the victim due to the representation. The prosecutor contended that there was no conflict of interest solely because defense counsel called the victim as a character witness for Delaune in another case.

Defense counsel stated, “First of all, I may have misrepresented that I called him. He came to me basically looking to help Mr. DeLaune at that time. It’s the perception, I think, as well as the possibility that I might not do what — everything I have to do that I’m concerned about.... ”

When the trial judge asked Delaune how he felt about this matter, he responded that he would like to have a new attorney if possible. After hearing arguments of counsel and considering defendant’s position, the judge denied the motion for mistrial stating:

All right. Clearly there’s no conflict of interest in my opinion because the victim is not, or was not, has never been Mr. Soignet’s client. No matter who the defendant’s attorney is, the victim is always going to be a character witness or had been a character witness for the defendant, so we’re always going to |7have that problem, and it’s also clear that they know one another just from what I’ve heard so far in the evidence thus far. So that’s just — that’s just the way the facts fall. As far as your relationship with the witness or with the victim, I think it’s obvious that you came across him in the course and scope of your job as an attorney — as a criminal defense attorney, you know. It’s [sic] surprises me this is the first time it’s happened. So the motion for mistrial is denied.

Defense counsel noted his objection, and the trial judge said:

All right. And my main reason is that, you know, even though you may require a cross examination of the victim, you feel like you can do your job even though, you know, you do question and obviously have advised your client to seek new counsel, but I appreciate you bringing this to my attention.

After Det. Russo testified in the State’s case and a recess, defense counsel told the trial judge:

Again, Your Honor, I was concerned about any perception that I would go easy on the victim. When I walked out of the courtroom, he tapped me on the shoulder and says, “Thank you for being gentle with me.” So if he had that perception, I’m concerned that somebody else might have the same perception. And again, I’m just — I’m putting all this on the record.—

The trial judge said to defense counsel that he had to do his job. He also pointed out that Mr. Bultman was the most gentle and sweetest person he had ever met in his life, and that no matter how hard defense counsel was on him, Mr. Bultman would have thanked him because Mr. Bult-man was such a nice man. LSA-C.Cr.P. art. 775, in pertinent part, provides the grounds for a mistrial:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.
(5) It is physically impossible to proceed with the trial in conformity with law.
_k- • • •
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. The right of a criminal defendant to the assistance of counsel during the proceedings against him is a cornerstone of our legal system. To be more than just a hollow right, our law requires that assistance of counsel be effective. As a general rule, therefore, Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant she is representing.

The issue of conflicting loyalties usually arises in the context of joint representation, but it can also arise “where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney.” In a pretrial context, regardless of how the conflict of interest issue arises, the trial court has two options to avoid a conflict of interest: appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate 19counsel. Failure to do one or the other in a case in which an actual conflict exists requires reversal. As the Louisiana Supreme Court has stated, “If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby.” The Louisiana Supreme Court has consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict.

On the other hand, if the objection is made to the claimed conflict after trial, the defendant must show he was actually prejudiced.

The Louisiana Supreme Court has defined an actual conflict of interest as follows:

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.

In the present case, the record shows that there was no actual conflict of interest as Mr. Bultman was not and had never been defense counsel’s client. Therefore, defense counsel was not required to cross-examine a current or former client on behalf of a current defendant, and he did not owe any duty to Mr. Bultman. The record indicates that defense counsel and Mr. Bultman did not have a close relationship as he did not even know who Mr. Bultman was at first. In fact, defense counsel did not show any substantive relationship with Mr. Bultman other than to say that he met him in a previous case. Further, there was no evidence that defense counsel’s remote relationship with Mr. Bultman prevented him from 10 presenting his trial strategy, nor was there any evidence that he was forced to pursue or tailor a different one. Defense counsel said he would do everything he could to represent the interest of his client and that he thought he could do what he had to do. A review of the record shows that defense counsel ably cross-examined all of the State’s witnesses, and that his cross-examination of Mr. Bult-man was thorough and proficient. Defense counsel even called Mr. Bultman as a defense witness.

In light of the record, we find no abuse of discretion in the denial of a mistrial by the trial court. This assignment of error is without merit.

We have reviewed the record for errors patent and find none.

For the reasons above, the conviction and sentence are affirmed.

AFFIRMED.

      . State, v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280.

      . State v. Franklin, 400 So.2d 616, 620 (La.1981); State v. Cisco, 01-2732, pp. 17-18 (La.12/3/03), 861 So.2d 118, 129-30, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004).

      . Id.

      . State v. Tart, 94-0025 (La.2/9/96), 672 So.2d 116, 125, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996); State v. Kirkpatrick, 443 So.2d 546, 552 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984).

      . State v. Cisco, supra.

      . Id.

      . State v. Franklin, supra.

      . See, e.g. State v. Carmouche, 508 So.2d 792, 804 (La.1987).

      . State v. Tart, 672 So.2d at 125 (relying on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct 1708, 64 L.Ed.2d 333 (1980)).

      . State v. Kahey, 436 So.2d 475, 485 (La. 1983); State v. Cisco, supra, as set forth in Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979), cert denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979).


author: GREG G. GUIDRY, Judge.

text:
    George Joseph ACKEL, Jr. v. Darlene Parent ACKEL.
    No. 06-CA-646.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      David I. Courcelle, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Provino Mosca, Attorney at Law, Hara-han, LA, for Plaintiff/Appellant.
    Don C. Gardner, Attorney at Law, Har-ahan, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKS HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡¿Plaintiff, George Ackel, Jr., appeals from the trial court judgment finding him in contempt of court for failing to make spousal support payments to his former spouse, Darlene Parent Ackel. For the reasons which follow, we affirm the contempt judgment.

Mr. Ackel and Ms. Ackel were married on September 19, 1986. The parties were divorced by judgment dated February 26, 2002. On June 23, 2005, Ms. Ackel filed a rule for permanent periodic spousal support. On or about August 15, 2005, the parties appeared before a hearing officer. Following the hearing, the hearing officer made a recommendation that Mr. Ackel pay Ms. Ackel $1,500.00 per month spousal support. On that same date, the recommendation was made an Interim Judgment of the court by signature of the Domestic Commissioner. Both parties timely objected to the recommendation and the matter was set for a hearing Lon August 24, 2005 before the district court judge to whom the case was assigned. On August 24, 2005, Mr. Ackel made a motion to continue the hearing to allow time for additional discovery. The motion was granted by the trial judge. The matter was reset for November 9, 2005 for a discovery status conference. Also on August 24, 2005, the trial court judge signed an “Interim Judgment” ordering Mr. Ackel to pay Ms. Ackel $1,500.00 per month. Due to hurricane Katrina, the November status conference did not take place.

On February 3, 2006, Ms. Ackel filed a Rule for Past Due Final Periodic Spousal Support, Contempt, Attorney Fees and Costs, asserting that Mr. Ackel had failed to pay the $1,500.00 per month spousal support. Following consideration by a hearing officer on March 17, 2006, it was recommended that $10,500.00 in past due spousal support be made executory, and that Mr. Ackel be cast for $500.00 for attorney fees and $150.00 in costs. The contempt was referred to the trial court. Both parties objected to the recommendation.

On April 10, 2006, the trial judge, after conducting a hearing, rendered judgment in favor of Ms. Ackel and against Mr. Ackel for past due permanent periodic spousal support, through April 15, 2006, in the amount of $12,000.00, $1,600.00 for attorney fees and $150.00 for costs. The trial judge also found Mr. Ackel in contempt for failure to make the spousal support payments pursuant to the Interim Judgment and sentenced him to 15 days in jail. A “purge hearing” was set for April 28, 2006, to allow Mr. Ackel to avoid jail by making payment to Ms. Ackel in full by that date.

Mr. Ackel filed a motion for new trial which was denied. He also sought supervisory writs from both this Court and the Supreme Court which were also denied. Ackel v. Ackel, 06-0386 (La.App. 5th Cir.5/25/06), writs denied, 06-1258 4(La.5/30/06), 929 So.2d 1236. Mr. Ackel is now appealing from the trial court judgment insofar as he was found in contempt.

On appeal Mr. Ackel argues that he should not have been held in contempt of court for failing to pay spousal support based solely upon the hearing officer’s recommendation. He argues that prior to being held in contempt, he should be afforded a trial on the merits before a judge to determine whether Ms. Ackel is even entitled to permanent periodic spousal support. Mr. Ackel contends that his due process rights are being violated by the instant procedure. He relies on a case from the Third Circuit, Piccione v. Piccione, 01-1086 (La.App 3rd Cir 5/22/02), 824 So.2d 427, in support of his position.

In Piccione, the Third Circuit set aside a contempt judgment rendered against Dr. Piccione for failing to pay spousal and child support in accordance with the recommendations of a hearing officer. During the course of their divorce proceedings, the Picciones had gone before a hearing officer concerning child support and interim periodic spousal support. The hearing officer issued recommendations that were neither reduced to a written order nor filed into the record of the proceeding. Both parties filed exceptions to the hearing officer’s recommendations. Thereafter, Ms. Piccione filed a Rule for Contempt alleging that Dr. Piccione had failed to pay child and spousal support as recommended by the hearing officer. The trial court found Dr. Piccione in contempt and the Court of Appeal reversed. In reaching their decision, the Third Circuit panel considered La. R.S.46:236.5, which authorizes the use of hearing officers in domestic matters, including support matters. They also reviewed the local district court rule relating to hearing officers. The court noted that the hearing officer’s recommendations were not made part of the record until after the contempt ruling, and further |¿reasoned that the local rule gave the hearing officer more authority than contemplated by the statute by allowing contempt proceedings against a party against whom no court order has ever been issued.

As noted by this Court previously, in denying Mr. Ackel’s writ application, this case is distinguishable from Piccione. First and foremost, the record in this case establishes, unlike that in Piccione, that the recommendations of the hearing officer were made an “Interim Judgment” of the court when signed by the Domestic Commissioner. Moreover, ten days later, after Mr. Ackel moved for a continuance of the trial court hearing on his objection to the hearing officer’s recommendations, the district court judge signed an “Interim Judgment” “ORDER[ING] ... that George J. Ackel, Jr. pay Darleen P. Ackel final periodic spousal support in the amount of $1,500.00 per month.” Thus, as distinguished from the Piccione case, the contempt proceedings in this case did not proceed against a party in the absence of a court order but, to the contrary, were to enforce the court order issued by the district court judge. While we acknowledge that the interim judgment may have been entered in consideration of the hearing officer’s recommendations, it is no less a court order for contempt purposes.

Additionally, we find this case distinguishable from Piccione because, since its rendition, La. R.S. 46:236.5 has been amended in critical respects to broaden the authority of the hearing officers in accord with local court rules. In light of the amendments and considering the local court rules applicable to this case, from the Twenty-Fourth Judicial District Court, we do not find, as did our Third Circuit brethren, that our local rules have the effect of modifying La. R.S. 46:236.5 in a manner that surpasses statutory authority.

IfiLa. R.S. 46:236.5, which authorizes the use of hearing officers in domestic cases, provides in pertinent part:

C. An expedited process for the establishment of paternity and the establishment and enforcement of support using hearing officers shall be implemented as follows:
(1) The judge or judges of the appropriate court or courts for the establishment of paternity or the establishment and enforcement of support and other domestic and family matters may appoint one or more hearing officers to hear paternity, support, and other domestic and family related matters.
* * *
(3) The hearing officer shall act as a finder of fact and shall make written recommendations to the court concerning any domestic and family matters as set forth by local court rule including by not limited to the following matters:
(a) Hear and make recommendations on establishment and modification of child and spousal support, child custody and visitation.
(f) Hear and make recommendations on the punishment by the court for the constructive contempt of an order of the court or hearing officer.
(6) A copy of any written recommendations, orders, or uncontested judgments rendered by the hearing officer shall be provided to the parties and their counsel at the time of the hearing officer’s ruling, if present. Any party who disagrees with a judgment or ruling of a hearing officer on a matter set forth in Paragraph (3) may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule. (Emphasis provided.)

The pertinent local rules of the Twenty-Fourth Judicial District Court, applicable here, are Rule 35.0 and Rule 35.5, which provide in part:

17Section 3. The purpose of the Hearing Officers is to provide an expedited process for the establishment, modification and enforcement of support obligations by authorizing and directing one or more hearing officers to hear support and support related matters.
Section 4. The Hearing Officer shall act as a finder of fact and make recommendations to the Domestic Commissioner or the District Court concerning the following matters:
A. Establishment and modification of support
Section 5. The Hearing Officer may do the following:
F. Summarize testimony and make a written recommendation to the Domestic Commissioner or the District Court concerning the disposition of the matter, including a recommendation for default order on the absent parent not responding to notice.
Section 6. Procedures.
A. The Commissioner or District Judge shall sign an interim order after review of the Hearing Officer’s recommendations. The interim order shall be without prejudice to either party.
B. Should either party disagree with an interim order signed by the Domestic Commissioner the party shall set the matter for hearing on the docket of the District Judge to whom the case has been allotted. (Emphasis added.)

Rule 35.5, more specifically addressing Interim Orders, provides in pertinent part:

Section 8. Prior to consent between the parties or a judicial determination of the merits of the support demand, the recommendation of the Hearing Officer shall be deemed an interim order for support, effective from the date of the meeting with the Hearing Officer, without prejudice to either party. Either party may draft and submit to the Court an interim order in accordance with the Hearing Officer’s recommendations, which will be signed by the Commissioner. were made following the Piccione decision for the stated purpose, “to expand the authority of hearing officers.” Thus, we find that the statute clearly contemplates that the local rules will provide the particulars regarding the hearing officer procedures.

In reviewing the statute and local rules, we find no improper expansion by local court rules of the statutory authority granted hearing officers. To the contrary |swe find a local system in accord with the authority granted by La. R.S. 46:236.5. The stated purpose of both the statute and local rules is expedited handling of domestic matters. The statute authorizes the appointment of hearing officers as finders of fact to, as relevant here, fix spousal support. The hearing officers are further authorized to make written recommendations to the court “as set forth by local court rule.” If objection is made to the written recommendations “within the time and manner established by court rule,” the matter shall be set for contradictory hearing before the court. Moreover, we note that the amendments to La. R.S. 46:236.5,

The local rules of the Twenty-Fourth Judicial District Court provide those particulars without going beyond the statute. Rule 35.0 mirrors the statute and adds the additional requirement, which was followed in this case, that any interim orders from a hearing officer’s recommendations be signed and, thus, rendered by the Domestic Commissioner or District Judge. Rule 35.5 provides that the recommendations of the hearing officer, signed by the Commissioner, and prior to consent by the parties or a judicial determination of the merits, shall be deemed an interim order for support. We find this rule consistent with the statutory directive that any objection to the hearing officer’s findings may be filed “within the ... manner established by court rule.”

As stated above, the express purpose of the hearing officer procedures is to create an expedited method of handling domestic cases, particularly here, establishing support. This purpose would be completely defeated if, as here, Mr. Ackel is allowed to postpone spousal support payments by objecting to the hearing | ^officer's recommendations and delaying a hearing before the court through continuance requests and neglect to have the case set for hearing. The Legislature, by statute, clearly expressed a contrary objective.

Finally, we note that Rule 35.5 provides that the interim order for support will be “without prejudice to either party.” This language makes clear that although the interim order is effective pending judicial review, Mr. Ackel would have a remedy to seek a refund or credit for the support paid pursuant to the order if the award is later vacated or modified after judicial review. Thus, Mr. Ackel’s contention that he will be required to pay support without judicial oversight is without merit.

Therefore, based on the foregoing, we find no merit in Mr. Ackel’s arguments that the trial court erred in finding him in contempt of court for failing to make spousal support payments as recommended by the hearing officer and made an interim judgment of the court by signature of the commissioner and district court judge.

Accordingly, the trial court judgment finding Mr. Ackel in contempt for failing to make spousal support payments is affirmed.

AFFIRMED.

      . Mr. Ackel has not appealed, by assignment of error or argument, from the part of the judgment awarding past due support, attorney fees and costs.

      . Local Rule 65(C)(8) of the Fifteenth Judicial District Court provided:
      "If the hearing officer’s recommendation is objected to, then the hearing officer's recommendation becomes an interim order pending the final disposition of the claims by the Court. This interim order shall be without prejudice and shall not affect the retroactivity of the claims of either side.”

      . This process is in accord with Supreme Court decisions regarding the constitutional authority of commissioners because neither the hearing officer nor the commissioner is making the ultimate determination. State v. O’Reilly, 00-2864 (La.5/15/01), 785 So.2d 768; State v. Umezulike, 03-1404 (La.2/25/04), 866 So.2d 794. The issuance of an interim order of support by the hearing officer or commissioner is subject to review by the district court and is issued without prejudice.