author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Andrew L. DIXON, Appellant.
    No. 42,594-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

bln this capital murder case, the jury convicted defendant, Andrew L. Dixon, of the first degree murder of John Galloway. Following a penalty trial, the jury chose a life sentence without benefit of parole, probation, or suspension which was thereafter imposed by the trial court. Defendant has appealed his conviction and sentence. For the reasons set forth below, defendant’s conviction and sentence are affirmed.

Facts

Each Friday several employees of Kitchen Brothers of Monroe entrusted John Galloway to cash their paychecks at Regions Bank and to bring the money back to them at Kitchen Brothers. After cashing the checks on Friday, December 19, 2003, John Galloway and his father, Butler Galloway, were returning to Kitchen Brothers on Mississippi Street when their way was blocked by defendant and Lamonte “Kilo” Smiley lying in the road. When John Galloway stopped his truck, defendant got up and ran to the driver’s side while Smiley ran to the passenger side of the truck. Defendant shot 64-year-old John Galloway four times in the face, shoulder, and chest with a nine millimeter semiautomatic pistol. After being shot, John Galloway rapidly accelerated his truck into a 10-wheel dump truck in the opposite lane of traffic. After the collision, defendant ran to the truck and removed the bag containing the money from the cashed paychecks. John Galloway died from the gunshot wounds. Butler Galloway, who was 89 years old, died as a result of injuries sustained in the collision.

| JOiscussion

Sufficiency of the Evidence

Defendant argues on appeal that the state failed to prove that he was involved in this robbery and murder. The state’s answer to defendant’s application for bill of particulars indicates that it was alleging that defendant fired multiple gunshots into John Galloway while perpetrating an armed robbery. Further, the trial court instructed the jury on the charge of first degree murder in regards to it occurring during the perpetration or attempted perpetration of an armed robbery. Therefore, in order to convict defendant of first degree murder, the state was required to prove beyond a reasonable doubt that the defendant specifically intended to kill or to inflict great bodily harm on the victim during the perpetration or attempted perpetration of an armed robbery. La. R.S. 14:30(A)(1). Armed robbery is “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La. R.S. 14:64.

Due process requires that an offender be convicted only upon proof of guilt beyond a reasonable doubt. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Jackson v. Virginia standard is now legislatively embodied in La. C. Cr. P. art. 821.

Through the eyewitness testimony of Tiffany Anderson, Lakisha Pimpleton, Robert Weaks, Charles Donaldson, and Latoya Donaldson, the state presented sufficient evidence from which a reasonable jury could determine that two men laid down in the middle of Mississippi Street, that those two men jumped up when John Galloway’s pickup truck stopped in front of them, that a man dressed in black pants, black jacket, and red cap ran to the driver’s side of the pickup truck, fired several rounds from a handgun into the truck, and grabbed a bag out of the pickup truck after it crashed into the dump truck. Through the testimony of, Dr. Frank Per-etti, the state proved that John Galloway died as a result of gunshot wounds. Accordingly, the state presented sufficient evidence from which a reasonable jury could determine that the crime of first degree murder was proven.

The issue in this case is not whether the crime was committed, but the identity of the perpetrator. Quintina Henry testified that she heard a gunshot when she got off the school bus, and she ran to the corner to see what was happening. Quintina, who was 13 years old at the time of the offense and 16 years old at the time of trial, testified that she saw a truck swerve and hit a big truck. She then saw a man open the driver’s side door of the truck and grab a bag. This man then ran through her friend’s backyard very close to where she was standing. Quintina testified that she saw the man carrying a bag and a silver gun. The man ran through the abandoned houses, and the | ¿witness ran to her home nearby and reported what she had seen to her mother. Quintina testified that the man was wearing all black with a red hat. Two weeks later, she picked defendant out of a photographic lineup as the man she saw that day. At trial, Quin-tina also identified defendant as the man she had seen that day.

Edward Green testified that he knew there was going to be a robbery of the truck carrying the money from the cashed paychecks, that he gave defendant a ride to and from a place close to the crime scene, that defendant was wearing a black zippered jacket, black pants, and a burgundy-reddish skullcap, and that defendant had a blue money bag containing more than $20,000 after the robbery. Derrica Green testified that defendant was wearing a black zippered sweater, black pants, and a burgundy-reddish skullcap on the day of the murder, that he confessed to her that he shot the driver in the face or chest during the robbery, and that defendant told her the man he shot may have died.

Defendant questions the credibility of both Edward and Derrica Green. Both prosecutor and defense counsel made it clear to the jury that Edward Green and Derriea Green were facing criminal charges in relation to the robbery and murder and that neither had received any “deals” in exchange for testimony. Louisiana law allows an accomplice to testify against a co-perpetrator even if the state offers inducements to testify. Such inducements are a fact in evaluating the witness’s credibility. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047, cert. denied, — U.S. —, 127 S.Ct. 2065, 167 L.Ed.2d 789 (2007); State v. Neal, 00-0674 (La.06/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). A conviction may be sustained by the uncorroborated testimony of an accomplice, although the jury should be instructed to treat the testimony with caution. State v. Hughes, supra; State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, units denied, 02-2595 (La.03/28/03), 840 So.2d 566, 02-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the present case, the testimony of Edward Green and Derriea Green was materially corroborated by the eyewitness testimony, and any issues that may have affected their credibility were properly considered by the jury.

The evidence clearly supports the jury’s finding of guilty beyond a reasonable doubt.

Denial of Motion to Quash Indictment

Defendant filed a motion to quash the bill of indictment, wherein he alleged that the indictment was constitutionally invalid because it did not give notice as to the facts found by the grand jury that gave rise to the | (¡charge of first degree murder and that the aggravating facts and circumstances required for conviction and a capital penalty must be alleged in the indictment. Defendant’s argument relied upon U.S. Supreme Court rulings.

In State v. Draughn, 05-1825 (La.01/17/07), 950 So.2d 583, cert. denied, — U.S. —, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the Louisiana Supreme Court recently reviewed the issue of whether the short-form indictment was constitutionally deficient for failure to list the aggravating factors necessary to a first degree murder crime or the aggravating circumstances necessary to impose a death sentence. The court stated:

La. C. Cr. P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including first degree murder. The constitutionality of short forms has been consistently upheld by this Court. State v. Baylis, 388 So.2d 713, 718-19 (La.1980); State v. Liner, 373 So.2d 121, 122 (La.1979). When those forms are used, it is intended that a defendant may procure details as to the statutory method by which he committed the offense through a bill of particulars. [State v.] Baylis, 388 So.2d at 719; State v. Johnson, 365 So.2d 1267, 1270-71 (La.1978); La C. Cr. P. art. 465, Official Revision Comment (a).
Accordingly, the defendant was charged in compliance with La. C. Cr. P. art. 465(A)(31), which provides as a short form indictment for first degree murder: “A.B. committed first degree murder of C.D.” See [State v.] Manning, 03-1982[,] p. 49, [ (La.10/19/04),] 885 So.2d [1044,] 1090, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (1005).

Id, 950 So.2d at 624.

|7Even so, the court did not address the short-form indictment issue in the context of the United States Supreme Court ruling that defendant raises in the present case. In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the defendant was charged under the federal carjacking statute, 18 U.S.C. § 2119, which carried three separate penalty provisions depending upon whether the victim suffered great bodily injury or death. The indictment did not allege whether the victim suffered great bodily injury or death. After the jury convicted defendant, the trial court imposed a sentence of 25 years because the presentence report stated that one of the victims suffered serious bodily injury. The Court found that “Congress probably intended serious bodily injury to be an element defining an aggravated form of the crime” because that fact increased the maximum penalty for the offense of carjacking from 15 years to 25 years. Id., 526 U.S. 232-239, 119 S.Ct. at 1219-1222. Ultimately, the Court held that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id., 526 U.S. at 243, 119 S.Ct. at 1224, fn. 6.

The following year, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court considered a similar case wherein the defendant pled guilty to a state offense with a sentencing range | sof 5 to 10 years, but the trial court imposed a 12-year sentence pursuant to a hate crime statute that allows a sentence to be enhanced if the trial judge finds by a preponderance of the evidence that the crime was motivated by racial bias. The Court concluded that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., 530 U.S. at 490, 120 S.Ct. at 2362-2363. The Court in Ap-prendi however, expressly refused to make any ruling as to whether such additional elements must be alleged in indictments in state criminal prosecutions.

Two years later in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Court found that the Arizona statutory process for allowing a trial judge to determine whether aggravating factors exist in order to impose the death penalty upon a defendant convicted of first degree murder violated the Sixth Amendment right to a jury trial. Under the death penalty statutes in Arizona at the time, the maximum sentence for a capital offense was life imprisonment unless the trial court found the existence of a statutory aggravating factor, which then authorized the trial court to impose the death penalty. The Court considered its prior holdings in Jones v. United States, supra, and Apprendi v. New Jersey, supra, to find that Arizona’s enumerated aggravating factors for imposing the death penalty operated as “ ‘the functional equivalent of an element of a greater offense,’ ” which must be found by a jury. Id., 536 U.S. at 609, 122 S.Ct. at 2443, quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348, n. 19. However, the Court in Ring expressly refused to consider whether the defendant’s indictment was invalid, noting that:

Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S., at 477, n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Fourteenth Amendment “has not ... been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’ ”).

Ring v. Arizona, 536 U.S. at 597, 122 S.Ct. at 2437, n. 4.

Accordingly, while the United States Supreme Court stated that the Due Process Clause of the Fifth Amendment requires all the elements of an offense be alleged in the indictment for federal criminal prosecutions, the Fourteenth Amendment has not been construed to extend that same indictment requirement to the states.

Defendant also argues that the short-form indictment for first degree murder violates the Louisiana Constitution’s requirement that “no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.”

The fact that the short-form indictment was used does not diminish the grand jury’s role in the indictment process, and, as noted by the Louisiana Supreme Court in State v. Draughn, supra, the process for filing an application for bill of particulars gives the defendant additional notice of the charge against which he must defend.

In the present case, the indictment complied with the short form of Article 465(A)(31), and the state completely responded to defendant’s application for bill of particulars. There is no state or federal precedent |inrequiring Louisiana indictments to allege the aggravating facts which are required for first degree murder or to allege the aggravating circumstances to be considered at the penalty phase of trial. To the contrary, the short-form indictment has been upheld in regard to the Louisiana Constitution. We note, that alleging such aggravating factors in the indictment, which would be read to the jury before trial, could prove prejudicial to defendant.

Admissibility of Other Crimes Evidence

During cross-examination of Monroe Police Detective Quentin Holmes by defendant’s attorney, the following exchange took place:

MR. SCOTT: As part of your investigation did you develop any information about a Joseph Kemp?
DET. HOLMES: Yes. I did.
MR. SCOTT: And what information did you develop in regard to Joseph Kemp in connection with this offense?
DET. HOLMES: That he was a drug user and Andrew Dixon and he sold and used drugs together.

According to La. C. Cr. P. art. 404(B), evidence of other crimes is inadmissible for the purpose of proving that the defendant acted in conformity with a bad character, but it may be admitted if relevant to a material purpose. If the state seeks to present such evidence, it must comply with the requirements of Ar-tide 404(B) and State v. Prieur, 277 So.2d 126 (La.1973), and provide notice to the defendant so that the trial court may conduct a hearing to determine if the evidence is truly admissible. When evidence of other crimes is improperly admitted at trial, it is subject to harmless error review and will be deemed harmless if the verdict is “surely unattributable to the error.” State v. Parker, 42,311 (La.App.2d Cir.08/15/07), 963 So.2d 497.

In Upon motion of the defendant, a mistrial shall be ordered when prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by La. C. Cr. P. arts. 770, 771, or 775. La. C. Cr. P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Ellis, 42,520 (La.App.2d Cir.09/26/07), 966 So.2d 139. A law enforcement officer is not considered a “court official,” and an unsolicited, unresponsive . reference to other crimes evidence made by a law enforcement officer is not grounds for a mandatory mistrial under La. C. Cr. P. art. 770. State v. Scott, 34,949 (La.App.2d Cir.01/25/02), 823 So.2d 960, writ denied, 02-1622 (La.05/16/03), 843 So.2d 1122.

Article 771 sets out permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made under grounds that do not require an automatic mistrial under Article 770. Article 775 also sets forth additional permissive grounds for mistrial, which include, that “[ujpon 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.” Defendant did not request an admonition in the present case.

11?Even so, the trial court had the discretion under Articles 771 and 775 to grant a mistrial in the present case if it viewed the statement of Detective Holmes to be so prejudicial that it made it impossible for defendant to have a fair trial.

Detective Holmes’ statement about defendant and Joseph Kemp using and selling drugs was elicited by defense counsel and not by the district attorney. The purpose of the question is unclear. On one hand, this information could have been something Detective Holmes learned about defendant during the course of the investigation, which had nothing to do with the first degree murder case; on the other hand, defendant’s drug activity could have been the motive for committing the robbery. Because the statement was made following a specific question regarding information gathered about Joseph Kemp during the investigation, the statement does not appear to have been purposely uttered to prejudice defendant. Further, because it was an ambiguous reference to drug activity without any further explanation or elaboration and because there was overwhelming evidence that defendant was guilty of the first degree murder of John Galloway, the statement does'not appear to have been any more prejudicial than the clearly admissible evidence or to have deprived him of a fair trial. Accordingly, the trial court did not abuse it's discretion in denying defendant’s motion for mistrial.

Denial of Motion to Suppress Identiñcation

Defendant next argues that the trial court erred in denying his motion to suppress the in-court identification by Quinti-na Henry because her 11sattention was unduly focused on him when he was asked to remove his glasses.

When Quintina was first asked if she could identify the person she saw that day inside the courtroom, she said nothing. The prosecutor then asked if the person she saw that day wore glasses, and she said no. The prosecutor then asked Quin-tina if she remembered identifying someone in the photographic line-up as the person she saw that day, and she said yes. The state then introduced the photographic line-up, which showed that Quintina had identified defendant as the person she saw that day and that she made the identification two weeks after the offense. Detective Holmes testified that earlier he had shown Quintina a photographic line-up which did not contain defendant’s photograph and that she did not identify anyone as the perpetrator.

Outside the presence of the jury, the prosecutor requested that defendant remove the glasses he was wearing during Quintina’s testimony. Defense counsel objected that this was “suggestive identification.” Defense counsel cross-examined Quintina, who testified that she remembered defendant’s face when he was asked to remove his glasses. She testified that she had not seen defendant’s face on television prior to coming to court to testify. On re-direct examination, Quintina testified that the picture of the person she identified from the photographic line-up was the same person she saw on the day of the offense and that the person in the picture was not wearing glasses at the time of the offense.

114The likelihood of misidentifi-cation violates due process when the totality of the circumstances indicates that mis-identification probably occurred. State v. Brown, 40,769 (La.App.2d Cir.03/08/06), 928 So.2d 976, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). For an in-court identification to be suppressed due to an allegedly suggestive identification procedure, there must bé a substantial likelihood of misidentification in addition to the suggestive identification procedure. Id. When assessing the reliability of an identification, the following factors must be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Kemp, 39,358 (La.App.2d Cir.03/11/05), 896 So.2d 349, 356, writ denied, 05-0937 (La.12/09/05), 916 So.2d 1052, citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Further, evidence of the witness’s pre-trial identification of the defendant enhances the credibility of that witness’s in-court identification. State v. Tilmon, 38,-003 (La.App.2d Cir.04/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.

Asking defendant to remove his glasses in front of the witness, who was just asked whether she saw the perpetrator in the courtroom, undoubtedly drew her attention to defendant. Quintina’s testimony indicates that she had a clear view of defendant at the time of the crime. Detective Holmes testified that Quintina did not pick . anyone out of the first 11sphotographic line-up, which did not contain a picture of defendant, but when he showed Quintina the second photographic line-up two weeks after the offense, she followed his instructions carefully, looked at each picture twice, and identified defendant’s picture as showing the person she saw that day. Because there was no substantial chance of misidentification, the trial court did not err in denying the defendant’s motion to suppress Quintina’s in-court identification.

Denial of Mistrial Motion

During the state’s closing argument, the prosecutor made the following statements in regard to the testimony of Edward Green:

BY MR. SYLVESTER: But when he testified Mr. Green had more to say. Mr. Green said first of all — I don’t know how old Mr. Green is. But you all saw him. He’s a young black man. Young black men can tend to be very volatile. Y’all heard Mr. Perkins (defense counsel) who is a white man—
BY MR. PERKINS: Mistrial.
BY MR. SYLVESTER: And what Mr. Perkins—
BY THE COURT: One moment. Go ahead.
BY MR. SYLVESTER: Did you say go ahead, judge?
BY THE COURT: Yes, sir.
BY MR. SYLVESTER: What Mr. Perkins did—
BY MR. PERKINS: Note our objection, Your Honor.
BY THE COURT: It’s noted.
BY MR. SYLVESTER: — was stand right there and call him a liar. He didn’t call him a liar one time. He didn’t call him a liar two times. He consistently called him a liar. Which would probably generally set somebody like that off. What did he do? He couldn’t be intimidated. He was here to tell y’all something. He was here to tell y’all what happened. He was here to tell you all what part he played in it....

11fiDefendant, who was a young, black man, argues that the trial court erred in denying his motion for mistrial based upon the prosecutor’s racial remarks. Defendant contends that he was entitled to an automatic mistrial pursuant to La. C. Cr. P. art. 770(1) based upon the general statement that all young, black men are volatile, angry people subject to committing violent acts based upon mere words.

La. C. Cr. P. art. 770(1) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to directly or indirectly to “[r]ace, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury.” As noted by the Louisiana Supreme Court in State v. Wilson, 404 So.2d 968, 970 (La.1981):

When the alleged criminal conduct arises out of an incident among persons filled with racial animosity our system of criminal justice requires that those charged with the responsibility for the conduct of criminal trials strictly avoid any actions which might influence the jury to decide the guilt or innocence of the accused upon prejudice rather than on the law and the evidence. We set forth our views at length in State v. Jones, [283 So.2d 476 (La.1973) ], wherein we stated that racial remarks are not permissible if they appeal to racial prejudice and are not relevant either to prove the elements of the crime or to explain a relevant fact.

Even so, not every reference to race requires the granting of a mistrial. State v. King, 573 So.2d 604 (La.App. 2d Cir.1991), citing State v. Jenkins, 340 So.2d 157 (La.1976). To require a mistrial the remark must [17be immaterial and irrelevant and must be such that it might create prejudice against the defendant in the mind of the jury.

In the present case, the prosecutor, who was also black, made a general comment in the closing argument that the witness, who had participated in this crime and was testifying for the state, was young, black, and could be volatile when aggressively cross-examined by a white defense attorney. During cross-examination, the defense attorney repeatedly called the witness a liar. The prosecutor’s references to the race of the witness were unnecessary and a poor choice of words; however, the reference to race was to support the witness’s believability and was not an appeal to racial prejudice.

The present case does not involve a crime arising out of racial conflict nor did the prosecutor appeal for racial prejudice against the defendant. Thus, the facts in the case sub judice are distinguishable from the facts in State v. Wilson, supra. Accordingly, the trial court properly denied defendant’s motion for mistrial because it did not satisfy the requirements of La. C. Cr. P. art. 770(1). This assignment is therefore without merit.

Excessive Sentence

Defendant argues that the trial court should have made a downward departure from the mandatory life sentence required by La. R.S. 14:30. In State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672, the Louisiana Supreme Court explained the circumstances in which a downward departure from the mandatory minimum habitual offender sentence is warranted, |isflnding that it is rare and only warranted under exceptional circumstances. In those cases, the sentencing judge must begin with the presumption that the mandatory minimum sentence is constitutional. State v. Johnson, 709 So.2d at 676, citing State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, writ denied, 95-3010 (La.03/22/96), 669 So.2d 1223. The court may only depart from the minimum sentence if it finds that the defendant presented “clear and convincing evidence” to rebut that presumption of constitutionality, which requires a showing that “ ‘[he] 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.’ ” State v. Johnson, 709 So.2d at 676, quoting State v. Young, 663 So.2d at 528.

At the penalty phase of trial, defendant presented witnesses who testified that his parents had divorced, that his parents had substance abuse problems, that he had a substance abuse problem, that he dropped out of school, that he was affected by the violent death of his best friend, and that imposing the death penalty on defendant would devastate defendant’s family.

The trial court noted at the sentencing hearing that defendant had killed two people and that he was convinced that defendant had also committed a similar crime in Texas, that there were no mitigating 119circumstances, and that it believed the jury did not impose a death sentence because it was swayed by sympathy and respect for human life. We agree.

Conclusion

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

      . Initially defendant was indicted for two counts of second degree murder, then an indictment was issued for the first degree murder of John and Butler Galloway. A su-perceding indictment was thereafter filed charging the first degree murder of John Galloway.

      . Contrary to defendant’s assertion, it is irrelevant whether the state proved that defendant intended to kill two or more people or a person over the age of 65 because defendant was not charged with first degree murder due to killing two or more people or a person over the age of 65.

      . Defendant also alleged that the system of law in Louisiana was constitutionally defective because it allowed a grand jury to return an indictment on less than a unanimous vote and that it was discriminatory for La. R.S. 14:30 to provide special consideration for victims under the age of 12 or over the age of 65.

      . The Court notes that a reason for exempting prior convictions from this requirement is "a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones v. United States, 526 U.S. at 249, 119 S.Ct. at 1227.

      . This is taken from a statement by Justice Calogero in his dissent in State v. Liner, supra.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. James L. CALHOUN, Appellant.
    No. 42,896-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.

      Louisiana Appellate Project by W. Jarred Franklin, for Appellant.
    Paul J. Carmouche, District Attorney, Suzanne M. Owen, John Ford McWilliams, Jr., Assistant District Attorneys, for Ap-pellee.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

h The defendant, James Calhoun, was charged by amended bill of information with aggravated burglary, a violation of La. R.S. 14:60. A 12-person jury convicted Calhoun as charged. Later, he was found to be a second felony offender and sentenced to 27 years at hard labor. Defendant now appeals his convictions and sentence. We affirm.

FACTS

At trial, the victim, Michael Metcalf, testified that on the evening of August 8, 1997, while lying on a sofa watching television in his living room, he heard someone knocking at the back door of his house. When he looked out the window, he" (initially) saw two men walking away. He opened the door and asked, “What’s up?” The defendant told Metcalf that he had run out of gas and asked if he had a gas can. Metcalf indicated that a third man also walked back to the door. Although he did not know the defendant by name, Met-calf recognized the defendant from the Cedar Grove neighborhood and also recognized the defendant as a man who came to his house two weeks earlier to ask about a person he knew. Metcalf identified the defendant in the courtroom. Metcalf did not know or recognize the other two men.

Metcalf retrieved a gas can from his hallway and attempted to give it to Cal-, houn, who knocked it down, ran into Met-calfs house, and started beating up Met-calf. The other two men came in behind Metcalf and started beating and kicking Metcalf. One of them grabbed a kitchen knife from a cabinet, while another went into the living room and retrieved Met-calfs .38 revolver from the coffee table. The man with the knife held it “like he was going to stab me in my face.” The men, including Calhoun, demanded that Metcalf | gtell them where his money was as they began to ransack the house searching for money. Fearing for his life, Metcalf told them that he had $45 in a pair of pants located in a back bedroom. Metcalf testified that the men took his money, his pager, and the revolver.

The prosecution introduced photographs of the crime scene pursuant to Metcalfs testimony and the knife used in the crime. Metcalf indicated that on the way out of his house, one of the men snatched the telephone out of the wall so that Metcalf could not call the police. After the men left, he went next door and called the police. He then went to LSU Medical Center where he received four stitches on the side of his head.

Metcalf stated that he had found out the defendant’s name from a man in Cedar Grove. He knew a girl named Cookie who was dating Calhoun’s brother, and he gave that information to Detective Michael Day. Day later called him to look at a photographic lineup. Metcalf identified Calhoun’s picture in the lineup. This same lineup was introduced into evidence at trial. Metcalf said he was certain in identifying Calhoun at the time he had viewed the lineup and was certain that day in court. He denied that he gave Calhoun permission to enter his home, attack him, and steal his-money and property.

Officer W.J. McCurry of the Shreveport Police Department testified that on the date of the crime, he responded to the call. Metcálf told him that “some guys had come in on him and beat him up and took some money and, I think, an old gun or something he had around there.” McCur-ry looked at photos of the crime scene and verified that they depicted what he had seen.

| ¡¡McCurry acknowledged that his report indicated that Metcalf told him that when he had returned to the door, two other suspects appeared and rushed into Met-calfs house and began beating him. McCurry stated that maybe he didn’t clarify, but he understood Metcalf to mean that all three men came in. McCurry also admitted that in his report he stated that one suspect got one of Metcalfs knives and cut the telephone phone line and made an attempt to stab Metcalf, but one of the other suspects told him not to. McCurry then indicated that was what Metcalf told him that night, although Metcalf later denied telling that to the police.

McCurry also testified that Metcalf said that the suspect was Eric’s brother and that Eric dated Cookie who lived on Milton Street.

Detective Mike Day interviewed Calhoun at the city jail on September 3, 1997, and taped the conversation. This conversation and Day’s testimony regarding a subsequent telephone call allegedly from Calhoun were the subject of a motion to suppress filed by the defendant and denied by the trial court.

At trial Detective Day testified that he investigated the crime at issue. He went to the crime scene and spoke with Metcalf. Day said that Metcalf told him that he knew a girl named Cookie who was seeing a young man named Eric, and that Metcalf believed one of the individuals involved was Eric’s brother. Metcalf gave Day Cookie’s telephone number. Day called the number and found out that Eric’s last name was Calhoun. From this information, Day developed the defendant as a suspect. Day then created a photographic lineup that included James Calhoun and showed the lineup to RMetcalf. He testified that Metcalf was visibly shaken and immediately pointed to Calhoun’s photo, identifying him as the person who robbed him. Eventually, Calhoun turned himself in, wanting to find out about the arrest warrant issued on him. Day testified that the city jail interview took place the night after Calhoun was booked. Calhoun denied any part in the burglary. At trial, the rights card was then introduced and the tape of the interview was played for the jury.

Day further testified that he received a call from a person who identified himself as James Calhoun, and said he was calling from the Caddo Correctional Center (“CCC”), where Calhoun had been transferred. The caller referred to the city jail conversation and said that he wished to make another statement to Day. Day reminded him of his Miranda rights, but the caller wanted to know what kind of deal he could get. Day responded that he was not empowered to make a deal and said that if the caller had any information that might help his case or that would exonerate him, he needed to talk to his attorney. According to Day, the caller said that he had lied to Day at the city jail because he was afraid. The phone conversation terminated shortly afterward in “mid-sentence.”

Day also testified that Calhoun had indicated his mother, Rosie Calhoun, could be his alibi and that someone identifying herself as Rosie Calhoun had called Day and told him that her son had nothing to do with the crime. She said that on the day of the crime she had been to CCC to visit her other son, Eric, and had returned after 8:00 p.m. to her residence. She said that the defendant babysat for her up until that time and spent the night there, 1 fibut they were not in personal contact the whole time because she went to bed; she was not certain what time she had gone to bed.

After the state rested, the defense offered no evidence. Calhoun’s attorney indicated that “when we returned back from lunch I was without a client to assist me in the conclusion of this trial.” Calhoun had left the courtroom and never returned. His counsel moved for a mistrial, but the court denied the motion. After closing arguments, the jury returned a guilty verdict.

Calhoun remained at large for several years before being recaptured. In May 2005, the state filed a bill of information charging Calhoun as a second felony offender. He pled not guilty, and the matter came on for hearing in October 2005. That hearing covered not only the habitual offender matter, but also a motion for post-verdict judgment of acquittal and a motion for new trial. The court addressed the two motions first, denying both, and then turned to the habitual offender matter.

The state introduced a certified copy of a bill of information charging Calhoun with simple burglary in 1990 and certified court minutes showing that Calhoun was informed of his Boykin rights and pled guilty to unauthorized entry of a place of business, for which he was sentenced to pay a fine of $300. His four-year hard labor sentence was suspended and he was placed on probation. The state also introduced evidence of the instant offense and used a fingerprint expert to show that the fingerprints on the first bill of information were Calhoun’s.

| fiCaIhoun’s counsel sought a continuance and, in the alternative, sought to quash the multiple offender proceedings because the state could not furnish a Boykin transcript for the first felony conviction. The state indicated that it had been trying for several years to obtain a transcript, but understood that it was not available and would never be available. The court denied the continuance at the beginning of the hearing, and after hearing argument following the presentation of evidence, the court denied the motion to quash as well.

Calhoun was sentenced on October 10, 2005. The court noted that as a second felony offender, Calhoun’s sentencing range was 15-60 years and that Calhoun was not eligible for probation. The court referenced the provisions of Article 894.1, particularly (A)(2) concerning the need for correctional treatment that can be provided most effectively by commitment to an institution, and (A)(3) concerning a lesser sentence deprecating the seriousness of the defendant’s crime. With respect to aggravating factors, the court noted threats of violence, the use of dangerous weapons, the commitment of the crime in concert with others, the fact that the defendant had absconded and remained at large for over six years, and the fact that the defendant never disclosed the identities of the other two men who participated in the crime. As for mitigating factors, the court noted that the defendant did not have actual possession of either the gun or the knife, and that the defendant “may have even persuaded the person with the knife to put down the knife.... ” The court then sentenced Calhoun to 27 years at hard labor with credit for time served.

|7The record reflects that the trial court held two hearings on a motion to reconsider sentence. At the first, held on November 23, 2005, the court indicated that it might reduce the sentence if there was a showing that Calhoun had taken any affirmative actions to prevent or attempt to prevent the other two individuals from injuring the victim. The matter then was continued to be reset. At the second hearing on March 28, 2007, the court acknowledged that there had been several post-conviction pleadings from Calhoun and asked if there was any further evidence. Both the state and the defense stated they had nothing further. The court then denied the motion to reconsider sentence. This appeal followed.

DISCUSSION

By his first assignment, defendant alleges that there was insufficient evidence for a jury to find him guilty of the offense of aggravated burglary beyond a reasonable doubt. He argues that the state failed to prove beyond a reasonable doubt that he was the same person who entered Met-calfs residence and took the money and items without Metcalfs permission; alternatively, he contends that the state failed to prove that he armed himself or that he committed a battery on Metcalf. The grounds for this misidentification argument is that Metcalfs photo-line-up identification of Calhoun was tainted by the fact that someone else identified Calhoun to Metcalf as the person who robbed him. Additionally, the defendant implies that Metcalf was perhaps motivated by jealousy to identify Calhoun as the robber because Calhoun’s brother was involved with a girl named Cookie, with whom, he implies, Metcalf had a romantic interest.

|sThe standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2 Cir. 8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

IsAll persons concerned in 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. Thus, they are parties to the crimes. La. R.S. 14:23(1). Furthermore, there is no requirement that an indictment explicitly name the accused as “principal.” That the accused is indicted for the offense itself, and not charged as an accessory after the fact, irrefutably evidences that he is charged as a principal. State v. Peterson, 290 So.2d 307 (La.1974); State v. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, State ex rel. Haley v. State, 2004-2606 (La.6/24/05), 904 So.2d 728.

Aggravated burglary is defined by La. R.S. 14:60:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender:
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

In order to prove the crime of aggravated burglary, the state must prove beyond a reasonable doubt that the defendant made an unauthorized entry of a structure with the specific intent to commit a theft or a felony. State v. Lockhart, 438 So.2d 1089 (La.1983). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. State v. Davies, 35,783 (La.App.2.Cir.4/05/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389. The intent to commit a theft or felony must exist at the moment of entry. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922. Felonious intent and unauthorized entry are separate elements of the crime. State v. Lockhart, supra; State v. Baker, 39,696 (La.App. 2 Cir. 5/11/05), 902 So.2d 1247, writ denied, 2005-2055 (La.4/28/06), 927 So.2d 281.

The evidence adduced in this case is sufficient to support the defendant’s conviction under the Jackson v. Virginia standard. First, Metcalf identified the defendant as the perpetrator by his physical appearance, both in a photo line-up and at trial. The fact that Metcalf did not know the defendant’s name at the time of the crime does not render the identification invalid. Nor do we find that the victim’s friendship with Cookie, whose boyfriend was the defendant’s brother, Eric, made the victim’s identification of the defendant suspect.

Defendant also complains that even if he was present, the state did not show that he had a weapon or the intent to commit a felony. Although the defendant was not armed when he entered the victim’s home, one of the other men armed himself after entering the victim’s house with a kitchen knife. Additionally, the other perpetrator armed himself with the victim’s gun. Either of these acts can be imputed to the defendant as a principal to the crime. La. R.S. 14:24. Moreover, the victim testified that the defendant attacked and battered him. Hence no weapon was necessary to meet the elements of the crime of aggravated burglary. The jury obviously found the ^victim's testimony to be credible.

Viewing the evidence most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of aggravated burglary were proven beyond a reasonable doubt. The testimony of the victim shows that the defendant used the “out of gas” story to lull the victim into lowering his guard. Defendant and the other men forced their way into the victim’s home. Once inside, he and the others immediately began beating the victim, ransacking the home, and demanding to know where the money was hidden. These facts evidence both unauthorized entry and the specific intent to commit a theft therein. After battering the victim and holding him at knifepoint, the defendant and the other two men stole the victim’s money, cell phone and a gun. Calhoun participated in battering the victim while entering the house and after he entered. Furthermore, Calhoun was a principal to the crime defined by the element of use of a dangerous weapon, since one of the other men armed himself with a dangerous weapon (a knife), while both of the other men concerned in the commission of the crime committed a battery on Metcalf. Accordingly, any rational jury could have concluded that all of the elements of the crime of aggravated burglary were proven beyond a reasonable doubt.

This assignment of error is meritless.

By his second assignment of error, the defendant contends that the trial court erred in allowing evidence of an alleged confession by the defendant when there was no evidence that the person making the confession was the defendant. Specifically, the defendant complains that the trial court should |12not have allowed Detective Day to testify regarding a telephone call Detective Day said he received from the defendant.

Detective Day testified that on September 5th, two days after he interviewed Calhoun at the city jail, he received a telephone call from the CCC. The caller identified himself as Calhoun. During the short conversation, the caller referred to his previous interview with Day at the city jail, stated that he had lied and wanted to make a new statement. Day stated that he reminded the caller of his rights under Miranda, and he said he told him he would rather do the interview face to face. The caller was insistent, however, in knowing what kind of deal he could get. Day said he told the caller, whom he believes was Calhoun, that he should talk to his attorney. Shortly afterwards, the conversation ended.

The key issue in this assignment regarding Detective Day’s testimony is whether Calhoun, in fact, was the person who telephoned Detective Day. Calhoun asserts that it was unfair to allow a confession to be admitted that was presumably made through the free and voluntary waiver of the Miranda rights when there was no evidence that the defendant was the person making the confession. Defendant contends that since the caller could not be positively identified, it simply cannot be said that the statement that was introduced was freely and voluntarily made by the defendant.

This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State ex rel. Thibodeaux v. State, 2001-2510 (La.03/08/02), 811 So.2d 875, State v. Jones, 36,553 (La.App.13 2 Cir. 01/29/03), 840 So.2d 7, writ denied, 03-0956 (La.10/03/03), 855 So.2d 309.

We find no error in the trial court’s decision to admit Detective Day’s testimony regarding the telephone call allegedly from Calhoun from the Caddo Correctional Center. The issue here does not concern voluntariness of the purported confession, but the identity of the caller. Contrary to the defendant’s argument that there was no evidence that Calhoun was the caller, the caller identified himself to Detective Day as Calhoun, and exhibited a knowledge of facts that only Calhoun would likely have known.

Nevertheless, Day’s testimony regarding the telephone call is what it is: simply testimony of a telephone call in which the caller identified himself as the defendant, wherein he admitted that he had previously lied regarding his knowledge of the burglary, and he wanted to know if he could make a deal. We see no problem with admissibility, and the jury was given the opportunity to decide how much weight to give to Day’s testimony.

Accordingly, this assignment is without merit.

By his third assignment of error, the defendant complains that his adjudication as a second felony offender was improper because the evidence was insufficient to prove the prior conviction. The defendant argues that a minute entry submitted by the state to show that the defendant was properly advised of his Boykin rights was defective. He points out that the minutes do not list the three rights and that no other evidence of the Boykin colloquy existed. Thus, the defendant asserts that the state failed to meet its burden of proof with respect to the second felony offender bill of information.

^^Alternatively, the defendant argues that if the state met its initial burden, then the defendant would be left with an impossible task under the burden-shifting framework of State v. Shelton, 621 So.2d 769 (La.1993). The defendant asserts that without a Boykin transcript, he is unable to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.

In State v. O’Neal, 34,814 (La.App. 2 Cir. 10/12/01), 795 So.2d 1292, we discussed a similar factual situation and explained the applicable law:

In State v. Shelton, 621 So.2d 769 (La.1993), our supreme court held:
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights.
State v. Shelton, supra at 780.

In the instant case, the defendant’s motion to quash the second felony habitual offender bill of information simply alleges that the state failed to provide a Boykin transcript for the defendant’s alleged plea to unauthorized entry of a place of business. The motion never alleges, nor has defendant ever offered any evidence to indicate, that the trial court did not advise defendant properly of his Boykin rights or that the defendant did not waive them.

The court minutes introduced by the state show that the defendant 'was present for the guilty plea hearing with counsel. We conclude that the state, through the use of the minute entry, met its initial burden of proof under Shelton. Once the state has met its burden of proof, the burden shifted to Calhoun to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity. However, the defendant did not introduce any evidence to show an infringement or irregularity in the taking of the plea, and did not even allege such. Instead, he only points out that the Boykin transcript is unavailable. ' There is no indication that the. state was responsible in any way for the missing transcript, and the absence of a transcript does not prevent testimony as to what did or did not occur at the time the plea was taken. Accordingly, we find that the state met its burden of proof in the multiple offender bill. This assignment of error lacks merit.

By his fourth assignment, the defendant contends that the sentence imposed is excessive for this offense and this offender. The defendant complains that while the judge listed several aggravating factors, the judge 11fifailed to give adequate weight to the mitigating factors. He contends that he was not the one making threats and that he did not arm himself, and actually told one of the other intruders to put the knife down. He asserts that he “was not a violent person deserving such a harsh sentence.” He also states that his conviction was in 1999, that he was not sentenced until 2005, and there was no evidence of any criminal activity during that span of time.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

Contrary to defendant’s argument, the trial court referenced Article 894.1 and cited both aggravating and mitigating circumstances, the latter circumstances being the court’s recognition that the defendant did not have a weapon and possibly persuaded the person with the knife to put the knife down. Defendant complains that the mitigating factors were not given enough weight. Additionally, he points out that while the conviction for this crime occurred in 1999, he was sentenced in 2005, and there was not evidence of any crimes committed during the interim.

1 isThis defendant received less than half the maximum sentence despite the fact that dangerous weapons were used in the commission of the offense and that there was a fight in which Metcalf received injuries. The trial court also correctly noted that the defendant had absconded and had never revealed the identity of the other men involved. Furthermore, despite defendant’s argument to the contrary, the defendant was a violent person in committing this crime. Metcalf testified that all three men beat him. Moreover, the trial court took into consideration that the defendant did not arm himself with the knife or gun and that he may have told one of the other men to put the knife down. This sentence in no way shocks the sense of justice.

As for correction of the sentence, the trial court’s failure to state that this sentence shall be served without benefits will be automatically corrected by operation of La. R.S. 15:301.1, State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author: SAUNDERS, Judge.

text:
    Patricia GOODWIN v. Dr. Ernesto KUFOY, et al.
    No. CA 07-737.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 2008.

      John E. Bergstedt, The Bergstedt Law, Lake Charles, LA, for Defendant/Appellee, Louisiana Medical Mutual Insurance Company, Dr. Ernesto Kufoy.
    Randall Scott lies, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Patricia Goodwin.-
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

|! This is a medical malpractice case. An internist failed to successfully start a central line in order for the patient to receive her prescribed medication intravenously. During the attempts to start the central line, the internist made an indeterminate number of puncture wounds at four different sites on the patient’s body.

The patient experienced pain during that night after the failed procedure, but her pain was managed successfully with medication and she sought no further treatment related to the unsuccessful procedure. The patient filed suit against the internist and a medical review panel was formed. The medical review panel’s opinion was that the patient failed to show that the treating internist had breached the standard of care. The patient then brought her case to trial in district court.

The trial court found that the patient failed to establish the applicable standard of care, failed to prove that the internist had breached any standard of care, and failed to prove that she suffered any damages as a result of the unsuccessful procedure. The patient appealed alleging two assignments of error.

We reverse the trial court’s finding that the patient failed to establish the applicable standard of care, reverse the trial court’s finding that the patient failed to prove that the internist breached that standard of care, and affirm the trial court’s finding that the patient failed to prove any damages as a result of the unsuccessful procedure.

FACTS AND PROCEDURAL HISTORY:

Patricia Goodwin (Goodwin) was a patient of Dr. Ernesto Kufoy (the defendant) since 1999. Goodwin presented to his clinic in early November 2003 with complaint of cough and congestion. Goodwin was a 57 year old woman, with a history of asthma, cirrhosis, high blood pressure, psoriasis, hypercholesterolemia, | hyperthyroidism, peptic ulcer disease and supra ventricular complexes.

The defendant treated her with a nebu-lizer treatment, a dexamethasone injection, a Rocephin injection, and prescriptions for Albuterol nebulizers and prednisone. Goodwin returned to the defendant’s office on November 7, 2003, for continued cough and congestion. That day the defendant admitted Goodwin to Beauregard Memorial Hospital due to bilateral wheezes and poor air exchange.

The defendant began treating Goodwin via medication administered by a peripheral TV. Goodwin’s peripheral IV infiltrated at noon on November 8, 2003. After successfully starting another peripheral IV, Goodwin began to complain that this new IV was causing her pain. The defendant then received consent from Goodwin to start a central line in order to ease the pain of her peripheral line and to complete the required treatment for her symptoms.

The defendant, despite attempts at four different locations with multiple tries at each location, was unsuccessful in starting a central line. Goodwin experienced pain, bruising and eventually some minor scarring at the locations where the defendant attempted to start the central line. Her pain subsided early the next morning with pain medication and Goodwin did not seek any further medical treatment for symptoms related to the failed procedure.

Goodwin filed suit against the defendant on April 7, 2004. Her claims were submitted to a medical review panel. The panel opined that the evidence did not support the conclusion that the defendant failed to comply with the appropriate standard of care as charged in the complaint. On November 21, 2005, Goodwin filed this suit alleging that the defendant breached the standard of care due by failing to consult with an expert after excessive unsuccessful efforts to start a central line. | ¡¡Goodwin alleged that she experienced physical pain and suffering as a result of the multiple puncture wounds.

After a bench trial on February 6, 2007, the trial court ruled that Goodwin failed to prove the applicable standard of care, ruled that Goodwin failed to prove that there was no breach of the standard of care, and ruled that Goodwin experienced no discomfort and bruising that was unusual or unexpected, even in a successful central line insertion. Goodwin appealed alleging two assignments of error and also requested that this court, if we felt the record was complete, review her damages.

We reverse the trial court’s finding that Goodwin failed to establish the standard of care applicable to the case at bar and also reverse the trial court’s finding that Goodwin did not prove that the defendant breached that standard of care. We grant Goodwin’s request for this court to review the damages awarded her by the trial court. We affirm the trial court’s finding as reasonable that Goodwin did not prove that she suffered any damages as a result of the defendant’s failed attempts to start a central line. Each party will bear its own costs of this appeal.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in finding that Patricia Goodwin failed to establish the standard of care for an internist unsuccessfully attempting to start a central line between twenty to forty occasions by proving through specialists in internal medicine and surgery that the standard of care is to obtain a consult if the procedure cannot be done under non-emergent circumstances after four or five puncture wounds?

2. Did the trial court err in finding that Patricia Goodwin did not prove a deviation of the standard of care for an internist when she demonstrated that an internal medicine specialist under non-emergent circumstances should consult a specialist if he is incapable of starting a central line after four or five occasions where the physician unsuccessfully attempted to start a central line between twenty and forty puncture wounds?

ASSIGNMENT OF ERROR # 1:

pGoodwin contends that the trial court erred in finding that she failed to establish the standard of care for an internist to obtain a consult from a specialist, if that internist cannot successfully start a central line in non-emergent circumstances after multiple puncture wounds. We agree.

Whether the plaintiff establishes the standard of care in a medical malpractice action is subject to the manifestly erroneous, clearly wrong standard of review. Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991).

Louisiana Revised Statute 9:2794 states, in pertinent part, the following:

A. In a medical malpractice action ... the plaintiff shall have the burden of proving:
1. The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... with the involved medical specialty.

Therefore, according to La. R.S.9:2794(A) a medical malpractice claimant must establish the defendant’s standard of care by a preponderance of the evidence. Newsome v. Lake Charles Memorial Hosp., 06-1468 (La.App. 8 Cir. 4/4/07), 954 So.2d 380.

After reviewing the record, we find that there is no reasonable basis for the trial court’s finding that Goodwin did not establish the applicable standard of care. Dr. Patrick Griffith, an internist such as the defendant in a similar community or locale, testified to the following:

Q: Okay. As a general rule, do you know as an internal medicine specialist what the rule would be how many punctures a physician |fiwould in a standard of care situation attempt to start a puncture on the patient, trying to begin a central line before that physician consult— should consult a surgeon? Is there a number in your mind where you think at this point a surgeon should be consulted? Is there a number in your mind where you think at this point a surgeon should be consulted?
A: The situation varies. I guess if there’s a surgeon available, I mean, I guess after six, seven attempts, if a surgeon was available. And I — I throw that number out there. I’ve never been able to find — I haven’t been able to find any studies that say this x number of — I’ve seen a few studies where they say five or six attempts, you increase your risk of complications.

The trial court interpreted the testimony above to mean that any number stated by Dr. Griffith was a guess. We disagree. Later in his testimony, Dr. Griffith clearly iterated that any number of puncture wounds over seven would be below the standard of care the following exchange took place:

Q: If a doctor, in fact, is attempting to start a central line, and if unsuccessful after a period of time, whether the number [of puncture wounds] is eight or 20 or 40, any number like that, but runs into a situation where he is unsuccessful in starting that central line, is it not within the standard of care for an internal medicine specialist at that point to consult with someone who has the capability and the specialty such as a surgeon to start that line?
A: Yes.

In its reasons for judgment dictating why it found that Goodwin failed to establish the standard of care, the trial court gave great weight to the testimony of Dr. David Brown. The trial court’s reliance on Dr. Brown’s testimony as evidence of Goodwin failing to establish a standard of care is clearly wrong. First, Dr. Brown is a surgeon, not an internist. The standard of care that Goodwin need establish sub judice is not the standard for a surgeon in starting a central line, but the standard for an internist in starting a central line. Second, the trial court noted that Dr. Brown testified to having stuck people more than 3 or 4 or 5 times when necessary, | (-However, the trial court fails to note that Dr. Brown goes on to testify, “I have stuck people more than three or four or five times. But given our situation [as a surgeon], there’s nobody else to try ... I’m the end of the chain ...” (Emphasis added.) In weighing Dr. Brown’s testimony, it is clear that the trial court fails to fully consider the ramifications that Dr. Brown is a surgeon, rather than an internist.

According to the testimony of Dr. Griffith, a surgeon is one such speciality whom an internist should consult if that internist fails to , start a central line after more than six or seven puncture wounds. Here, we have Dr. Griffith clearly stating the standard of care an internist owes to a patient under similar circumstances, and we have the defendant failing to put forth any evidence to contradict that standard given by Dr. Griffith. As such, there is no reasonable basis for the finding that Goodwin failed to establish the applicable standard of care. Accordingly, we reverse the trial court’s ruling that Goodwin failed to establish the standard of care applicable to the case before us.

ASSIGNMENT OF ERROR # 2:

In her second assignment of error Goodwin argues that the trial court erred in finding that she did not prove that the defendant deviated from the standard of care for the number of puncture wounds an internist should make while attempting to start a central line before he consults with a specialist. We concur.

Our Louisiana Supreme Court, in Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La.1991), stated the following:

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. Resolution of these |7inquires are determinations of fact which should not be reversed on appeal absent manifest error. (Citations omitted.)

In the case before us, the defendant points out that no physician testified that he breached the standard of care and that the medical review panel found that the evidence does not support the conclusion that the defendant failed to comply with the appropriate standard of care as charged by Goodwin. These two points are accurate; however, Dr. Griffith, both a physician and a member of the medical review panel, testified that after seven puncture wounds result in a still unsuccessful attempt to start a central line, an internist should consult a specialist, such as a surgeon. Here, the defendant did not consult any specialist despite evidence that his attempts to start a central line on Goodwin resulted in more than seven puncture wounds.

The trial court, in its reasons for judgment, notes that it cannot determine the exact number of puncture wounds that were made in attempting to start the central line, therefore, it cannot say that the defendant’s conduct fell below the standard of care. While it is true that an exact number of puncture wounds cannot be determined from the record, it is clear that the defendant’s attempt to start the central line resulted in over seven puncture wounds.

Joan George, a registered nurse who was the charge nurse working on the date of the incident, testified that she saw Goodwin after the defendant attempted to start the central line. In her testimony, George stated that she counted greater than eight puncture wounds on Goodwin’s left side, but did not finish counting because it seemed to distress the patient.

While George does not testify to an exact number, her testimony gives, at minimum, a number over the standard established by Dr. Griffith’s testimony. Moreover, it is not disputed that the defendant attempted to start a central line Isbilaterally, thus, given that George only counted the number of puncture wounds on Goodwin’s left side, it is clear that George’s testimony, indicates that the defendant breached the standard of care in this case.

Other evidence that tends to prove the defendant breached the standard of care was the testimony of Richanna Leonard and Jessica Ashworth, both LPN’s working at the hospital and both of whom saw Goodwin on the date of the incident. Leonard testified that she, didn’t count, but, “I know she had at least 16 puncture wounds.” Ashworth testified that Goodwin had at least 15 puncture wounds that she counted, but she stopped at 15and did not finish counting.

There is no number of puncture wounds noted in any of Goodwin’s medical records. The only other evidence in the record alluding to the number of puncture wounds made by the defendant was his testimony. In his testimony, the defendant stated that he had no recollection of the number of puncture wounds he made in attempting to start the central line, but that he would never do 20 or 40 or 50.

In summation, the only evidence in the record of the number of puncture wounds that the defendant made to start a central line on Goodwin is that of nurses George (greater than 8 on half of Goodwin’s body), Leonard (at least 16) and Ashworth (at least 15), and the proclamation by the defendant that he would never do 20. As such, the only conclusion that a reasonable trier of fact could make from the evidence presented was that the defendant made, at minimum, over seven puncture wounds on Goodwin. Given that the standard of care established by Dr. Griffith’s testimony was an internist should not make over seven puncture wounds on a patient without consulting a specialist, we can only conclude that the trial court’s determination that the defendant did not breach the standard of care he owed to 19Goodwin was manifestly erroneous.

DAMAGES:

Goodwin asked in brief for this court to assess damages if it feels that the record is complete for that purpose. Given that Goodwin testified that she experienced no further pain after 4AM the day after the incident and Goodwin had no medical follow-up for symptoms stemming from the failed procedure, we find that the record is complete in this regard and will address the damages awarded in this case.

As was the case in the first two assignments of error, the standard of review is that of manifest error. The trial court found that the discomfort and bruising experienced by Goodwin from the procedure were not unusual or unexpected, even in successful central fine insertions.

We cannot say that this finding is unreasonable. Goodwin signed a form saying that hemorrhaging and scarring are known risks to this procedure, even if it is successful. Dr. Brown testified that scarring is possible any time that a physician attempts to access any patient’s blood vessels. Dr. Griffith testified that Goodwin experienced no bruising or pain that was not unusual for a patient that undergoes a successful insertion of a central line. The defendant testified that Good win did not experience any unexpected pain and that the pain and bruising she experienced were normal.

From this evidence in the record, a reasonable person could find that Goodwin experienced no more bruising, pain, or scarring than she would have otherwise endured even with a successful insertion of a central line. Accordingly, we affirm the trial court’s finding that Goodwin experienced no damages as a result of the puncture wounds she suffered from the failed attempts to start a central line.

I ^CONCLUSION:

Goodwin raised two assignments of error and, in brief, requested that this court, if we felt the record was complete, review her damages. We reverse the trial court’s finding that Goodwin failed to establish the standard of care applicable to the case at bar and also reverse the trial court’s finding that Goodwin did not prove that the defendant breached that standard of care. We grant Goodwin’s request for this court to review the damages awarded her by the trial court. We affirm the trial court’s finding that Goodwin did not prove that she suffered any damages as a result of the defendant’s failed attempts to start a central line. Each party will bear its own costs of this appeal.

REVERSED IN PART, AFFIRMED IN PART.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    CHALMETTE RETAIL CENTER, L.L.C. v. LAFAYETTE INSURANCE COMPANY, United Fire Group, United Fire & Casualty, Emery and James, Ltd., Property Loss Consultants, LCC and Property Loss Consulting, Inc.
    No. 2007-CA-1594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Rehearing Denied Feb. 27, 2008.
    James M. Williams, Brian J. Houghtal-ing, Stephen M. Huber, Gauthier, Hough-taling & Williams, L.L.P., Metairie, LA, for Plaintiff/Appellee.
    Howard Kaplan, Stephen N. Elliott, Caroline D. Elliott, David M. McDonald, Bernard, Cassisa, Elliott & Davis, a PLC, Metairie, LA, for Lafayette Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge TERRI F. LOVE and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|]The defendant-appellant, Lafayette Insurance Company (“Lafayette”), appeals a partial summary judgment in favor of the plaintiff-appellee holding that Lafayette is “not entitled to receive any offset/credit towards money owed for business interruption from income or rental proceeds received from FEMA.”

The original judgment was rendered on October 4, 2007, but was amended on October 30, 2007, with a finding that there was no just reason for delay and a certification that the judgment was final and appeal-able.

Plaintiff owns and operates the commercial rental real estate (a shopping center) located at 8400 West Judge Perez Drive in Chalmette, Louisiana. At the time of Hurricane Katrina, the plaintiff had Premises Commercial Uni-Saver Policy # 60329996 with Lafayette insuring the shopping center. Lafayette paid plaintiff $1,167,-903.32 for structural damage caused by Katrina and $66,902.00 for loss of business income. On August 29, 2006, the plaintiff sued Lafayette along with several other insurance companies for Katrina damage to “a commercial building located at 8400 West Judge Perez Drive, Chalmette, Louisiana” along with a claim for business interruption insurance arising out of the same property ^because of storm related loss of rental income. The partial summary judgment was limited to the disposition of Lafayette’s claim for credit against its business interruption coverage for rents the plaintiff received post-Katrina when plaintiff rented out the parking lot at 8400 West Judge Perez to FEMA. This lease did not go into effect until after Katrina.

Basically, Lafayette claims that the parking lot is part of the insured premises and that any rents derived from any part of the premises, including the parking lot, should be applied toward the business interruption/loss of rental income claim of the plaintiff. The plaintiff contends otherwise and the trial court agreed with the plaintiff. Although there may be other issues in the case, this is the only one involved in this appeal.

The plaintiff contends that the parking lot was not covered by the policy — that its only insured business at the time of Katrina was the rental of indoor retail space to commercial tenants. Plaintiff points out that the amount of parking space remaining after having leased out a portion of the parking area to FEMA was still adequate to allow for the recovery work being done on the center as well for parking for the center.

No one disputes the fact that the policy controls. The normal issues related to policy disputes, ambiguity, strict construction, and the like, play no part in this appeal because the policy provisions that control are completely clear and completely lacking in any ambiguity in relation to the facts of this case. They are to be found in the policy in the form entitled:

PREMISES COMMERCIAL UNI-SAVER BUILDING AND PERSONAL PROPERTY COVERAGE FORM AND COMMERCIAL PROPERTY CONDITIONS

| ¡¡Paragraph “A 4 e” entitled “Business Income” describes the coverage for loss of income that is the subject of the dispute. However, that paragraph is preceded by and controlled by paragraph “A 2” entitled “Property Not Covered,” which provides in pertinent part that:

Covered Property does not include:
d. Bridges, roadways, walks, patios or other paved surfaces;
⅝ ⅜ * *
h. Land (including land on which the property is located) ...
[Emphasis added.]

If the parking lot in question is paved it is clearly excluded from coverage by paragraph “A 2 d” as quoted above. However, even if the parking lot is not paved, it is excluded by paragraph “A 2 h.” As we find no endorsements or amendments to the policy in the record that could arguably alter the foregoing exclusions, and Lafayette has cited none, we conclude that there is clearly and unambiguously no coverage for the parking lot. As Lafayette’s claim for credit or an offset for the rental of the parking lot to FEMA is based entirely on its assertion that the parking lot is covered, Lafayette’s position is without merit.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Lafayette.

AFFIRMED.

      . In consequence of this payment, it appears that the plaintiff signed a release for all property damage and that the only dispute remaining between Lafayette and the plaintiff relates to plaintiff's business interruption claim.