author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Dennis D. THOMAS, Appellant.
    No. 44,113-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.
    Rehearing Denied May 7, 2009.

      Louisiana Appellate Project by G. Paul Marx, Lafayette, for Appellant.
    Dennis D. Thomas, In Proper Person.
    Paul J. Carmouche, District Attorney, J. Dhu Thompson, John Ford McWilliams, Jr., Assistant District Attorneys, for Ap-pellee.
    Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

| jDennis D. Thomas was indicted for the second degree murder of Carlos Chambers. Following a bench trial, he was found guilty of the lesser included offense of manslaughter and sentenced to 33 years at hard labor. He now appeals, raising four assignments of error through counsel and three assignments in proper person. We affirm.

Factual Background

Thomas and his victim, Chambers, had known each other in Shreveport’s Lakeside neighborhood since November 2005. Thomas testified that he bought marijuana from Chambers a few times at a house on Andrew Avenue where “TT” Easter lived. On the evening of January 4, 2006, Chambers and his girlfriend, Teouna Fuller, who was pregnant with his baby, drove to TT’s house. Chambers went inside while Fuller stayed in the car, her sister’s 2004 Chevy Cavalier, sleeping. She was wakened by the sound of Thomas talking to her through the car window, asking where Chambers was; she replied that he was not in the car. On the front porch of the house, however, Chambers saw Thomas talking to his girlfriend, and ran out to the car to confront him. Chambers, the smaller man, took a swing and landed a blow that busted Thomas’s lip; a fight ensued in which Thomas gave Chambers a bloody nose and multiple bruises. No weapons were involved, and the men left the scene.

The next day, around 4:00 pm, Thomas was walking along Milam Street near Hearne Avenue when the Chevy Cavalier drove by, Chambers at the wheel and Ms. Fuller in the front passenger seat. Chambers turned around, drove up alongside Thomas and called him over. Thomas and Ms. 12Fuller essentially agree that at first, Chambers asked if everything between the two men was all right. According to Ms. Fuller, Thomas suddenly pulled a black handgun, pointed it through the passenger window and fired several shots into Chambers’s body. At trial, however, Thomas maintained that the men argued: Chambers accused Thomas of disrespecting him by talking to his girlfriend behind his back and exclaimed that she was not a bitch. According to Thomas, when the words got heated, he saw Chambers grab for a gun and start to point it at him, at which time Thomas grabbed his own weapon and fired several shots in self-defense.

Mortally wounded, Chambers managed to drive the Chevy a few blocks to the intersection of Hearne at Dunlap, where he rear-ended another car. Ms. Fuller immediately called 911 on her cell; EMTs came within minutes, and the police arrived about the time Chambers’s body was being placed in the ambulance. Chambers was declared dead shortly after arrival at LSU Health Sciences Center; the coroner’s report stated that he died from multiple gunshot wounds. An autopsy identified six entry wounds to his shoulders and upper arms.

Officers searched the car at the scene, and again at the impound lot, but found no weapon or ammo in the car other than a .357 slug extracted from the inside of the driver’s door. Ms. Fuller told officers that there was no gun in the car; she was studying to become a nurse, and being involved in a firearms offense would prejudice her chance of obtaining a license. At the scene of the shooting, officers also found no weapon, only two .22 shell casings and some broken glass.

| oMs. Fuller described the suspect as a black male, six feet or taller, with a busted lip, wearing a white headband and headphones. Initially, she could not think of his name; moments later she told Detective Jeff Brown that he was Dennis Thomas. At the police station, she positively identified Thomas from a photo lineup. Det. Brown also testified that through anonymous 911 calls, police learned that Thomas was living with his grandparents on Ashton Street, some two blocks from the scene of the shooting.

With this information, around 8:00 pm several officers surrounded the house on Ashton Street and knocked on the door, asking for Thomas. The grandmother answered, and then Thomas himself came to the door. Officer A.L. Harvey testified that Thomas immediately put his hands up, but then turned around and ran into the house. Officers entered and placed him under arrest. According to Officer Harvey, without any prompting Thomas said, “I know y’all think I shot that nigger,” and stated that Chambers had hit him the night before. Officers gave him his Miranda rights.

At the police station, Thomas told Detective Shawn Parker, “I can’t believe this. I don’t know anything about this. I don’t know why I’m being charged with this.” Thomas again admitted that he and Chambers had been in a fight that morning, and that later that day Chambers drove up to him; however, Thomas maintained that he got scared and ran away. He claimed to know nothing about the shooting.

Back at the house on Ashton Street, officers searched Thomas’s bedroom, finding a white bandana on the dresser and a Walkman elsewhere |4in the room. Under the house they found a Rossi .357 revolver. Corporal Danny Duddy testified that the gun yielded no usable fingerprints, but he swabbed it for any possible DNA evidence. Connie Brown, an analyst at the North Louisiana Crime Lab, analyzed the swab and a reference sample from Thomas. She testified that the swab contained DNA from at least two persons and Thomas could not be excluded as one of those persons. Based on statistics from the FBI lab, however, she testified that 99.7% of the population could be excluded as a DNA donor. Richard Beighley, a criminalist at the crime lab, analyzed the Rossi revolver found under the house on Ashton Street and the slug extracted from the door of the Chevy Cavalier. He concluded that the slug was fired from the Rossi, although he admitted there is no such thing as a “perfect match” between a gun and bullet.

Trial Testimony

After his indictment for second degree murder, Thomas elected a bench trial which took place over three days in September, October and November 2007. The state’s witnesses testified as outlined above.

On the second day of trial, the district court excluded the grand jury testimony of a witness named Crystal Brown, which Thomas contended was exculpatory. The state argued, and the court agreed, that although Ms. Brown was unavailable to testify, her prior testimony was not subject to cross-examination and hence was inadmissible hearsay under La. C.E. art. 804 B(l). Thomas proffered the transci'ipt under seal.

|.Thomas testified that early on the morning of the shooting, he had been talking to Ms. Fuller in front of TT’s house on Andrew Avenue, that Chambers had confronted him about talking to his girlfriend, and that the two men had fought with the result that Thomas sustained a badly cut lip. He asserted that Chambers was “starting to make it rough around the neighborhood,” and he heard that after this incident Chambers was looking for a gun. He admitted that when he first spoke to police detectives, he said he knew nothing about the shooting, but that in point of fact he pulled the gun and fired on Chambers only when he saw Chambers pulling a gun on him. He insisted that he acted purely in self-defense even though he never said this at the time. He also maintained that he had never seen or handled the Rossi revolver seized from under his grandmother’s house; he dropped his own gun by a fence near that house. He also disputed that he tried to run away when Officer Harvey knocked on the door; he merely stepped back, lay on the floor, and let officers arrest him in front of his grandparents.

In support of the claim of self-defense, Thomas called Dwight Davis, a convicted felon now serving in the Natchitoches Detention Center. Davis testified that he knew Chambers and was at TT’s house on Andrew Avenue when Chambers and Thomas got into the fight. After being bested in the fight, Chambers got up off the ground and ran to the house, asking TT where the “scrap” (gun) was, and saying he was going to shoot Thomas. Davis thought Chambers was serious about wanting to hurt Thomas.

Ms. Fuller testified that at the time of the shooting, Chambers was not threatening Thomas and was not carrying a gun. She reiterated that she | (¡would not handle a gun or even be around one because she wanted to become a nurse. She admitted that Chambers had been very agitated after the fistfight but that he had calmed down and never said anything about getting a gun to go shoot Thomas.

As noted, the district court found Thomas guilty of the lesser included offense of manslaughter. The court denied motions for new trial and for post verdict judgment of acquittal. The court then held a sentence hearing in which five witnesses testified, including Ms. Fuller, Chambers’s mother, two of Thomas’s relatives, and Thomas himself. Citing this testimony, the trial evidence and Thomas’s arrest record, the court sentenced him to 33 years at hard labor. It later denied Thomas’s motion to reconsider sentence.

Discussion: Sufficiency of the Evidence

By his second assignment of error, Thomas urges the verdict was contrary to the evidence: he acted in self-defense against a man who was mad with jealousy, continued to bully and threaten him, and would have shot Thomas had not Thomas fired first. By his first pro se assignment, Thomas urges that the district court erred in denying his motion for acquittal when the evidence did not negate his claim of self-defense.

The state responds that apart from Thomas’s own self-serving testimony, the evidence uniformly negated the theory of self-defense.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, |72789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

As it pertains to this case, manslaughter is defined in La. R.S. 14:31 A as follows:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any 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 or 30.1, or of any intentional misdemeanor directly affecting the person[.]

A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself | sfrom that danger. La. R.S. 14:20 A(l); State v. Faulkner, 441 So.2d 721 (La.1983); State v. Gaddis, 36,-661 (La.App. 2 Cir. 3/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.5/14/04), 872 So.2d 519. When self-defense is raised as an issue by the defendant, the state has the burden of proving beyond a reasonable doubt that the homicide was not committed in self-defense. State ex rel. D.P.B., 2002-1742 (La.5/20/03), 846 So.2d 753; State v. Gaddis, supra. When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State ex reí. D.P.B., supra; State v. Gaddis, supra.

Because Thomas admittedly killed Chambers, the only issue is whether he reasonably believed that he was in imminent danger of death or great bodily harm and that deadly force was necessary to save himself. Even if Chambers really pulled a gun, the fact that Thomas shot him six times before Chambers got off a single round seems to refute the theory of reasonable necessity. Moreover, the evidence overwhelmingly shows that Chambers was not armed. Thomas testified that Chambers reached across his torso with his right hand, as though to grab a gun, and did indeed point a gun at him. Ms. Fuller, however, testified not only that Chambers was not carrying a gun, but that she would not allow a gun in her car as it could adversely affect her nursing career. Police searched the Chevy twice, finding no gun or ammo. Even Thomas’s own witness, Davis, admitted that prior to this incident he had never seen Chambers carrying a gun.

|8In addition, Thomas’s credibility was severely strained by his statements to police, which initially denied any knowledge of the killing but then morphed into a self-serving claim that Chambers pulled a gun on him. His persistent denial that he had ever touched the Rossi revolver, which was found under his grandmother’s house, and mostly likely fired the slug recovered from the Chevy’s door, was seriously questioned by DNA evidence that placed him in a scant 0.3% of the population that could have handled the gun.

On these facts, the district court could find beyond a reasonable doubt that Chambers did not pull a gun on Thomas and thus his deadly reaction could not be justified. These assignments of error lack merit.

Admission of Grand Jury Testimony

By his first assignment of error, Thomas urges the district court erred in excluding the exculpatory grand jury testimony of an eyewitness, Crystal Brown. He contends that Ms. Brown told the grand jury she saw Chambers make a “sudden move for something under the seat,” which would support his claim of self-defense. He argues that the technical rules of evidence, upon which the district court relied to exclude the evidence, must yield to the defendant’s sixth amendment right to present a meaningful defense. Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006); State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). He also suggests that La. C.E. art. 804 B(l), upon which the district court relied, does not actually apply to Ms. Brown’s grand jury testimony.

| inThe state responds that the court’s ruling was correct, as at trial the state’s motive in cross-examining Ms. Brown — to show how most of her testimony conflicted with other testimony and physical evidence — would be dissimilar from its motive in the grand jury hearing, where only direct examination was available. The state submits that under Art. 804 B(l), such testimony is inadmissible.

As a general rule, the defendant is not entitled to production of a transcript of a secret grand jury proceeding against him, even for use at trial in conducting cross-examination. La. C. Cr. P. art. 434; State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); State v. Taylor, 07-93 (La.App. 5 Cir. 11/27/07), 973 So.2d 83, writ denied, 2007-2454 (La.5/9/08), 980 So.2d 688. This is to encourage the full disclosure of information about a crime. Id. However, there is an exception to the rule when the grand jury record contains evidence favorable to the accused that is material to guilt or innocence. Id. In response to a specific request stated with particularity, the trial court may review the grand jury transcripts in camera to determine if they contain any exculpatory evidence. Id.; State v. Peters, 406 So.2d 189 (La.1981).

According to defense counsel, Ms. Brown testified before the grand jury as follows:

He [Thomas] was walking up the sidewalk coming from a store drinking a Sprite. A car pulled up and they were standing there arguing. In a few minutes they stopped arguing. He went to reach for something or whatever. But the other guy reached in his pocket, pulled out a gun, made three shots. The young lady screamed. The car sped off and he went up on the sidewalk.

InBecause defense counsel made a specific request to introduce this testimony, the district court should have conducted an in camera review to see if the statement was truly exculpatory. State v. Higgins, supra; State v. Peters, supra. No such in camera review took place, but our own review shows that the statement was not exculpatory. Ms. Brown did not say she saw a weapon, only that the victim “went to reach for something or whatever.” She confirmed that Chambers never fired a shot but that Thomas fired several shots. In short, her testimony is cumulative and not truly exculpatory. Had the district court conducted the in camera review, the result would have been the same.

Moreover, the state’s construction of La. C.E. art. 804 B(l), while perhaps over-broad, is essentially correct. This article states that certain evidence is “not excluded from the hearsay rule if the declarant is unavailable as a witness”:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect testimony.

When the defendant seeks to introduce secret grand jury testimony against the state, he or she must show a “similar motive.” United States v. Salerno, 505 U.S. 317, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992). Plainly, in the grand jury the state would have called Ms. Brown on direct examination to establish the crime; at trial, the state would cross-examine her to discredit her recollection (for example, with respect to the number of shots fired). The record supports the finding of a dissimilar motive. This assignment lacks lament.

Excessive Sentence

By his third assignment of error, Thomas urges his near-maximum sentence of 33 years at hard labor is excessive. He contends the district court failed to give fair and sufficient weight to mitigating factors such as his age, relative lack of criminal history, and the provocation by the victim. He also reiterates that he acted in self-defense.

The state responds that the sentence was no abuse of discretion, given the violence of the offense, together with Thomas’s subsequent conduct, including his flight and lack of remorse.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Woods, 41,-420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, writs denied,, 2006-2768, 2781 (La.6/22/07), 959 So.2d 494. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Landos, 419 So.2d 475 (La.1982). The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130.

| iSThe second prong is constitutional excessiveness. 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 imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The district court has wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

The district court did not order a pre-sentence investigation report but it presided over a three-day trial and a sentence hearing in which five witnesses testified. The court demonstrated a firm grasp of the facts of the offense and all relevant sentencing guidelines. The court specifically cited Thomas’s “youth and education, his relative lack of criminal history to include misdemeanor simple battery with no conviction, and a felony arrest for drugs”; the circumstances surrounding the offense, including the fight hours earlier; and the senseless violence that not only resulted in Chambers’s death but endangered Ms. Fuller as well. On this record we find adequate compliance with Art. 894.1.

The maximum sentence for manslaughter is 40 years at hard labor. La. R.S. 14:31 B. Thomas’s 33-year sentence is not out of proportion to the | i4crime and does not shock our sense of justice. This assignment lacks merit.

Thomas’s Pro Se Assignments

By his fourth pro se assignment, Thomas urges the district court erred in admitting his statements to police. He contends that because he did not sign a Miranda waiver, no further questioning was allowed, ergo the state failed to prove his statements were freely and voluntarily given.

The state has not responded to this argument.

Prior inconsistent statements are admissible when offered solely to attack the witness’s credibility unless the court determines that the probative value of the prior statements is “substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.” La. C.E. art. 607 D(2). Louisiana has long sanctioned the impeachment of a witness in a criminal trial by his prior inconsistent statements. State v. Juniors, supra; State v. Tate, 38,576 (La.App. 2 Cir. 8/18/04), 880 So.2d 255, writ denied, 2004-2554 (La.1/14/05), 889 So.2d 268. The district court committed no error in admitting this evidence. Moreover, before introducing any statement that purports to be a confession, the state must prove that it was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.” La. R.S. 15:451. Aside from his own refusal to sign a Miranda card, Thomas has adduced not one scintilla of evidence that his pretrial statements were not free and voluntary. This assignment lacks merit.

By his second and third assignments of error, Thomas urges ineffective assistance of counsel. He submits a list of alleged legal failings 11Bon the part of trial counsel, concluding that these combined to deny him due process. He also contends that the district court erred in refusing to let him serve as cocounsel at trial.

The state has not responded to these assignments.

A defendant is guaranteed the effective assistance of counsel. U.S. Const., amend. 6; La. Const. Art. I, § 13; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134. To establish a claim of ineffective assistance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and that counsel’s professional errors resulted in prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. Strickland v. Washington, supra; State v. Bright, supra; State v. Greer, 43,177 (La.App. 2 Cir. 4/9/08), 981 So.2d 133, writ denied, 2008-1088 (La.12/19/08), 996 So.2d 1132.

We have closely examined each alleged instance of ineffective assistance and find them without merit:

(1) Failure to object to the testimony of state experts Connie Brown and Richard Beighley. Thomas contends that them reports were “never entered into the record” and, without prior discovery, they could not be thoroughly questioned. In point of fact, Mr. Beighley’s report was part of a discovery response in May 2006. Ms. Brown’s report stated that DNA testing was completed on September 5, 2007; the report was furnished to defense counsel on the first day of trial, September 21, 2007. Thomas has l1finot shown how the state could have disclosed this information any sooner or that defense counsel failed to cross-examine these witnesses adequately.

(2) Failure to file a pretrial motion challenging the admissibility of the Rossi revolver seized from under his grandparents’ house, as it was “arguably inadmissible.” The gun was found hidden under the house where Thomas was staying, and DNA tests placed him in the 0.3% of the global population who could have handled it. The relevance was overwhelming; there was absolutely no nonfrivolous basis on which to object.

(3) Failure to seek a mistrial when the state tried to introduce the coroner’s report, which was not disclosed pretrial. He contends that under La. C. Cr. P. art. 729.5, had counsel so moved, the court would have granted a mistrial. However, this article also provides that the court “may order such party to permit the discovery or inspection,” which is precisely what the district court did. Counsel reviewed it in recess and correctly noted that it added nothing to the autopsy report already on file since May 2006. We perceive no error on counsel’s part.

(4) Failure to object to certain questions posed to Thomas on cross-examination. However, as noted above, the state was entitled to use his prior inconsistent statements to impeach his claim of self-defense. State v. Juniors, supra; State v. Tate, supra. The objections urged by Thomas would have been inevitably overruled.

(5) Failure to offer Chambers’s rap sheet into evidence. Thomas argues that under State v. King, 347 So.2d 1108 (La.1977), his victim’s criminal record was relevant to the strategy of self-defense. Even without |17the rap sheet, however, the evidence already showed that Chambers had fought with Thomas only hours before the shooting, badly cutting his lip; that Chambers sold marijuana from TT’s house, where the fight occurred; and that Chambers told at least one person that he wanted to shoot Thomas. There is no showing that the rap sheet would have added anything to the evidence.

(6) Failure to move for a bill of particulars. Thomas makes, however, no showing that the indictment lacked any specifics; it complied with the applicable provisions, La. C. Cr. P. arts. 464, 465 A(32). There is no showing that particulars would have altered the trial in any way.

(7) Failure to call Ms. Fuller as a defense witness, or opting to impeach her only by playing the audiotape of her statement, outside of her presence, instead of directly confronting her with her prior inconsistent statement. At trial, she recalled giving police a statement but not exactly what she said. Counsel’s practical expedient of playing the tape was sufficient to establish Ms. Fuller’s earlier statement.

These assignments of error lack merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. James McCALMAN, Appellant.
    No. 44,073-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John W. Montgomery, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS and DREW, JJ.
   GASKINS, J.

hThe defendant, James McCalman, appeals as excessive his sentence to serve five years at hard labor following his guilty plea to simple burglary. For the following reasons, we affirm the conviction and sentence.

FACTS

In mid-December 2007, the defendant made unauthorized entries into several houses in Webster Parish and took items. In January 2008, the defendant was originally charged with two counts of simple burglary of an inhabited dwelling. On May 5, 2008, pursuant to a plea bargain agreement, the defendant was allowed to enter a plea of guilty to one count of the reduced charge of simple burglary; the remaining count was dismissed.

On June 30, 2008, the defendant appeared before the court for sentencing. The trial court ordered the defendant to serve five years at hard labor for this offense, with credit for time served. The defendant was properly informed of the delays for appealing his sentence and for applying for post-conviction relief. The defendant timely filed a motion to reconsider the sentence on the grounds that it is excessive. The motion was denied. The defendant appealed, claiming that his sentence is excessive.

EXCESSIVE SENTENCE

The defendant argues that, even though he has a misdemeanor criminal record, the current offense is his first felony conviction. He claims that he has a good employment record working in the plumbing industry. He states that he is engaged to be married and has a newborn child. The defendant maintains that he is not a worst offender and, by pleading guilty, has accepted responsibility for this offense. He argues that his five-year |2hard labor sentence is harsh under these circumstances. This argument is without merit.

Legal Principles

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). 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.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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. There is no requirement that specific matters be given any particular weight at sentencing. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La.6/3/05), 903 So.2d 452.

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, ┴32001-2574 (La.1/14/03), 839 So.2d 1. 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.

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

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. ┴4Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710.

Discussion

In formulating the sentence in this matter, the trial court considered information contained in a presentence investigation (PSI) report. The trial court noted that the defendant was actually involved in several residential burglaries. The present offense occurred a few days before Christmas and the defendant stole a family’s Christmas gifts, basically destroying their holiday. An eight-year-old family member is now afraid to be in the house knowing that an intruder had broken in.

The court observed that there were de-tainers against the defendant from Bossier, Caddo, and Claiborne Parishes. He had a juvenile record in Tennessee. According to the trial court, the defendant had a 2001 misdemeanor conviction for fraud in California. He had a charge of issuing worthless checks pending in Claiborne Parish. The court observed that there was a bench warrant for the defendant’s arrest and the case was awaiting trial. The defendant also had a charge of criminal mischief in Bossier Parish in 2005 where he forfeited his cash bond in lieu of his appearance.

The trial court considered that the defendant is single, engaged, and has a newborn baby. The court found that there is an undue risk that during a period of a suspended sentence or probation the defendant would commit another crime. The trial court stated that the defendant is in need of correctional treatment that can be provided most effectively by commitment |sto an institution. According to the trial court, a lesser sentence than that imposed would deprecate the seriousness of the offense. The court found that there were no grounds to excuse or justify the criminal conduct.

The trial court adequately articulated the reasons for the sentence imposed. Further, we find that the sentence is not excessive. The defendant received the benefit of a favorable plea bargain agreement. He was sentenced to less than half the maximum sentence of imprisonment on the crime to which he pled guilty and no fine was imposed. The defendant had a juvenile record, and a history of misdemeanor convictions. He also had pending detainers. Under the facts presented here, the trial court did not abuse its discretion in imposing the sentence.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, James McCalman.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. James Houston HICKS, Appellant.
    No. 44,062-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Annette F. Roach, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   WILLIAMS, J.

|tThe defendant, James H. Hicks, was charged by bill of information with distribution of a Schedule III controlled dangerous substance, hydrocodone, a violation of LSA-R.S. 40:968(A), and distribution of a Schedule II controlled dangerous substance, methamphetamine, a violation of LSA-R.S. 40:967. Pursuant to a plea agreement, the defendant pled guilty as charged to one count of distribution of a Schedule III CDS and the state dismissed the charge of distribution of a Schedule II CDS. The defendant was sentenced to imprisonment of six years at hard labor to run consecutively to any other sentence the defendant was obligated to serve. The district court denied defendant’s motion to reconsider sentence and the defendant appeals. For the following reasons, we affirm.

FACTS

On February 22, 2006, the defendant was the subject of an undercover operation conducted by the Bossier City Police Department (BCPD). A police officer went to East Texas Street and contacted the defendant regarding the purchase of Lor-tab pills. After being paid $50 in BCPD funds, the defendant returned with ten Lortab pills wrapped in a napkin and delivered them to the officer. The North Louisiana Crime Lab confirmed that the pills contained hydrocodone, a Schedule III CDS. Two days later, defendant sold police officers methamphetamine. After his arrest, defendant pled guilty to distribution of hydrocodone and the distribution of methamphetamine charge was dismissed.

Before sentence was imposed, the district court heard the state’s motion to revoke the defendant’s probated sentence from an earlier 12conviction based upon the present conviction. The defendant’s probation was revoked and he was ordered to serve the original sentence. Regarding the present conviction, the court sentenced defendant to serve six years at hard labor with the sentence to run consecutively to any other sentence the defendant was obligated to serve. The court also recommended the defendant for substance abuse treatment during incarceration.

The defendant’s timely pro se motion to reconsider sentence was denied and no timely motion for appeal was filed. However, in response to the defendant’s April 2008 petition for post-conviction relief alleging ineffective assistance of counsel due to his attorney’s failure to file an appeal from his sentence, the trial court granted defendant an out-of-time appeal and appointed the Louisiana Appellate Project to represent him.

DISCUSSION

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the requirement that this sentence be served consecutively to the sentence for his prior drug offense serves no useful purpose and is excessive in light of his need for drug treatment and the small quantity of drugs involved.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial 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);a State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. 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. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

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 infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when 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.

The penalty for conviction of distribution of Schedule III CDS is imprisonment at hard labor for not more than 10 years and an optional fine of not more than $15,000. LSA-R.S. 40:968(B).

Prior to imposing sentence, the district court reviewed a presentence | investigation report and recited the defendant’s criminal history, which included prior felony convictions for obtaining a controlled dangerous substance through fraud and for possession of a Schedule II controlled dangerous substance. The court noted that the defendant was a 40-year-old third felony offender who had committed the present offense while on probation. Regarding the defendant’s personal history, the court observed that defendant was not married, did not have children and had maintained a fairly steady employment record since graduating from high school. The court noted the defendant’s history of drug use (marijuana, cocaine and methamphetamine) which started at the age of 13. The court found that the defendant’s criminal conduct while on probation raised the likelihood he would commit another offense in the future, that any lesser sentence would deprecate the seriousness of the offense committed and that the defendant was in need of a custodial environment provided by an institution.

The defendant argues that the district court erred in imposing a consecutive sentence and that he should have received a chance for treatment rather than incarceration. However, the court’s imposition of a 6-year sentence consecutive to any other sentence defendant was serving was consistent with LSA-C.Cr.P. art. 883, which provides that when a person is convicted for offenses that do not arise out of the same act or transaction, the sentences shall be served consecutively unless the court expressly states otherwise. In addition, we note that the court responded to defendant’s expressed problem with drug addiction by recommending that he receive substance abuse treatment during his incarceration.

| Jn this case, the record demonstrates that the district court carefully considered the provisions of Article 894.1 in determining the defendant’s sentence. The court provided comprehensive oral reasons for imposition of a mid-range sentence for the offense of conviction. Given the defendant’s age, prior criminal conduct and the benefit he gained from the plea agreement dismissing another felony drug count, the sentence imposed is neither grossly disproportionate to the seriousness of the offense committed nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say the sentence imposed is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

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

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Earton Lynn SMITH, Appellant.
    Nos. 44,011-KA, 44,012-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Bertha M. Hillman, Thibodaux, for Appellant.
    Earton Lynn Smith, Pro Se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert R. Smith, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

| ,The defendant, Earton Lynn Smith, was charged by bill of information with aggravated burglary of an inhabited dwelling and possession of a firearm by a convicted felon, violations of LSA-R.S. 14:60 and LSA-R.S. 14:95.1. Following a jury trial, the defendant was convicted as charged. He was sentenced to serve 30 years in prison at hard labor for the aggravated burglary conviction and five years at hard labor for the possession of a firearm conviction; the sentences were ordered to be served concurrently. For the reasons set forth herein, we affirm the defendant’s convictions and the sentence imposed for aggravated burglary. However, we vacate the defendant’s sentence for possession of a firearm by a convicted felon and remand this matter to the trial court for resentenc-ing.

FACTS

The defendant and Carisa Coleman began a romantic relationship in October 2005. Ms. Coleman testified that the relationship ended in April 2006 because the defendant was “very jealous and demanding.” In July 2006, Ms. Coleman moved from her residence in Shreveport, Louisiana to her brother’s home on Edwards Street in Bossier City; she did not advise the defendant of her new address.

Ms. Coleman testified that on the evening of July 29, 2006, she was at her Edwards Street home when she heard a knock at the door. As she unlocked the door, the defendant pushed his way inside. Ms. Coleman stated that once the defendant gained entry, he grabbed her by her neck, pushed her into a bedroom, pushed her onto the bed and began slapping her and calling her a “bitch.” Ms. Coleman testified that the defendant told her 12that “if he can’t have me, can’t nobody have me.” Ms. Coleman’s face was seriously bruised in the attack.

Hearing the commotion, Ms. Coleman’s sister-in-law, Tamekia Kennedy, entered the room and ordered the defendant to leave. The defendant pulled a silver and black handgun from his shirt, held it to Ms. Coleman’s head and threatened to kill her. Ms. Kennedy ran from the room and called the Bossier City Police Department (“BCPD”).

Police officers responded quickly, and when the defendant heard the police sirens, he forced Ms. Coleman into the kitchen and then released her. Ms. Coleman ran out of the front of the house as the defendant ran out of the back door.

Officer John Morton of the BCPD was the first officer to arrive at the scene. Officer Morton testified that he spoke briefly to Ms. Coleman, who informed him that the defendant had run out of the back door and was armed with a handgun. Officer Morton stated that he ran to the back of the house and saw the defendant running through the back yard. He testified that he saw the butt of a handgun in the defendant’s hand, so he drew his own weapon, identified himself as a police officer and ordered the defendant to stop. The defendant kept running but turned and looked over his shoulder at the officer. Officer Morton testified that the defendant did not aim the gun in his direction; rather, the defendant leaped over a chain link fence and was not apprehended that night. Officer Morton testified that he clearly saw the suspect’s face and identified the defendant as the suspect in open court.

|sThe defendant was arrested at a later date. It was later discovered that the defendant was a convicted felon with a prior conviction for, among other things, armed robbery. Consequently, the defendant was charged with aggravated burglary and possession of a firearm by a convicted felon.

The trial commenced on November 26, 2007. The trial began with the defendant acting as his own counsel during the beginning of voir dire. Before allowing the defendant to proceed, the court engaged the defendant in a lengthy dialogue with regard to the dangers of self-representation. The court appointed an attorney to assist the defendant and explained to the defendant the voir dire process in detail. After conducting a portion of voir dire himself, the defendant asked that his attorney complete the jury selection process. The court informed the defendant that he could either be represented by counsel or he could represent himself. The defendant initially opted to continue to represent himself. However, as jury selection continued, the defendant chose to allow his appointed attorney to represent him for the remainder of the trial.

At the conclusion of the trial, the defendant was convicted as charged. The trial court denied the defendant’s pro se motion for a new trial. After reviewing a presen-tence investigation report, the court sentenced the defendant to serve 30 years in prison at hard labor for the aggravated burglary conviction and five years at hard labor for the possession of a firearm conviction. The sentences were ordered to be served concurrently. This appeal followed.

^DISCUSSION

Double Jeopardy

The defendant contends his convictions for both aggravated burglary and possession of a firearm by a convicted felon constitute double jeopardy. He argues that he was charged with aggravated burglary because he entered the home with a firearm, yet the possession of the firearm also formed the basis for the felon with a firearm conviction.

The Fifth Amendment to the United States Constitution contains the double jeopardy clause, which provides that no person shall be “subject for the same offenses to be twice put into jeopardy of life or limb.” State v. Brown, 42,188 (La.App. 2d Cir.9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347; State v. Price, 39,582 (La.App. 2d Cir.3/23/05), 899 So.2d 633; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986). The double jeopardy clause was made applicable to the states through the Fourteenth Amendment, and Article 1, Section 15 of the 1974 Louisiana Constitution contains a similar guarantee. Id. The guarantee against double jeopardy provides three central constitutional protections: (1) protection against a second prosecution for the same offense after |sacquittal; (2) protection against a second prosecution for the same offense after conviction; and, (3) protection against multiple punishments for the same offense. State v. Crandell, 2005-1060 (La.3/10/06), 924 So.2d 122; State v. Jefferson, 40,439 (La.App. 2d Cir.1/27/06), 920 So.2d 984.

In the instant case, the defendant argues that he has been subjected to multi-pie punishments for the same course of conduct. Therefore, the analysis begins with determining whether a single offense or multiple offenses were involved. State v. Brown, supra; State v. Price, supra.

An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Blackson, 38,044 (La.App. 2d Cir.1/28/04), 865 So.2d 272. To determine whether two offenses are the same for purposes of double jeopardy analysis, Louisiana employs both the “Blockburger test” and the “same evidence test.” State v. Knowles, 392 So.2d 651 (La.1980); State v. Brown, supra; State v. Price, supra. The “Blockburger test,” established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), states that two offenses are not the same for purposes of double jeopardy if “each crime requires proof of an additional fact which the other does not.” State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223; State v. Blackson, 38,044 (La.App. 2d Cir.1/28/04), 865 So.2d 272. The “same evidence test” is a much broader test for purposes of double jeopardy:

| (¡If the evidence required to support a finding of guilt of one crime would also have supported the conviction of another, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.
⅝ ⅜ ⅜
The “same evidence test” is somewhat broader in concept than Bloekburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.

State v. Price, 899 So.2d at 635, quoting State v. Knowles, supra (internal citations omitted).

Aggravated burglary is the unauthorized entering of any inhabited dwelling ... with the intent to commit a felony or any theft therein, if the offender either (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. LSA-R.S. 14:60. LSA-R.S. 14:95.1 provides in pertinent part: “It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony ... to possess a firearm or carry a concealed weapon.” Thus, to prove the crime of possession of a weapon by a convicted felon pursuant to LSA-R.S. 14:95.1, the state must prove that the defendant: (1) was convicted of a crime of violence as defined by LSA-R.S. 14:2(B) which is a felony, and (2) possessed a firearm or carried a concealed weapon.

Applying the Bloekburger test to the two offenses herein, we find that they are two separate and distinct offenses. The offense of aggravated |7burglary requires, inter alia, proof that the offender entered an inhabited dwelling without authorization and with the intent to commit a felony therein, and either is armed with a dangerous weapon, arms himself with a dangerous weapon after entering, or commits a battery upon a person while inside or while entering or leaving. The offense of possession of a firearm by a convicted felon requires proof that inter alia, the offender was in possession of a firearm and has a qualifying prior felony conviction. Because each of these offenses requires proof of an additional element not required of the other, the offenses of aggravated burglary and possession of a firearm by a convicted felon are two separate offenses under the Bloekburger test.

Also, these are two separate offenses under the “same evidence test” because the evidence necessary to prove the offense of aggravated burglary would not have been sufficient to convict defendant of possession of a firearm by a convicted felon. To obtain a conviction for possession of a firearm by a convicted felon, the state was required to present evidence that the defendant was in possession of a firearm, as well as evidence that he had been convicted of a violent felony. The evidence necessary to prove the offense of possession of a firearm by a convicted felon would not have been sufficient to support a conviction for aggravated burglary, as the state was required to show that the defendant was armed and intended to commit a felony when he forced his way into the victim’s home. Thus, LSA-R.S. 14:60 proscribes behavior above and beyond that of possession of a firearm by a convicted felon as defined by LSA-R.S. 14:95.1. Accordingly, because |8these are two separate offenses, there was no double jeopardy violation in convicting defendant of aggravated burglary and possession of a firearm by a convicted felon. This assignment of error is without merit.

Motion for Mistrial

The defendant also contends the trial court erred in denying his motion for mistrial after the incident in which the bailiff forcibly restrained him. The defendant concedes that a reasoned and ordered reaction by the court to the defendant’s own misconduct cannot support a motion for a mistrial. State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Tyler, 607 So.2d 910 (La.App. 2d Cir.1992), writ denied, 612 So.2d 97 (La.1993). However, the defendant maintains that the reaction by the bailiff to the conduct was excessive under the circumstances and thus prejudiced him in the minds of the jurors.

The record shows that the defendant persistently engaged in disruptive behavior during the trial. The defendant often attempted to argue with his attorney, and his interruptions and arguments included profanity: “No, man, no, no. Look, man, you fucking my case up, man.... You’re fucking my case up, man. I ain’t fixing to spend no rest of my life in jail.... Put the son-of-a-bitch (a letter from Ms. Coleman) in (evidence).” The record also reflects that the defendant was visibly crying during some of the testimony and at several other points during the proceedings.

The trial court cautioned the defendant about his behavior on more than one occasion and repeatedly warned him. The defendant continued to disrupt the proceedings, and early in the trial, the court had him briefly | aremoved from the courtroom early. Later, the prosecutor informed the court that the defendant had apparently been trying to make contact with the jury, an allegation which the defendant denied, and the trial court warned the defendant to be quiet and not to talk to the jury.

The defendant’s misbehavior continued when he took the witness stand. The record reflects that as the defendant moved to the witness stand, one of the bailiffs told the defendant “Don’t be eyeballing that jury. You hear me?” After the conclusion of his direct testimony, the defendant became recalcitrant and refused to leave the witness stand:

Deputy: Come on.
Defendant: Man, I can’t.
* * *
Defendant: You get those letters right there. (Defendant throwing letters at the jury.) Please, y’all. Please, y’all. Here you go. Please, read the letters. Please, somebody—
Deputy: I told you.
Defendant: (Unintelligible).
(DEPUTIES [RESTRAINING] DEFENDANT IN COURTROOM)
Deputy: Get back.
Defendant: Y’all, that’s her address. That’s her address. That’s her address. (Unintelligible). They don’t want y’all to see that. Help me, please, y’all. They don’t want y’all to see that. (Unintelligible). Please, (unintelligible). Please, don’t hurt me. Please.
(DEFENDANT REMOVED FROM COURTROOM)

|inAt that point, defense counsel moved for a mistrial. The trial court spoke with the bailiff and instructed the jury to disregard the disturbance. After the jury was removed from the courtroom, the court explained for the record:

Court: The jury is out. The defendant is out. Let me put on the record that, with the jury out, that the defendant would not get out of the witness chair and then resisted the officer and there was a take down in the courtroom. And that’s what’s not on the verbal record.
Prosecutor: Your Honor, I would also add for the record that he threw some sort of documents at the jury.
Court: Threw some kind of document at the jury, so I told the jury to disregard it.

When the trial recommenced the next day, the court heard the defendant’s motion for a mistrial. Defense counsel argued that the trial was a prejudicial environment for the defendant, citing the defendant’s comments and the incident in which the deputies had to restrain the defendant. The trial court indicated that it did not observe the incident, but it called as a witness the deputy who restrained the defendant during the episode. The deputy stated:

Well, I was there and he was here sitting in the witness stand and y’all had, he had finished with him, the Judge had finished with him. I think y’all were going over for a sidebar or something and the Judge had his back to him. I walked up to him when he started this whining and crying, he was going to do that. I said, “Let’s go,” and he didn’t respond and I said, “Let’s go,” he didn’t respond, and so I grabbed him and helped him get up. That’s when he got up from in here. We got around to there and he threw something over around me to the jury. At that particular time I didn’t know what it was and I took him to the floor and the officers came in and we |ntook him back out there, and I came back into the courtroom.

The deputy further stated:

I looked at his body language. I watched his body language ever since we’ve had this thing going on. He’s been aggravated, irritated, so on and so forth throughout this trial. He was the same way here and that was the reason that I was cautious and really watching him when he did. Most people get up and go on back when they’re relieved. He didn’t do that. So I figured we was fixing to have a problem.

At the court’s direction, the deputy explained for the record that the juror nearest the witness stand was within three or four feet of the stand, and that he was only two feet away when the defendant was moving around the stand. The deputy stated that he was concentrating on controlling the defendant when he forced the defendant to the floor. Another deputy testified that the papers the defendant threw landed in the jury box and one of the jurors retrieved the documents and gave them to the deputy. After hearing arguments, the trial court overruled the defendant’s motion for a mistrial. Defense counsel objected to the court’s ruling.

The trial continued with the defendant undergoing cross-examination while seated at the defense counsel table. The trial court further required two bailiffs to remain near the defendant at all times. During cross-examination, the defendant attempted to engage in argument with the 112prosecutor and was resistant to providing direct answers to many questions. At the conclusion of his testimony, the defendant had another outburst directed toward the jury, repeating that the police “set this up.” Once again, the court ordered that the defendant be removed from the courtroom. The defendant was later returned to the courtroom for further testimony but continued to be disruptive. During the rebuttal case, the prosecutor called Ms. Coleman to the stand, and the defendant became uncontrollable; he repeatedly told Ms. Coleman that he loved her and pleaded with her, “Don’t do this.” The court ordered the defendant to be quiet, saying “I don’t want to take you out.” However, the defendant again refused to comply with the court’s direction. The court stated:

Okay, let me just stop the proceedings. The defendant continues to interrupt the proceedings so that the jury is unable to hear the witness. I’m going to direct the guards to take Mr. Smith, the defendant, to the conference room where he can hear the proceedings but where his voice will not interrupt and disturb the proceedings, and that’s the reason that I have repeatedly warned him that he’s got to be quiet.... (To the deputies: Don’t hurt him, but make sure he can hear the proceedings, please).
(DEFENDANT REMOVED FROM THE COURTROOM).

The testimony concluded without the defendant being present in the courtroom. The defendant was returned to the courtroom for the closing arguments, the jury charge and the reading of the verdicts.

The issue concerning the motion for mistrial is governed by LSA-C.Cr.P. art. 775, which provides, in pertinent part:

* * *
| lsUpon 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.[]

| [4The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. State v. Price, 40,408 (La.App. 2d Cir.12/16/05), 917 So.2d 1201, writ denied, 2006-0156 (La.6/16/06), 929 So.2d 1284.

In State v. Shank, 448 So.2d. 654 (La. 1984), the defendant engaged in disruptive conduct during most of his trial. During voir dire, the defendant asked to go to the bathroom, and while in the hallway, in the presence of prospective jurors, shouted that he was guilty. At one point during voir dire, the defendant held up a sign which read, “I am guilty. I cut head off.” During the trial, the defendant stood up and threatened to escape and kill the members of the jury if he received a life sentence. The defendant also pounded on the defense table in a stabbing motion. When defense counsel was questioning a witness, the defendant jumped across the table and struck counsel, knocked him to the ground and began strangling him. The court upheld the defendant’s conviction, stating:

Now defense counsel argues that his client’s conviction and sentence should be set aside because of the prejudicial impact on the jury caused by his client’s own conduct. It is obvious that to afford a defendant such relief, based on his own conduct, is to give him a tool by which he can effectively prevent forever a final determination of his guilt. Such a result cannot be tolerated if our system of justice is to survive.

| mId. at 657. See also, State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993).

In the instant case, the record is complete in its description of the incident in which the defendant had to be restrained in the presence of the jury. The trial court made a full and complete inquiry into the incident for the record, heard testimony from the bailiff and explained for the record the layout of the courtroom where the incident occurred. The deputy explained his actions and the court apparently concluded that the deputy’s actions were necessary in order to control the defendant who was very near to the jury when he became obstreperous.

After reviewing the record, we find that the trial court did not err in denying the defendant’s motion for a mistrial based on the potential prejudicial impact caused by the defendant’s own disruptive behavior. As the court stated in State v. Shank, supra, “to afford a defendant such relief, based on his own conduct, is to give him a tool by which he can effectively prevent forever a final determination of his guilt.” This assignment of error is without merit.

Pro Se Assignments of Error

The defendant filed a pro se brief in which he contends the trial court erred in denying his motion for new trial and in refusing to allow him to introduce letters from the victim and his cell phone bills into evidence. The defendant argues that the letters and cell phone bills would have provided evidence necessary to impeach the testimony of Ms. Coleman. The defendant also argues that the trial court should not have allowed him to represent himself and that he was prejudiced by being unable to introduce |lfithe letter and cell phone bill evidence due to its late production.

The record reveals that following jury selection, the court considered a motion in limine filed by the state with regard to a series of letters written by Ms. Coleman to the defendant while the defendant was in jail awaiting trial. The defendant intended to introduce the letters into evidence and urged that the letters contained prior inconsistent statements by Ms. Coleman. In the letters, Ms. Coleman repeatedly professed her continued love for the defendant but also expressed anger toward him because of this incident. The state argued that the defense had not timely supplied the letters in discovery. The judge deferred ruling until the trial, and ultimately, the jury heard about the letters in detail.

There is no indication in the record to show why all of the letters and cell phone bills were not supplied by the defendant to the state in a timely manner; however, we find that the defendant suffered no prejudice from any of the evidentiary rulings. In fact, the trial court overruled the state’s motion in limine with regard to some of the letters, and the state and the defendant examined Ms. Coleman at great length about the content and meaning of these letters. Also, even though the phone records were not admitted into evidence, the defendant was able to examine Ms. Coleman about the phone records in an effort to impeach her testimony. The trial court made an exemplary effort to ensure that the defendant had every 117opportunity to cross-examine the witnesses against him and to challenge every facet of the state’s evidence. Accordingly, we find that the trial court did not err in denying the defendant’s motion for new trial. This assignment lacks merit.

ERRORS PATENT

Pursuant to LSA-C.Cr.P. art. 920, we have examined the record and we note the presence of one error patent. The defendant committed the instant offenses in July 2006. At that time, LSA-R.S. 14:95.1(B) provided:

B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

The trial court sentenced the defendant to serve only five years in prison at hard labor for this offense. Also, the court did not levy any fine and did not impose the sentence without benefit of parole, probation or suspension of sentence. The defendant appears to be indigent, so he cannot be imprisoned in lieu of paying a fine. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), and the without benefit of parole, probation or suspension of sentence provision is self-operative. See LSA-R.S. 15:301.1. However, the five-year term is illegally lenient. Although neither the state nor the defendant raised this issue in either the district court or in this court, this court notices illegally lenient sentences on error patent review. State v. Zeigler, 40,673 (La.App. 2d Cir.1/25/06), 920 So.2d 949, | writ denied, 2006-1263 (La.2/1/08), 976 So.2d 708, citing State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, and LSA-C.Cr.P. art. 882. Accordingly, we vacate the defendant’s sentence for possession of a firearm by a convicted felon and remand the case (No. 44,012-KA) for resentencing.

CONCLUSION

For the reasons set forth herein, we affirm the defendant’s convictions for aggravated burglary and possession of a firearm by a convicted felon and his sentence for aggravated burglary. We vacate the defendant’s sentence for possession of a firearm by a convicted felon and remand to the trial court for resentencing.

CONVICTIONS AND SENTENCE FOR AGGRAVATED BURGLARY AFFIRMED; SENTENCE FOR POSSESSION OF A FIREARM BY A CONVICTED FELON VACATED AND REMANDED FOR RESENTENCING.

      . The weapon used in this offense was not recovered.

      . It does not appear that the defendant raised this issue in the district court via a motion to quash, LSA-C.Cr.P. art. 532, or otherwise. Nevertheless, double jeopardy may be raised at any time, but only once, and shall be tried by the court alone. LSA-C.Cr.P. art. 594. Despite the contemporaneous objection requirement of LSA-C.Cr.P. art. 841, a plea of double jeopardy has been considered for the first time on appeal. Compare State v. Austin, 2004-993 (La.App. 5th Cir.3/1/05), 900 So.2d 867, writ denied, 2005-0830 (La. 11/28/05), 916 So.2d 143, citing State v. Gordon, 2000-1013 (La.App. 5th Cir. 11/27/01), 803 So.2d 131, 150, writs denied, 2002-0362 (La. 12/19/02), 833 So.2d 336, 2002-0209 (La.2/14/03), 836 So.2d 134; State v. Walker, 2000-01028 (La.App. 3d Cir. 1/31/01), 778 So.2d 1192, writ denied, 2001-0546 (La.2/1/02), 808 So.2d 336, citing State v. Earnest, 95-1689 (La.App. 3d Cir.5/8/96), 673 So.2d 1341. See also State v. Simpson, 371 So.2d 733 (La.1979). (In the context of a mistrial, 'Tilt is apparent that contemporaneous objection and reservation of a bill are not applicable to a plea of double jeopardy.”)

      . The papers the defendant threw at the jury contained one letter from Ms. Coleman and some cell phone records. The record indicates that the parties had a total of six letters from Ms. Coleman, but only five of the letters are marked for identification and included with the record on appeal as exhibits. The record also indicates that the court formally admitted only two of the letters, Exhibits S-l and S-2, into evidence. A third letter, Exhibit D-2, is shown in the record as received into evidence without the court verbally entering a formal order. Finally, Exhibits D-l and D-3 were noted, in open court, by the clerk as having been entered into evidence.

      . We note that the behavior of the defendant and the response of the bailiff were clearly not remarks or comments within the ambit of LSA-C.Cr.P. arts. 770 and 771, which provide:
      Art. 770. Prejudicial remarks; basis of mistrial
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, 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;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
      Art. 771. Admonition
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the juty, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770. In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      . The defendant attached two of the letters from Ms. Coleman to his pro se brief. Although attachments to appellate briefs do not form a part of the record on appeal, the letters attached by the defendant are identical to Exhibits S-l and S-2 which were admitted into evidence and which were the subject of a substantial amount of Ms. Coleman's testimony at trial.

      . See also State v. Jones, 42,531 (La.App. 2d Cir. 11/7/07), 968 So.2d 1247; State v. Griffin, 41,946 (La.App. 2d Cir.5/2/07), 956 So.2d 199, and State v. Price, 31,368 (La.App. 2d Cir. 10/28/98), 721 So.2d 511.


author: DREW, J. BROWN, CHIEF JUDGE, WILLIAMS, J.,

text:
    Darwin Weymon WART, Plaintiff-Appellee, v. PROGRESSIVE SECURITY INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 43,954-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Cook, Yancey, King & Galloway, APLC by Brian Allen Homza, Robert Kennedy, Jr., Shreveport, for Defendant-Appellant, Travelers Property Casualty Co.
    Nix, Patterson & Roach, LLP by Christopher R. Johnson, for Plaintiff-Appellee, Darwin Weymon Wart.
    Thomas Anthony Bordelon, for Defen-danb-Appellee, State FarmMutual Automobile Insurance Company.
    Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.
   DREW, J.

11 From a partial summary judgment finding that the selection of lower Uninsured/Underinsured Motorist Coverage (UM) was improperly done, Peterson Contractors, Inc., and its vehicular liability insurer, Travelers Property Casualty Company, appealed. The judgment below granted the plaintiffs motion for partial summary judgment while denying Travelers’ motion for partial summary judgment. Both motions concerned the validity of the UM coverage selection in the auto liability policy issued by Travelers to Peterson Contractors. For the following reasons, the judgment is reversed and this difficult matter is remanded for further proceedings.

This dispute arose out of an accident which occurred on July 5, 2006, in which Darwin Weymon Wart sustained serious injuries requiring surgery. Wart stated in brief that his medical bills alone exceed $44,000, that his injuries may result in future surgery, and that he continues to have pain due to his injuries.

The accident allegedly occurred when Charity Myers ran a stop sign and pulled suddenly into the path of the Peterson Contractors truck being driven by Wart in the course and scope of his employment. Progressive, Myers’ insurer, tendered the policy limits of $10,000 and was dismissed from the suit. The worker’s compensation insurer settled its claim with Wart by taking the entire $10,000.

Peterson Contractors had liability insurance with UM motorist coverage applicable to Wart’s injuries. Wart sought to recover damages | ¿under the UM coverage of Peterson Contractor’s policy. The Travelers policy with Peterson Contractors was a single-limit policy of $1,000,000 per accident. The UM form in the Peterson Contractors’ policy contained a UM liability coverage selection of $80,000 per person, while the blank for selecting a lower per-accident UM limit is blank. The UM form is reproduced here as an appendix to this opinion.

DISCUSSION

Citing Duncan v. U.S.A.A. Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544, the trial court found Peterson’s UM rejection form in this case was incomplete and invalid. The trial court stated, “[I]f the form is not perfectly filled out, then you don’t have a proper rejection.”

In Duncan, Justice Kimball explained that a motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The purpose of this favored procedure is to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Appellate courts make a de novo review of summary judgments under the same criteria that govern the district court’s consideration of motions for summary judgment. A summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. In ruling on the cross motions for summary judgment, the court must determine whether either party has ^established there are no genuine issues of material fact and it is entitled to judgment as a matter of law.

Louisiana’s strong public policy favors UM coverage which is mandated by statute. UM coverage is determined not only by policy provisions but also by applicable statutes. UM coverage will be read into the policy unless validly rejected. Because the UM statute is to be liberally construed, the statutory exceptions to coverage must be strictly interpreted. Any exclusion from coverage in an insurance policy must be clear and unmistakable. Therefore, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. The law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment. To reject UM coverage validly, the insured must express in a single document rejection of UM coverage as of a specific date in a particular policy. Regardless of the insured’s intention, a less precise expression is insufficient to effect a valid rejection. See discussion in Duncan, supra.

The Duncan issue was whether the UM statute required that the policy number blank on the Insurance Commissioner’s form had to be filled in to effectuate a valid waiver of UM coverage. The current La. R.S. 22:1295 (formerly La. R.S. 22:680 at the time of this accident) states, in part:

[S]uch rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named |4insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.

In Duncan, supra, at p. 551, Chief Justice Kimball explained:

Before we determine whether the statute requires that all aspects of the form be complied with, let us now consider what the prescribed form entails. Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

The Duncan supreme court rejected the argument that the statute required only those components explicitly mentioned in the statute while others were optional or precatory. The Commissioner of Insurance required all six tasks to be performed.

As stated above, the legislature gave the commissioner of insurance the authority to create a form and stated that “such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance.” Pursuant to that mandate, compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid. The insurer cannot rely on the insured’s intent to waive UM coverage to cure a defect in the form of the waiver. By failing to include the policy number in the blank provided on the form, the insurer failed to effectuate a valid rejection of UM coverage.

Duncan, supra, at p. 553. Justices Victory and Weimer dissented.

|BThe supreme court reiterated its Duncan analysis in Gray v. American National Prop. & Cas. Co., 2007-1670 (La.2/26/08), 977 So.2d 839, 849:

We now hold that compliance with the form prescribed by the Insurance Commissioner involves more than the rote completion of the “six tasks” identified in Duncan by someone at sometime. Instead, we find that, in order for the form to be valid, the six tasks must be completed before the UM selection form is signed by the insured, such that the signature of the insured or the insured’s representative signifies an acceptance of and agreement with all of the information contained on the form. An insurer who is unable to prove that the UM selection form was completed before it was signed by the insured simply cannot meet its burden of proving by clear and unmistakable evidence that the UM selection form is valid.

The trial court ruled that Peterson’s UM coverage decision was not clear enough to comply with controlling jurisprudence. See Duncan v. U.S.A.A., supra, and Carter v. State Farm Mutual Auto. Ins. Co., 2007-1294 (La.10/5/07), 964 So.2d 375. Consequently, the trial court granted Wart’s motion for partial summary judgment and denied Travelers’, holding that no effective downward departure election as to UM coverage occurred. The ruling was certified for immediate appeal. Travelers argued that the trial court erred in finding Peterson’s UM section was invalid with the result that up to the $1,000,000 policy limit was available for recovery by Wart, depending on his proof of damages.

At the time the Peterson policy was purchased, the State of Louisiana allowed policyholders to choose whether to carry uninsured coverage with lower limits than basic liability coverage limits in the policy. The decision to choose lower UM coverage than the policy limits had to be clear and unambiguous. If a purported election for the lesser coverage is unclear, then the full policy limits would apply to UM situations.

UThe problem is that the state had in effect a usable UM coverage form for split-limit policies, but not for single-limit policies, such as Peterson’s Travelers policy at issue here. Accordingly, at the time the representative of Peterson set out to address the issue of UM coverage, there existed no form that fit hand in glove with a single-limit policy. Thus the insured and the agent sought to make an election of lower UM limits on a form that was not designed for a single-limit policy. Travelers should not have to suffer for the state’s failure to supply adequate and appropriate UM coverage forms.

Peterson’s decision to elect lower limits of UM protection per person could not be more clear and unambiguous. Peterson’s representative clearly opted for a UM limitation of $30,000 per person. As no aggregate UM limitation was inserted onto the form, Travelers’ aggregate exposure could have been up to $1 million per accident.

We quite understand the quandary of the trial court in examining this issue. The language in Duncan, sivpra, requires demanding and precise observance of form and procedure. Notwithstanding Wart’s inventive alternative theories as to other possible interpretations of this UM selection, we decline to elevate form over the triad of substance, common sense, and _J^ogic. The UM election of lower limits by Peterson was clear and unambiguous. When the UM election was made, Peterson bought and Travelers sold UM coverage of $30,000 per person, but with $1 million UM coverage per accident. In our view, that is the logical way to interpret the form before this court. We suggest that insurers and policy holders in Louisiana should be assisted by the Insurance Commissioner in supplying UM election forms for both single-limit and split-limit policies.

The judgments of the trial court, granting summary judgment to Wart, and denying summary judgment to Travelers, are reversed. This matter is remanded to the trial court for further action in conformity with this opinion. All costs relative to these matters are assessed against Wart.

DECREE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

BROWN, C.J., dissents with written reasons.

WILLIAMS, J., dissents for the reasons assigned by Brown, C.J. and assigns additional reasons.

BROWN, CHIEF JUDGE,

dissenting.

| Louisiana imposes UM coverage notwithstanding the language in the policy. Louisiana has a strong public policy favoring UM coverage. As stated by the trial court, Duncan v. U.S.A.A. Ins. Co., supra,, requires that a UM rejection form must be fully completed according to statutory requirements set forth in La. R.S. 22:680. In this case, the UM rejection form was not completed. See Gingles v. Dardenne, 08-2995 (La.03/13/09), 4 So.2d 799.

WILLIAMS, J.,

dissenting.

hi respectfully dissent for the reasons assigned by my colleague and write to assign additional reasons:

LSA-R.S. 22:1295 provides, in part:

.... [A] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. (Emphasis added)

In Duncan v. USAA Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544, Chief Justice Kimball stated:

... [T]he legislature gave the commissioner of insurance the authority to create a [UM rejection] form and stated that ‘such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance..’ Pursuant to that mandate, compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid. The insurer cannot rely on the insured’s intent to waive UM coverage to cure a defect in the form of the waiver. By failing to include the policy number in the blank provided on the form, the insurer failed to effectuate a valid rejection of UM coverage.

Duncan, supra, at p. 553. [emphasis added]. See also, Carter v. State Farm Mutual Auto. Ins. Co., 2007-1294 (La.10/5/07), 964 So.2d 375; Gray v. American National Prop. & Cas. Co., 2007-1670 (La.2/26/08), 977 So.2d 839, 849; Gingles v. Dardenne, 08-2995, (La.3/13/09) 4 So.2d 799.

The majority opinion finds that “the language in Duncan, supra, requires demanding and precise observance of form and procediere.” It then concludes “[W]e decline to elevate form over the triad of substance, common sense, and logic.”

|2The purpose of both the legislative mandate and the rulings in the above-cited cases was to abrogate the prior procedure of our courts in interpretating the “logical" intent of the insured in executing UM coverage (and consequently, determining whether any rejection/selection was knowingly made).

Here the majority reverts back to this pre-legislative and pre-Duncan procedure, and concludes that although all of the required spaces on the form at issue were not filled out, because it was reviewing a single-limit policy and the insured “clearly” decided to obtain lower limits per person, the UM rejection form was valid. Obviously, this omission of an amount of coverage per accident could just as readily be interpreted as proof that the insured’s representative did not understand the UM rejection form and thus did not knowingly waive full UM automobile liability coverage.

In an attempt to further justify the validity of the partially completed UM rejection form, the majority then finds that the state had in effect a usable UM coverage rejection form for split-limit policies, but did not have a UM rejection form for single-limit policies, such as the policy at issue. The majority writes:

[Accordingly, at the time the representative of Peterson set out to address the issue of UM coverage, there existed no form that fit glove-in-hand with a single-limit policy. Travelers should not have to suffer for the state’s failure to supply adequate and appropriate UM coverage forms ... We suggest that insurers and policy holders in Louisiana should be assisted by the Insurance Commissioner in supplying Um election[sic] forms for both single-limit and split-limit policies.

|sBecause of our state’s strong public policy in favor of UM coverage, the insurer, who chose to issue automobile liability policies in this state, had the obligation to obtain a UM rejection form from the commissioner of insurance that conformed with the terms of its single-limit policy. For the majority to place this obligation in any part on the public/insured, rather than completely on the insurer, belittles or ignores this state’s strong public policy in favor of uninsured motorist coverage and its steadfast imposition of UM coverage notwithstanding the language of the policy.

I would affirm the trial court’s judgment.

      . Peterson Contractors, Inc., had liability insurance with St. Paul Fire and Marine Insurance Company (subsequently purchased by Travelers, the named defendant) covering Wart's injuries.

      . As opposed to a "split” limit policy. Either type of policy is lawful in Louisiana.

      . Of course, to exceed the $1 million limit would have required at least 34 injured plaintiffs since the per person limit selected was $30,000. We have one injured plaintiff here.

      . In Gingles v. Dardenne, 08-2995, (La.3/13/09), 4 So.2d 799, the supreme court considered the validity of a UM rejection form that did not contain the name of the insurance company. The Insurance Commissioner’s form did not have a blank for the insurer's name but La. Bulletin LIRC 98-01 accompanying the form stated for identification purposes, the company name must be put at the lower left of the form. In a per curiam opinion, the supreme court found the rejection was valid because all the designated spaces on the form were filled out and tire form satisfied all the Duncan requirements, even though the insurer's name was not on the form.

      . The UM rejection form at issue was executed on July 1, 2006 five days before the accident, which occurred on July 6, 2006.

      . In its supplemental brief to this court, the insurer, Travelers Property Casualty Company, notified this court of a revised UM rejection form attached to Commissioner of Insurance bulletin No. 08-02 that now provides an alternative blank for insurance agents and insureds to "clearly” indicate the lower limit for a policy with combined single limits.
      Travelers argues:
      Had the revised form (See Exhibit 3, UM form attached to Bulletin No. 08-02) been available to Peterson Contractors (plaintiff's employer), Peterson Contractors' representative, and Peterson Contractors' insurance agent, the plaintiff would have no perceived ambiguity to exploit in this matter. Had the revised UM form (See Exhibit #, UM form attached to Bulletin No. 08-02) been available, Peterson Contractors' representative would have simply written the number "30,000” in the blank contained in the line:
      '$.each accident/occurrence.'
      This supplemental brief was submitted to our court at least seven days prior to the final distribution of the majority opinion.