author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Edward L. HARRIS, Appellant.
    No. 46,721-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2011.
    Charles L. Kincade, for Appellant.
    Jerry L. Jones, District Attorney, Neal G. Johnson, Brandon B. Brown, Assistant District Attorneys, for Appellee.

      Before BROWN, DREW and MOORE, JJ.
   DREW, J.

|,Edward L. Harris appeals his conviction for malfeasance in office, La. R.S. 14:134, claiming insufficiency of evidence. We affirm in all respects.

After over two decades as the mayor of Richwood, he was defeated for reelection. He set a trap for the new administration: no cooperation; no money and no employees. He refused to provide information or access to the incoming mayor.

During the last eight days of his term, the defendant:

• terminated all employees;

• plundered the town’s general bank account; and

• overdrew the account by $26,000.

He was sentenced to five years at hard labor, suspended, with five years of supervised probation, including restitution of $65,360 for the town.

OVERVIEW

The bill of information charges that the defendant, between April 1 and June 30, 2008, did willfully and unlawfully commit malfeasance in office, contrary to the provisions of La. R.S. 14:134. In its amended bill of particulars, the state outlined four specific instances of malfeasance.

| .TESTIMONY

At trial, the current Richwood Mayor, Steve B. Hunter, testified that:

• he previously served as alderman and mayor pro tempore, prior to taking office as mayor on July 1, 2008;

• the Board of Alderpersons (“BOA”) enacted town ordinances, upon the mayor’s recommendation after review for legality by the town’s attorney;

• as mayor pro tem, he had functioned as liaison between the defendant and the BOA for about four years before taking office as mayor;

• three of the five BOA members were required for a quorum;

• the mayor could veto any items passed by the BOA, but a vote of more than three board members could override the mayor’s veto;

• after his election, he stayed on the BOA before taking office as mayor;

• the BOA received a packet of proposed ordinances before meetings;

• prior to the contested BOA meeting on April 17, 2008, he did not recall receiving a copy of the policy or procedures manual to be amended;

• he was 17 minutes late for the BOA meeting at issue, by which time three ordinances had already been adopted;

| a* he voiced opposition to the just-approved amendment authorizing severance payments;

• he complained of having had no opportunity to review the ordinance regarding vacation and sick leave, and he further noted his opposition to making the may- or’s position full-time;

• he believed the policy regarding nepotism had been proposed because of untrue rumors that his relatives would be hired to help run the town;

• he did not oppose making the mayor’s job full-time, believing that he could serve as mayor, even if it meant leaving his present employment;

• after election, but before taking office, he visited the offices in an unsuccessful attempt to orient himself with day-to-day operations;

• he went to a branch bank used by the town, but was told he would have to visit the downtown branch for the information, which he did not do;

• early on the morning of July 1, 2008, his first day as mayor, he met with Tim Green, the accountant he had chosen as the town’s fiscal officer;

• later that morning, a bank representative advised him that the town’s general account was overdrawn;

• no employees were at work that day, as they had all been terminated;

• he had previously spoken with some of the employees about working with his administration, but he never received any response from them;

• he had not told any town employee that he would replace them;

• his wife voluntarily assisted with answering the town’s telephone;

• Richwood Correctional Center, a vendor of the town, advanced funds which enabled him to meet the town’s immediate financial obligations;

14* as monies from sales taxes and other revenue streams began coming into the town’s coffers, the town’s fiscal emergency ultimately ended;

• a new bank account was set up for the town’s general funds;

• the overdrawn account was untouched by his administration;

• unsuccessful attempts were made to collect the withdrawn monies;

• immediately upon taking office, a recall effort was started;

• on the first try, not enough signatures were gathered;

• the second effort was successful and he resigned on October 17, 2008;

• a special election was called six months after his resignation;

• he ran again and was reelected;

• over two years into his term, the ordinance relating to benefits was still on the books;

• he stopped payment on the checks that had been issued to the town employees because the account was already overdrawn;

• he was not aware of any overdraft protection agreement for the town;

• it was more than two years before he filed a lawsuit against the defendant (who had by then qualified for election as an alderperson) to recover monies improperly paid to the defendant and former employees;

• he did not file suit against any employees who received the payments;

• he believed it was his responsibility to attempt recovery of the funds;

• he acknowledged that, upon resigning after his recall, he received payment for vacation and sick leave under the new policies; and

• he justified receiving the benefits, since the law had not been rescinded.

| ¡¡Shirley Henderson, former fiscal officer for the Town, testified that:

• she worked six years for the town, reporting directly to the defendant;

• her duties included accounts payable and payroll;

• her employment ended on June 24, 2008;

• she identified a June 23, 2008, letter, received from the defendant that terminated her and advised of her eligibility for severance pay;

• she accepted severance pay of $14,587.91 in 11 checks, each check being signed by the defendant on her last day of work;

• she identified a printout of transactions for the town’s general cash fund advance, the document reflecting a negative balance;

• she turned everything associated with her employment over to the defendant on her last day, and did not know who wrote the later checks;

• anyone accessing the system could see that the account was overdrawn;

• she used the amended policy manual to ascertain what each employee was due;

• she was head of the payroll department and her knowledge was limited to only that department (she did not handle accounts receivable);

• Her one conversation with Mayor-Elect Hunter led her to believe that he would be bringing in a “new team,” meaning no job for her;

• Hunter had asked her to return the severance pay, but she knew of no lawsuits filed against her for the return of the monies;

• she was interviewed by the state police in connection with the matter, but she had not been charged with anything; and

• she received two letters from the defendant, each purporting to accept $52,000, one for severance pay and the other for vacation pay.

IfiLeo Kelly testified that:

• he was an alderman with the Town of Richwood for over 19 years;

• he was first elected when the defendant was mayor of the town, and they had a good working relationship, though they occasionally differed;

• he recalled the April 2008 meeting that amended the policy manual;

• the BOA received the proposed ordinances a few days prior to the meeting, but they did not receive a copy of the manual to make comparisons of the current policy and the proposed changes;

• he never saw the policy manual during his 19 years as alderman;

• he voted against the ordinance, which was not discussed;

• the defendant always had employment outside of his mayoral duties;

• the defendant could not have been considered a full-time mayor;

• he knew of no efforts by the defendant to comply with the normal practice of amending the town budget for funding increased expenses;

• only the BOA could enact ordinances, but the mayor had veto power;

• he moved to table the matter for one week for additional time to review the proposed ordinances, but his motion failed; and

• the contested ordinances had not been amended as of the date of trial.

LaWanka Roberts testified that:

• she was the former appointed Chief of Police, and she worked for the town from August 2007 to June 30, 2008;

• she received a letter from the defendant dated June 23, 2008, informing her that she was no longer a part of the administration and that she could expect to receive payment .for her unused vacation;

• she believed she would not be hired by the new administration;

• the defendant gave her the final checks for salary and severance pay;

• the defendant requested that she hold the checks, but she did not believe that would be a good idea, because of the incoming administration;

|7* she deposited the checks into her account but they were returned NSF;

• she felt entitled to severance and vacation pay; and

• she finally received the portion of the monies earned as her regular salary, but she did not pursue the return of the other funds.

Serphronia Miller testified that:

• she was the town’s accounts receivable clerk for over five years, ending June 25, 2008, during which time she reported directly to the defendant;

• she was responsible for taking in the town’s revenue;

• she received notice that she would no longer be employed by the town, but that she would be entitled to severance pay;

• Hunter never approached her regarding her future employment but she believed, because of information disseminated during the election, that she would no longer have a position with the town;

• her checks for severance and unused vacation totaled $6,763.65;

• the checks were deposited and paid in full;

• she and Ms. Henderson were responsible for keeping the town’s accounting system on QuickBooks, the transaction ledger, which clearly showed an overdrawn account as of June 30, 2008;

• she did not have authorization to write checks for the town;

• she felt entitled to the payments received after her employment ended;

• the payments to her were made because of a BOA policy; and

• no one ever requested that she return the money.

Anchitta Perkins testified that:

• over a period of six years, she worked in several positions for the town, including dispatcher, administrative assistant to the chief of police, dispatch supervisor, tax supervisor, and clerk of court;

• her last day of work came at the end of June 2008;

• she accepted severance and unused vacation pay;

Is* she never spoke with Mayor Hunter regarding her future employment;

• she got several checks totaling $4,952.59, all of which were deposited, but only her $625.79 payroll check ultimately cleared;

• she spoke with Hunter and LSP Trooper Almond about the checks;

• the trooper said she might get paid later for the dishonored checks; and

• she felt entitled to the monies because the BOA had enacted changes to the policy and procedure manual.

Jay Nolen, the town attorney, testified that:

• he worked in that capacity from mid-1997 to July 1, 2008, then again from October 2009 through the date of trial;

• when he began his employment with the town, there were no monies to pay him so he agreed to work until such time that he could be paid;

• at the end of the defendant’s term, he was paid a $22,000 lump sum;

• the previous annual leave policy was “use it or lose it;”

• the policy enacted in April of 2008 allowed for accumulation of leave;

• when reviewing the policies, Mr. Nolen noted that he was “concerned” about the severance pay provision and he also had general concerns about the vacation and sick leave policy;

• severance pay cannot be paid to public officials or public employees;

• he told the defendant in a phone call that severance pay was illegal;

• he suggested capping sick and vacation pay at one year;

• when he got the next draft, all severance pay language had been deleted;

• he explained to one alderman why private employees could receive severance payments and public employees could not;

• he did not recall receiving the final documents before the BOA meeting;

13* in discussing the proposed changes with the defendant, he did not discuss whether retroactive payments could be made to town employees for leave accumulated prior to the amended policy being adopted; and

• he admitted not researching the issues presented with the proposed draft ordinances and policy revisions.

Mike Rhymes testified that:

• he is a lawyer serving as human resources director for Monroe;

• different rules apply to handling public versus private funds;

• the Louisiana Constitution prohibits donation of public funds;

• for this reason, there is no authority for the payment of severance pay in the public sector because it is generally thought of as a donation;

• it is permissible to pay public sector employees for accumulated sick leave or vacation time, if done in accordance with a written policy;

• such a policy could not be made to apply retroactively;

• Louisiana jurisprudence has established the parameters for a “non donation” and the analysis turns on the “gratuitous intent” of the parties;

• he was consulted by Gary Jessie for possible representation in obtaining payments for issued checks that had been dishonored by the bank; but

• he ultimately declined to represent Jessie.

Yvette Griffin testified that:

• she had previously been employed by the Town of Richwood from 1992 through June 2008, when the defendant lost his reelection bid;

• she received payment as a part of a severance package that was provided based on a BOA ordinance and policy that had been adopted;

• she felt entitled to the money and she had not been asked to return it;

|in* she had been interviewed by the state police but not arrested;

• she drafted the disputed ordinance and a personnel manual;

• she started working on the manual in 2007;

• she modeled the proposed policy manual changes relative to sick and vacation pay after several other policy manuals, including that of the state, the Monroe police, and others from the Internet;

• she had served the town as bookkeeper, accountant, and city manager;

• from 2000-2006, she was part-time;

• from 1992-1998 and 2007-2008, she was full-time;

• the check she received was signed by the defendant;

• she was unsure of her entitlement to payment for unused vacation time;

• she was not sure how her total severance package was structured, as to whether or not it included sick time, vacation, or other hours;

• she received a letter from the defendant in late June 2008 indicating that she would be terminated, and that a new administration was taking over;

• she had spoken to the incoming mayor, but her status was still unclear;

• she drafted the severance pay provisions on her own;

• the employee turnover rate for the town was high, and the purpose of updating the policy manual relative to sick leave and vacation pay was to provide incentives for employees to stay with the town;

• she was unsure if the defendant had made any suggestions or corrections during the drafting process;

• she did not write ordinances as that was usually done by the defendant, although she would review the drafts for errors and make suggestions;

• she and the defendant thought that they could draft the town’s ordinances as they choose, as long as the policies were approved by the board;

|n* the town attorney, Jay Nolen, was consulted on the policy and she sat in on a conference call with him and the defendant;

• she recalled Nolen saying, “You can do that as long as Ed makes sure it goes before the board,” and she remembered Nolen stating that there should be a cap on the severance pay for budgetary reasons;

• she did not contemplate, when she drafted the revised policy manual, that a large number of employees would leave at one time;

• the town had various accounts that were a part of the general fund, and if the account from which the checks were drawn did not have enough money, the other accounts would be used as overdraft protection;

• one account was dedicated to paying sewer system expenses; and

• she did not become aware of attorney general opinions advising against severance pay until after she had left her employment with the town.

Edward Harris, the defendant, testified that:

• he had been the mayor of Richwood for approximately 24 years;

• the town had been stable and sound financially since 2006;

• revenues from video bingo helped to revive the town financially;

• the process for revisions to the policy manual began in 2005;

• the person assigned that task was laid off due to lack of funding;

• thereafter, Ms. Griffin was charged with drafting the revisions;

• he delegated qualified people to make the revisions;

• he presented the proposed policy changes in draft form to Mr. Nolen;

• the draft included a policy dealing with severance pay;

• Nolen indicated that the policy looked good, but he had some problems with the vacation portion as well as the severance package;

112* concerning vacation pay, Nolen recommended that the amount of pay be limited, and a limitation was included in the final policy draft;

• Nolen did not tell him that any provisions of the proposed policy would be prohibited, but he did indicate some concerns;

• the attorney never gave a legal opinion about the proposed policy;

• had he been told that something was legally prohibited, he would not have included that provision in the policy revisions;

• the BOA was responsible for passing the ordinances or laws;

• the policy revisions could not be made without BOA approval;

• to his knowledge the same policies were still in effect;

• he supported the changes because the town had the monies and it had a good staff who deserved a reward for their service, since he understood that the new Mayor would be terminating the present staff;

• the checks issued to the employees should not have “bounced”;

• there were revenue streams continuously being deposited into the account that should have prevented the checks from being returned NSF, unless someone interfered with the normal process, meaning that the usual direct deposits would not be placed into the account;

• he had not taken a vacation during his entire tenure;

• he believed the payment was consistent with the policy manual;

• he acknowledged that a lawsuit to recover the payments to him and other had been filed against him by the Town of Richwood;

• there had been policy manual revisions between 1993 to 2008 with regard to travel vouchers, meals, sick leave, and annual leave time;

• there were several undedicated accounts from which outstanding checks could have been paid, and when he issued the check on the accounts, it was his intention that they all be paid;

• when these checks were presented, the bank was aware that monies would be transferred into the account within a short period;

|1S* the bank should have covered the checks if the money was not available when the checks were presented;

• had the checks been presented on Tuesday, there was direct funding that would have been available on Wednesday or Thursday at the latest, and it would be anywhere from $15,000 to $5,000;

• in response to the state’s point that the account was overdrawn in excess of $35,000, he stated that sufficient monies would have been deposited into the account on the first three days of the month;

• he had initially told the state police investigator that there was a possibility that the checks would overdraw the checking account, but he did not believe it would necessarily have to happen, depending upon when the checks were presented to the bank for payment; and • the town had overdraft protection which should have covered any shortages, as had occurred in the past.

DISCUSSION

The defendant asserts that the state failed to prove essential elements of the charged offense in that the evidence did not show that he intentionally violated any law or performed any duty in an unlawful manner.

The state responds that it proved that the defendant breached the legal duty imposed upon him under La. Const. Art. VII, § 14, and La. R.S. 42:1461, by committing certain unlawful acts including the issuance of worthless checks in violation of La. R.S. 14:71.

Our law on reviewing sufficiency of evidence is well settled.

114The law governing this particular inquiry is clear.

11sThere is sufficient evidence here to justify this conviction. The four unlawful acts alleged by the state can be summarized as follows:

A. The Scheme

The defendant wanted to create havoc in and paralysis of the town, functionally and financially. The target of the dirty trick was the new mayor; the victims were the citizens of Richwood.

B. Unlawful Severance Checks

The jury chose to believe the testimony of the town’s attorney that (1) he advised the defendant of the illegality of the severance payments; and (2) his pre-BOA meeting documentary package did not include the proposed severance language. Defendant takes refuge in the fact that an ordinance was passed and unchallenged when the checks were cut. It is patently absurd that a mayor with his years of service could believe these checks to be legal.

IjfiC. Issuing Worthless Checks

This is the smoking gun. The Quick-Books ledger and the NSF checks settle this issue beyond doubt. If nothing else, on his last day in office, when the defendant took $52,000 for himself, it was crystal clear that the checking account was over $25,000 in the red, with other obligations coming due.

D. Depleting All Proceeds of the Town

The fiscal manager of the town testified, and the jury apparently believed, that all of the town’s accounts, taken together, could not have covered the checks cut by the defendant in June of 2008.

Taken together, these specific acts prove the criminality of the defendant’s actions. He intended to place his successor in a desperate situation: insufficient checks, no available funds, and no employees. His malice outweighed his solemn oath to support and defend the law.

The state clearly proved that the defendant committed malfeasance.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Included among the improper checks were 26 separate checks payable to himself, totaling $52,000, on June 30, 2008, his last day of office. All of his checks cleared the bank that same day. Other recipients of this unlawful public largesse were not so fortunate, as some checks were never paid.

      . The amended bill of particulars alleged that the defendant:
      A. Engaged in a scheme by promoting and encouraging members of the Richwood Town Council to pass certain illegal resolutions and ordinances designed to directly benefit the Defendant by providing for an unlawful severance payment to the Defendant and/or to otherwise deplete all funds in the bank account for the Town of Richwood;
      B. Did issue and cause to be issued by employees of the Town of Richwood, checks for payment of unlawful severance and annual and sick leave payments to the Defendant and other employees and officials of the Town of Richwood;
      C. Did issue and cause to be issued by employees of the Town of Richwood, checks for payment from Town funds when he knew that there were insufficient funds in the Town’s checking account to cover the amounts of the checks issued;
      D. Did cause all funds belonging to the Town of Richwood to be depleted from the Town's checking account by expenditures which were not contained in the Town’s annual budget.

      .Hunter became mayor after the defendant had served as mayor for 24 years.

      .Hunter was aware of the time of the contested meeting, but indicated that he was late and therefore not certain whether the ordinances had been properly passed. Within 17 minutes, the following occurred, according to the minutes: opening of meeting, prayer, pledge of allegiance, roll call, discussion of topographical surveying, approval of past minutes, then the adoption of three separate ordinances, involving:
      • prohibition against nepotism;
      • requirement that the mayor's job be full-time, subject to criminal penalties; and
      • policy manual changes, including the authorization for severance payments and authorization for payments for unused vacation and sick time, which had previously been on a “use it or lose it” basis.
      In addition, Alderman Leo Kelly testified that he made a motion to table the policy manual changes, which motion failed.

      . On June 24, 2008, the defendant wrote to refuse him the requested information.

      . Alderman Simeon Profit assumed the office of mayor, appointing the defendant as his assistant.

      . And, presumably, since the benefits paid to him were not retroactive.

      . She also wrote checks on that date to Clarissa Holmes, Serphronia Miller, and Anchitta Perkins, as she was informed that these people would not be returning to work.

      .The letter acknowledging receipt of vacation pay was signed; the other was not, leading to an inference that a total of $52,000 was paid, amounting to a full year's salary.

      . Rhymes was accepted by the court as an expert in the field of "employee compensation particularly as applies to government entities.”

      . The checks he took on his last day in office amounted to $52,000, shown as payment for unused vacation time accumulated during his 24 years of service.

      . The alleged overdraft protection raises the question as to why some of the checks were returned NSF.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

        Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App.2d Cir.4/5/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389, citing La. R.S. 14:10(1).
      Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). See also State v. Allen, 41,548 (La.App.2d Cir. 11/15/06), 942 So.2d 1244, writ denied, 2007-0530 (La.12/7/07), 969 So.2d 619.
      The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Hill, supra. In reviewing the correctness of such a determination, the Court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

      . La. R.S. 14:134 Malfeasance in office:
      Malfeasance in office is committed when any public officer or public employee shall:
      (1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
      (2) Intentionally perform any such duty in an unlawful manner; or
      (3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
      Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
      Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.
      Under Louisiana law, prosecutions for malfeasance in office as defined by La. R.S. 14:134(1) and 14:134(2) presuppose the existence of "a statute or provision of the law which delineates an affirmative duty upon the official.” State v. Perez, 464 So.2d 737, 741 (La.1985); State v. Schwehm, 98-1599 (La.3/19/99), 729 So.2d 548. This duty "must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.” State v. Perez, supra. When a public official takes the oath of office contained in La. Const. Art. 10, § 30, swearing to uphold the laws of Louisiana, that oath imposes upon him a specific duty not to obstruct or interfere with the execution of those laws. State v. Perez, supra; State v. Authement, 532 So.2d 869 (La.App. 1st Cir. 1988).
      La. R.S. 14:71, issuing worthless checks, provides in pertinent part:
      A. (l)(a) Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jerry BALDWIN, Appellant.
    No. 46,358-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Douglas L. Harville, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

|! Preserving his right to appeal the denial of his motion to suppress, the defendant, Jerry Baldwin, pled guilty to second offense possession of marijuana, a violation of La. R.S. 40:966(E)(2)(a), and received a sentence of five years at hard labor with credit for time served. Baldwin now appeals the denial of his motion to suppress. Finding no abuse of discretion in the trial court’s ruling, we affirm the defendant’s conviction and sentence.

FACTS

Baldwin was arrested on May 25, 2004, as part of a controlled delivery operation conducted by the Street Level Interdiction Unit of the Shreveport Police Department with the assistance of a “cooperating source” (hereafter referred to as the “informant”), who had contacted Agent Bo Lumas that morning about buying marijuana from Baldwin.

On August 3, 2004, Baldwin appeared with counsel for the preliminary examination hearing. Agent Lumas was called as the first witness. Lumas testified that on the morning of May 25, 2004, he spoke with the informant who said that he could purchase marijuana from Baldwin. The informant explained to Lumas that he had done so in the past and was willing to do so again to assist in arresting Baldwin and seizing the drugs. Lumas stated that plans were made to conduct an operation. The informant contacted Baldwin by phone at 7:00 p.m. and ordered a half pound of marijuana. At 7:35 p.m., the informant called Baldwin again to get his time of arrival at the meeting place, which was to be the Whataburger parking lot at the 2900 block of Market Street. Baldwin advised that he’d be there in a matter of minutes, and he arrived at ^Whataburger at 8:10 p.m. Lumas related that the arrest team pulled behind Baldwin and ordered him from the vehicle. As he exited, the marijuana fell from his lap onto the ground. The marijuana was field tested and determined to weigh 58.8 grams. After being Mirandized, Baldwin admitted the marijuana belonged to him. On cross by counsel for Baldwin, Lumas testified that they did not monitor the calls made by the informant and explained, “We were present when the cooperating source made the phone call. He just relayed the information to us, you know, talked about it over the phone to us.” Lumas stated that neither the stop nor Baldwin’s arrest were videotaped.

After his counsel indicated she had no more questions for Agent Lumas, the defendant stated that he did and began questioning Agent Lumas about the charge against him. The trial judge became concerned that Baldwin did not understand the proceedings. After conferring with counsel off the record, the trial judge ordered a sanity commission to examine Baldwin and did not complete the hearing. Baldwin was released on a bond.

The state filed a bill of information on February 8, 2005, charging Baldwin with possession of marijuana with intent to distribute, a violation of La. R.S. 40:966(A)(1). Neither Baldwin nor counsel appeared in court that day. At the state’s request, the trial judge issued a bench warrant for Baldwin’s arrest and set a bond forfeiture hearing. Later, the trial judge ordered the bond forfeited. After several more continuances, a second sanity commission was appointed on June 16, 2007. The sanity hearing was |3eventually submitted on the reports filed, and by judgment rendered July 21, 2008, the trial judge found Baldwin incompetent to proceed and committed him to the Feliciana Forensic Facility. At a subsequent sanity hearing on August 17, 2009, Baldwin was found competent to proceed.

On September 17, 2010, Baldwin filed a pro se motion to suppress, which was subsequently adopted by his attorney. Baldwin alleged that at the time the marijuana was seized the police had neither a warrant nor probable cause for a search or arrest. He complained that the police had not corroborated information provided by the confidential informant and did not witness him engaged in any criminal activity inasmuch as his actions in arriving at the Whataburger were consistent with innocent activity. As such, he argued that both the marijuana and his statement admitting it was his should be suppressed.

Baldwin’s case came up for trial on September 27, 2010. Baldwin represented himself but had the assistance of “standby” counsel appointed by the court. The state related to the trial judge that it had made two plea offers to Baldwin, either of which would provide him with a time served sentence. Baldwin refused to plead to possession with intent to distribute, but he was willing to plead to second offense possession with the maximum sentence of five years, provided he was given a hearing on his motion to suppress and afforded the opportunity to appeal in the event of a denial of his motion.

In arguing for a hearing on his motion to suppress, Baldwin asserted that the police reports related two versions of what had occurred. He l4asserted that a report signed by an Agent Recchia gave the correct version. Recchia’s report states that he observed an agent make contact with Baldwin and take him to the ground to pat him down for weapons. The report goes on to state, “As Baldwin was rolled to his side I observed a clear bag containing green vegetable material. Baldwin was assisted to his feet and the bag of suspected marijuana fell to the ground from his waistband.” A separate unsigned police report, which Baldwin claims is incorrect, states that the officers had Baldwin exit his vehicle and ordered him to the ground and that the marijuana fell to the ground as Baldwin exited his vehicle. This report corresponds with the testimony of Agent Lumas at the preliminary examination hearing.

After further discussion, Baldwin agreed to consider that his motion to suppress had been heard based on his stipulations to the testimony of Agent Lumas from the preliminary examination hearing and the police reports, particularly the one signed by Agent Recchia. Baldwin refused to stipulate to the unsigned report, and the trial judge stated it would not be considered. Baldwin also testified. Baldwin stated that the officers physically removed him from his car by grabbing him, pulling him out of the car, taking him to the ground, and handcuffing him behind his back. He admitted that the marijuana fell from his waistband as they stood him up from the ground. On cross, he also admitted that he had tucked the marijuana into his waistband and brought it to the Whatabur-ger. He claimed he went there to eat and explained that he lived close by and went to Whataburger almost daily. He also claimed that the marijuana was his for | Bsmoking, and he denied speaking with anyone that day or even in his life about selling marijuana. However, he admitted to a prior conviction for marijuana possession, numerous marijuana-related arrests in Texas, and a prior manslaughter conviction.

Based on the evidence entered by stipulation and Baldwin’s testimony, the trial judge denied the motion to suppress.

After the state amended the bill of information to the charge of second offense possession of marijuana, the trial judge Boykinized Baldwin, who pled guilty while reserving his right to appeal the denial of the motion to suppress. Pursuant to the plea agreement, the trial judge sentenced Baldwin to five years at hard labor, with credit for time served. Baldwin now appeals.

DISCUSSION

On a motion to suppress, the defendant bears the burden of proving the ground of his motion, but the burden is on the state to prove the admissibility of a purported confession or evidence seized without a warrant. La. C. Cr. P. art. 703(D). A trial court’s decision relative to suppression of evidence is afforded great weight and will not be set aside absent an abuse of that discretion. State v. Wells, 2008-2262 (La.7/6/10), 45 So.3d 577.

Baldwin asserts that the trial court erred in denying his motion to suppress and that the state did not prove the officers had probable cause to justify their warrantless search and seizure. He complains that the state failed to call either Agent Lumas or Agent Recchia to resolve the | ficontradictions between Recchia’s report and Lumas’s testimony and that the trial court ignored evidence that he was subjected to a pat down search when the officers had no reasonable basis to believe he was armed and dangerous.

The search and arrest of Baldwin were conducted without a warrant. A search conducted without a warrant is per se unreasonable with there existing only a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Raheem, 464 So.2d 293 (La.1985); State v. Lumpkin, 2001-1721 (La.App. 1st Cir.3/28/02), 813 So.2d 640, writ denied, 2002-1124 (La.9/26/03), 854 So.2d 342. A search incident to a lawful arrest is one such established exception. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Hargrove, 535 So.2d 497 (La.App. 2d Cir.1988). However, an incident search may not precede an arrest and serve as part of the justification for the arrest. State v. Sherman, 2005-0779 (La.4/4/06), 931 So.2d 286, citing Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968). Where probable cause does not exist until after the search, the search cannot be justified as incident to a lawful arrest. Id.

However, if an arrest was justified before the search, it is not unreasonable for the search to be made before the arrest rather than after. State v. Melton, 412 So.2d 1065 (La.1982). In fact, if probable cause to arrest exists before the search, then a search incident to arrest that is conducted immediately before the arrest is valid. State v. Sheiinan, supra. |7In such cases, it is essential that the arrest is made “substantially contemporaneous” with the search. Id.

An arrest occurs when circumstances indicate an intent to effect an extended restraint on the liberty of the person, rather than at the precise time an officer informs that person that he is under arrest. State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Raheem, supra. See also La. C. Cr. P. art. 201.

Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Davis, 357 So.2d 519 (La.1978); State v. Raheem, supra; State v. Hargrove, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average persons, particularly average police officers, can be expected to act. State v. Ruffin, 448 So.2d 1274 (La.1984).

Information received from a confidential informant may provide probable cause for an arrest as long as the basis for the information and the informant’s reliability, when examined under the totality of the circumstances, are established. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Hargrove, supra. The informant’s veracity, reliability, and basis of knowledge, while no longer controlling, remain relevant factors in the totality of the circumstances examination. 1 Illinois v. Gates, supra; State v. Hargrove, supra. Corroboration of the details of an informant’s tip by independent police investigation is also valuable in examining the totality of circumstances. Illinois v. Gates, supra; State v. Raheem, supra; State v. Austin, 04-993 (La.App. 5th Cir.3/1/05), 900 So.2d 867, writ denied, 2005-0830 (La.11/28/05), 916 So.2d 143.

Baldwin stipulated to the testimony of Agent Lumas from the preliminary examination and the report signed by Agent Recchia. The evidence presents two versions of what occurred when Baldwin arrived at the Whataburger and when the marijuana was found. The state did not call any witness to reconcile or explain these differing accounts. Regardless of which version is believed, whether the officers had probable cause to search and/or arrest Baldwin upon his arrival at the Whataburger based on the information provided by the informant is determinative of whether the motion to suppress has merit.

Agent Lumas testified that he spoke with an informant who stated that he had bought marijuana from Baldwin before and was willing to do so again to help make an arrest and enable seizure of the marijuana. Plans were then made for the operation. The informant called Baldwin at 7:00 p.m. to order some marijuana, and then called him again at 7:35 p.m. to find out when he would arrive at the designated location. Baldwin allegedly told the informant that he’d be there in a matter of minutes, and he arrived at around 8:00 p.m. The police did not monitor these calls, and Lumas’s testimony was somewhat contradictory as to whether they were actually present with the informant when he made the calls. First, Lumas stated they [nwere present, but then he stated that the informant “just relayed the information to us, you know, talked about it over the phone to us.” Despite Agent Lumas’s confusing testimony, it remains clear that the informant relayed to the officers the arrangements he made with Baldwin to buy marijuana from him.

Agent Recchia’s report indicates that he was conducting surveillance in an undercover vehicle that was positioned to see the arrival of the target vehicle, which was described as a green Ford Taurus. Thus, it appears the police were looking for the arrival of a specific vehicle driven by Baldwin. According to Recchia’s report, Baldwin arrived at the Whataburger at 8:00 p.m., at which point the undercover vehicle pulled up behind him and Agent Raymond made contact with Baldwin, taking him to the ground and patting him down for weapons.

It is clear from the testimony of Agent Lumas and the report by Agent Recchia that the informant arranged the drug buy and informed the police of the location where he was to meet Baldwin, the time of his arrival and, presumably, the type of vehicle he would be driving. This information was confirmed by the police who observed Baldwin’s green Ford Taurus arrive at the Whataburger at the 2900 block of Market Street within a half hour after the informant last spoke with him.

In State v. Ruffin, supra, the supreme court reversed a conviction upon finding that the trial court erred in denying the defendant’s motion to suppress. A confidential informant, who had provided reliable information in the past, called the police to report that the defendant had a stolen check |10and was looking for someone to help him cash it. He also provided the defendant’s location. The police proceeded to the location and saw the defendant get into a vehicle with two other persons. The police stopped the vehicle, ordered the occupants out, and searched both the vehicle and occupants. They found the stolen check on the defendant. The supreme court rejected the state’s argument that the information provided by the informant gave the police probable cause for the defendant’s warrantless arrest. The fact that the informant had been reliable in the past was not enough under the totality of the circumstances analysis to establish probable cause, particularly where the only corroborated fact was the location of the defendant. The supreme court found that this alone did not establish that the defendant was engaging in illegal activity. The court noted that it was not known how the informant knew that the defendant was at the location, that the check was stolen, or that the defendant was trying to find someone to help him cash it.

The supreme court also determined that motions to suppress should have been granted in State v. Raheem, supra. An informant, who had provided reliable information in the past, told an officer that two females and one male were selling drugs in a known drug dealing area. The informant described the vehicle and related the location where the drug dealers could be found. The police proceeded to the location, saw the vehicle, stopped it, and ordered the occupants out of the car. A search of a purse belonging to one of the occupants uncovered illegal drugs. Bullets and cash were found on another occupant. Under the totality of the | ncircumstances analysis, the supreme court found that there was no probable cause for the defendants’ arrests. The supreme court focused on the fact that the informant did not explain how he knew the defendants were selling drugs. Nothing established that he had personal knowledge of the information provided to the police. The officers’ corroboration of the location and vehicle described by the informant did not indicate that the defendants were engaged in illegal activity, and the officers did not observe them doing anything suspicious.

Unlike the situations in Ruffin, supra, and Raheem, supra, wherein there was no evidence showing how the informant came about the information provided to the police, here the evidence shows that the information provided to the police was based on the informant’s personal knowledge. The informant contacted Agent Lumas, told him that he had bought drugs from Baldwin in the past, and that he was willing to do so again to help make an arrest. The informant arranged to meet with Baldwin for the purpose of buying marijuana from him and informed the police of the location and time of the meeting. Based on the information provided by the informant, which was confirmed by their own surveillance of the arranged meeting area, the police had probable cause upon Baldwin’s arrival at the designated place, at the designated time, and in the target vehicle to conduct a search and to arrest Baldwin based on the reasonable belief that he was there to sell marijuana.

The facts of this matter are similar to those in State v. Hargrove, supra, in which an informant provided information that two males in a black 112Chrysler Cordoba had cocaine and would soon be leaving a specific address. The police went to the location, spotted the vehicle, followed it for a short distance, stopped it, and then searched the occupants by first conducting a pat down and then a more extensive search. A small plastic bag containing cocaine fell to the street from the defendant’s pant leg. In affirming the defendant’s conviction, this court rejected the argument that the trial court erred in denying the motion to suppress. The court noted that the police corroborated the information provided by the informant by proceeding to the address given by the informant and by their observations. The informant provided information of recently observed specific criminal activity by a specific person at a specific location. The informant, who had been reliable in the past, had seen the defendant with the cocaine. While the court noted that it was difficult to determine under the facts whether the search or arrest occurred first, it concluded that under a totality of the circumstances analysis, the officers had probable cause regardless of which occurred first.

We recognize that there is nothing in this record concerning the past reliability of the informant. However, under the totality of the circumstances analysis, reliability of the informant is not alone determinative. The lack of information as to past dealings between the police and the informant must be considered along with the facts that the information he provided to Agent Lumas was based on his personal knowledge and his having arranged the meeting with Baldwin at the designated location and time for a specific criminal purpose. The 1 ^information was corroborated by the officers who arranged surveillance at the designated location and observed the defendant arrive within a short time after the last call made by the informant to Baldwin. The totality of the circumstances of this case convinces us that the officers had probable cause to arrest or to search the defendant, regardless of which came first, and that the trial court did not abuse its great discretion in denying the motion to suppress.

CONCLUSION

For the reasons explained, the motion to suppress was properly denied, and the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Randy Jerome WILSON, Appellant.
    No. 46,708-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.

      Charles R. Scott, District Attorney, Brady D. O’Callaghan, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and DREW, JJ.
   GASKINS, J.

|,The defendant, Randy Jerome Wilson, was originally charged with one count of first degree murder and one count of attempted first degree murder. The state sought the imposition of the death penalty. Pursuant to a plea agreement, the defendant pled guilty to one count of second degree murder, reserving his rights under State v. Crosby, 338 So.2d 584 (La.1976), to appeal any pretrial rulings. The mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence was imposed. Appellate counsel was appointed for the defendant. A brief was filed on the defendant’s behalf making no assignments of error, requesting only an error patent review, and seeking to withdraw as counsel of record.

The defendant filed a pro se brief essentially arguing that his plea bargain had been breached because he entered a plea under State v. Crosby, supra, reserving his appellate rights, and that the tidal court failed to rule on his pro se motions to quash and to suppress statements, precluding his ability to object to any adverse rulings on appeal. For the following reasons, we grant appellate counsel’s motion to withdraw and affirm the defendant’s conviction and sentence.

FACTS

On May 17, 2006, the defendant and Felton Dejuan Dorsey were indicted as codefendants by a Caddo Parish grand jury for the first degree murder of Joe Prock and the attempted first degree murder of Mr. Prock’s ^mother, Bobbie Prock. The state filed notice of its intent to seek the death penalty against the defendant and Dorsey.

The charges were based upon events occurring on April 1, 2006. On that date, the defendant and Dorsey drove in Dorsey’s white Chevrolet Caprice to Mrs. Proek’s home in Greenwood, Louisiana. Armed with a gun, they forced their way into the house, placed Mrs. Prock in a chair with a blanket over her head, and taped her arms to the arms of the chair. The defendant and Dorsey took numerous items from Mrs. Prock’s home and placed them in Dorsey’s car and in Mrs. Prock’s car, a silver Grand Marquis.

When Mrs; Prock’s son, Joe Prock, arrived at the house to check on his mother, he was bound and struck in the head with the gun handle numerous times. Mr. Prock died as a result of his injuries. The defendant and Dorsey set fire to Mr. Prock’s body and Mrs. Prock’s house. They fled, leaving Mrs. Prock and her son in the house. The defendant left the scene in Mrs. Prock’s vehicle and Dorsey drove away in his own car.

Mrs. Prock was able to free herself from the chair and get out of the house. She flagged down a passing motorist who called 911. After an investigation, law enforcement officials discovered evidence indicating that Dorsey and the defendant were the offenders in this matter.

Dorsey gave a statement to law enforcement officials shortly after his arrest. On April 6, 2006, prior to his arrest, the defendant also gave a |3statement to law enforcement officials. The defendant was then arrested and charged along with Dorsey. On September 11, 2006, a preliminary examination was held to perpetuate the testimony of Mrs. Prock. The state noted that Dorsey had two pending motions to suppress, one dealing with identification and the other dealing with evidence. The defendant had only a pending motion in limine dealing with the introduction of pictures at trial. The defendant’s attorney adopted Dorsey’s motions to suppress and stated that he “may be filing a motion to suppress any statements that Mr. Wilson may have made.” It does not appear that counsel filed such a motion to suppress the defendant’s statements.

On April 17, 2007, the trial court conducted a free and voluntary hearing to determine whether the statements made by Dorsey and the defendant were admissible. Detective Leonard Andrew Scog-gins of the Caddo Parish Sheriffs Office testified that he participated in the investigation of the home invasion and homicide in this matter. Detective Scoggins stated that Dorsey was developed as a suspect through witness information and that the defendant was developed as a suspect through phone records and the tracking of a cell phone.

The defendant was located at his residence on April 6, 2006, and asked if he would accompany law enforcement officers to their office to talk about something. The defendant agreed to go with the officers to the detectives’ office where he was interviewed by Detective Scoggins and Sergeant Bill Rehack. The defendant was given his Miranda rights and chose not to sign the waiver of rights form. He stated that he understood his |4rights. He was not under the influence of alcohol or narcotics and was not forced or threatened to give a statement. After being informed of his Miranda rights, the defendant chose to give a statement. He originally said that he was not at the Prock residence on April 1, 2006, but later admitted that he was in the residence with Dorsey. He claimed that Dorsey forced him to participate in the home invasion and robbery. According to the defendant, Dorsey killed Mr. Prock. The defendant admitted helping set fires in Mrs. Prock’s house.

At the conclusion of the hearing, the court determined that the statements made by Dorsey and the defendant were made freely and voluntarily. The court stated, “[T]he Court will, therefore, deny the motion to suppress, or each motion to suppress any statements, although this was a free and voluntary hearing.”

On May 2, 2007, the trial court signed an order severing the prosecution of the defendants.

On June 11, 2008, the defendant filed pro se motions to quash and to suppress his statement. In his motion to quash, the defendant essentially objects that he gave his statement without the presence of counsel. In his motion to suppress his statement, he again alleges that he made his statement without the presence of counsel and that the statement was not properly taken by the state.

The defendant entered into a “Use Immunity Agreement” with the state whereby, in exchange for his truthful testimony against Dorsey, the defendant would avoid capital prosecution, plead guilty to murder, and be ^sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Dorsey’s trial began on May 19, 2009, for one count of first degree murder. The defendant testified against Dorsey, who was convicted as charged and was sentenced to death.

On July 27, 2009, the defendant appeared before the court and, pursuant to the agreement, entered a plea of guilty to one count of second degree murder. In accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the trial court thoroughly advised the defendant of the rights he was waiving by pleading guilty and advised him that the sentence would be life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The charges of first degree murder and attempted first degree murder were dismissed. The factual basis for the plea was set forth by the state and the defendant agreed that the statement of facts was correct. The plea was entered pursuant to State v. Crosby, supra, reserving the defendant’s appellate rights. The trial court accepted the defendant’s guilty plea. The defendant waived the sentencing delay and was ordered to serve the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

Counsel was appointed to represent the defendant on appeal. An Anders brief was filed on his behalf outlining the procedural history of the case and the defendant’s plea agreement. Appellate counsel stated that he carefully scrutinized the record and found no non-frivolous issues which may be raised on appeal, in light of the “agreed to sentence at the time of the plea and the voluntary nature of the defendant’s inculpatory statement |fiwhich is in the record.” Appellate counsel requested that he be allowed to withdraw as counsel of record. He mailed copies of the motion to withdraw with the brief to the defendant. This court held the motion to withdraw in abeyance and allowed the defendant the opportunity to file a pro se brief.

The defendant filed a pro se brief, claiming that his plea agreement was breached or unfulfilled by the state and that the matter should be remanded for performance of the agreement or withdrawal of his guilty plea, which he entered upon the express plea bargain that he would reserve his right to appeal any pretrial decisions made by the trial court. The defendant contends that he cannot obtain such a review due to the trial court’s failure to rule on his motion to quash and motion to suppress. He claims that the trial court’s failure to rule on these motions usurped the sole foundation for his plea and rendered the guilty plea involuntary. The defendant urges that the guilty plea should be vacated due to the trial court’s failure to conduct a hearing on the pending motions. The defendant cites State v. Frazier, 618 So.2d 1217 (La.App. 5th Cir.1993), in support of his argument.

DISCUSSION

Regarding motions to suppress confessions or statements, La. C. Cr. P. art. 703 states in pertinent part:

B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
|7P. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
E. (1) An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.

The state’s burden of proving the admissibility of a confession made by a defendant is governed by La. R.S. 15:451:

Before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.

Motions to quash are governed by La. C. Cr. P. art. 531 et seq. Motions to quash generally deal with procedural or jurisdictional deficiencies in the prosecution. In this case, the defendant’s motion to quash basically urges the same issues raised in his motion to suppress his statement to law enforcement officers.

Pursuant to La. R.S. 15:451, a full hearing was held in the trial court on the free and voluntary nature of the defendant’s statement. The hearing was held prior to the filing of the defendant’s pro se motions attacking the voluntariness of his statement. No subsequent hearing was held on the defendant’s pro se motions to quash and to suppress. Ordinarily, a failure to |shold hearings on such pretrial motions would require a remand of the matter to the trial court for a hearing and a ruling on the motions. See State v. Floyd, 2007-0216 (La.10/5/07), 965 So.2d 865; State v. Walton, 2006-2553 (La.6/1/07), 957 So.2d 133; State v. Guillory, 2006-2544 (La.6/1/07), 957 So.2d 132; State v. Murphy, 09-139 (La.App. 5th Cir.10/27/09), 28 So.3d 388. However, Floyd, Walton, Guillory, and Murphy dealt with issues of suppression of physical evidence that had never been addressed by the trial court, leaving nothing for appellate review and precluding fulfillment of the terms of a Crosby plea, reserving the right to review of pretrial rulings. In the present case, the trial court had conducted a hearing on the admissibility of the defendant’s statement.

The defendant now urges that his statement was made without the presence of counsel. Our review of the transcript of the defendant’s statement shows that the defendant’s right to counsel was not violated in this matter. When the defendant agreed to talk with officers on April 6, 2006, he was not under arrest. However, he was given his Miranda warnings. He was advised of his right to remain silent and his right to counsel. He clearly indicated that he understood his rights, including his right to counsel. The defendant was presented with a waiver of rights form and was told that he did not have to sign it. The officers stated that they just wanted to ask the defendant where he was on the date this offense occurred. The defendant did not invoke his right to counsel or his right to remain |9silent. Without any hesitation, he voluntarily began talking with the officers about his activities on the date in question.

The record shows that the statement was given freely and voluntarily and was not the result of threats, coercion, or promises. The defendant was advised of his Miranda rights and validly waived those rights before giving his statement to law enforcement officers. The defendant’s failure to sign the waiver of rights form does not in and of itself require suppression of his statement. See State v. West, 408 So.2d 1114 (La.1982).

At the free and voluntary hearing, Detective Scoggins testified that the defendant was advised of his Miranda rights prior to questioning, that he understood those rights, and at no point in the interview did he indicate that he wished to have counsel present or wished to remain silent. Our review of the transcript of the defendant’s statement supports the testimony of Detective Scoggins.

Based upon this evidence, which was considered by the trial court at the free and voluntary hearing, the defendant’s statement was given freely and voluntarily after he waived his right to remain silent and his right to counsel. Because the issues raised by the defendant in his motion to quash and motion to suppress have been considered by the trial court and correctly ruled upon, we find that the defendant was not denied review of his claims. His plea agreement has not been breached and there are no grounds upon which to remand this matter to the trial court for further proceedings, or to vacate the defendant’s guilty plea.

ImWe have examined the record for errors patent and have found none.

CONCLUSION

For the reasons stated above, appellate counsel’s motion to withdraw is hereby granted. The conviction and sentence of the defendant, Randy Jerome Wilson, are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . See Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . Felton Dejuan Dorsey was convicted of first degree murder in this matter and was sentenced to death. His conviction and sentence were affirmed by the Louisiana Supreme Court. A full recitation of the facts in this matter can be found in State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603.


text:
    STATE of Louisiana, Appellee v. Bruce Edward ROBINSON, Appellant.
    No. 46,737-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Rehearing Denied Jan. 19, 2012.

      Louisiana Appellate Project, by Carey J. Ellis, III, Bruce Edward Robinson, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason Trevor Brown, Tommy Jan Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

| j Bruce Edward Robinson was convicted of two counts of distribution of cocaine and one count of felony theft. After being adjudicated a fourth felony offender, he was sentenced:

• to life without all benefits for one of the distribution crimes; and

• to a concurrent 20-year sentence, on the theft conviction, without benefit of probation or suspension of sentence.

We cannot find that he was sentenced on the second distribution offense.

We affirm all three convictions. We affirm the two sentences, and remand for sentencing on the second count of distribution.

FACTS

Evidence at trial revealed that on November 7, 2007, the defendant sold two grams of cocaine for $160 to undercover officer Sean McCullough, an employee of the Caddo Parish Sheriffs Office. The defendant was not arrested on that date. Agent McCullough arranged a larger buy on November 13, 2007. The sale on that day was 21 grams of cocaine for $1,000. Once the transaction was complete, Agent McCullough signaled the surveillance team to move in and arrest the defendant. After a short foot pursuit, the defendant was captured and read his Miranda' , rights.

At the police station, the defendant informed Agent McCullough that he did not want to go to jail and wanted to help himself. He agreed to ^arrange a buy from his supplier, Justin Thomas. The defendant was fingerprinted and given $700 in buy funds and a digital recorder.

On that same evening, the defendant contacted Thomas to arrange a buy. An officer drove the defendant to the prearranged location. Instead of completing the transaction, the defendant and Thomas drove off. It took a year for the defendant to be apprehended. The digital recorder and buy funds were never recovered from the defendant.

Following closing arguments, defense counsel moved for a mistrial on the basis that the state indirectly referred to the defendant’s failure to testify. Specifically, defense counsel argued that the state’s reference during closing — that the evidence was “uncontroverted” and that there was no evidence to “refute” what was presented — was an indirect reference to defendant’s Fifth Amendment right not to testify. The trial court denied the motion, ruling that the state’s use of the contested words neither directly nor indirectly referred to the defendant’s failure to testify in his own defense.

After the jury convicted defendant on all counts, the state filed a fourth-felony habitual offender bill of information asserting these previous crimes:

• illegal possession of stolen things (1997);

• felony theft (2001);

• possession with intent to distribute Schedule II, CDS (2005);

• battery of a police officer (2005); and

• possession of Schedule II, CDS (2008).

|3On April 20, 2010, the defendant pled guilty to being a fourth-felony offender. He was subsequently sentenced as outlined before.

DISCUSSION

I. MISTRIAL

Defendant argues that he was entitled to a mistrial on account of the state’s remarks during closing arguments. The state argues that the comments made were not directed at the defendant’s failure to testify. The state insists that the comments were directed at defendant’s failure to present contrary evidence to the state’s fingerprint expert.

Our law on the review of denial of mistrials is well settled.

This is the contested portion of the prosecutor’s closing argument:

[,tMR. BROWN: Owen McDonnell who has a great many qualifications testified as an expert in this jurisdiction, many other parishes, federal court, he did a fingerprint comparison of this print, that’s the original that was taken on November 13, 2007, to the inked impressions, State Exhibit No. 5, from the defendant here today. This man. (Indicating.) Not anybody else but him. And in his expert opinion, it’s the same person. Well, we know that. It [sic ] uncontroverted. That’s the same person. All the evidence points to him.

Common sense reading of these words compels our agreement with the state on this matter. The defendant, presumably not an expert in fingerprint comparison and analysis, could not have controverted the expert’s testimony.

Defendant also complains about the state’s comment during its rebuttal.

The state concluded its rebuttal by stating that “there has been no evidence other than the argument to refute any of this, just argument, that’s not evidence, ladies and gentlemen.” We also find that these comments cannot be reasonably construed to reference defendant’s decision not to testify.

II. EXCESSIVE SENTENCE

Our law on the review of allegedly excessive sentences is well settled.

| BLa. R.S. 15:529.1(A)(4)(b) mandates a life sentence without benefits for the two distribution convictions. The defendant pled guilty to being a fourth-felony offender, the instant offense was a violation of the Uniform Controlled Dangerous Substances Law (“UCDSL”), and he had a prior conviction of a violation of UCDSL and a crime of violence, battery of a police officer, La. R.S. 14:2(B)(41). Since the statute requires a mandatory life sentence, there was no need for the trial court to review and consider the factors set forth in La. C. Cr. P. art. 894.1. State v. Thomas, 41,734 (La.App.2d Cir.1/24/07), 948 So.2d 1151, writ denied, 2007-0401 (La.10/12/07), 965 So.2d 396.

| (¡For the felony theft conviction, as a fourth-felony offender, the defendant’s penalty exposure was 20 years to life imprisonment. The trial court imposed the minimum sentence allowed by the statute of 20 years at hard labor without the benefit of probation or suspension of sentence, in compliance with La. R.S. 15:529.1(G). Although mandatory minimum sentences are presumed constitutional, the presumption is rebuttable. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. The defendant, however, failed to rebut the presumption that his sentence was constitutional. He did not offer any evidence that his circumstance was exceptional and thus deserving of a downward departure. State v. Dorthey, 623 So.2d 1276 (La.1993).

III. PRO SE ASSIGNMENT OF BAT-SON VIOLATIONS

Our law relative to the review of Batson challenges is well settled.

1 .¡Defendant argues that African-American jurors were targeted by the state and removed because of their race. He contends that the trial court failed to conduct the proper race-neutral inquiry. Defendant further argues that there has been an “abridgment of his appellate rights” because the appellate record does not contain the transcripts of the jury voir dire.

Defendant is correct in that this appellate record does not contain the transcript of the jury voir dire. At the time of the jurisdiction check on July 19, 2011, the record was sufficient to address the assignments of error filed by appellate counsel, despite defense counsel’s motion designating the entire record of the proceedings. Defendant’s pro se assignments of error were not filed until August 22, 2011, and were untimely. Nevertheless, the defendant could have requested the appellate record be supplemented with the jury voir dire transcripts, but he did not.

IsWhile the jury voir dire was not transcribed, the record does contain defense counsel’s Batson objection, belatedly raised just before the free and voluntary hearing. Counsel alleged that all four of the state’s peremptory challenges were African-Americans, and requested to hear the state’s race-neutral reasons. The court replied:

While the entire voir dire transcript is not included in the record, there is a telling excerpt from the transcript of the proceedings on October 22, 2009, reflecting the defense counsel’s Batson challenge and the trial court’s ruling on the issue. Defendant’s attorney alleged that all four of the state’s peremptory challenges were of African-Americans and she requested to hear the state’s race-neutral reasons. The trial court replied:

We are not even getting into race-neutral reasons as there is no pattern. This is so far from a Batson challenge as I have ever seen one. Mr. Spencer Stevens, a black male, is on the jury. Ms. Jane O’Riley, a black female, was not struck by the State, but was struck by the defense. Ms. Monica Alford is a black female on the jury. Out of the first panel, only Mr. Washington was struck by the State, that being a black male. Ms. Carolyn Banks from the first panel was struck by the defense; she is a black female. She was not struck by the State.
On the second panel, Ms. Kendrick, a black female, was struck by the State. On the second panel, Ms. Rashondra Miller Johnson, a black female, is on the jury. Ms. Sharon Reese, a black female, was struck by the defense and not the State. Ms. Kenna Blackshire was struck by the State. And Ms. Natashia Wright, a black female, is on the jury. I do not see any pattern whatsoever of anyone in this case on either side trying to strike anyone of a particular sex or race, and therefore the Batson motion is denied.

Because the trial court found no pattern, i.e., that the defense made a pri-ma facie case that the state based its peremptory challenges on race, the three-step analysis ended at that point. State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583. The trial court’s ruling regarding whether there [9was any discriminatory intent in the state’s peremptory challenges is reviewed with great deference. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The trial court was in the best position to observe the overall voir dire proceedings. We find no error on this issue.

IV. PRO SE ATTACK ON MULTIPLE OFFENDER ADJUDICATION AND SENTENCING

The defendant raises several issues in this pro se assignment of error. First, he argues that the trial court failed to advise him of his Fifth Amendment right to remain silent prior to pleading guilty to the fourth-felony habitual offender bill of information. Second, he argues that his sentence is indeterminate because the trial court sentenced him on only two of his three convictions; specifically, the trial court did not sentence him on one count of distribution of a Schedule II, CDS. Next, he argues that the trial court incorrectly sentenced him on the felony theft conviction to a sentence which denied parole eligibility. Lastly, defendant argues that the trial court erred when it denied his motion to reconsider sentence. In his motion, defendant argued that he should not have been subjected to a mandatory life sentence pursuant to La. R.S. 15:529.1(A)(4)(b) because one of the predicate offenses, battery of a police officer, was not a crime of violence when the instant offenses were committed in 2007.

A. Right to Remain Silent

La. R.S. 15:529.1(D)(l)(a) requires that a defendant be advised of the specific allegations contained in the multiple offender bill of information and his right to a formal hearing. Implicit in that requirement is the |inrequirement that the defendant be advised of his right to remain silent. State v. Mason, 37,486 (La.App.2d Cir.12/10/03), 862 So.2d 1077.

Here, the defendant complains that he was not advised of his right to remain silent prior to pleading guilty to being a fourth-felony offender. Contrary to defendant’s argument, the record reveals the following:

THE COURT: And that you have the right against — and that by pleading guilty, by saying, yes, I am a fourth habitual offender, you’re giving up the right to confront the witnesses as well as to cross-examine those witnesses? You’re giving up the right to that hearing as well as you’re giving up the right against compulsory self-incrimination.
THE DEFENDANT: Yes, sir.
THE COURT: You understand those rights you’re giving up?
THE DEFENDANT: Yes, sir.
THE COURT: And that’s what you want to do, plead guilty to being a fourth habitual offender, reserving your rights regarding dates, time sequences?
THE DEFENDANT: That’s correct.
THE COURT: Okay, so you want to waive the right to a hearing; you want to waive the right to confront the witnesses against you as well as to cross-examine those witnesses?
THE DEFENDANT: Yes.
THE COURT: As well as waive the right against compulsory self-incrimination and admit that you are a fourth felony offender; is that correct, sir?
THE DEFENDANT: Yes, sir.

It is technically true that the trial court did not state “waive your right to remain silent.” The court did, however, specifically ask, more than once, if the defendant want to “give up” or “waive” his right against self-incrimination, which is the equivalent of defendant’s right to remain silent.

B. Remand for Sentencing

The sentencing transcript does not reflect a sentence on the second distribution count. We remand to allow the trial court to do so.

|T1C. Denial of Parole Eligibility

Defendant argues that his felony theft conviction was ordered without the benefit of parole, probation, or suspension of sentence in violation of La. R.S. 15:529.1(G), which provides:

Any sentence imposed under the provisions of this section shall be at hard labor without the benefit of probation or suspension of sentence.

During sentencing, the trial court ordered that “with regard to the felony theft, you are hereby sentenced to 20 years at hard labor, credit for time served. This will run concurrently with the sentence of life without benefit of probation, parole or suspension of sentence.” The trial court later clarified that the 20-year sentence was without the benefit of probation or suspension of sentence. Therefore, contrary to the defendant’s argument, the trial court correctly sentenced the defendant for the felony theft conviction in accordance with La. R.S. 15:529.1(G). There is no error on this point.

D. Denial of Motion to Reconsider Sentence

Defendant argues that battery of a police officer was not one of the enumerated offenses listed under La. R.S. 14:2(B) as a crime of violence at the time he committed the offenses that subjected him to being a fourth-felony offender. He argues that since battery of a police officer was added in 2008, and the instant offenses were committed in 2007, then the battery of an officer conviction could not have been used as a predicate offense of a crime of violence, and his sentence, therefore, was not subject to a mandatory life under La. R.S. 15:529.1(A)(4)(b), which states:

112“Crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.

The statute then sets forth an illustrative list of enumerated crimes of violence. This list of crimes is not an exclusive list. See State v. Smith, 45,430 (La.App.2d Cir.8/11/10), 47 So.3d 553, writ denied, 2010-2384 (La.3/4/11), 58 So.3d 474.

Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty. La. R.S. 14:34.2(A)(1).

Battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33.

The language in La. R.S. 15:529.1(A)(4)(b) provides for a mandatory life sentence of a fourth-felony offender when one of the prior felonies is defined as a crime of violence under La. R.S. 14:2(B); it does not require that the offense be enumerated as a crime of violence. The list of crimes in La. R.S. 14:2(B) is not exclusive. The crime of battery of an officer in 2007 satisfied the definition of a crime of violence. It is of no moment whether or not the crime of battery of a police officer in 2007 was an enumerated crime of violence.

| isDECREE

We affirm all three convictions and the two sentences before us. We remand for sentencing on the second distribution count.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The substance was later determined by Brace Stentz, forensic chemist, to consist of only about five grams of cocaine; the rest was a Vitamin B12 supplement.

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

      . Some of the buy funds were recovered at Justin Thomas’ residence.

      . La. C. Cr. P. art. 770(3), in pertinent part, provides:
      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:
      (3) The failure of the defendant to testify in his own defense.
      The purpose behind La. C. Cr. P. art. 770(3) is to protect the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant did not testify. State v. White, 36,935 (La.App.2d Cir.6/6/03), 850 So.2d 751, writ denied, 2003-2616 (La.5/14/04), 872 So.2d 510, citing State v. Fullilove, 389 So.2d 1282 (La.1980); State v. Mitchell, 2000-1399 (La.2/21/01), 779 So.2d 698.
      When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial shall be granted. However, when the reference to the defendant’s failure to take the stand is not direct, the court "will inquire into the remark’s intended effect on the jury in order to distinguish indirect references to the defendant’s failure to testify from statements that are not about defendant’s failure to testify.” State v. Fullilove, supra. For a court to grant a mistrial, the inference must be plain that the remark was intended to focus the jury's attention on the defendant not testifying. State v. Fullilove, supra; State v. Jackson, 454 So.2d 116 (La.1984); State v. Smith, 433 So.2d 688 (La.1983).
      There are indirect references which are not intended to focus on a defendant not testifying. One instance is when a prosecutor emphasizes that the state’s evidence is unre-butted in a situation where there are other witnesses, other than the defendant, who could have testified on behalf of the defense. Argument to the jury that the state’s presentation of the evidence is uncontroverted does not constitute an impermissible reference to the defendant's failure to testify. State v. Smith, supra.

      . La. R.S. 15:529.1(A), in pertinent part, provides:
      (4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
      (a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
      (b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
      Where there is a mandatory sentence, there is no need for the trial court to justify, under article 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. White, 45,915 (La.App.2d Cir.2/2/11), 58 So.3d 493, writ denied, 2011-0373 (La.6/24/11), 64 So.3d 220. Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Thomas, 41,-734 (La.App.2d Cir. 1/24/07), 948 So.2d 1151, writ denied, 2007-0401 (La.10/12/07), 965 So.2d 396; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Thomas, supra, citing State v. Johnson, 31,448 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653, cert. denied, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).
      Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, supra. In State v. Dorthey, 623 So.2d 1276 (La.1993), the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case.

      . La. R.S. 15:529.1(G) provides: Any sentence imposed under the provisions of this section shall be at hard labor without benefit of probation or suspension of sentence.

      . The use of peremptory challenges based solely on a juror's race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In State v. Draught, 2005-1825 (La.1/17/07), 950 So.2d 583, the proper reviewing process for a Batson claim, as recently described by the Supreme Court, was set forth as follows:
      A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U.S., at 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, if the showing is made, the burden shifts 'to the prosecutor to present a race-neutral explanation for striking the juror in question. Id. at 97-98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Although the prosecutor must present a comprehensible reason, ''[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). This final step involves evaluating "the persuasiveness of the justification” proffered by the prosecutor, but "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834.
      To establish a prima facie showing for a Batson challenge; (1) the objecting party must demonstrate that the challenge was directed at a member of a cognizable group; (2) the objecting party must then show the challenge was peremptory rather than for cause; and (3) finally, the objecting party must show circumstances sufficient to raise an inference that the challenging party struck the venire person on account of being a member of that cognizable group. Price v. Cain, 08-30338 (5th Cir.2/17/09), 560 F.3d 284; State v. Givens, 99-3518, p. 5 (La.1/17/01), 776 So.2d 443, 449. For a Batson challenge to succeed, a racially discriminatory result is not sufficient; instead, the result must be traced to a racially discriminatory purpose. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603, citing Batson v. Kentucky, supra.

      The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire persons, the nuances of questions asked, the racial composition of the ve-ñire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. 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); State v. Myers, 1999-1803 (La.4/11/00), 761 So.2d 498. A reviewing court owes the district judge's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, supra.

      The defendant is entitled to a review of his conviction upon a complete record. La. Const. Art. I, § 19.