author: McClendon, j.

text:
    STATE of Louisiana v. James A. BISHOP.
    No. 2010 KA 1840.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Baton Rouge, LA, for Appellee State of Louisiana.
    Frank Sloan, Covington, LA for Defendant/Appellant.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

^Defendant, James A. Bishop, was charged by indictment with four counts of first degree murder, violations of LSA-R.S. 14:30. Kevin W. Kaigler and Frank N. Knight were charged in the same indictment with the same offenses. Defendant pled not guilty. Subsequently, the indictment was amended to reduce the charges against Knight to accessory after the fact to first degree murder, a violation of LSA-R.S. 14:25 and 14:30, and to add a charge of distribution of cocaine, a violation of LSA-R.S. 40:967, and he pled guilty to those charges. The state elected not to seek the death penalty against defendant and Kaigler in the instant case. After a joint trial by jury, at which time they were represented by separate counsel, defendant and Kaigler were each found guilty as charged on all counts. The trial court subsequently sentenced them each to a term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, on each of their four convictions of first degree murder, to be served concurrently. Defendant now appeals, arguing in two assignments of error that the jury verdicts were invalid because they were not unanimous and that he received ineffective assistance of counsel. For the following reasons, we affirm defendant’s convictions and sentences.

FACTS

On the evening of June 27, 2006, J.A., who was nine years old at the time, and her mother, Victoria, were living in a trailer with Victoria’s sister, Roxanne Agoglia, in Slidell, Louisiana. Roxanne’s flaneé, Eric Perreand, her sixteen-year-old daughter, Erica Agoglia, and Andrew Perreand, Eric’s fifteen-year-old nephew, were also living in the trailer. At that time, Roxanne was involved both in selling and using illegal drugs. In fact, all of the trailer’s occupants, with the exception of J.A., were using illegal drugs.

At approximately 8:15 to 8:30 p.m., J.A. and Andrew were in the living room watching television when there was a knock on the door. Andrew opened | sthe door and admitted two black men, who entered and sat down. Shortly thereafter, J.A. accompanied her mother to the bathroom located at the rear of the trailer off of Roxanne and Eric’s bedroom. The plan was for J.A. and her mother to take a bath, so that J.A. could accompany Victoria to her evening job at a gas station/convenience store. While they were in the bathtub together, with the water running, J.A. heard gunshots. After J.A. brought this to her mother’s attention, they both heard additional gunshots. Victoria turned off the water and hurriedly got herself and J.A. out of the bathtub. After waiting for a period of time without hearing anything, Victoria cracked the bathroom door open and saw Eric slumped on the bed. She removed the cell phone from his pocket, returned to the bathroom, and called 911.

When the police arrived, they discovered all four of the remaining occupants in the trailer dead. There were no signs of a struggle having occurred. Erica was found on the couch in the living room with a single gunshot wound to the head. Andrew was lying nearby on the floor with two gunshot wounds — one to the chest and the other to the head. The bodies of Eric and Roxanne were found in their bedroom. Eric was slumped face down on the bed, with one gunshot wound to his jaw and another to the back of his neck. Next to him was an open tin container that appeared to be empty, except for a few coins. Roxanne was lying on the floor next to a freestanding safe, with a single gunshot wound to her head. There was a key inserted in the lock of the safe. Further, the top of the tin container and a few scattered coins were on the floor near her body. Subsequent testing established that all the bullets were fired from the same gun.

At trial, Knight testified on behalf of the state pursuant to a plea agreement with the state. According to Knight’s testimony, on the evening of |4June 27, 2006, he and Kaigler were with defendant at the latter’s FEMA trailer in Slidell. According to Knight, they all knew each other from the streets, and associated with one another. At approximately 7:00 to 8:00 p.m., the three men proceeded in defendant’s vehicle to Roxanne’s FEMA trailer, in order to collect on a drug debt she allegedly owed Bishop. As they left defendant’s trailer, Knight saw a revolver in the waistband of defendant’s pants. On the drive to Roxanne’s trailer, defendant stated that, if he failed to collect the money, “he would kill the ... [bjitch.” Once at Roxanne’s trailer park, they parked the car behind a trailer. Knight testified he remained in the car, while defendant and Kaigler walked off, cutting in between trailers. A few minutes later, Knight heard four to six gunshots, and defendant and Kaigler ran back to the car. At that time, Knight again saw a gun in defendant’s waistband. The three men then drove to a FEMA trailer in Waveland, Mississippi, where they remained for several hours before returning to Louisiana. At defendant’s suggestion, it was agreed that they should say they had been in Mississippi, if questioned by the police.

NON-UNANIMOUS VERDICTS

In his first assignment of error, defendant contends that the jury verdicts in this case were invalid under the federal and state constitutions, as well as Louisiana law, because they were non-unanimous. A polling of the jurors indicated that defendant was convicted on each count by a vote of eleven to one.

Louisiana Constitution Article I, § 17(A) provides, in pertinent part, that:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.

Louisiana Code of Criminal Procedure article 782 A provides as follows:

Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom |smust concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

In the instant case, defendant was tried pursuant to LSA-R.S. 14:80 C, which was amended by 2007 La. Acts No. 125, § 1, effective August 15, 2007, to provide as follows:

(1) If the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art[.] 782 relative to cases in which punishment may be capital shall apply.
(2) If the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The provisions of C.Cr.P. Art[.] 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply. (Emphasis added.)

Prior to its amendment in 2007, LSA-R.S. 14:30 C merely provided that the penalty for first degree murder was “death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the determination of the jury.” No reference was made to Article 782, and the district attorney was not given the option of seeking a non-capital verdict, which option allows a verdict to be rendered upon the concurrence of ten of twelve jurors under Article 782 A. Hence, if LSA-R.S. 14:80 C(2), as amended by Act 125, is applicable in this case, the non-unanimous verdicts rendered by the jury were proper under Article 782 A, since the state did not seek capital verdicts herein.

The amendment to LSA-R.S. 14:30 C became effective after the instant offenses were committed, but prior to defendant’s indictment and trial. Defendant contends there is no basis for retroactively applying the amendment to the instant case. This issue was raised in the trial court by a motion for new trial filed by defendant, which the trial court denied on the basis that the amendment to LSA-R.S. 14:30 C was procedural in nature and, therefore, | firetroactive to the instant matter. Appellate courts may review the grant or denial of a motion for new trial only for errors of law. See LSA-C.Cr.P. art. 858.

In State v. Goodley, 398 So.2d 1068, 1070-71 (La.1981), the supreme court held that a unanimous verdict was required to convict a defendant charged with a capital offense, even when the state stipulated that it would not seek the death penalty. In reaching this decision, the Supreme Court stated:

The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict. As stated above, La. Const, of 1974 Art. I, § 17 and C.Cr.P. art. 782 provide in pertinent part:
“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.” Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.

Goodley, 398 So.2d at 1070-71. (Emphasis added.)

As noted by the supreme court, at the time that Goodley was decided, no authority existed for the state to alter the legislative scheme established with regard to capital cases. However, by the 2007 amendment to LSA-R.S. 14:30 C(2), the legislature created a hybrid capital/non-capital statute that granted authority to the state to designate a case as non-capital by opting to forego the possibility of a death penalty. Therefore, since LSA-R.S. 14:30 C(2), as amended, created the “attendant provision” referred to in Goodley that granted discretion to the state to prosecute first degree murder as a non-capital 17offense, unanimous verdicts would not be required herein if the amended statute can be applied retroactively to this case.

In State v. Washington, 02-2196, pp. 2-3 (La.9/13/02), 830 So.2d 288, 290 (per curiam), the Louisiana Supreme Court delineated the two-fold inquiry necessary to determine whether a law should be applied retroactively as follows:

First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends.... [T]he second step is to classify the enactment as either substantive, procedural or interpretive.
Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws.
Laws that are procedural or interpretive may be applied retroactively. (Citations omitted.)

. In the instant case, Act 125 contains nothing to indicate legislative intent with regard to its application. Therefore, the next step is to classify the legislation as substantive, procedural or interpretative. The supreme court has consistently held that changes in procedural rules made after the commission of the offense, but before the commencement of trial, may be employed at a defendant’s trial. See State v. Loyd, 96-1805, pp. 12-13 (La.2/13/97), 689 So.2d 1321, 1328; State v. Sepulvado, 342 So.2d 630, 635-36 (La.1977), abrogated on other grounds, State ex rel. Olivieri v. State, 00-0172, 00-1767 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001) and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001).

1rA review of the reported jurisprudence reveals no cases addressing the retroactivity of the amendment to LSA-R.S. 14:30 C with respect to the non-unanimous verdict issue. However, in State v. Lewis, 09-846, pp. 6-11 (La.App. 3 Cir. 4/7/10), 33 So.3d 1046, 1053-55, writ denied, 10-0967 (La.11/24/10), 50 So.3d 825, the third circuit considered the retroactive application of this exact amendment in a slightly different context. In Lewis, the defendant was tried after the effective date of the 2007 amendment to LSA-R.S. 14:30 C on two counts of first degree murder that occurred in 2004. After the state indicated it would not seek the death penalty, the defendant waived his right to a jury trial. On appeal, the defendant argued the waiver of a jury trial was invalid because his case must be treated as a capital case, regardless of whether the state was seeking the death penalty. Under LSA-Const. Art. I, § 17(A) and LSA-C.Cr.P. arts. 780 A and 782 B, a defendant may not waive his right to a jury trial in a capital case. The third circuit rejected the defendant’s contention, concluding that the 2007 amendment to LSA-R.S. 14:30 C, together with the state’s decision not to seek the death penalty, removed the case from the realm of capital cases, thereby allowing a valid waiver of the defendant’s right to a jury trial. Lewis, 09-846 at p. 11, 33 So.3d at 1055. Thus, the third circuit retroactively applied the amendment to LSA-R.S. 14:30 C to the defendant’s trial, even though it was not in effect when the offenses were committed.

Further, in State v. Kinsel, 00-1610, p. 12 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, 539, writ denied, 01-1230 (La.3/28/02), 812 So.2d 641, the fifth circuit considered a 1997 amendment to LSA-R.S. 14:42 D that created a hybrid capital/non-capital statute for the crime of aggravated rape of a child below the age of twelve. Under the amendment, if the state opted to seek a penalty of life imprisonment, rather than a capital verdict, only ten of twelve jurors were required to concur in the verdict. Even though the state did not seek the death penalty in Kinsel, the defendant therein argued a unanimous verdict | ¡^nevertheless was required, since the 1997 amendment was not in effect when the crime was committed. The fifth circuit rejected this argument, explaining its holding as follows:

Although LSA-R.S. 14:42 D(2)(b) was not in effect at the time that defendant committed the alleged offenses, it had been enacted prior to the time of defendant’s trial. We find this procedural provision applicable to the instant case. As a result, the provisions of C.Cr.P. art. 782 were properly triggered when the state did not seek the death penalty. Accordingly, we find that the trial court did not err in failing to require a unanimous verdict for defendant’s aggravated rape conviction.

Kinsel, 00-1610 at pp. 12-13, 783 So.2d at 539. We agree with this rationale.

The requirement of a unanimous verdict in capital cases is a procedural rule. See Goodley, 398 So.2d at 1070. Moreover, the supreme court has held that changes in procedural rules effective after the commission of the offense, but before the commencement of trial, may be applied at a defendant’s trial. See Loyd, 96-1805 at pp. 12-13, 689 So.2d at 1328; Sepulvado, 342 So.2d at 635-36. Accordingly, based on our review of the law and jurisprudence, particularly the conclusions reached by the courts in Lewis and Kinsel, we find that the amendment to La. R.S. 14:30 C granting the state the option of not seeking a capital verdict in first degree murder cases was procedural in nature and, therefore, retroactive to the trial of the instant matter. See Loyd, 96-1805 at pp. 12-13, 689 So.2d at 1328; Sepulvado, 342 So.2d at 635-36.

We are aware that the third circuit reached an apparently contrary conclusion in State v. Breaux, 08-1061 (La.App. 3 Cir. 4/1/09), 6 So.3d 982. In Breaux, the third circuit held that the procedural rules applicable to capital cases, including unanimous verdicts, were required in a situation where the death penalty was applicable when most of the offenses were committed, even though the death penalty could not be carried out at the time of the defendant’s | in2008 trial because of rulings of the United States Supreme Court. See Breaux, 08-1061 at p. 8, 6 So.3d at 988. However, because we find the analysis expressed in the Lewis and Kinsel cases more persuasive, the holding of Breaux does not affect the conclusion we have reached in the present case. Significantly, in Lewis, the third circuit apparently did not find its earlier decision in Breaux to be any impediment to its conclusion that the amendment to LSA-R.S. 14:30 C should be applied retroactively.

Defendant additionally argues that the provisions of LSA-Const. Art. 1, § 17(A) and LSA-C.Cr.P. art. 782 A allowing non-unanimous jury verdicts in felony cases violate the Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment to the United States Constitution. Initially, we note that this argument has been repeatedly rejected by the courts of this state. See State v. Bertrand, 08-2215, p. 6 (La.3/17/09), 6 So.3d 738, 742; State v. Smith, 06-0820, p. 24 (La.App. 1 Cir. 12/28/06), 952 So.2d 1, 16, writ denied, 07-0211 (La.9/28/07), 964 So.2d 352. Nevertheless, defendant urges reconsideration of this issue in light of recent pronouncements of the United States Supreme Court, particularly in McDonald v. City of Chicago, — U.S. -, 130 S.Ct. 3020, 3035, 177 L.Ed.2d 894 (2010), that he claims call into serious question the holding of Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), that non-unanimous verdicts in state felony prosecutions are permissible under the Sixth Amendment. In support of this contention, he quotes language from McDonald to the effect that the “incorporated Bill of Rights protections ‘are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment’” and “[t]he relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle.” McDonald, 130 S.Ct. at 3035, 3048. Thus, defendant argues the issue of jury unanimity is ripe for reconsideration.

| t defendant’s contention is meritless. In McDonald, the Supreme Court recognized that most, but not all, of the protections of the Bill of Rights have been incorporated to the states through the Fourteenth Amendment. McDonald, 130 S.Ct. at 3034-35. However, citing Apo-daca in support of the proposition, the Supreme Court specifically stated in McDonald that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. McDonald, 130 S.Ct. at 3035 n. 14. Therefore, contrary to defendant’s assertions, in McDonald the Supreme Court actually reaffirmed the holding of Apodaca, rather than calling it into question.

Defendant further argues that LSA-R.S. 14:30 C, as amended by Act 125, is unconstitutional because it conflicts with the requirement of LSA-Const. Art. I, § 17(A) that there be a unanimous verdict for crimes that carry the death penalty, even if the death penalty is not sought by the state. We disagree. Based on our review of the law and the jurisprudence, we conclude there is no conflict between LSA-R.S. 14:30 C and LSA-Const. Art. I, § 17(A). Prior to the 2007 amendment to LSA-R.S. 14:30 C, first degree murder was a capital offense. As such, prosecutions for first degree murder prior to the amendment were governed by Goodley and required a unanimous verdict, regardless of whether the state elected to pursue the death sentence. However, the 2007 amendment to LSA-R.S. 14:30 C created a hybrid capital/non-capital first degree murder statute. By enacting this amendment, the legislature clearly signaled its intention that the state should have the authority to determine the mode of trial to be utilized on a charge of first degree murder, by electing either to seek a | ^capital or a non-capital verdict. Thus, as amended, LSA-R.S. 14:30 C(2) now allows for a non-capital first degree murder charge when the state so elects. This legislative amendment in no way violates LSA-Const. Art. I, § 17(A). Rather, the amendment reflects an attempt by the legislature to avoid violating the constitution and to modify the penalty provisions of the first degree murder statute in order to avoid conflict with the holding in Goodley. See Mizell, 05-2516 at pp. 6-7, 938 So.2d at 716 (wherein this Court dealt with a similar issue with respect to the 1997 amendment to LSA-R.S. 14:42 creating a hybrid capital/non-capital aggravated rape statute). Contrary to defendant’s assertions, the legislative amendment to LSA-R.S. 14:30 C does not deprive defendant of the constitutional requirement of a unanimous verdict. A unanimous verdict is still required when the state opts to prosecute under LSA-R.S. 14:30 C(l), the capital verdict portion of the hybrid statute. By enacting LSA-R.S. 14:30 C(2), the non-capital portion of the hybrid statute, the legislature created the “attendant provision” referred to in Goodley, by which the state is vested with the authority to pursue a violation of the first degree murder statute as a non-capital life imprisonment offense. See Mizell, 05-2516 at p. 7, 938 So.2d at 716.

Once the district attorney opted to prosecute the instant offenses as non-capital life imprisonment offenses, capital punishment was no longer a possibility. Accordingly, the portion of LSA-Const. Art. I, § 17(A) pertaining to a criminal case in which the punishment “may be capital” was no longer applicable. Instead, the provisions of LSA-C.Cr.P. art. 782 A relative to cases in which punishment is necessarily confinement at hard labor were triggered. See Mizell, 05-2516 at pp. 7-8, 938 So.2d at 716-17. Under LSA-Const. Art. I, § 17(A) and LSA-C.Cr.P. art. 782 A, in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. As we noted in Mizell, 05-2516 at p. 8, 938 So.2d at 717, allowing the state the discretion to elect the manner in which it will prosecute an offense does not infringe upon protections guaranteed by the constitution, because what the legislature gives, it may take away. Accordingly, |1sLSA-R.S. 14:30 C, as amended by Act 125, does not conflict with the provisions of LSA-Const. Art. I, § 17(A).

For the above reasons, the trial court did not err in denying defendant’s motion for new trial that was based on his claim that the non-unanimous verdicts were invalid. This assignment of error lacks merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second assignment of error, defendant argues that his convictions should be reversed because he received ineffective assistance of counsel. Specifically, he contends that his attorney failed to exercise due diligence in preparing and presenting his defense, since he failed to call three fact/impeachment witnesses at trial whose testimony would have undermined the credibility of the state’s most important witness, Frank Knight. At trial, the defense attacked Knight’s credibility on several grounds, including his plea bargain with the state, his prior criminal history, several inconsistencies in the statements he gave the police, and his admission that he initially lied to the police regarding certain details of the offenses. Defendant contends the additional witnesses, who would have undermined Knight’s credibility, were crucial to his defense, since Knight’s testimony was the strongest evidence presented by the state — there was no other eyewitness testimony or physical evidence connecting defendant to the crimes.

At the hearing on the motion for new trial, which was based in part on a claim of newly discovered evidence consisting of the testimony of several witnesses, the defense called Frank Knight’s mother, Linda Knight, and Glen Willis, a former cellmate of Frank Knight, to testify. Ms. Knight testified that her son never mentioned the names of any co-perpetrators and never told her that he participated in the murders. She testified she learned of his involvement in the murders from his former cellmate, Willis.

Willis testified that he was a cellmate of Knight at the St. Tammany Parish Jail during the time that Knight was meeting with the police. He claims that he was close to Knight during this period, and that Knight confided in him a lot. |) 4 Accor ding to Willis, Knight initially named two individuals other than defendant and Kaigler as his co-perpetrators, but changed his story several times regarding the number of participants, the identity of the participants, and other details of the murders as he talked to the police. Willis testified that Knight was trying to make a deal so that he could get out of jail, “[bjeeause he was afraid things was going to unravel on him.”

Additionally, the defense proffered a summary of the testimony that Wanda Bishop, defendant’s wife, would have given if called to testify. According to the proffer, she would have testified that defendant was living with a white woman in Mississippi on the date the murders were committed.

In denying the motion for new trial, the trial court noted that the names of the witnesses in question were referenced in a police report provided to the defense through discovery, and, therefore, were not “newly discovered.” In its oral reasons denying the motion, the trial court stated that the evidence could have been discovered by defendant by the exercise of due diligence prior to trial. In light of the trial court’s remarks, defendant argues he was denied the benefit of crucial witnesses at trial, who would have undermined Knight’s credibility, because his defense counsel failed to exercise due diligence.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test for review of a convicted defendant’s claim that his counsel’s assistance was so defective as to require reversal of a conviction. First, the defendant must show that counsel’s performance is deficient. Second, the defendant must show that this deficient performance prejudiced the defense. A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted, rather than on appeal. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La.App. 1 Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132.

Initially, we note that defendant’s allegations in this case cannot be reviewed on appeal, because the record does not disclose sufficient evidence to demonstrate whether or not they contain merit. These allegations involve the production of evidence by the defense, and whether or not to call certain witnesses for the defense. Generally, decisions relating to investigation, preparation, and strategy can not be reviewed on appeal, because the record contains insufficient information. See Lockhart, 629 So.2d at 1208; State v. Martin, 607 So.2d 775, 788 (La.App. 1 Cir. 1992).

In the instant case, the record contains the substance of the testimony of the witnesses that defendant contends should have been called to testify at trial. Further, it also contains defense counsel’s explanation that he did not call defendant’s wife to testify at trial because he did not want to take the risk that she would have to testify on cross-examination that the reason she left defendant was because of his dealings with drugs and the people with whom he was associating. Defense counsel did not want this information to come out during trial. However, the record does not contain defense counsel’s response to the claims of ineffective assistance of counsel with respect to the other witnesses referenced by defendant. Therefore, defendant’s claims cannot be fully evaluated upon the record before us on appeal. On application for post-conviction relief, the quality of defense counsel’s assistance can be fully developed and explored. See State v. Prudholm, 446 So.2d 729, 737 (La.1984).

For the above reasons, defendant’s claim of ineffective assistance of counsel is not subject to appellate review in the instant case.

REVIEW FOR ERROR

| ir,Upon routine review of the record for error pursuant to LSA-C.Cr.P. art. 920(2), we discovered that the trial court sentenced defendant without waiting at least twenty-four hours after denying his second supplemental motion for new trial, as required by LSA-C.Cr.P. art. 873. In cases where the defendant either contests his sentence or complains of the absence of a 24-hour delay, the failure of the trial court to observe the statutory delay or to obtain a waiver thereof normally would require the sentence to be vacated and the case remanded for resentencing. See State v. Augustine, 555 So.2d 1331, 1333-35 (La.1990). However, in the instant case, defendant neither contests his sentences nor complains about the absence of the 24-hour delay. Moreover, Louisiana jurisprudence has recognized exceptions to the requirement that a sentence be vacated in cases where the failure to observe the statutory delay is harmless. One instance in which the trial court’s failure to observe the 24-hour delay has been found to be harmless is where the sentence imposed is mandatory in nature. See State v. Seals, 95-0305, p. 17 (La.11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). Thus, since the life sentences imposed in the instant case were mandatory under LSA-R.S. 14:30 C(2), the trial court’s failure to observe the statutory 24-hour delay was harmless error.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Kaigler has also appealed, and that matter is before this Court under docket number 2010 KA 1839, also decided this date.

      . In exchange for his cooperation, the state agreed to amend the indictment charging Knight with four counts of first degree murder, and to allow him to plead guilty to the reduced charge of accessory after the fact to first degree murder, as well as to the additional charge of distribution of cocaine. It was agreed that he would be sentenced to a minimum of fifteen years at hard labor and up to the maximum sentences permissible, which was five years for the accessory after the fact conviction and thirty years for the distribution conviction, consecutive to any other sentences he was serving. See LSA-R.S. 14:25 & 40:967 B(4)(b). Additionally, the state agreed that Knight would not be billed as a multiple offender.

      . Although LSA-R.S. 1:2 provides that ''[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated,” this provision has been held to apply only to substantive and not to procedural or interpretative legislation. See Manuel v. Louisiana Sheriffs Risk Management Fund, 95-0406, p. 8 (La.11/27/95), 664 So.2d 81, 86.

      . Prior to Olivieri, the test utilized by the Louisiana Supreme Court in analyzing whether a law fell within the ambit of the ex post facto clause was whether or not the law altered the situation of the defendant to his disadvantage. See Sepulvado, 342 So.2d at 635; Olivieri, 00-0172, 001767 at p. 14, 779 So.2d at 743. In Olivieri, the supreme court disavowed this test in favor of a much narrower analysis that determines “whether the change alters the definition of criminal conduct or increases the penalty.” Olivieri, 00-0172, 00-1767 at pp. 15-16, 779 So.2d at 744.

      . In arguing that the rationale of Kinsel should not be followed, defendant cites language from this Court's decision in State v. Mizell, 05-2516, p. 6 (La.App. 1 Cir. 6/9/06), 938 So.2d 712, 716, that could be construed as indicating, contrary to the holding in Kin-sel, that the 1997 amendment to LSA-R.S. 14:42 should not be applied retroactively. However, we note that the retroactivity of the 1997 amendment was not at issue in Mizell, because the offense charged therein was committed well after the effective date of this amendment. Hence, the language cited by the defendant is dicta and, therefore, not binding. See State v. Bernard, 09-1178, p. 6 (La.3/16/10), 31 So.3d 1025, 1029.

      . In further support of his contention that the holding of Apodaca had been called into question by recent Supreme Court decisions, the defendant also cites Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, since the issue of jury unanimity was not under consideration by the Supreme Court in either of these cases, in our view, they have no relevance to the holding of Apodaca. We further note that the United States Supreme Court recently denied an application for a writ of certiorari in a Louisiana case, State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-0934 (La.11/19/10), 49 So.3d 396, cert. denied, - U.S. -, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011) cited by defendant in brief. According to defendant's allegations, the writ application in Barbour raised the issue of non-unanimous jury verdicts.

      . Defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., in order to receive an evidentiary hearing.

      . The second supplemental motion for new trial was filed on behalf of Kaigler and defendant by Kaigler's defense counsel, although defendant was still represented by his trial counsel at that time. However, defendant's defense counsel adopted the supplemental motion for new trial on defendant’s behalf.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    STATE of Louisiana v. Billy Joe PATTON.
    No. 2010 KA 1841.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.
    Rehearing Denied July 26, 2011.

      Ricky L. Babin, Donaldsonville, LA, Donald D. Candell, Gonzales, LA, for Ap-pellee, State of Louisiana.
    Jane L. Beebe, New Orleans, LA, for Defendant/Appellant, Billy Joe Patton.
    Billy Joe Patton, In Proper Person.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

|2On June 30, 2008, the defendant, Billy Joe Patton, was charged by grand jury indictment with aggravated kidnapping (count one) and forcible rape (count two), violations of LSA-R.S. 14:44 and LSA-R.S. 14:42.1. On July 14, 2008, the defendant entered a plea of not guilty on both counts. After a trial by jury, on July 15, 2009, the defendant was found guilty as charged. On December 14, 2009, on count one, the defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, the trial court originally sentenced the defendant to forty years imprisonment at hard labor, but after adjudicating the defendant a habitual offender on July 12, 2010, the trial court vacated the sentence, and imposed a sentence of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

The defendant now appeals, assigning as error the denial of his right to confront his accuser and cross-examine the analyst who performed DNA testing, and the ineffectiveness of trial counsel for not objecting to analyst testimony regarding another analyst’s report. The counseled brief also requests a review of the record for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence, pursuant to LSA-C.Cr.P. art. 920(2). In a pro se brief filed in this matter, the defendant raises additional ^assignments of error alleging or challenging the admission of hearsay testimony, prosecutorial misconduct, insufficient evidence, double jeopardy, the propriety of the habitual offender adjudication, the admission of scientific evidence, and ineffective assistance of counsel. For the following reasons, we affirm the convictions and the sentence imposed on count one, vacate the habitual offender adjudication and the enhanced sentenced imposed on count two, and remand for re-sentencing.

STATEMENT OF FACTS

The defendant’s aggravated kidnapping and forcible rape convictions arose from the following circumstances. On February 7, 1987, during the nighttime hours and extending into the early morning hours of February 8th, John Palmer and E.B. (the victim), went out with other friends to college bars in an area called “The Strip” in Lafayette, Louisiana. After the bars closed, Palmer and the victim decided to go to an after-hours club called “Cowgirls.” Both Palmer and the victim consumed alcohol that night. Palmer was driving the victim’s car, with the victim travelling in the vehicle. As Palmer lost control of the vehicle while travelling on 1-10, the vehicle slid off the shoulder of the highway and landed in a ditch. A vehicle described as a dark-colored Firebird or Camaro approached and the male driver/perpetrator offered assistance, agreeing to take Palmer to get a wrecker while the victim waited in her vehicle. After Palmer and the perpetrator drove off, leaving the victim in her vehicle, they pulled over, the perpetrator stated that he had to urinate, and they both exited the vehicle. However, the perpetrator then quickly re-entered his vehicle and drove off, leaving Palmer on a roadside, and headed back in the direction of the location where the victim’s vehicle was stuck.

The perpetrator picked up the victim under the pretense that Palmer needed her to meet him at the next interstate exit because he did not have any cash or a 14credit card for the tow truck. When the victim questioned the driver’s actions as he kept driving past interstate exits, he told her to be quiet. The perpetrator was consuming beer and asked the victim to drink with him, but she refused. The perpetrator then began asking the victim to have sex with him and continued driving, refusing to take the victim to meet Palmer. At some point, the victim passed out, having previously consumed alcohol and having been awake for eight to nine hours.

A Louisiana State Police trooper, Joseph Salvador, III, received and responded to a dispatch concerning a vehicle accident, or a vehicle off the roadway. As he proceeded westbound on 1-10, he received a CB communication regarding a white male, Palmer, who was on foot on the highway. Trooper Salvador located Palmer at approximately 4:00 a.m. and took him back to the victim’s vehicle. When they arrived at the vehicle, the victim was no longer present and the vehicle was locked and abandoned.

When the victim awoke, the perpetrator had pulled off the interstate and into a field. The victim could still hear the interstate traffic. The perpetrator continued to proposition the victim for sex. The victim offered to go to a motel with the driver in an effort to create an opportunity to escape. The driver became irate, started screaming, and told the victim that he was going to have his way. The perpetrator then crossed over the console to the passenger seat, ripped the victim’s shirt off, pulled her pants down, and raped her. When the perpetrator exited the vehicle to pull his pants up, the victim got out of the car and started running toward the highway. The perpetrator got back in his car, pulled in front of the victim before she could reach the highway, and forced her back into his vehicle.

As they travelled on the interstate, the victim begged the perpetrator to release her. At approximately 6:00 a.m., the perpetrator drove the victim to Lone Oak Grocery store on LA Highway 73 in Dutehtown and released her. The | ¡^perpetrator threw two twenty-dollar bills at the victim and told her she was in Mississippi and would need the money to get home. The victim entered the store and reported the rape to the clerk, who contacted the police. The victim was taken to Riverview Medical Center in Gonzales where a rape examination was conducted. A bruise on the right side of the victim’s neck was noted and vaginal secretions, including viable mobile sperm, were collected and turned over to the sheriffs department with the rest of the sexual assault kit. Palmer and the victim gave statements to the Ascension Parish Sheriffs Office describing the perpetrator and his vehicle, but the witnesses did not select anyone from the photographic lineup viewed at that time. The police were unable to develop a suspect and the file became a cold case. The evidence, consisting of the sexual assault kit, the victim’s clothing, and the two twenty-dollar bills, was sent to the Louisiana State Police Crime Lab. At that time, DNA testing was not available, but serological (substance identification) testing was performed.

In 2004, the Louisiana State Police Crime Lab received state and federal funding for backlogged DNA cases. As a result, the lab outsourced evidence collected in over one thousand cases. Lab personnel sent the evidence collected in this case, including a partial vaginal swab and a portion of a saliva sample from the victim, to Bode Technology Group to conduct DNA analyses, develop DNA profiles, and look for the presence of semen or sperm. At that time, there was still no suspect in this case and no male reference sample was provided. A male profile was obtained from the partial vaginal swab and submitted to the crime lab. After reviewing the report and data from Bode Technology Group, the crime lab generated a report and entered the profile from the unknown person into a national database called Combined DNA Index System (CO-DIS).

LOn January 9, 2007, the crime lab received a letter from the Texas Department of Public Safety, indicating that Texas officials had a match of the perpetrator’s DNA profile with a subject named Billy Joe Patton, the defendant. The Louisiana State Police Crime Lab verified the match, notified the Ascension Parish Sheriffs Office, and instructed them to collect a known reference sample from the defendant for further testing. In March 2007, Detective Chris Moody created a photographic lineup with a current photograph of the defendant, but the victim did not identify anyone as the perpetrator.

Detective Moody obtained a search warrant for the defendant’s DNA and executed the warrant in Texas in July 2007. The buccal swab sample from the defendant was consistent with the DNA profile provided by Bode Technology Group and the sperm sample obtained from the vaginal swab of the victim. The victim’s and the defendant’s DNA mixture were detected.

On June 3, 2008, the defendant was located in Alabama and placed under arrest as a fugitive from Ascension Parish and transported to the parish prison. Detective Moody created a second photographic lineup that included an older photograph of the defendant that was more closely related to the time and date of the incident in question. On July 25, 2008, the victim identified the defendant as the perpetrator in the second photographic lineup, and Palmer did the same on June 3, 2009.

COUNSELED ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In the first counseled assignment of error, the defendant argues that he was denied a fair trial because DNA evidence was admitted without affording him the opportunity to confront Darryl Oubre, the analyst who performed the testing. The defendant hypothesizes that the test results could have been inaccurate or based on a contaminated sample. The defendant notes that the State called another analyst, Joanie Wilson, who did not supervise or have any knowledge of the samples or |7how the testing was conducted, to read Oubre’s report during the trial. The defendant notes that the State’s witness admitted that the Louisiana State Police Crime Lab did not have an error-reporting procedure. The defendant further notes that none of the State’s witnesses ruled out human error or contamination. The defendant argues that he had a good alibi and that the DNA test was the basis for the convictions. In the second counseled assignment of error, the defendant argues that the trial counsel was ineffective in failing to object when the State called an analyst who did not conduct the DNA testing. The defendant argues that there was no strategic explanation for the failure to object and that the results of the trial would have been different absent the DNA evidence, especially in light of the fact that the eyewitness identifications took place twenty-two years after the offenses occurred. The defendant contends that he is entitled to a new trial.

A contemporaneous objection is necessary to preserve the issue for appellate review. LSA-C.Cr.P. art. 841 A; LSA-C.E. art. 103 A(l). Additionally, it is well settled that defense counsel must state the basis for his objection when making it and point out the specific error of the trial court. The grounds of the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and correct any claim of prejudice. A defendant is limited on appeal to grounds for an objection articulated at trial. A new basis for objection cannot be raised for the first time on appeal. State v. Brown, 481 So.2d 679, 686-87 (La.App. 1st Cir.1985), writ denied, 486 So.2d 747 (La.1986). Herein, the defendant concedes that his trial counsel did not object when the State called Joanie Wilson of the Louisiana State Police Crime | sLab, an expert in the field of forensic DNA analysis, instead of calling Daryl Oubre, the analyst who performed the DNA testing at the crime lab. Nonetheless, we elect to consider the defendant’s argument in the context of his claim of ineffective assistance of counsel herein. See State v. Wilkinson, 99-0803 (La.App. 1st Cir.2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La.4/20/01), 790 So.2d 631.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post conviction relief in the trial court than on appeal. This is because post conviction relief provides the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La.App. 1st Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132.

The claim of ineffective assistance of counsel is to be assessed by the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Fuller, 454 So.2d 119, 125 n. 9 (La.1984). The defendant must show that counsel’s performance was deficient and that the deficiency prejudiced him. Counsel’s performance is deficient when it can be shown that he made errors so serious that he was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the ^proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

In accordance with the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and Article I, Section 16 of the Louisiana Constitution, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). In Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 2530-31, 174 L.Ed.2d 314 (2009), the defendant had been charged with distribution of cocaine. To establish the fact that the substance seized was cocaine, the State submitted a laboratory analysis of the substance. The report confirmed that the substance was cocaine and also stated the weight of the substance seized. The Supreme Court found that this laboratory report violated Crawford,, as it was offered as prima facie evidence of the crime, with no showing that the analysts who prepared the reports were unavailable. Melendez-Diaz, 129 S.Ct. at 2542.

In the context of the defendant’s claim of ineffective assistance of counsel herein, we note that allegations of ineffectiveness relating to the choice made by counsel to pursue one line of defense as opposed to another constitute an attack upon a strategy decision made by trial counsel. State v. Allen, 94-1941 (La.App. 1st Cir.11/9/95), 664 So.2d 1264, 1271, writ denied, 95-2946 (La.3/15/96), 669 So.2d 433. In this case, during cross-examination, the defense counsel specifically asked Wilson if she was the person who actually performed DNA testing at the Louisiana State Police Crime Lab, and Wilson confirmed that she did not do so, noting that Oubre was the analyst for that test. The defense counsel then 11ftbegan questioning Wilson about contamination and negative controls in the lab. During defense counsel’s closing argument, he highlighted to the jury the fact that the State’s witness did not actually perform the testing in arguing that the evidence was not reliable.

The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial, rests with the accused and his attorney. As previously noted by this court, the fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Folse, 623 So.2d 59, 71 (La.App. 1st Cir.1993).

Moreover, confrontation errors are subject to a harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); State v. Millican, 2003-1065 (La. App. 1st Cir.2/23/04), 874 So.2d 211, 215. Factors to be considered by the reviewing court include: the importance of the testimony in the prosecution’s ease; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; the extent of cross-examination otherwise permitted; and, of course, the overall strength of the prosecution’s case. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; State v. Witte, 559 So.2d 1321, 1332 (La.1990), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

Herein, the Louisiana State Police Crime Lab outsourced the evidence collected in this case for testing at Bode Technology Group, where a DNA profile for the suspect was developed. Michael Carióla of Bode testified and his report |T1was admitted into evidence. According to Wilson’s unchallenged testimony, the Bode profile was entered into the national database, CODIS, and ultimately matched to the defendant. Oubre’s additional testing and report merely verified and confirmed the predetermined match. Aside from the DNA evidence, both the victim and Palmer positively identified the defendant as the perpetrator in this case. Accordingly, we find that the verdicts in this case were surely unattributable to any alleged error in the admission of the Louisiana State Police Crime Lab’s DNA testing. Moreover, there is no reasonable probability that the result of the proceeding would have been different had the defense counsel objected to the admission of the evidence or required Oubre’s presence for cross-examination. See State v. Davidson, 44,916 (La.App. 2d Cir.2/10/10), 32 So.3d 290, 297, writ denied, 2010-0579 (La.10/1/10), 45 So.3d 1096. Thus, the counseled assignments of error are without merit or, otherwise, are not subject to appellate review.

PRO SE ASSIGNMENTS OF ERROR

Ineffective Assistance of Counsel

In the tenth pro se assignment of error, the defendant raises several additional ineffective-assistance-of-counsel claims based on arguments raised in other pro se assignments of error detailed below. The defendant specifically contends that his trial counsel was ineffective in failing to object to the following: his claims of pros-ecutorial misconduct, the admission of unreliable evidence, and the imposition of an excessive sentence. The defendant further argues that his trial counsel was ineffective in declining to request jury charge instructions on a not-guilty verdict based on alibi evidence, and the lack of criminal general intent for the forcible rape charge based on the victim’s testimony that the suspect was intoxicated. Finally, the defendant argues that his trial counsel was ineffective for |12failure to challenge the validity of his prior theft conviction used to establish his habitual offender status.

As noted above, to successfully assert a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced him. Regarding the defendant’s claim that his trial counsel was ineffective in declining to request specific jury charge instructions on criminal intent, the record reflects that the jury was fully charged on criminal intent — both specific and general. The trial court informed the jury of the definition of both forms of intent and specifically instructed that “in the absence of qualifying provisions, the term ‘intent’ and ‘intentional’ have reference to general criminal intent.” The trial court also detailed for the jury all of the elements for the charged and responsive offenses. Moreover, the trial court instructed the jury to render not guilty verdicts on each count if the State failed to prove beyond a reasonable doubt that the defendant committed the crimes charged or any of the responsive offenses.

Thus, the defendant has failed to make a showing on either prong (deficient performance or prejudice) sufficient to support a claim of ineffective assistance of counsel regarding his counsel’s lack of a request for a jury charge on a not guilty verdict or general criminal intent. Instead, the record reflects that the jury was appropriately charged on those issues. Thus, we find no merit in pro se assignment of error number ten as to these specific claims. The remaining ineffective-assistance-of-counsel claims will be addressed in the context of the other pro se assignments of error. As noted above, while the failure to raise objections below precludes appellate review (See LSA-C.Cr.P. art. 841 A; LSA-C.E. art. 108 A(l)), the defendant’s arguments will be addressed pursuant to the ineffective-assistance-of-counsel claims raised in the tenth pro se assignment of error. As detailed hereafter, we find no merit in the remaining ineffective 1 ^assistance claims. Accordingly, we find no merit in the tenth pro se assignment of error.

Hearsay

In the first pro se assignment of error, the defendant challenges the admission of hearsay statements by State witnesses regarding the positive identification of the defendant as the perpetrator and allegations concerning the incident. The defendant contends that the contested testimony was presented by Detective Moody, retired Detective Falcon, and other police officers, and argues that it was not part of the res gestae of the investigation. The defendant further argues that the testimony was inaccurate because the witnesses’ identifications were uncertain and unreliable “due to their drinking and abnormal visibility.”

Hearsay evidence is evidence of an unsworn, out-of-court statement made by a person other than the testifying witness which is introduced for the truth of its content. However, if such a statement is offered for any other purpose, then the statement is not hearsay. State v. Valentine, 464 So.2d 1091, 1093 (La.App. 1st Cir.), writ denied, 468 So.2d 572 (La.1985).

Article 801D(4) incorporates what was formerly LSA-R.S. 15:447 and 448, known as the res gestae exception to the hearsay rule. Res gestae is defined as events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, 765, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). This [^doctrine includes not only spontaneous utterances and declarations made before and after commission of a crime, but also includes testimony of witnesses pertaining to what they heard or observed before, during or after the commission of the crime if the continuous chain of events is evident under the circumstances. See State v. Castleberry, 758 So.2d at 765. It is possible that a police officer, in explaining his own actions, may refer to statements made to him by other persons, not to prove the truth of the out-of-court statements, but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer. State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 808, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000). While the out-of-court statement may be relevant to the investigating officer’s conduct, and the defendant’s subsequent arrest, the testimony may not be used as an indirect method of bringing before the jury the substance of an out-of-court assertion of the defendant’s guilt that would otherwise be barred by hearsay. Broadway, 753 So.2d at 809.

The testimony by the police officers herein regarding the identification of the defendant by the victim and Palmer was admitted to explain the sequence of events leading to the defendant’s arrest. Moreover, both the victim and Palmer testified that they positively identified the defendant in a photographic lineup and their signed selection was admitted into evidence. Thus, even assuming, arguendo, that the testimony constituted hearsay, it was cumulative and corroborative of Palmer’s and the victim’s testimony. Palmer and the victim were fully cross-examined regarding their identifications of the defendant; thus, the jury was fully aware of their level of certainty. Hence, the guilty verdicts were surely unattributable to any error in the admission of the challenged testimony into evidence. See State v. Spell, 399 So.2d 551, 556 (La.1981). Accordingly, pro se assignment of error number one also lacks merit.

| ^Additionally, to the extent that the defendant argues in pro se assignment of error number ten that his trial counsel was ineffective for failure to object to the admission of the testimony in question, this claim has no merit. Even assuming a deficiency in performance, the defendant has failed to show how he was prejudiced in this regard.

Prosecutorial Misconduct

In the second pro se assignment of error, the defendant contends that the assistant district attorney committed pros-ecutorial misconduct that resulted in an unfair trial. The defendant specifically notes that in the assistant district attorney’s opening and closing arguments, she stated she believed the jury would find the defendant guilty; that the DNA evidence would prove the defendant’s guilt; and that the victim and witness identified the defendant as the perpetrator. The defendant further contends that the assistant district attorney vouched for the credibility of expert opinion and State witnesses. The defendant asserts that the assistant district attorney’s argument contradicted the testimony of the State’s witnesses. The defendant further contends that the assistant district attorney failed to disclose that there were contrary descriptions of the defendant’s car. The defendant argues that the assistant district attorney manipulated the jury into believing that he travelled through Louisiana during February 1987. The defendant contends that the assistant district attorney misconstrued the testimony of defense witness Archie Mesinga, and insinuated incorrect information regarding the defendant’s divorce and the time period in which he was married and living with his wife in Alabama.

In the third pro se assignment of error, the defendant similarly contends that the assistant district attorney committed misconduct in not crediting the testimony of Archie Mesinga. The defendant also argues that the assistant district attorney | ^committed prosecutorial misconduct in discrediting defense alibi witness, Sandra Monk.

Finally, in the fourth pro se assignment of error, the defendant alleges that the assistant district attorney vouched for the accuracy and credibility of the State’s forensic expert. The defendant argues that the forensic expert’s testimony was based on unsupported opinion and improper methodology, including inaccurate information on the frequency ratio of a buccal saliva swab. The defendant further notes that the expert witness could not vouch for the credibility or accuracy of another analyst, and that hearsay statements were introduced in lieu of DNA evidence from Mississippi.

At the outset, we note that the jurisprudence shows that prosecutors are afforded broad latitude in choosing opening and closing arguments and trial tactics. See e.g. State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments' referring to “smoke screen” tactics and defense “commi-pinkos” held inarticulate but not improper); State v. Copeland, 530 So.2d 526, 545 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989) (prosecutor’s waving a gruesome photo at jury and urging jury to look at it if they become “weak-kneed” during deliberations held not improper).

Louisiana Code of Criminal Procedure article 766 confines the scope of the opening statement by the State to the explanation of the nature of the charge and evidence by which the State expects to prove the charge. Louisiana Code of Criminal Procedure article 774 confines the scope of argument to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” The trial judge has broad discretion in controlling the scope of the opening and closing arguments. State v. Prestridge, 399 So.2d 564, 580 (La.1981). However, even if the prosecutor exceeds these bounds, the court will not reverse a conviction if not 117“thoroughIy convinced” that the argument influenced the jury and contributed to the verdict. See State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995); State v. Jarman, 445 So.2d 1184, 1188 (La.1984); State v. Dupre, 408 So.2d 1229, 1234 (La.1982).

The comments referred to in the defendant’s pro se brief are not outside the proper scope of opening or closing arguments. Even if we were to find them outside of the proper scope of opening or closing arguments, no relief premised on such comments would be warranted. Here, the defendant was convicted based on substantial testimonial and scientific evidence of guilt, and it does not appear that any prosecutorial comments contributed to the verdicts. Thus, pro se assignments of error numbers two, three, and four lack merit. Further, the ineffective-assistanee-of-counsel claim raised in the tenth pro se assignment of error regarding the lack of contemporaneous objections to the challenged prosecutorial statements fails as well, as we find no deficiency in the trial counsel’s performance and/or prejudice in this regard.

Admission of Scientific Evidence!Chain of Custody

In the ninth pro se assignment of error, the defendant contends that the trial court erred in admitting forensic evidence that was tampered with, causing undue prejudice and an unfair trial. The defendant argues that the record leads to a suspicion of incorrect evidentiary labels and a possibility of a “cross-over” with a planted sample, because the Louisiana State Police Crime Lab sent the samples to other independent laboratories. In support of his claim of tampering, the defendant contends that the record reflects that Detective Falcon and Assistant District Attorney O’Bannon switched out items from evidentiary bags.

The record does not reflect a contemporaneous objection to preserve the above issue for appellate review. LSA-C.Cr.P. art. 841 A; LSA-C.E. art. 103 A(l). | ^Nonetheless, this issue will also be addressed in the context of the defendant’s ineffective assistance of counsel claim raised in the tenth pro se assignment of error.

To be admitted at trial, demonstrative evidence must be identified. This identification can be visual, that is, by testimony at trial that the object exhibited is the one related to the case. Alternatively, the evidence can be identified by a chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Pittman, 486 So.2d 895, 896 (La.App. 1st Cir.1986). The purpose of the chain-of-custody rule is to prevent evidence from being tampered with or from being lost. State v. Gaudet, 93-1641 (La.App. 1st Cir.6/24/94), 638 So.2d 1216, 1223, writ denied, 94-1926 (La.12/16/94), 648 So.2d 386. However, the law does not require that the evidence as to custody eliminate all possibility that the object has been altered. In order to introduce demonstrative evidence, threshold legal requirements are satisfied if the foundation laid establishes that it is more probable than not that the object is the one connected to the case. Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence, rather than to its admissibility. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter for determination by the jury. State v. Spooner, 550 So.2d 1289, 1304 (La.App. 1st Cir. 1989), writ denied, 566 So.2d 394 (La.1990).

At the trial, testimony by Monica La-vigne (the Riverview Medical Center emergency room nurse at the time of the offenses), Dr. Vitrano (also of Riverview at the time), and Daniel Falcon (a detective/sergeant with the Ascension Parish Sheriff’s Office at the time of the offenses) established that the vaginal swabs taken during the rape examination, the entire kit, and other evidence collected at that time went directly from the medical center to the sheriffs department. Specifically, according to the testimony and lab report, the evidence was released to Detective 11flFalcon at approximately 8:25 a.m. on the day of the exam, February 8, 1987. Falcon specifically testified that he dated and initialed the evidence bag. Falcon delivered the evidence to Officer Paul Robert of the Sheriffs Office, who refrigerated it at the office until he delivered it to the Louisiana State Police Crime Lab on February 10,1987.

The record further shows that on March 10, 2004, the vaginal and saliva samples were sent to Bode Technology Group. Regarding the tracking of the evidence, Michael Carióla of Bode Technology Group testified as follows:

Chain of custody for all of our cases is standard procedure. It’s established the moment it arrives at the building. This was sent via FedEx. The tracking number is recorded. The individual who receives it [and] transports it directly to our evidence, [sic] evidence unit who logs it in. Then they assign a Bode case number which will be used for the internal processing. And all the transfers that go from the evidence to the analyst who conducting [sic] the testing, that’s documented through a chain of custody.

Carióla further noted that there were no tampering issues regarding the evidence in this case.

Based on our review of the connexity foundation laid, the record supports a finding that it is more probable than not that the tested scientific evidence was connected to this case. Further, the record reveals no indication of evidence tampering or that the evidence was compromised in any way. For the above reasons, the ninth pro se assignment of error is also meritless. Accordingly, the ineffective assistance of counsel claim in this regard likewise fails, as we find no performance deficiency or prejudice attributable to the lack of objections regarding the admission of the scientific evidence or the chain of custody.

1Sufficiency of the Evidence

In the fifth, sixth, and seventh pro se assignments of error, the defendant raises arguments regarding the sufficiency of the evidence to support the convictions. Specifically, in the fifth assignment of error, the defendant contends that the DNA evidence upon which the jury relied was incomplete and unreliable. The defendant notes that no rarity check was conducted, precluding the use, of the product rule. The defendant notes that the saliva buccal swab evidence was compared to a partial twenty-two year old seminal fluid sample and contends that the record shows that it was not kept under sufficient control for preservation or monitoring. Additionally, he claims there was a lack of logs to establish proper temperature over the twenty-two year period. The defendant further argues that there was no way to determine whether the sample or methodology of the analysis involved distortion. The defendant further argues that the State’s expert witness testified as to the credibility and weight of the evidence, even though she did not conduct the analysis, and despite the fact that DNA evidence does not declare a match, but only the likelihood in statistical terms that the sam-pie came from someone other than the suspect. The defendant concludes that it is impossible to obtain a match between a suspect’s seminal fluid and a saliva buccal swab sample.

Regarding the sufficiency of the evidence, in the sixth and seventh pro se assignments of error, the defendant argues that the evidence only supports convictions for simple rape and simple kidnapping. In this regard, the defendant argues that the victim could not remember the incident and was not credible and that there was no evidence of force. The defendant further argues that the victim claimed she was not sure if she could resist or not. The defendant also notes that the victim testified that she voluntarily entered his vehicle, but eventually became uncomfortable and asked the defendant to bring her back to her vehicle and he refused. Additionally, the defendant claims that the evidence is insufficient |g1 because the victim did not initially claim that she was raped. The defendant notes that pursuant to LSA-R.S. 14:43 A(l), simple rape is committed when the sexual intercourse is deemed to be without lawful consent when the victim is incapable of resisting or understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause. The defendant argues that the victim could not remember the incident due to her intoxication, establishing her mental abnormalities and a lack of credibility.

The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime and defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Johnson, 461 So.2d 673, 674 (La.App. 1st Cir.1984). When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492 (La.App. 1st Cir.2/14/03), 845 So.2d 416, 420. When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).

Aggravated kidnapping is the forcible seizing and carrying of any person from one place to another or the imprisoning or forcible secreting of any person with the intent thereby to force the victim to give up anything of value in order to secure a release of the person who is in the offender’s actual or apparent control. LSA-R.S. 14:44(1) & (3). Specific intent is that state of mind which may bej^inferred from the circumstances of the transaction and defendant’s conduct. The trier of fact determines whether the requisite intent is present in a criminal case. State v. Brown, 2003-1076 (La.App. 1st Cir.12/31/03), 868 So.2d 775, 782, writ denied, 2004-0269 (La.6/4/04), 876 So.2d 76. The abduction of a victim with the intent to commit rape constitutes an intent to force the victim to give up something of apparent or prospective value. See State v. Arnold, 548 So.2d 920, 925 (La.1989). The essential elements of the crime of forcible rape under the facts here and as statutorily provided at the time of the offense are anal or vaginal sexual intercourse without the lawful consent of the victim, when the victim is prevented from resisting by force or threats of physical ■violence, and the victim reasonably believes resistance would not prevent the rape. LSA-R.S. 14:42.1 A(l).

The victim testified that she initially entered the perpetrator’s vehicle voluntarily. However, when the defendant did not drive onto the next interstate exit to meet Palmer, she asked the defendant for an explanation. The victim was told to be quiet. The victim testified that she believed she was in danger and that the perpetrator was going to kill her. When she asked to go to a motel, the perpetrator began screaming, pulling and ripping the victim’s clothes off, and then raped the victim. According to the victim, she was afraid to resist and fearful of being murdered. The victim immediately reported the incident to the store clerk, Kevin Sanchez and to the police officer who was dispatched to the store, Dean Smith. Sanchez specifically testified that when the victim entered the store, she stated that she had been raped and appeared upset and as though she had been crying. The victim gave written and audiotaped statements to the police consistent with her trial testimony. Sanchez also provided a written statement to the police.

The victim confirmed that she was not pressured or influenced to pick anyone from the photographic lineup. She stated that she looked at the lineup, picked the defendant and informed the police that she was “99 percent” and “pretty Insure.” The victim confirmed that she immediately went to the defendant’s photograph and positively testified that the defendant was the person who abducted and raped her.

Palmer testified that he did not recall having any conversations with the victim about this incident. In 2009, when he was presented with the photographic lineup that included an older photograph of the defendant, his identification of the defendant as the person who picked him up that night was “almost instantaneous.” Palmer was not certain as to how he was able to recognize the individual twenty-two years after the incident took place, but testified that the identification was certain. During cross-examination, Palmer confirmed that he consumed alcohol, but denied using any drugs on the night in question. Palmer also confirmed that he was not pressured or influenced by anyone to choose any or a particular photograph from the photographic lineup. Palmer testified that he was unable to identify the color of the defendant’s vehicle, described as a Camaro or Firebird, because it was dark outside at the time. Documentation obtained by Detective Moody, showing the report of a 1984 lien on a 1979 Chevrolet Camaro owned by the defendant, was also admitted into evidence.

Further, the DNA evidence against the defendant was conclusive. Wilson testified that the probability of finding the same DNA profile from a randomly-selected individual, other than the defendant, was one in 44.6 trillion. Wilson further testified that the lab has checks and balances in their process to make sure that contamination does not occur. She further described their extensive review process and noted that there was no evidence of contamination in this case.

Defense witness Sandra Monk was married to the defendant at the time of the offenses and was pregnant at the time. Monk testified that the defendant could not have been in Louisiana on the date in question because her pregnancy due date was February 2, the baby was born on February 11, and the defendant stayed with lather from that date until February 14. According to Monk, they travelled back and forth from their residence in Alabama to the hospital in Mississippi, and she had a falling accident during her pregnancy and had complications. However, she confirmed that she and the defendant did live in Ruston, Louisiana at some point during their marriage and that there were periods of separation before their final divorce, but she could not remember the dates applicable to the separations.

Defense witness Archie Mesinga, an Alabama resident, married Sandra Monk’s sister. Mesinga testified that the defendant was in Alabama at the time of the offenses. He specifically recalled the defendant’s wife being pregnant at the time and stated that she was having complications. Mesinga also testified that the defendant worked with him on an irregular basis in 1987. When specifically asked if the defendant was in Alabama on the morning of February 8, 1987, Mesinga stated, “I can’t swear to it that he was there or that I saw him, you know” adding, “I have no reason to pinpoint that date, you know.”

In State v. Williams, 2000-981 (La.App. 5th Cir.4/11/01), 786 So.2d 805, writ denied, 2001-1377 (La.3/28/02), 812 So.2d 646, the victim accompanied the defendant to an isolated area where she became nervous and attempted to leave. The defendant, who was armed with a knife, grabbed the victim, pushed her down on the ground, shoved the knife in her face, threatened to kill her if she screamed, and plunged the knife into the ground next to her head. The defendant then removed the victim’s clothing and raped her. The victim attempted to flee at one point, but the defendant caught her, punched her, and raped her a second time. The Fifth Circuit found sufficient evidence to support the defendant’s forcible rape conviction.

Herein, the verdict rendered against the defendant indicates the jury accepted the identification testimony and DNA evidence offered against the defendant and rejected the testimony offered in his favor. As the trier of fact, the jury was free to 12F¡accept or reject in whole, or in part, the testimony of any witness. State v. Johnson, 99-0385 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 2000-0829 (La.11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. Moreover, when 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. Lofton, 96-1429 (La. App. 1st Cir.3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331.

In this case, the victim objected to being driven to another location, and her repeated requests to be taken to meet Palmer were ignored. The defendant took the victim to a place other than Palmer’s location, imprisoned her in his vehicle, and then raped her, forcing her to submit to secure her release, after his taking of something of value from her. Therefore, the elements required to prove aggravated kidnapping under either LSA-R.S. 14:44(1) or (3) were satisfied. Furthermore, the evidence revealed that the victim was “prevented from resisting the act by force ... under circumstances where [she] reasonably believe[d] that such resistance would not prevent the rape.” LSA-R.S. 14:42.1 A(l).

We cannot say that the jury’s determinations were irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). After a thorough review |2fiof the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, all of the elements of aggravated kidnapping and forcible rape and the defendant’s identity as the perpetrator of those crimes. Thus, we need not determine if the evidence supports a conviction of a responsive offense. We find no merit to pro se assignments of error numbers five, six, and seven.

Double Jeopardy

The sixth pro se assignment of error raises a double jeopardy claim. Specifically, the defendant contends that his forcible rape and aggravated kidnapping convictions constitute a double jeopardy violation. The defendant argues that the offenses constitute one continuing criminal transaction and should have been considered one crime.

A person cannot twice be put in jeopardy for the same offense. U.S. Const. amend. V; La. Const, art. 1, § 15; LSA-C.Cr.P. art. 591; State v. Knowles, 392 So.2d 651, 654 (La.1980). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Green, 96-0256 (La.App. 1st Cir.12/10/96), 687 So.2d 109, 112. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. The broader “same evidence” test dictates that if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can he placed in jeopardy for only one. This test [27depends on the proof necessary for a conviction, not the evidence that is actually presented at trial. State v. Steele, 387 So.2d 1175, 1177 (La.1980).

To prove aggravated kidnapping, the State was required to show that the defendant forcibly seized and carried the victim from one place to another, or imprisoned or forcibly secreted the victim, with the intent thereby to force the victim to give up anything of apparent present or prospective value in order to secure a release. LSA-R.S. 14:44(1) & (3). As noted by the Louisiana Supreme Court in State v. Arnold, 548 So.2d at 925, “the issue to be focused upon is whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.” Thus, to establish the offense of aggravated kidnapping, how or even whether the offender extricates something of value from the victim is statutorily irrelevant, as long as the abduction of the person in the manner described in the statute was done with the intent to obtain something of value in exchange for what the victim perceives is her ultimate release.

To prove the crime of forcible rape, the State was required to establish that the defendant actively desired to commit rape by preventing the victim from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believed that such resistance would not have prevented the rape. LSA-R.S. 14:42.1. This crime does not require proof that the victim was seized, imprisoned, or secreted. Thus, each offense requires proof of an additional fact which the other does not. Moreover, the evidence required to support a finding of guilt of one crime would not have supported a conviction of the other. Thus, the defendant’s convictions for aggravated kidnapping and forcible rape do not give rise to a double jeopardy claim. See State v. Ashley, 44,655 (La.App. 2d Cir 9/23/09), 22 So.3d 1045, 1055-56, writ denied, 2009-2305 (La.4/23/10), 34 So.3d 271. Pro se assignment of error number six lacks merit.

Habitual Offender Adjudication/Record Review

In the eighth pro se assignment of error, the defendant contends that the sentence imposed by the trial court constituted an illegal violation of LSA-R.S. 15:529.1. Specifically, the defendant contends that the 1980 theft conviction used to establish his habitual offender status was in fact an attempted theft, that a ten-year cleansing period was applicable to the 1980 theft conviction, that the sexual battery conviction was founded on a false allegation, and that a plea agreement making it unlawful to use the prior conviction for multiple billing was breached. Finally, the defendant contends that the State breached its duty and acted with malice in failing to assure that the information it used was authentic and constitutional.

At the outset, we note that there is no merit to the defendant’s contention that the cleansing period in LSA-R.S. 15:529.1_ C prohibits the use of his 1980 theft conviction as a predicate conviction. According to the evidence presented by the State, on September 2, 1980, the defendant pled guilty to theft, was sentenced to five years in the Texas Department of Corrections, and was discharged from probation on October 2, 1985. Because less than five years elapsed between the defendant’s discharge on the theft predicate felony conviction and his commission of the instant felonies in 1987, the five-year cleansing period (applicable in accordance with the law at the time of the instant offenses) did not prohibit the defendant’s adjudication as a habitual felony offender based on his 1980 conviction.

However, although the defendant does not specifically articulate the following, pursuant to the request in the counseled brief and our routine review in accordance with LSA-C.Cr.P. art. 920(2), we have reviewed the record for errors discoverable by a mere inspection of the pleadings and proceedings without 12¡)inspection of the evidence and note the following. Although LSA-R.S. 15:529.1 does not contain a sequential conviction requirement, for sentence enhancement purposes, the subsequent felony must be committed after the predicate conviction or convictions. State v. Johnson, 2003-2993 (La.10/19/04), 884 So.2d 568, 578-79. Two of the predicate convictions listed in the habitual offender bill of information took place after the 1987 forcible rape offense forming the basis for the instant enhanced conviction. Thus, the instant felony was not committed after those predicate convictions and the habitual offender adjudication and enhanced sentence imposed on count two must be vacated.

DECREE

For the above reasons, we affirm the defendant’s convictions and the sentence imposed on count one, but vacate the habitual offender adjudication and enhanced sentence imposed on count two and remand to the trial court for additional proceedings. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277. In doing so, we specifically note that the defendant is not protected by principles of double jeopardy from being adjudicated again as a habitual offender. See State v. Thomas, 2005-2210 (La.App. 1st Cir.6/9/06), 938 So.2d 168, 177, writ denied, 2006-2403 (La.4/27/07), 955 So.2d 683.

CONVICTIONS AND SENTENCE IMPOSED ON COUNT ONE AFFIRMED; HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT TWO VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      . The trial court did not specifically state how many felonies were used to establish the defendant's habitual offender status. As the defendant was sentenced to life imprisonment, presumably the trial court adjudicated the defendant a fourth-felony habitual offender in accordance with the State’s classification. While the original sentences were ordered to be served concurrently, upon adjudication as a habitual offender and subsequent resentenc-ing, the trial court did not specify whether the sentences were to be served concurrently or consecutively.

      . The arguments and issues presented in the defendant’s pro se brief are not easily discern-able, are ambiguous, and do not include record references. Nonetheless, in the interest of justice, the pro se assignments of error will be addressed herein to the extent such arguments may be determined.

      . The victim later concluded that the perpetrator actually returned her own money, as the same denominations that were in her purse before the abduction were missing af-terwards.

      . In its appeal brief, the State contends that pursuant to LSA-R.S. 15:501, the defendant was given notice of the State’s intent to introduce the certificate and that the defendant failed to demand that the person who made the analysis testify at trial. While the record before us does not include the notice by the State, the record does reflect the defendant’s motion to have the person, unnamed therein, who performed the analysis present at trial for cross-examination. The record before us does not include evidence that a subpoena was issued or served, although before the trial, the trial judge stated the analyst would be present.

      . The defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924 et seq., to receive such a hearing.

      . Louisiana Code of Evidence article 801 D(4) provides that a statement is not hearsay if:
      Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

      . Apparently, the defendant is not challenging the chain of custody of the DNA sample taken from him by Detective Moody in Texas. Nonetheless, we note that the record also sufficiently supports a finding of connexity as to that evidence.

      . The following predicate convictions and dates are listed in the amended habitual offender bill of information: a September 2, 1980 guilty plea to theft; a February 2, 1994 guilty plea to two courts of sexual battery; and a January 3, 2006 guilty plea to failure to register as a sex offender.