author: SUSAN M. CHEHARDY, Judge.

text:
    Oscar J. TOLMAS v. PARISH OF JEFFERSON.
    No. 11-CA-492.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2011.
    Certiorari Denied Feb. 7, 2012.

      John W. Holmes, Timothy F. Hand, G. Patrick Hand, Jr., Attorneys at Law, Me-tairie, LA, for Plaintiff/Appellee, Morning Park, LLC as Successor in Interest to Oscar J. Tolmas.
    E. Ross Buckley, Jr., Deputy Parish Attorney, Melissa S. Quigley, Johanna E. Lambert, Assistant Parish Attorneys, Har-ahan, LA, for Defendant/Appellant, the Parish of Jefferson, et al.
    Leopold Z. Sher, James M. Garner, Dorothy S. Watkins Lawrence, Attorneys at Law, New Orleans, LA, for Amicus Curiae, Whitney-Cecile Homeowners & Improvements Association, Inc.
    Patricia S. Leblanc, Carl A. Butler, Attorneys at Law, Metairie, LA, Patrick J. Fanning, Michael G. Fanning, Attorneys at Law, Gretna, LA, for Amicus Curiae, Jefferson Chamber of Commerce, Select Properties, Ltd., Rault Resources, Inc. and Greg Clayton.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

| sThis appeal arises following a judgment on a motion to enforce a permanent injunction against the Parish of Jefferson. The district court granted the motion and the Parish of Jefferson appeals. We reverse and render judgment in favor of the Parish.

FACTS

History

The lawsuit originated when Oscar J. Tolmas (“Tolmas”) filed suit on May 16, 1962, against the Parish of Jefferson (“the Parish”) and various parish officials. Tol-mas alleged he was the owner of a piece of property in Jefferson Parish on which he maintained an office building together with a sign advertising a subdivision known as “Cecile Park.” Tolmas asserted he had made various improvements on his property, including placing shells from the front of his office building to the shoulder of Veterans Memorial Highway (“Veterans”) to provide a means of ingress and egress from Veterans through the front of his property to the parking area in front of his office building.

Tolmas asserted that similar ingress and egress to and from businesses and other properties fronting on Veterans prevailed both outbound and inbound to New Orleans on Veterans, by means of shells, blacktopping, and in some instances 14paving. Tolmas, however, had received a letter from the Jefferson Parish Attorney on May 14, 1962, complaining that he had placed shells on the public right of way, making it part of his parking lot. The letter demanded that he restore the property to its former condition or the Parish would prosecute him for destroying and defacing public property.

Tolmas alleged his rights to equal protection and due process were being violated by the Parish’s “flagrant discrimination” against him, depriving him of rights afforded to all other owners of property fronting on and abutting Veterans Memorial Highway. Tolmas sought a permanent injunction prohibiting the Parish and the defendant officials

from disturbing petitioner in the peaceful possession of his property, including the frontage rights of entrance and exit between his office and Veterans Memorial Highway, or from lodging, accepting and/or prosecuting criminal charges of destroying or defacing public property in connection herewith, or whatever interference to the peaceful use and enjoyment of petitioner’s property by petitioner.

The district court issued a preliminary injunction on October 18, 1962 that prohibited the defendants “from committing any act toward disturbing plaintiffs peaceable possession of his property ..., including his right to frontage exit and entrance between Veterans Memorial Highway and his office.”

On February 7, 1963, the district court rendered judgment “with the consent of all parties,” ordering that the preliminary injunction granted on October 18, 1962 be made permanent. The judgment further ordered,

[T]he permanent injunction, granted herein prohibits and enjoins the Parish of Jefferson ... from committing any act toward disturbing Oscar J. Tolmas’ peaceable possession of the property herein below described:
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon, and all the frights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the Parish of Jefferson, State of Louisiana, designated as Square No. 1, bounded by Veterans Memorial Highway, North Labarre Drive, Tolmas Drive and 22nd Street, and measures 200.46 feet front on Veterans Memorial Highway, 200.38 feet in width in the rear, by a depth of 558.03 feet along N. Labarre Drive and a depth of 550.46 feet on Tolmas Drive.
Said possession including Oscar J. Tolmas’ right to frontage, entrance and exit between the Veterans Memorial Highway and his office, as the said rights were enjoyed on May 14, 1962, or from any interference whatsoever to the peaceful use and enjoyment of Oscar J. Tolmas’ property as hereinabove described by him.

The judgment stated, “With the consent of all parties hereto, as evidenced by the document identified as PD-1, introduced and offered into evidence ... in Open Court on the 1st day of February, 1963.” Pursuant to the agreement among the parties, no appeal was taken from the judgment of February 7,1963.

Current Dispute

Some 47 years later, the ease was reopened and the present issues were raised by a Motion to Enforce Permanent Injunction filed on December 16, 2010, by Morning Park, LLC (“Morning Park”), as successor-in-title to Oscar J. Tolmas.

Morning Park asserted the motion concerned the Parish’s violation of the judgment dated February 7, 1963 that granted a permanent injunction in favor of Oscar J. Tolmas, Morning Park’s predecessor-in-title. Morning Park alleged that on April 28, 2004, it purchased a tract of land from Oscar J. Tolmas described as follows:

A CERTAIN PIECE OR PORTION OF GROUND together with all the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining situated in the Parish of Jefferson, State of Louisiana, designated as Square 1 in Cecile Park | nAddition Subdivision, created in accordance with a plan or survey by Adloe Orr, Jr. & Associates dated April 27, 1957, approved under ordinance # 3526 by the Police Jury for the Parish of Jefferson on the 1st day of July, 1957.

Morning Park alleged this is the same property as described in the judgment of February 7,1963.

Morning Park asserted that by virtue of the Act of Sale, all rights to the property enjoyed by Tolmas flow to Morning Park, including the use of the property for offices. Morning Park alleged that notwithstanding the 1963 judgment, the Parish had denied Morning Park’s request for a letter of clearance for use of the property as offices, by letters dated October 25, 2010, from both the Jefferson Parish Planning Department and the Jefferson Parish Department of Inspection and Code Enforcement.

The letters were attached to the Motion to Enforce Permanent Injunction and made part thereof. The Planning Department letter advised that the land in question is zoned R-1A, Single Family Residential District, and directed Morning Park to present any building plans to the Jefferson Parish Department of Inspection and Code Enforcement. The letter from the Inspection and Code Enforcement Department advised that “the property in question is zoned R-1A and office use is not a permitted use of this zoning district.”

Morning Park argued that in failing to grant it a clearance for use of the land as offices the Parish is in violation of the permanent injunction. Morning Park sought to enforce the permanent injunction against the Parish, restraining and enjoining the Parish from interfering with Morning Park’s use of the property, more particularly in development of Square 1 for office use.

The matter came for a hearing on February 24, 2011. At the conclusion of the hearing, the district court rendered judgment in favor of Morning Park, 1 ./‘enforcing the permanent injunction against the Parish of Jefferson, barring the Parish of Jefferson from interfering with the peaceful use and possession by Morning Park, LLC, and its use of the property for offices.”

In oral reasons for judgment, the court stated,

All right. It appears what the Plaintiffs are requesting is the use of property for offices. It’s very specific in here.
So according to what’s filed in the Record and requests of the parties, the Court is going to enforce the permanent injunction against the Parish of Jefferson barring the Parish of Jefferson from interfering with the peaceful possession of Morning Park, LLC and its use of the property for offices.
That is what was requested. That is what the Court is ordering.

The judgment described the property as follows:

A certain piece or portion of ground, together with all of the buildings and improvements thereon, and all the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the Parish of Jefferson, State of Louisiana, designated as Square No. 1, bounded by Veterans Memorial Highway, North Labarre Drive, Tolmas Drive and 22nd Street, and measures 200.46 feet front on Veterans Memorial Highway, 200.33 feet in width in the rear, by a depth of 558.03 feet along N. Labarre Drive and a depth of 550.46 feet on Tolmas Drive.

The Parish has appealed.

ARGUMENTS

On appeal, the Parish contends the 1963 judgment does not grant the current owner the right to use property zoned residential for offices. The Parish asserts the issues are whether the 1963 judgment granted to the ancestor-in-title a transferable right to use Square 1, Cecile Park Addition, for offices, and whether a valid lsnonconforming commercial use of Square 1 ended when the nonconforming building was demolished in 2004.

In opposition to the appeal, Morning Park asserts that the Parish has no right to bring this appeal because the Parish is challenging the terms of a consent judgment that is final. Alternatively,- Morning Park contends the district court’s ruling granting the motion to enforce the 1963 judgment was correct and was well-supported by facts in the record. Morning Park asserts the Parish’s appeal is without merit and should be denied.

Although the parties attached numerous documents to their trial memo-randa, and the Parish has attached even more documents to its appellate brief, they did not introduce most of those documents into evidence. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal. Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id.

Hence, our review of the documentation in this case is limited to what was part of the original record or properly made part of the pleadings offered into evidence.

LAW AND ANALYSIS

We find the trial court erred in granting the motion to enforce the injunction.

In order to interpret the original judgment of injunction, we reviewed the old portion of the record concerning the original proceedings for injunctive relief. As noted above, the permanent injunction was granted by consent of the parties, | pursuant to the agreement signed by Tol-mas and the various individual parish officials who were defendants.

Exhibit PD-1, to which the judgment granting the permanent injunction referred, is a letter dated January 17, 1963 from Oscar J. Tolmas to M. Dan Hogan, President, Jefferson Parish; Harold Kytle, Parish Attorney, Jefferson Parish; and Roy Price, Special Assistant Parish Attorney, Jefferson Parish. That letter stated,

In consideration of the submission by the Parish of Jefferson [and the individual defendants] ... to the permanent injunction prayed for by me [in this case] ... I release and relieve Mr. M. Dan Hogan from any and all claims which I might have against him arising from any utterances alledgedly [sic] made by Mr. Hogan immediately prior to the filing of the suit mentioned herein.
I will accede to this agreement only if there is a voluntary submission by the parties named above to the permanent injunction hereinabove referred to, and only if it is understood that there will be no appeal from the judgment of the Court.
[signed] Oscar J. Tolmas
The provisions of the above agreement between Oscar J. Tolmas and the above identified defendants will become legally binding and operative against all the parties thereto as of the date that the above referred to defendants affix their signatures hereunder, which date is to be no later than January 28, 1963.

Review of the original pleadings discloses no mention of zoning except in the Answer by the Parish and the individual defendants, which stated in Paragraph 18 that the property is residential. The original Petition for Injunctive Relief sought ingress and egress to and from Veterans Memorial Boulevard, as well as relief from the Parish’s threatened prosecution for “defacing and destroying” public property. Tolmas sought to prevent deprivation of “the rights afforded to all other owners of property fronting on and abutting Veterans Memorial Highway.” [ mThere is no mention of zoning in his original petition, nor of commercial versus residential use.

First, we find the 1963 judgment, insofar as it forbade thé Parish “from any interference whatsoever to the peaceful use and enjoyment of Oscar J. Tolmas’ property,” was personal to Tolmas. Any right to noninterference with the peaceful use and enjoyment of Tolmas’ property did not transfer to his successor-in-title. The 1963 judgment mentions only Oscar J. Tolmas; it does not mention “his heirs, successors, and assigns.” The correspondence Exhibit PD-1 entered into the original record states, “The provisions of the above agent ... will become legally binding, and operation against all the parties thereto ... ”, indicating as well that this compromise was intended to benefit the individual, not bind the property in any legal manner. The 1963 judgment was never recorded in the mortgage and conveyance records, nor was it mentioned in the Act of Sale from Tolmas to Morning Park. The prohibition against interference with Tolmas’ “peaceable possession” of the property cannot be said to be part of the title to the property so as to transfer with the sale of the property.

The prohibition against interference with peaceable possession is not a servitude. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. C.C. art. 646. For purposes of “interference with peaceable possession” in this case, there is no ser-vient estate, so that a mere prohibition cannot be considered a servitude.

We find, further, that even if the 1963 judgment in favor of Tolmas were transferable to Morning Park, Morning Park would not be entitled to commercial use of Square 1.

The authority to enact zoning regulations flows from the police power of the various governmental bodies; zoning is a legislative function. Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 672 (La.1974). The purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. Redfearn v. Creppel, 455 So.2d 1356, 1359 (La.1984). Because a nonconforming use is inconsistent with that objective, it should, consistent with the property rights of the individuals affected and substantial justice, be viewed narrowly and have all doubts resolved against continuation or expansion of the nonconformity. Id.

The 1963 judgment did not contemplate zoning of the property because no zoning issues were raised in Tolmas’ original petition, and no zoning issues were mentioned in the judgment. The original subdivision plan for the property designates Square 1 as “commercial.” However, that designation was not in accordance with the parish’s zoning ordinance, which had been enacted in 1958 prior to the time that Tolmas filed his action.

The Comprehensive Zoning Ordinance permits continuance of nonconforming uses that existed on or prior to the date of adoption of the ordinance. Jefferson Parish Comprehensive Zoning Ordinance, Art. XXXVII, Sec. 40-697. Once a nonconforming use is changed to a conforming use, however, the nonconforming use shall not be reestablished. Jefferson Parish Comprehensive Zoning Ordinance, Art. XXXVII, Sec. 40-699(d).

Where the nonconforming use, structure, or building is totally destroyed, the nonconforming use terminates as of the date of the destruction. Jefferson Parish Comprehensive Zoning Ordinance, Art. XXXVII, Sec. 40 — 701(b). Similarly, discontinuance or suspension of a nonconforming use or associated activity for any reason constitutes vacancy of a nonconforming structure, and vacancy of a nonconforming use for a period of one year shall terminate the nonconforming use. Jefferson Parish CZO, Art. XXXVII, Sec. 40-702.

|12It is undisputed that the commercial building formerly used by Tolmas as an office was demolished on or about April 2, 2004, and that Morning Park purchased Square 1 from Tolmas on April 28, 2004. On May 27, 2008, Morning Park applied for a building permit to construct a parking garage and office building on Square 1. After learning that Square 1 was not zoned for commercial use, Morning Park can-celled its building permit application. Morning Park did not file the instant Motion to Enforce Injunction until December 16, 2010. This was more than two years after Morning Park withdrew its application for a building permit, more than six years after the Tolmas office building was demolished and Morning Park purchased the property.

The nonconforming use for a commercial building that Tolmas enjoyed terminated when his building was destroyed. No attempt was made to timely reinstate that nonconforming use. Hence, the property remains under its designated zoning, R-1A.

Morning Park apparently relied on the designation “commercial” shown on the 1957 plat of the property, which is referenced in the act of sale by which Tolmas sold the land to Morning Park. Zoning restrictions are public record, however, and a prospective purchaser of property can readily learn what zoning designation attaches to the property that the purchaser hopes to buy. We all are held to have constructive knowledge of what is in the public records.

“A person who purchases land with knowledge, actual or constructive, of the zoning restrictions which are in effect at the time of such purchase, is said to have created for himself whatever hardship such restrictions entail.” Sanchez v. Board of Zoning Adjustments of the City of New Orleans, 488 So.2d 1277, 1279 (La.App. 4 Cir.1986), quoting Anderson, American Law of Zoning, 2d Edition, Volume 3 |13§ 18.42. Morning Park’s remedy is to seek a zoning variance through the appropriate procedures to do so.

DECREE

For the foregoing reasons, the judgment is reversed and the Motion to Enforce Injunction is dismissed. Costs are assessed against the appellee, Morning Park, L.L.C.

REVERSED AND RENDERED

      . The officials were the Parish President, the seven members of the Parish Council, the Parish Attorney, the Director of the Department of Roads and Bridges, the Director of the Department of Public Safety, and the District Attorney, through the individuals then holding those positions.

      . Signatures of all individual defendants followed, but the date line was not completed.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Preston Lee PIERCE.
    No. 11-KA-320.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Thomas J. Butler, David P. Wolff, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Plain-tifflAppellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 ^Defendant, Preston Lee Pierce, appeals his convictions and sentences for two counts of aggravated rape and two counts of sexual battery. For the reasons that follow, we affirm his convictions and sentences.

On December 20, 2007, defendant was indicted with aggravated rape of a juvenile. On January 20, 2009, a superseding indictment was filed in which defendant was indicted with four charges as to four separate juveniles: two counts of aggravated rape in violation of LSA-R.S. 14:42 (counts 1 & 2) and two counts of sexual battery in violation of LSA-R.S. 14:43.1 (counts 8 & 4). Defendant pled not guilty to all four charges and proceeded to trial. On October 10, 2010, a 12-person jury found defendant guilty as charged on all four counts. The trial court subsequently sentenced defendant to life imprisonment at hard labor each on counts one and two; ten years at hard labor on count three; and 25 years at hard labor on count four. All sentences were imposed without benefit of parole, ¡.-¡probation, or suspension of sentence and were ordered to run consecutively to each other.

FACTS

In August 2007, J.G., at the age of seven, lived with her mother, father, and two older sisters in Kenner, Louisiana. Although her mother and father were married and lived together, they were not emotionally together; J.G.’s mother often dated, and in August 2007, she was dating defendant. On August 25, 2007, J.G.’s mother attended a party with defendant’s sister while defendant babysat J.G. While babysitting J.G., defendant took her to his bedroom, applied a lubricant to her vaginal and anal area, and contacted her vagina and anus with his penis.

Defendant was arrested the next day and news of his arrest was published in the newspaper. As a result of the publicity, other women came forward with similar accusations against defendant, including defendant’s adult daughter, C.P. C.P. alleged that her father had “messed” with her when she was a child. C.P. testified that starting when she was six or seven years old until she was 15 or 16, defendant made her spread her legs, applied his saliva to her vaginal area, contacted her clitoris with his penis, and ejaculated on her stomach. C.P. also testified that on one occasion defendant achieved full penetration of her vagina with his penis.

J.T. was another victim of defendant. J.T. and her boyfriend were friends with defendant’s son, Preston Lee Pierce, Jr. (“Lee”). J.T. testified that in June 2003, she, her boyfriend, and Lee were at Lee’s aunt’s house for defendant’s Rbirthday. Alcohol was consumed and J.T. became intoxicated to the point of vomiting. J.T. then went to bed with her boyfriend, with whom she had consensual sex before going to sleep without putting her pants back on. In the bed, J.T.’s boyfriend slept closest to the wall while J.T. slept on the open side of the bed. J.T. was awakened in the middle of the night by a penis penetrating her vagina. She thought it was her boyfriend at first, but when she opened her eyes, she saw her boyfriend sleeping next to her and discovered it was defendant who was on top of her.

The fourth person to come forward with similar accusations against defendant was M.B. M.B.’s mother testified that she and her two daughters shared an apartment with defendant from about April 1994 until September 1994. M.B., the younger daughter, testified that around this time, on more than one occasion, defendant took her to his bedroom, laid her on his bed, told her she had a rash, and applied Vaseline to her vagina and vaginal area.

LAW & DISCUSSION

ASSIGNMENT OF ERROR ONE

In his first assignment of error, defendant contends that the trial court erred in not granting a mistrial on four grounds: (1) a State’s witness referred to his post-arrest silence; (2) a victim referred to other crimes evidence during her testimony; (3) the trial court failed to sever the four counts in the indictment; and (4) the prosecutor misstated the law in regard to how the jury should view the evidence.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to defendant that deprives him of a reasonable expectation |5of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

La.C.Cr.P. art. 775 provides for a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized under La.C.Cr.P. arts. 770 or 771. A mistrial under Article 775 is discretionary and is warranted only when trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Davis, 07-544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 68, writ denied, 08-380 (La.9/19/08), 992 So.2d 952.

Article 770 provides the grounds for a mandatory mistrial. It provides that a mistrial shall be granted, upon motion of the defendant, when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible or the failure of the defendant to testify in his defense.

As a general rule, Article 770 does not apply to testimony by a state witness, since a witness is not considered a “court official.” However, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State and triggers the rule mandating a mistrial. State v. Lagarde, 960 So.2d at 1113. Unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. State v. Ventris, 10-889 (La.App. 5 Cir. 11/15/11), 79 So.3d 1108, 1122. Further, a statement is not chargeable to the State solely because it was in direct response to questioning by the prosecutor. Although a prosecutor might have more artfully 1 ^formulated the question that provoked a witness’s response, where the remark was not deliberately obtained by the prosecutor to prejudice the rights of the defendant, it is not the basis for a mistrial. Id.

Under La.C.Cr.P. art. 771, a mistrial is discretionary when a witness makes an irrelevant remark that might prejudice the defendant. Article 771 gives the trial court the option to either admonish the jury, upon motion of the defendant, or, if an admonition does not appear sufficient, to declare a mistrial. State v. Johnson, 10-209 (La.App. 5 Cir. 10/12/10), 52 So.3d 110, 124, writ denied, 10-2546 (La.4/1/11), 60 So.3d 1248. A mistrial should be granted under Article 771 only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Thomas, 08-390 (La.App. 5 Cir. 1/27/09), 8 So.3d 80, 86-87, writ denied, 09-626 (La.11/25/09), 22 So.3d 170.

Reference to Defendant’s Posh-Amst Silence

Defendant first argues that the trial court erred in denying his motion for a mistrial based upon a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Defendant contends that Lieutenant Grey Thurman impermis-sibly referred to defendant’s post-arrest silence during his testimony. Defendant argues this warranted a mistrial because the jury would infer guilt from his silence.

The State maintains there was no Doyle violation. It asserts that the officer’s testimony was not offered to emphasize defendant’s invoking his right to remain silent, but to give a complete picture of the officer’s investigative efforts and to 17establish why no further information was obtained from defendant. Further, the State contends that even if there was a Doyle violation, it was a harmless error.

During the direct examination of Lieutenant Grey Thurman, the following colloquy occurred:

Q: After you concluded your taped interview with Preston Lee Pierce—

A: Correct.

Q: — did you continue to get other information from other sources?

A: Yes, I did.

Q: Outside of his presence?

A: Correct.

Q: And at some point did you elect to go back in and attempt to obtain a second statement from Preston Lee Pierce?

A: Yes, sir, I did.

Q: Okay, and when you went back in did you confront him with various inconsistencies?

A: Absolutely.

Q: And at that point did he give you another statement?

A: No, he did not.

At this point, defense counsel objected to this testimony as an impermissible reference to defendant’s invocation of his right to remain silent. He then moved for a mistrial, which the trial judge denied.

It is well settled that a prosecutor cannot make reference to the fact an accused exercised his constitutional right to remain silent, after he had been advised of the right, solely to ascribe a guilty meaning to his silence or to undermine, by inference, an exculpatory version related by the accused, for the first time at trial. State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 213. But, the State may pursue a line of questioning that attempts to ^summarize the extent of the investigation, when such questions are not designed to exploit the defendant’s failure to claim his innocence after his arrest in an effort to impeach his testimony or attack his defense. Id. An oblique and obscure reference to a defendant’s post-arrest silence, where the examination does not stress the right to remain silent or attempt to elicit testimony regarding the defendant’s failure to respond to police questioning does not constitute reversible error. State v. Robinson, 04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1126.

Under La.C.Cr.P. art. 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. In such cases where the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, the court may grant a mistrial upon motion of the defendant. State v. Robinson, 896 So.2d at 1126, citing State v. Kersey, 406 So.2d 555, 559 (La.1981). A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, and the prosecution made no use of the silence for impeachment purposes. Id.

In State v. Olivieri, supra, a police officer referenced the defendant’s silence during his testimony summarizing the defendant’s post-arrest statement. In particular, the officer stated that when he told the defendant he wanted to go over his statement again because the officer believed the defendant was leaving some facts out of the incident, the defendant put his head down and requested a lawyer. This Court noted that the officer’s testimony was elicited for the purpose of presenting to the jury a description of how the police investigation culminated and showing the jury that the defendant’s entire statement was before them. As such, this Court found no mistrial was warranted. Olivieri, 860 So.2d at 214.

| nThis Court relied on several factors in determining a mistrial was not warranted: (1) the prosecutor did not pose a specific question regarding the defendant’s post-arrest silence, but rather inquired about the contents of the statement the defendant made to police; (2) the prosecutor did not draw attention to the fact the defendant invoked his right to remain silent subsequent to giving a statement; (3) the prosecutor did not pursue the issue of the defendant’s post-arrest silence after the officer testified that the defendant terminated the statement, but rather moved on and questioned the officer on an unrelated topic pertaining to the gathering of additional evidence; (4) the State did nothing further to emphasize the defendant’s post-arrest silence or try to get the jury to make a negative inference from his silence; and, (5) the judge admonished the jury that it could not hold the defendant’s post-arrest silence against him. Id.

Similarly, in State v. Kersey, 406 So.2d 555 (La.1981), the defense challenged the prosecutor’s examination of the arresting officer on the basis that it elicited testimony regarding the defendant’s post-arrest silence. The prosecutor asked the arresting officer, “[d]id [defendant] give any further statements or did he assert his right to remain silent at this point?” to which the arresting officer responded that the defendant asserted his right. Id. at 559. The supreme court found the reference to the defendant’s silence, when considered in context with the rest of the officer’s testimony, was made in an attempt to show that the entire statement made to the officers had been provided to the jury. The supreme court noted the testimony showed the defendant was advised of his Miranda rights and then willingly answered a succession of questions. The supreme court further noted the reference to defendant’s post-arrest silence “arose at the close of the officer’s testimony and was more a way of exploring how the interrogation was concluded than an effort to call attention to the silence.” Id. The supreme court |inheld the defendant was not prejudiced by the reference to his post-arrest silence and, therefore, a reversal of the conviction was not warranted.

In the present case, Lt. Thurman did not testify that defendant invoked his right to remain silent; rather, he testified that when asked to give another statement in light of inconsistencies with his story, defendant did not do so. After Lt. Thurman testified about his failed attempt to get another statement from defendant, which drew the motion for mistrial, the State did not pursue the issue but rather moved to the next step in the investigation. A review of Lt. Thurman’s entire testimony shows that in questioning Lt. Thurman, the State was attempting to establish a timeline of the investigation and to show that defendant’s entire statement had been provided to the jury. The examination did not stress defendant’s right to remain silent; rather, it merely referenced a step in the course of Lt. Thurman’s investigation. As such, we find the trial court did not abuse its discretion in not granting a mistrial.

Reference to Other Crimes Evidence

Defendant next argues that the trial court erred in denying his motion for a mistrial based upon a victim’s reference to evidence of other crimes. Specifically, defendant contends that C.P., defendant’s daughter, referenced other crimes evidence when she stated during her direct examination “[a]nd then when I was a kid my dad got arrested.” Defendant argues this statement entitled him to a mistrial.

As stated above, a mistrial is required when a judge, district attorney or a court official references inadmissible other crimes evidence. While Article 770 does not generally apply to testimony by a State witness because witnesses are not considered “court officials,” its application may be triggered if an impermissible reference to other crimes is deliberately elicited by the prosecutor because such | ^testimony is imputable to the State. State v. Santos, 09-789 (La.App. 5 Cir. 4/13/10), 40 So.3d 167, 174, writ denied, 10-1080 (La.11/24/10), 50 So.3d 828.

Factors considered in determining whether a mistrial is warranted under Article 770 include whether the statement was deliberately elicited by the district attorney, whether it was responsive to the question, and whether the witness purposely uttered it to prejudice the defendant. State v. Jones, 41,299 (La.App. 2 Cir. 11/9/06), 942 So.2d 1215, 1233. Ambiguous or obscure references to other crimes made without explanation or elaboration do not prejudice the defendant. Id. Further, an impermissible reference to other crimes is subject to a harmless error analysis. State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1114, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

We find C.P.’s remark was not deliberately elicited by the prosecutor in light of the questioning immediately before and after the remark and, thus, a mistrial was not warranted under Article 770. The prosecutor asked C.P. why she had not told anyone that her father was sexually abusing her. In response, C.P. stated: “A friend of mine said that her dad did it to her and she liked it. So I thought that it was something that just happened that I didn’t like. And then when I was a kid my dad got arrested for — .” After the bench conference on the motion for mistrial, the prosecutor’s next question to C.P. was “Do you know if your father has any siblings?” This context makes clear that the prosecutor was not deliberately attempting to elicit testimony about defendant’s previous offenses and that the remark was not responsive to the prosecutor’s question. Additionally, as soon as the witness made the remark, the prosecutor cut C.P. off and no further explanation or elaboration was offered on the matter. Thus, we find the trial court did not abuse its discretion when it denied defendant’s motion for a mistrial on this ground.

_Jj¿Severance of the Four Counts

Several months before trial, defendant moved to sever the offenses to which the State objected. After a hearing, the motion was denied. During trial, defendant moved for a mistrial upon the failure to sever the counts, which the trial court denied.

The failure to sever is not an explicitly recognized basis for a mistrial. Nonetheless, upon review of the trial court’s denial of the motion to sever, we find no error.

La.C.Cr.P. art.' 493 permits offenses to be joined if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan, and are triable by the same mode of trial. La.C.Cr.P. art. 495.1 provides for the severance of offenses if the joinder of offenses is prejudicial. Whether offenses should be severed under Article 495.1 is within the sound discretion of the trial court and its decision will not be disturbed on appeal absent an abuse of that discretion. State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 44-45.

The defendant bears the burden of proving the prejudicial joinder of offenses. Id. In determining whether prejudice may result from a joinder of offenses, a trial court should consider (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, considering the nature of the charges, the charging of several crimes would make the jury hostile. Additionally, the trial court may consider whether evidence of one offense would have been admissible as other crimes evidence at the trials of the other offenses | isunder State v. Prieur, 277 So.2d 126 (La.1973), and La. C.E. art. 404(B)(1). Id. at 45.

In State v. Roca, 03-1076 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 871, writ denied, 04-583 (La.7/2/04), 877 So.2d 143, the defendant was convicted of aggravated rape, aggravated rape of a juvenile, oral sexual battery of a juvenile, and molestation of a juvenile, perpetrated upon two different victims. On appeal, the defendant argued that the trial court erred in denying his motion to sever on the basis the alleged crimes did not involve the same victims, did not occur within the same time frame, and did not take place in the same manner. Defendant also argued that the joinder of the offenses lowered the State’s burden of proof by allowing the State to use a 20-year-old rape allegation to substantiate a recent rape charge against him and that the joinder confused the jury.

This Court found no error in the denial of the motion to sever. In reaching this conclusion, we reasoned that “although the crimes were perpetrated upon different victims and at different times, they occurred under similar circumstances” and were of the same or similar character as contemplated by La.C.Cr.P. arts. 493 and 493.2. Additionally, we noted that (1) the State presented its case in a logical fashion and in such a manner as to keep the evidence pertaining to each count and each victim separate and distinct; (2) the investigation of the offenses was significantly intertwined as the officers learned of the rape of one victim while investigating the allegations involving the other; and, (3) it appeared the jury was clearly able to segregate the various counts as the trial court specifically charged the jury separately as to each offense and corresponding victim. We further noted that the evidence of each offense was relevant to establish defendant’s propensity to sexually abuse young females under his supervision and care, and found that the |14evidence of the offense committed against either victim could have been introduced at the trial of the crimes committed against the other.

Also, in State v. Burks, 04-1435 (La.App. 5 Cir. 5/31/05), 905 So.2d 394, 396, writ denied, 05-1696 (La.2/3/06), 922 So.2d 1176, this Court found no error in the trial court’s refusal to sever the offenses. In Burks, the defendant was convicted of aggravated rape, molestation of a juvenile, aggravated crimes against nature, forcible rape, and two counts of aggravated incest, perpetrated upon three different victims. On appeal, defendant argued he was prejudiced by having all six counts tried at the same time, contending that the jury found him guilty based on the volume of charges alone, that the facts were confusing as they involved three different victims, and that the jury could not have considered each offense separately.

In finding no error in the denial of the motion to sever, this Court noted that (1) the evidence showed that the multiple counts, although perpetrated upon different victims and at different times, occurred under strikingly similar circumstances and, thus, were of the same or similar character as contemplated by La. C.Cr.P. art. 493; (2) the State’s evidence was clear and consistent, and it was highly improbable that the jury was confused by the multiple counts involving the three victims; (3) the jury deliberated for less than two hours without asking for any type of clarification and rendered a unanimous verdict; (4) the defendant offered no evidence that the joinder of the offenses hindered his right to present a defense; and, (5) evidence of one offense would have been admissible as other crimes evidence at the trial of the other offense under La. C.E. art. 412.2 to show the defendant’s propensity to sexually abuse young females who were the children of women with whom he was involved.

| i3In the present case, we likewise find that evidence of the offenses committed against any of the victims could have been introduced at the trial of the crimes committed against any of the others under La. C.E. art. 412.2, which allows for the introduction of evidence of similar crimes in cases involving sex offenses involving a victim who was under the age of 17 at the time of each offense. Each of the four victims was under the age of seventeen at the time of each offense and, thus, evidence of each offense is relevant to establish defendant’s propensity to sexually abuse young females who were acquaintances of his.

Additionally, the investigation of the offenses was significantly intertwined since the officers learned of the sexual abuse of C.P., J.T., and M.B. while investigating the allegations involving J.G. Further, it appears the jury was clearly able to segregate the various counts. The jury instructions charged the jury separately as to each count and corresponding victim, and there were four separate verdict forms executed by the jury as to each count and corresponding victim.

Accordingly, we find these offenses did not warrant a severance and the trial court did not err in denying defendant’s motion to sever or in denying defendant’s motion for mistrial on this basis.

Prosecutor’s Improper Closing Argument

Lastly, defendant argues that a mistrial should have been granted on the basis of an improper remark made by the prosecutor during his closing argument; specifically, the prosecutor stated, “We brought four counts and we’ve brought them all together, they’re all intertwined.” Defendant contends that by this statement, the prosecutor encouraged the jury to convict him on the number of charges rather than to consider each charge individually.

A prosecutor has considerable latitude in making closing arguments. State v. Jackson, 04-293 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-232 (La.5/6/05), 901 So.2d 1094. However, this latitude is not without limits. La. C.Cr.P. art. 774 provides that “[t]he argument shall be confined 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.” A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Jackson, supra.

After reviewing the record, we do not find the remark at issue influenced the jury or contributed to the verdict. Prior to the remark at issue, the State made clear the separate and distinct nature of the four charges by stating:

In this case[,] the State alleges four victims and there are four separate crimes against those victims, four counts. It’s going to be your duty to separate as jurors each count and the evidence as to each count. You’re going to get four, four different jury forms, verdict forms. One is to count No. 1, one is count No. 2, and so on. And so you, ladies and gentleman, have a duty and an obligation to separate the crimes that are charged and the evidence presented as it relates to those crimes, okay.

Additionally, the trial judge instructed the jury as to the separate offenses as follows:

When two or more offenses are charged in the same indictment, you are to consider them as completely separate. You must make a determination in each of these charges and reach a separate but independent verdict in each case. You are to consider the evidence in each case and determine which is the proper verdict in that particular case. The verdicts may be similar or dissimilar, according to how you are impressed with the evidence in each particular case.

In view of the entirety of the prosecutor’s remarks and the jury instructions, we do not find the comment at issue prejudicial. Thus, we find no error in the trial court’s denial of a mistrial on this ground.

1 ^ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that the trial court erred in finding J.G. competent to testify. Defendant contends that J.G. was incompetent to testify because she had been diagnosed with two mental disorders (bipolar disorder and post-traumatic stress disorder), she made illogical statements to the examining physician, her mother testified that J.G. often lied, and her testimony appeared coached.

La. C.E. art. 601 provides that every person of proper understanding is competent to be a witness except as otherwise provided by legislation. Understanding, not age, is the test of whether any person shall be sworn as a witness. State v. Cedrington, 98-253 (La.App. 5 Cir. 12/16/98), 725 So.2d 565, 577, writs denied, State v. Johnson, 99-190 (La.6/4/99), 743 So.2d 1249, State v. Codrington, 99—431 (La.6/25/99), 745 So.2d 1182. A key determination to be made is whether the witness is able to understand the difference between truth and falsehoods. The competency of a child to testify as a witness is based not only on the child’s answers to questions testing his understanding, but also on the child’s overall demeanor. Id.

The trial court is vested with wide discretion in determining the competency of child witnesses. Its ruling as to competency is entitled to great weight on appeal, and will not be disturbed absent abuse of discretion. Id.

Prior to trial, a hearing was held to determine the competency of J.G. At the hearing, J.G. stated her name, age, birth date, school, grade level, and address. She was asked about the difference between telling the truth and telling a lie. J.G. was given specific statements and asked if they were true or false. She correctly distinguished all examples as truths or lies. J.G. was also asked about her understanding of her surroundings. She knew she was in a courtroom and that the 11sperson in the black robe was a judge. J.G. stated that before she could tell her story in a courtroom, she had to “pledge that [she] will tell the truth and only the truth.” She explained that “you can get in trouble,” maybe go to jail, and probably would not be able to tell your story, if you lie. J.G. promised to tell the truth if the judge allowed her to tell her story. When asked why she should tell the truth, J.G. replied, “Because if someone tries to prank you just for a not good reason and you tell a lie, you don’t go to heaven you go underground. So it’s best to tell the truth so someone can know how to help you in what way.”

On cross-examination, J.G. stated that she had met with the prosecutor prior to the hearing to practice the questions he would ask. She also admitted that she had lied before. At the conclusion of the hearing, the trial judge found J.G. competent to testify.

Cases with similar circumstances have upheld the competency of a child witness. In Cedrington, supra, this Court found a seven-year-old boy competent to testify. The boy was able to tell the judge his birth date and year. He explained that to tell the truth meant to “don’t story.” He stated he would be able to tell the truth. The boy further stated that “God will punish you” if you do something wrong. This Court found the boy’s testimony before the jury was coherent, and his answers were responsive to the questions asked.

Also, in State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 940, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294, this Court found a six-year-old boy, who was a victim of sexual battery and aggravated oral sexual battery, to be competent. In Gaal, the child stated that he attended church, believed in God, and promised to tell the truth. He gave the name of his school and his grade level. When questioned about what “subjects” he took in school, he did not understand. However, he answered correctly when he was provided with 1 ^specific examples, When asked what it meant to tell a lie, the child responded that it was to “tell a different story.” The boy further stated that your mom and dad punish you when you tell a lie. He was given concrete examples and correctly distinguished between truth and falsehood. He admitted telling lies in the past, but stated he would tell the truth when sitting in the witness chair.

In finding the child witness competent, this Court noted that the record revealed the victim knew the difference between the truth and a lie, as demonstrated by his ability to differentiate when confronted with concrete examples. We also noted that despite an incorrect response given by the child regarding the number of days in a month, the child understood and correctly responded to questions presented in a way a six-year-old child could understand. Id. at 947.

Finally, in State v. Linson, 94-61 (La.App. 1 Cir. 4/7/95), 654 So.2d 440, 441, writ denied, 95-1120 (La.9/22/95), 660 So.2d 470, the Court found two children, ages seven and eight, competent to testify in a sexual abuse case. The Court focused on the girls’ ability to demonstrate through examples that they understood between telling the truth and telling a lie. Both children admitted telling lies in the past, but stated they would tell the truth when asked questions at trial. They both testified they believed in God and they knew God wanted them to tell the truth.

Similar to these cases, J.G. correctly stated her name, age, birth date, school, grade level, and address. She stated she understood the difference between the truth and a lie, which was confirmed by two examples. She testified that she believed in God and that God wanted her to tell the truth. She was aware of her surroundings, acknowledging her presence in a courtroom in front of a judge. She was aware that she would be punished if she did not tell the truth, and she ^understood the meaning of the oath given to witnesses. J.G. also understood the importance of telling the truth to policemen and doctors. Although she admitted she had told lies in the past, she promised that she would tell the whole truth when asked questions at trial. Lastly, in regard to J.G.’s mental disorders, Dr. Hutton testified that bipolar disorder would not affect J.G.’s ability to know the difference between right and wrong.

Considering the record before us, including the testimony of the child, we find the trial judge did not abuse his discretion when he found the child victim competent to testify. Accordingly, this assignment of error is without merit.

ERRORS PATENT

We reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975).

First, the record does not reflect that defendant was notified of the sex offender registration requirements. Defendant’s convictions for aggravated rape and sexual battery are defined as sex offenses by La. R.S. 15:541(24)(a). La. R.S. 15:540, et seq. requires registration of sex offenders and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirement of La. R.S. 15:542 and La. R.S. 15:542.1 to the defendant. This Court has held that the trial court’s failure to provide this notification constitutes an error patent and warrants a remand for written notification. State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213. Accordingly, we remand this matter to the trial court for the purpose of providing defendant with appropriate written notice of his sex offender notification and registration requirements, using the form contained in La. R.S. 15:543.1.

Second, we note the commitment is not consistent with the sentencing transcript. The commitment shows that defendant was sentenced to 10 years on 12i count four, whereas the transcript indicates defendant was sentenced to 25 years. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

According, we further remand the matter and order the trial court to correct the commitment to reflect that defendant received a 25-year sentence on count four as indicated in the transcript. Further, the clerk of the district court is ordered to transmit the original of the corrected commitment to the officer in charge of the institution to which defendant has been sentenced and to the Legal Department of the Louisiana Department of Corrections. La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam).

DECREE

For the foregoing reasons, defendant’s convictions for two counts of aggravated rape and two counts of sexual battery and his sentences on each are affirmed. The matter is remanded to the district court for it to provide defendant with his sex offender notifications and registration requirements, and for correction of the commitment as to defendant’s sentence on count four as ordered above.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS

      . The victim's initials, as well as the initials of the victim's family members, are used under the authority of LSA-R.S. 46:1844(W)(3), which allows the Court to identify a crime victim who is a minor or a victim of a sex offense by using his or her initials.

      . J.G.’s date of birth is March 14, 2000.

      . For the acts committed on J.G., defendant was charged with and convicted of aggravated rape (count 1).

      . C.P.'s date of birth is February 17, 1982. The incidents involving C.P. occurred between February 17, 1988 and February 16, 1994, when she was six to eleven years old.

      . For the acts committed on C.P., defendant was charged with and convicted of aggravated rape (count 2).

      . J.T.'s date of birth is October 16, 1986. She was 16 years old on the date of the offense, which occurred between June 15 and June 23, 2003.

      . For the acts committed on J.T., defendant was charged with and convicted of sexual battery (count 3).

      . M.B.’s date of birth is December 27, 1990. She was three to four years old on the date of the offense, which occurred between December 27, 1993 and December 27, 1994.

      . For the acts committed on M.B., defendant was charged with and convicted of sexual battery (count 4).

      . In Doyle, the United States Supreme Court held that reference to a defendant’s silence at the time of his arrest and after he received the Miranda warnings for impeachment purposes violates his due process rights. The Supreme Court explained, "every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested... . it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial." Doyle v. Ohio, 426 U.S. at 617-18, 96 S.Ct. at 2244-45.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Mark OTT.
    No. 2010-KA-1307.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

|TOn June 11, 2007, Robin Malta was discovered bludgeoned to death in his apartment at 634 Port Street in New Orleans. Subsequently, the defendant, Mark Ott, was charged with second-degree murder in the death of Mr. Malta. At his arraignment, the defendant pled not guilty.

During a four day trial, the jurors heard testimony from investigators involved in the case, experts, and lay witnesses. At the conclusion of the trial, the jury returned a verdict of guilty, with ten jurors finding the defendant guilty as charged and two finding him guilty of manslaughter. Following the verdict, the defendant filed Motions for New Trial and for Post-Verdict Judgment of Acquittal, which the trial court denied. The trial court sentenced the defendant to life imprisonment without benefit of probation, parole or suspension of sentence. This appeal followed.

On appeal the defendant raises four issues that he asserts warrant a reversal of the conviction and/or a new trial: 1) the evidence was insufficient to prove guilt beyond a reasonable doubt; 2) improper statements were made by the State during closing arguments; 3) he had ineffective assistance by counsel; and 4) a non-unanimous jury verdict violates his Sixth Amendment rights.

| ¡.First, the defendant contends that the evidence produced at trial was insufficient for a jury to find guilt beyond a reasonable doubt. At trial, the jury was presented with witnesses that recounted the events leading up to the discovery of Mr. Malta’s body. Those witnesses included William Panter, the victim’s landlord and next door neighbor, the victim’s sister, Monica Malta, and his friend and employee, Mark Kinsell. These three witnesses discovered Mr. Malta’s body and contacted the police. Mr. Kinsell testified that he grew concerned when he arrived for work at Salon D’Malta and found it in disarray. He described the condition of the salon as having a mirror on the floor, chairs out of order, hair clippings on the floor with the victims’ trimmers, clippers and shears. There were also beer bottles, cigarette butts and shot glasses on the floor. Ms. Malta and Mr. Kinsell both acknowledged that this was out of the ordinary, as Mr. Malta was very meticulous about the condition of the salon.

Other witnesses that testified included the defendant’s co-workers from his employment as a deckhand with Turn Services in New Orleans. Those witnesses established dates in which the defendant applied for employment, interviewed and actually worked at Turn Services. Additionally, one of the co-workers testified that he often picked the defendant up and dropped him off at hotels and motels around the French Quarter. Those witnesses established the defendant’s whereabouts in New Orleans on or around the date of Mr. Malta’s murder in contrast to Mr. Ott’s initial statements that he only came to the city to party.

Also testifying at trial were numerous investigators and experts that participated in the investigation of the murder. John Gagliano was the chief [¡¡investigator for the Orleans Parish Coroner’s Office and acted as the liaison between the coroner’s office and state pathologist in connection with the investigation into the murder of Mr. Malta. Mr. Gagliano photographed the crime scene and the deceased and compiled a report of his findings for the coroner. When he arrived at the scene, he observed the victim lying face down on his bed. Mr. Gagliano remembered that the apartment was very hot because the kitchen stove had been turned on full blast, and the oven door was open. He surmised that it appeared as if someone was trying to set the premises on fire to cover up a crime. There was a sticky substance on the floor and on the victim’s body which Mr. Gagliano opined was a fire accelerant. After obtaining information about the victim and taking photos of the scene, he turned the body over and noted injuries and a sexual object, stuck in the victim’s mouth. Mr. Gagliano further noted that there were no signs of forced entry into the apartment.

Detective Erbin Bush of the New Orleans Police Department arrived at the victim’s residence and noted that EMS personnel and NOPD support units were already on site. Detective Bush identified photographs documenting the appearance and condition of the Port Street residence at the time of his arrival. He confiscated several items from the crime scene all of which were deposited in Central Evidence and Property for testing. None of the items collected produced physical evidence that lead to a suspect.

NOPD Crime Lab Director Anna Dug-gar testified by stipulation as an expert in blood spatter analysis, collection of evidence, blood testing, serology and development of latent prints. Ms. Duggar explained to the court that she visited the |4crime scene on June 14, 2007, to inspect and photograph the scene. She identified the photographs she took and further stated that she observed blood stains/spatter patterns on the living room wall, the door between the living and bedroom, the floor in front of the bedroom door and an orange paint bucket. Ms. Duggar opined that the victim was hit in the head multiple times in the living room, while he was seated on a bench, but she could not say what object was used to hit the victim. She also theorized that the victim was pulled from the bench onto the carpeted floor where he left a pool of blood. Judging from the volume of the blood on the orange paint bucket, Ms. Duggar theorized that the victim’s assailant put the bucket over the victim’s head as the victim was dragged into the bedroom.

NOPD Officer Derrick Melder, a member of the NOPD Crime Lab, collected evidence from and photographed the crime scene on June 13, 2007. His report indicated that after he photographed the scene, he collected two wooden hammers from the kitchen of the victim’s residence. He was later called back to the scene to collect items that had been discovered by Nate Burgess who worked for a crime scene cleanup business called Clean Scene. An additional report was made pursuant to his June 22, 2007, visit to the crime scene reflecting the three pieces of a cell phone and a smoke detector that was discovered on that date. The smoke detector was identified as the exact make and model the landlord had installed in Mr. Maker’s apartment.

Detective Decynda Barnes, an NOPD homicide detective, testified that she became involved in this investigation in August 2007 when she read the report of her predecessor in this case. She learned that blood samples were collected during pthe investigation of this case, and she obtained swabs of the samples and sent them to the State Police Crime Lab for DNA analysis. The first swab was from a smoke detector which tested positive for human blood. The detective explained that the swab from the smoke detector resulted in an identification by CODIS. Based on the CODIS hit for the defendant, Detective Barnes obtained the defendant’s state identification number and prepared a warrant for his arrest.

The arrest warrant was signed on July 18, 2008. Barnes located the defendant in the Albany, Louisiana jail. On July 80, 2008, the detective travelled to Albany and after advising the defendant of his Miranda rights escorted him to Orleans Parish. On the way, Detective Barnes asked the defendant if he knew the victim or had ever come to New Orleans. The defendant denied knowing the victim or anyone from the city and said he only came to New Orleans on occasion to party. She then asked the defendant if he had ever been inside of 634 Port Street, and again he said no. The defendant then asked Detective Barnes whether the police had any DNA evidence. The detective replied that the DNA the police had was a mixture of his and the victim’s blood located at the crime scene. The defendant said he asked the question because his girlfriend was a nurse. Later during the conversation, the detective learned that the defendant was married with two children and also had a girlfriend. When the detective asked the defendant if he had ever had his hair cut in New Orleans, he responded that he had two haircuts but could not remember the name of the salons.

Upon returning to New Orleans Detective Barnes obtained a warrant to obtain buccal swab from the defendant for comparison with the sample held at the | fiState Police Crime Lab. That sample was tested against the blood swab taken from the smoke detector to develop likelihood ratio statistics.

On appeal, the defendant contends that the evidence presented was insufficient to support his conviction. He offers two arguments to support this assertion: first, the evidence was too uncertain to establish beyond a reasonable doubt that the DNA found on the smoke detector in the victim’s apartment was his; second, even assuming the jury reasonably concluded that the DNA belonged to him, the evidence was still legally insufficient to prove his guilt beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), set forth the constitutional standard for testing the sufficiency of the evidence requiring that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. State v. Carmouche, 508 So.2d 792, 799 (La.1987). Often, circumstantial evidence is used to prove the commission of the offense. Id. Under those circumstances, the circumstantial evidence rule provided by La. R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Id. That rule does not conflict with the Jackson standard. “[A]ll evidence both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden.” Id. (citing State v. Garcia, 483 So.2d 953 (La.1986); State v. Porretto, 468 So.2d 1142 (La.1985); State v. Wright, 445 So.2d 1198 (La.1984)).

It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Hebert, 2000-1052, p. 12 (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050 (citing State v. Smith, 600 So.2d 1319, 1324 (La.1992)). Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. Id. Therefore, “absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369 (citing State v. Legrand, 864 So.2d 89, 94 (La. 2003)). A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

In order to obtain a conviction, the State must prove the elements of the crime charged beyond a reasonable doubt. Jackson, supra. The defendant in this case was convicted of second degree murder, defined in pertinent part by La. R.S. 14:30.1 as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm, or when the offender is engaged in the perpetration or attempted perpetration of, among other felonies, armed robbery or simple robbery.

Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent need not be proven as fact, but may be inferred from the circumstances and actions |sof the defendant. State v. Hebert, 2000-1052, p. 12, 787 So.2d 1041, 1050. The intent to kill or to inflict great bodily may be inferred from the extent and severity of the victim’s injuries. State v. Lawson, 08-123, p. 7 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 522.

There is no dispute that the victim was beaten to death in his home. The defendant maintains that the jury was unreasonable in reconciling Ms. Herndon’s contradictory testimony that the initial DNA match against his CODIS profile excluded only 80.5% of the population as contributors to the smoke detector sample, but that the defendant was ultimately determined to be at least 14.3 million times more likely than another random person to have contributed to it. As such, the defendant argues that Ms. Herndon’s testimony is internally contradictory or irreconcilable with physical evidence and legally insufficient to sustain the jury’s factual finding that the DNA found in the victim’s bedroom belonged to him. Further, he maintains that absent DNA evidence, the remaining circumstantial evidence was insufficient to link him to the murder and for any reasonable trier of fact to have found that the State established his guilt beyond a reasonable doubt.

The defendant mischaracterizes Ms. Herndon’s testimony regarding her DNA analysis results and suggesting that the rate of exclusion and likelihood ratios are necessarily contradictory and mutually exclusive, such that no reasonable trier of fact could have reconciled them in favor of finding that the DNA proved his presence in the victim’s apartment. The defendant also construes the 17.5% non-exclusion rate and the 14.3 million-to-one likelihood ratio as both pertaining to the chances that another person beside himself could have contributed to the blood sample found on the victim’s smoke detector based on the 12-out-of-13 loci DNA match obtained by the Louisiana State Police lab. The defendant contends it is | ^mathematically impossible for a profile that cannot exclude one-fifth of the world’s population (roughly 1.3 billion people) to exclude everyone but him in all but one of the 14.3 million random analyses.

Ms. Herndon testified on cross-examination that those two figures are entirely unrelated and that one does not negate the other. The defendant is correct that the likelihood ratio of at least 14.3 million-to-one relates to the chances that another random person with the same overall genetic profile as the defendant — adjusting for allelic dropout — could have contributed to the mixture sample deposited on the smoke detector. However, the 17.5% non-exclusion rate does not also relate to the tested profile as a whole but rather relates to the likelihood that another random person could have contributed the same single missing allele in the mixture sample that was initially matched to the defendant through CODIS. For that reason, Ms. Herndon testified that it is necessary to take the entire profile into account in assessing whether the defendant could be excluded as a contributor because it was against protocol to exclude a subject based on the 17.5% chance that someone else may have contributed a single dropped allele.

We cannot find that the jury was unreasonable in accepting Ms. Herndon’s expert testimony that allelic dropout is a generally accepted and not uncommon scientific phenomenon. Given that the defendant’s buccal swab was a perfect DNA match with the smoke detector sample at all 12 remaining loci, the jury was reasonable in inferring, based on reason and common sense, that the dropped allele in that sample in all likelihood also matched the defendant, and that the 14.3 million-to-one likelihood that someone other than the defendant contributed to the mixed sample found in the victim’s apartment was valid and established the defendant’s presence in the apartment beyond a reasonable doubt.

|inThe defendant further argues that even if there was a trace amount of his DNA on the smoke detector, that finding is still not sufficient to establish that he committed the murder. He contends that it was possible that he had gotten his hair cut at the victim’s salon, and thus it is also possible that his DNA could have been dispersed through every hair follicle and microscopic scraping of skin released by a comb or clippers that were used on him. The defendant suggests that his DNA would “rain down” over the hands, clothes, and shoes of the person cutting his hair. He further argues that if the person who cut his hair was the victim, he could have easily carried a microscopic amount of the defendant’s DNA into his house and then deposited it on the smoke detector when he changed the batteries, or he could have deposited the DNA onto the hands of the murderer, who then transferred it to the smoke detector.

Confronted with competing accounts of how the defendant’s DNA ended up in the victim’s bedroom, the jury chose to believe the State, and this Court is not in a position to second guess the jury’s conclusion.

Also relating to the DNA evidence in this case is the defendant’s second issue raised on appeal. The defendant claims that he received ineffective assistance of counsel because his attorney failed to call defense expert Dr. Laurence Mueller, who would have exposed the State’s flawed testing/analysis and would have testified that in his opinion the defendant’s DNA profile actually excluded him as a contributor to the blood mixture found on the smoke detector in the defendant’s bedroom. Hence, the defendant contends that counsel’s mistake deprived him of “a powerful weapon with the obvious capacity to undermine, if not wholly devastate, the State’s DNA evidence.”

JjjThe preferred procedure for addressing claims of ineffective assistance of counsel is a post-conviction proceeding in the trial court, not on appeal. State v. Watson, 00-1580, p. 4 (La.5/14/02), 817 So.2d 81, 84 (citing State v. Deloch, 380 So.2d 67, 68 (La.1980)). Raising the issue in a post-conviction procedure provides for a full evidentiary hearing to be conducted to explore the issue. Id. (citing State v. Stowe, 93-2020 (La.4/11/94), 635 So.2d 168; Deloch, 380 So.2d at 68 (La.1980)).

For a defendant to be successful in a claim of ineffective assistance of counsel, he must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 687 (1984). Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. 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. 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.” Id.

Initially, the defense counsel in this case filed a pre-trial motion in limine to exclude the State’s DNA evidence entirely and was granted a contradictory hearing by the district court in which that motion, accompanied Dr. Mueller’s affidavit, was considered and ultimately denied by the court opining that cross-examination was the proper avenue for the defense to test the State’s testing procedures and conclusions. At some point, counsel determined that cross-examination alone l^would be sufficient to refute Ms. Herndon’s findings; and Dr. Mueller was not subpoenaed.

The defendant must now show that he was denied a fair trial due to his counsel’s decision not to subpoena or call Dr. Mueller. Whether Dr. Mueller’s credentials as an expert in DNA, his factual conclusions, and critique of Ms. Herndon’s conclusions would have swayed a jury had he been called to testify, is an issue that warrants a full evidentiary hearing. Given the substantial weight of the DNA evidence in this case, this Court does not find that the record provides adequate information to properly explore the issue. This assignment of error would better be addressed in a post-conviction proceeding.

Next, the defendant asserts that certain statements made during the State’s closing arguments were untrue and were prejudicial to the defendant. More specifically, the defendant complains that the district attorney violated his due process right to a fair trial during the State’s rebuttal closing argument when he falsely represented to the jury that the defendant’s uninformed knowledge of certain investigative facts proved his guilt.

The defendant concedes that “[djefense counsel did not immediately object to this argument,” but nonetheless asserts that this issue was preserved by its inclusion as a basis for his post-verdict motion for new trial, and asks this Court to consider the merits thereof. Alternatively, the defendant asks this Court to find that his counsel was ineffective for failing to timely object to the district attorney’s comments.

|!SA defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. La.C.Cr.P. art. 841(A); State v. Cuccia, 2005-0807, p. 34 (La.App. 4 Cir. 3/15/06), 933 So.2d 134. Not only does an objection have to be made, but La.C.Cr.P. art. 841(A) requires that a defendant make known the grounds for his objection, and he is limited on appeal to those ground articulated at trial. State v. Brooks, 98-0693, p. 9 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 819. Objections to remarks of the district attorney in closing argument must be made at that time and not after conviction in a motion for a new trial. State v. Batiste, 318 So.2d 27, 36 (La.1975). By not objecting, defendant has failed to preserve this issue for review.

Further, as discussed above, an ineffective assistance of counsel claim is more appropriately addressed at a full evidentia-ry hearing on post-conviction relief. This argument should be presented together with the argument regarding Dr. Mueller not being called as a witness.

In the defendant’s final assignment, the defendant argues that his conviction by a non-unanimous twelve-person jury violates his due process rights. The defendant herein was convicted of second-degree murder by a vote of 10 to 2.

Louisiana Constitution Article I, § 17(A) provides that 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.” Additionally, La.O.Gr.P. art. 782(A) provides in part that “[cjases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”

In Apodaca v. Oregon, 406 U.S. 404, 410-11, 92 S.Ct. 1628, 1632-33, 32 L.Ed.2d 184 (1972) the United States Supreme Court specifically stated that there is no requirement of unanimity to convict or acquit. Id. More recently, this Court in State v. Boudreaux, 2008-1504 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, discussed the long standing jurisprudence and referenced the Louisiana Supreme Court’s opinion in State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738. In Bertrand, the trial court found that La.C.Cr.P. art. 782(A) violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, relative to the number of jurors needed to concur to render a verdict in cases in which punishment is necessarily confinement at hard labor, the same issue raised by the defendant in the instant case. On direct appeal by the State, the Louisiana Supreme Court reversed, stating that under current jurisprudence from the United States Supreme Court, non-unanimous twelve-person jury verdicts are constitutional; and therefore La.C.Cr.P. art. 782(A) is constitutional.

For the foregoing reasons, the defendant’s conviction and sentence is affirmed. Furthermore, his claims for ineffective assistance of counsel are relegated to post-conviction relief.

AFFIRMED

      . The victim owned Salon D’Malta located at 1233 Decatur Street, New Orleans.

      . The defendant applied for and interviewed for the deck hand job on June 8, 2007. The defendant signed a "Pre Employment Agreement” on June 12, 2007 and began his employment at Turn Services on June 17, 2007. His employment was terminated on February 12, 2008.

      . These items did not provide any conclusive evidence.

      . The smoke detector was the one piece of physical evidence that linked the defendant to the crime. The defendant does not challenge the collection of the evidence, only the validity of the analysis of the DNA.

      .CODIS is an acronym for the combined DNA index system where criminals' DNA is kept on record. The system was designed by the FBI and supplied to the state for identification of DNA samples.

      . Because this Court is not addressing the substance of this assignment of error the statements complained of have not been included in the opinion.

      . Two of the jurors voted in favor of a manslaughter verdict.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Christopher BROWN.
    No. 2011-KA-0804.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2012.

      Kenneth J. Beck, Gretna, LA, for Bankers Insurance Company.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

1 |In this appeal, Bankers Insurance Co. (Bankers) seeks review of the judgment of the trial court denying its motion to set aside bond forfeiture. For the following reasons, we reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The police arrested Christopher Brown on October 13, 2009. On October 16, 2009, Bankers posted a commercial surety bond to secure the appearance of Mr. Brown in court. Mr. Brown failed to appear in court on November 19, 2009, for a hearing on motions. In open court, the judge ordered forfeiture of the bond posted by Bankers, though no written judgment was signed. On November 20, 2009, Mr. Brown appeared in court, and his case was reset to February 10, 2010. On February 10, 2010, Mr. Brown failed to appear in court. Upon the request of the State, the judge again ordered forfeiture of the bond posted by Bankers, though no written judgment was signed.

Later, the prosecuting attorney reset the matter for a status conference to be held on April 21, 2010. Mr. Brown failed to appear. On April 30, 2010, the prosecuting attorney requested that the matter be set for a bond forfeiture hearing. A hearing was set for May 17, 2010. On May 17, 2010, the prosecuting attorney 12again requested forfeiture of the bond posted by Bankers. In open court, the judge ordered forfeiture of the bond. On May 17, 2010, the judge also signed a written judgment ordering forfeiture of the bond. On June 4, 2010, the deputy-clerk for the criminal district court issued an affidavit of bond forfeiture notification to Bankers.

Bankers filed a motion to set aside bond forfeiture. After oral argument on the motion, the court denied the motion to set aside bond forfeiture. From that judgment, Bankers filed the instant appeal.

BOND FORFEITURE

Bond forfeitures are not favored. Bankers Ins. Co. v. State, 37,080, p. 3 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644. The obligations created by an appearance bond are civil in nature, but they are subject to special rules. Id. The State must strictly comply with the special rules regarding bond forfeitures to obtain a judgment of bond forfeiture against a surety. Id., p. 4, 843 So.2d at 644. At the time the judgment of bond forfeiture was entered, La. R.S. 15:85 provided in pertinent part:

(3) Notice of judgment.
(a)After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture. The notice of the signing of the judgment of bond forfeiture shall be mailed by the United States certified mail with return receipt to all of the following:
(i) The defendant at the address designated pursuant to Code of Criminal Procedure Art. 322.
(ii) The personal sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322.
(iii) The agent or bondsman who posted the bond for the commercial sureties at the address designated pursuant to Code of Criminal Procedure Art. 322.
(iv)The commercial sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322.
(b) After mailing the notice of the signing of the judgment of bond forfeiture, the clerk of court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record.
(c) Failure to mail proper notice of the signing of the judgment within sixty days after the defendant’s failure to appear shall release the sureties of any obligations under the bond.

The purpose of the bond forfeiture statute, La. R.S. 15:85, “is to shield the surety from prejudice brought about by the delay in learning of the defendant’s failure to appear.” State v. Williams, 07-648, p. 6 (La.App. 5 Cir. 1/22/08), 977 So.2d 154, 157-158, citing State v. Gibson, 04-0591 (La.App. 1 Cir. 3/24/05), 907 So.2d 82, 85, n. 3.

Bankers argues the clerk of court failed to mail notice of the judgment entered on November 19, 2009, within sixty days after Mr. Brown’s failure to appear. Thus, Bankers concludes that any obligation under the bond has been released pursuant to La. R.S. 15:85. Bankers further notes that Mr. Brown failed to appear on February 10, 2010, and again, the court ordered the bond forfeited and the clerk of court failed to mail notice of the judgment within sixty days of the nonappearance by Mr. Brown.

In support of its argument, Bankers cited this Court’s decision in State v. Polk, 96-1785, 96-1788 (La.App. 4 Cir. 1/29/97), 688 So.2d 191. Therein, this Court noted that the State is not required to move for forfeiture every time the defendant fails to appear or on the date the defendant fails to appear. Id., p. 3, 688 So.2d at 192. However, the Court concluded that “the forfeiture process must still be completed within sixty days of the defendant’s failure to appear at a required court appearance.” Id., p. 3-4, 688 So.2d at 193. The State argued that the defendant failed to appear at the bond forfeiture hearing, but the court concluded |4that the defendant’s presence was not required at the bond forfeiture hearing. Id. Bankers notes that a similar result was reached in State v. Williams, 2007-648, p. 9 (La.App. 5 Cir. 1/22/08), 977 So.2d 154, 159, wherein the Williams court cited Polk with approval.

On the other hand, the State argues that the appearance by Mr. Brown on November 20, 2009, served to set aside the judgment of bond forfeiture by operation of law. Thus, the State concludes that no notice of the judgment of bond forfeiture was required to be sent to .Bankers at that time. The State points to the bond forfeiture provision which provides that “the appearance of the defendant shall operate as a satisfaction of the judgment.” La. R.S. 15:85(10)(a). The State also cites this Court’s decision in State v. Wheeler, 499 So.2d 1275 (La.App. 4 Cir.1986), wherein this Court stated that:

If, however, the judgment of forfeiture is rescinded or set aside, then defendant’s bail is satisfied, he remains free on that bail, and both defendant and the surety are returned to their original positions as if the bond had never been forfeited. A ruling rescinding or setting aside a judgment of bond forfeiture does not cancel the bond or the obligations of those parties liable on the bond; it reinstates the bond by removing it from the ranks of the forfeited.

Id., 499 So.2d at 1277.

We agree with the State’s argument that the appearance of Mr. Brown on November 20, 2009, operated to rescind or set aside the judgment of bond forfeiture entered on November 19, 2009, and that no notice was required to be sent to Bankers at that time. The bond was reinstated following Mr. Brown’s appearance on November 20, 2009. However, the State again requested that a judgment of bond forfeiture be granted when Mr. Brown failed to appear on February 10, 2010. The February 10, 2010 transcript reveals that the court granted | sthe motion by the State and ordered the forfeiture of the bond. The State had sixty days from February 10, 2010, to complete the bond forfeiture proceeding. No written judgment was obtained, and no notice was mailed out within sixty days of February 10, 2010. Thus, the State failed to complete the bond forfeiture proceeding within sixty days of Mr. Brown’s failure to appear. Prompt notice enhances the possibility that the surety will locate and surrender the defendant. The purpose of the bond forfeiture statute was defeated in this instance. As a result, we find Bankers is released of any and all obligations under the bond pursuant to La. R.S. 15:85(3)(c).

DECREE

Accordingly, the judgment of the criminal district court denying the motion to set aside bond forfeiture is reversed.

REVERSED

      . La. R.S. 15:85 was amended effective August 15, 2010. However, the law in effect at the time of the bond forfeiture applies. Bankers, 37,080, p. 4, 843 So.2d at 644, n. 2, citing State v. Adkins, 613 So.2d 164 (La.1993).


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Joseph LEE.
    No. 2011-KA-0892.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Benny S. George, Jr., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY C. LOBRANO).
   EDWIN A. LOMBARD, Judge.

hThe State appeals the judgment granting the defendant’s motion to quash. After review of the record in light of the applicable law and arguments of the parties, the judgment of the district court is reversed.

Relevant Facts and Procedural History

Joseph Lee, the defendant, was charged by bill of information with aggravated battery on August 14, 2009. He was arraigned on August 19, 2009, and at a motion hearing on October 15, 2009, the district court found probable cause, denied the defendant’s motion to suppress, and set the matter for trial November 11, 2009. The trial date was continued four times and on March 1, 2010, the State entered a nolle prosequi as to the aggravated battery charge. The prosecution was reinstituted on July 2, 2010, and the defendant was charged with attempted second degree murder. Arraignment was set for July 22, 2010, but the defendant failed to appear. A warrant for the defendant’s arrest was issued and the arraignment was rescheduled for August 5, 2010. When the defendant did not appear on August 5, 2010, his arraignment was continued without date.

On January 24, 2011, the defendant appeared in court and a discovery hearing was scheduled for March 3, 2011. According to the record, the defendant 12filed the motion to quash at issue in this appeal on April 4, 2011, and appeared in the court the next day. On April 18, 2011, the trial court granted the defendant’s motion to quash.

Discussion

The State appeals the judgment, arguing that the district court abused its discretion in quashing the new bill of information because the defendant neither alleged nor demonstrated a violation of his right to a speedy trial. In response, the defendant asserts that the State’s pattern and practice of obtaining de facto continuances through the device of dismissing prosecutions and subsequently reinstituting them is a violation of his constitutional right to due process. The defendant argues that the inequity of granting the powers of nolle prosequi and reinstitution to the State, but not to the defendant, is “patently unfair” and a violation of the Fourteenth Amendment and the Articles I and II of the Louisiana State Constitution. This argument is without merit.

A district court’s resolution of a motion to quash in cases such as this one, where the district attorney entered a nolle prosequi and later reinstituted charges, is considered on a case-by-case basis. State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249 (citation omitted). The State’s ability to manipulate the district court docket and the district judge’s ability to conduct proceedings in an orderly and expeditious manner is clearly open to abuse. However, the Louisiana Supreme Court has directed that in cases (such as this one) where the prosecution was reinstituted within the statutory periods of limitation, in order to merit relief the defendant must “make a showing of specific prejudice to his defense.... ” State v. King, 2010-2638, pp. 7-8 (La.5/6/11), 60 So.3d 615, 619-20 (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

|3In this case, the defendant was charged with aggravated battery in August 2009, subsequently charged with attempted second degree murder in July 2010, and arraigned on that charged in January 2011. Thus, the time limitation for bringing the matter to trial was not breached and the defendant does not allege in his motion to quash that specific barriers have been placed before him by the prosecution which prevent him from obtaining a fair trial. Rather than address the amount of time elapsed and the specific prejudice he has suffered as a result of the State’s actions, the defendant makes inflammatory references to the usurpation of the rights of the judiciary by the State prosecutors. Even accepting arguendo the validity of these remarks, the defendant’s constitutional due process rights are not implicated. The defendant’s motion to quash did not assert violation of defendant’s Sixth Amendment speedy trial rights, and in any event, claimed no prejudice to his defense of the case arising out of the delay occasioned by the State’s dismissal and immediate reinstitution of the prosecution to force a second continuance of trial. Accordingly, under the circumstances of this case, the district court erred in granting the motion and dismissing the prosecution with prejudice.

Conclusion

The judgment of the district court is reversed and the case is remanded to district court for further proceedings.

REVERSED AND REMANDED.