author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Brian K. MASSEY.
    No. 10-KA-861.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss, Jerome G. Smith, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ¡¿Defendant appeals his conviction of possession with intent to distribute cocaine. For the reasons which follow, we affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

On August 23, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Brian K. Massey, with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967 A. Defendant was arraigned on October 25, 2006, and pled not guilty. On May 4, 2010, defendant’s Motion to Suppress evidence and the State’s Notice of Intent to introduce 404(B) evidence were denied. On that same day, the case was tried before a 12-person jury which found defendant guilty as charged. Also on May 4, 2010, the trial court found defendant guilty of possession of drug paraphernalia and possession of marijuana in a separate district court case.

On May 13, 2010, the trial judge sentenced defendant, to imprisonment at hard labor for 30 years to run consecutively to any other sentence he was currently serving. The trial court also sentenced defendant to six months for the possession |sof marijuana and drug paraphernalia charges, to run concurrently with any other sentence he was currently serving. Also on May 13, 2010, the State filed a multiple bill alleging defendant to be a third felony offender and defendant denied those allegations.

On June 4, 2010, the trial judge found defendant to be a third felony offender. The trial judge subsequently vacated the original sentence and resentenced defendant under the multiple bill statute to imprisonment at hard labor for 40 years “consecutive in the department of corrections.”

FACTS

The following facts were elicited at trial. On August 9, 2006, at approximately 4:35 a.m., Sergeant Donald Galliano and Officer Dustin Ward of the City of Westwego Police Department were in separate marked vehicles on the Westbank Expressway looking for traffic violations when they observed a black Lincoln with very dark tinted windows traveling eastbound. Sergeant Galliano and Officer Ward decided to conduct a traffic stop. Officer Ward was in the lead car, and Sergeant Galliano was in the rear car. After the vehicle eventually came to a stop, Officer Ward, using his PA system, asked the driver several times to exit the vehicle, but he did not do so.

Sergeant Galliano and Officer Ward then exited their units and gave several loud verbal commands telling the driver to step out. After those additional requests, the driver still did not exit his vehicle. Therefore, Officer Ward went toward the driver’s side and Sergeant Galliano went toward the passenger side of the vehicle. Sergeant Galliano shined his flashlight into the window, but he could not see anything because of the dark tinted windows. He proceeded to the front of the vehicle and shined his flashlight through the front windshield. When he did so, he saw defendant “fooling with the center console like he was reassembling it.”

|4The driver then opened the driver’s side door and stepped out of the vehicle. At that time, Officer Ward smelled burned marijuana. Defendant became very nervous and started looking around from side to side and shuffling his feet. Based on his experience, Sergeant Galliano believed that those were signs that defendant was about to run. Therefore, Officer Ward applied “wrist lock” and put defendant on the side of the vehicle.

Sergeant Galliano and Officer Ward requested defendant’s driver’s license, vehicle registration, and proof of insurance. When they requested the driver’s license, defendant replied that his license was possibly suspended and that he had outstanding attachments. Sergeant Galliano conducted a National Computer Information Check (NCIC) and learned that defendant was correct in that his driver’s license was suspended, and he had outstanding attachments. Defendant was arrested and advised of his rights. Officer Ward conducted a pat down search of defendant for weapons, but did not find anything.

Sergeant Galliano walked to the driver’s side of the vehicle and also smelled burned marijuana. He looked inside the opened driver’s side door and saw particles of green leafy matter on the driver’s seat consistent with marijuana. After making that observation, Sergeant Galliano searched the vehicle. When he did so, he saw particles that he believed to be marijuana on the front seat and a digital scale on the driver’s seat on the right hand side. Sergeant Galliano lifted up the center console and found three off-white rocks that he believed to be crack cocaine and a “bud” of green vegetable matter that he believed to be marijuana next to them. He also located $451.00 in cash inside the driver’s side door.

Sergeant Galliano field tested the particles on the front seat and the green leafy vegetable matter on the scale, and they tested positive for marijuana. He also field tested the off-white rocks, and they tested positive for cocaine.

| ¿After defendant was arrested, but before he was transported to the City of Westwego headquarters, Officer Ward checked the rear seat of his unit to make sure that there were no narcotics or weapons inside the vehicle pursuant to police department policy. When Officer Ward did not find anything, defendant was placed in the back seat of Officer Ward’s unit and transported to the City of West-wego headquarters. While en route, defendant’s hands were behind his back, and defendant was “moving a lot,” which started to concern Officer Ward. When they arrived, Officer Ward conducted a more thorough search of defendant’s person, after which he found in defendant’s sock a clear bag of green vegetable matter that field tested positive for marijuana.

Once defendant was removed from the unit, Officer Ward located a clear plastic bag stuffed in the seat right behind where defendant had previously been sitting. Sergeant Galliano testified that inside that bag were several other clear plastic bags filled with a white powdery substance. Officer Ward testified that that bag also contained an off-white rock substance. Additionally, when defendant exited the unit, he had white powder on the back of his pants, on the back of his belt, inside of his pants all the way to the buttock area, on his hands, and in his fingernails. All of these substances field tested “positive.” There was no residue on the seat prior to defendant getting into the unit.

Testing was performed on the windows of defendant’s vehicle to determine whether they were legally tinted, and the reading was six percent. Sergeant Galliano explained that the front driver’s side and passenger side windows were allowed to be 40 percent or higher, and that the lower the number, the less you could see.

After being qualified as an expert in the field of packaging, quantity, and distribution of narcotics, Detective Sergeant Shane Klein of the Jefferson Parish ^Sheriffs Office (JPSO) testified that the evidence showed that this was someone who was in possession with the intent to distribute, because there were no pipes, no syringes, and no other paraphernalia one would use to consume the drugs himself, and the only paraphernalia present was that associated with distribution, including the digital scale, the packaging material, the amount of cocaine, and the money.

Charles Krone, an expert in the field of identification and classification of controlled dangerous substances, testified that State’s Exhibit 1 weighed 11.85 grams and tested positive for marijuana. He also testified that State’s Exhibit 2 was comprised of numerous torn pieces of plastic bags and loose white and off-white material that weighed 16.79 grams and tested positive for cocaine.

Defendant now appeals alleging the following assignments of error. For the reasons which follow, we affirm his conviction of possession of marijuana with intent to distribute and affirm his sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial judge erred by denying his motion for a mistrial based upon the introduction of inadmissible evidence of other crimes. He contends that his motion should have been granted when Sergeant Galliano testified that defendant’s vehicle was stopped because it had illegally tinted windows, and when Sergeant Galliano and Officer Ward indicated that they were familiar with defendant from prior incidents. Defendant asserts that the reference to prior incidents was a direct reference to inadmissible pri- or criminal conduct that should have resulted in a mistrial. He further asserts that a mistrial was warranted because both officers volunteered the prior incidents’ reference in non-responsive answers to virtually identical questions. Defendant maintains that the prior incidents testimony was planned by the State with the officers so as to improperly influence the jury with inadmissible evidence.

17With respect to the tinted windows’ testimony, the State responds that the trial court properly denied the motion for a mistrial and correctly ruled that the testimony was res gestae. With respect to the testimony regarding the officers’ familiarity with defendant from prior incidents, the State responds that an officer’s reference to familiarity with or observation of a defendant on previous occasions does not constitute a reference to another crime. The State also contends that the questions prompting the responses were directed to the sequence of events as they unfolded at the scene. Lastly, the State argues that the error, if any, was harmless as the verdict rendered was surely unattributable to the error.

Under LSA-C.Cr.P. art. 775, “[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” Regarding prejudicial remarks or comments, LSA-C.Cr.P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[.]

Article 770 does not generally apply to testimony by a State witness because witnesses are not considered “court officials.” State v. Thomas, 08-113, p. 9 (La.App. 5 Cir. 6/19/08), 988 So.2d 750, 756. However, Article 770 may be triggered if an impermissible reference to other crimes is deliberately elicited by the prosecutor because such testimony is imputable to the State. Id.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to 18defendant, depriving him of a reasonable expectation of a fair trial. State v. Smith, 04-340, p. 5 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285. 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 that discretion. Id.

A trial judge is required to admonish the jury to disregard a comment made within the hearing of the jury that is irrelevant, immaterial or prejudicial to the defendant or the State when an admonishment is requested by the defendant or the State. LSA-C.Cr.P. art. 771; State v. Smothers, 02-277, p. 15 (La.App. 5 Cir. 12/30/02), 836 So.2d 559, 569, writ denied, 03-0447 (La.10/10/03), 855 So.2d 329. This article applies to remarks or comments made by a witness regardless of whether the remark or comment is within the scope of LSA-C.Cr.P. art. 770. Smothers, 02-277 at 16, 836 So.2d at 569. The trial court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. Id.

Testimony Regarding Stop for Illegally Tinted Windows

Sergeant Galliano testified at trial during direct examination that they stopped defendant’s vehicle because it had an illegal window tint. Defense counsel asked to approach the bench. He argued that defendant was not on trial for tinted window glass, and that this was evidence of another crime for which he was not on trial. Therefore, defense counsel moved for a mistrial. The prosecutor responded that this was clearly evidence of res gestae, that it was the basis for the stop, and that the jury was entitled to be advised of that. The trial judge ruled that the evidence in question was res gestae and denied the motion for mistrial.

Generally, evidence of “other crimes,” or bad acts committed by a criminal defendant, is inadmissible at trial due to the risk of grave prejudice to the defendant. LSA-C.E. art. 404 B(1); State v. Prieur, 217 So.2d 126, 128 (La.1973); State v. Williams, 01-1007, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030, writ denied, 08-2070 (La.1/30/09), 999 So.2d 751. But evidence of “other crimes” may be introduced if it is independently relevant or when it relates to conduct — formerly referred to as res gestae — that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” LSA-C.E. art. 404 B(l). Res gestae events constituting “other crimes” are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

The res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime, if a continuous chain of events is evident under the circumstances. State v. Taylor, 01-1638 at 10-11, 838 So.2d at 741. The res gestae doctrine is designed to allow the story of the crime to be told in its entirety, by proving its immediate context of happenings in time and place. Taylor, 01-1638 at 11, 838 So.2d at 742.

In State v. Powell, 98-278 (La.App. 4 Cir. 11/17/99), 746 So.2d 825, defendant took a truck from an automobile dealership. An officer noticed defendant when he parked the truck at such an angle so as to impede traffic. The officer cited defendant for impeding the flow of traffic, no proof of insurance, no registration, and no driver’s license. Defendant was charged with and convicted of possession of stolen property valued at $500.00 or more. On appeal, defendant argued that the trial court erred by admitting into evidence an exhibit which reflected his unadjudicated traffic citations. The Fourth Circuit noted that | indefendant’s inability to provide insurance, registration, and a driver’s license necessitated the officer’s call to the police station to check with NCIC to determine the status of the vehicle, and that the officer subsequently learned that the truck had been reported stolen. The Fourth Circuit found it was clear that the citations issued to defendant were directly related to the charged offense and were an inseparable part of the whole event. It further found that the violations to which the officer testified and the citations which comprised the State’s exhibit were not alleged prior bad acts, but rather were part of the transaction of the instant offense, and were introduced by the State to indicate the reason the appellant was stopped. Id., 98-278 at 6-7, 746 So.2d at 829-30.

In the instant case, the testimony regarding defendant being stopped due to illegally tinted windows was properly admitted as res gestae, because that event constituted an integral part of the act or transaction that was the subject of the present proceeding. Additionally, we find that the evidence in question is admissible because it was so nearly connected to the charged offense that the State could not accurately present its case without reference to it. The officers stopped the vehicle because it had illegally tinted windows, which in turn led to the discovery of the drugs and other evidence in defendant’s vehicle and on his person. As in Powell, the State in the instant case introduced the evidence to indicate the reason defendant was stopped. Therefore, we find that the trial judge did not err by denying the motion for a mistrial based on the testimony regarding the illegally tinted windows.

Testimony Regarding Recognition of Defendant From Prior Incidents

The following testimony was elicited during the direct examination of Sergeant Galliano at trial:

|nQ. Now, at the time that the driver of the vehicle stepped out of the car, what if anything did you and Officer Ward begin to do to further your investigation concerning illegal tint and the traffic stop?
A. Once the driver had stepped out the vehicle, Officer Ward actually observed him and identified him from a previous incident.

Defense counsel said, “Same objection as before, Your Honor.” The trial judge overruled the objection. Apparently, defense counsel was referring to the previous objection he had made regarding the illegally tinted windows.

The following testimony was subsequently elicited during the direct examination of Officer Ward at trial:

Q. Okay. Now then, after the driver got out of the vehicle, what, if anything, did you do to further your investigation concerning the traffic stop tinted windows [sic]?
A. I was familiar with Mr. Massey from prior incidents.

Defense counsel said, “Same objection, Your Honor.” The trial judge sustained the objection.

In State v. Walker, 03-1072 (La.App. 5 Cir. 12/30/03), 865 So.2d 172, a sergeant testified on direct examination that he reviewed the videotape of a drug transaction and recognized defendant. Defense counsel objected because it implied that defendant had a criminal record. An agent then testified during direct examination that when she and the sergeant viewed the videotape, the sergeant immediately knew who the defendant was. Defense counsel restated his objection and moved for a mistrial that was apparently denied. This Court noted that there was no evidence that the prosecutor was attempting to elicit information about other crimes or bad acts; rather, the questioning was aimed at setting up the sequence of events leading to defendant’s arrest. Secondly, this Court stated that there was no specific mention of a prior crime or bad act by the sergeant or the l^agent. Therefore, this Court found that the trial judge did not err in refusing to grant defendant’s motion for a mistrial. Id., 03-1072 at 3-5, 865 So.2d at 174-75.

In this case, we find that a mistrial was not mandatory under LSA-C.Cr.P. art. 770 because the comments were not made by the judge, the district attorney, or a court official, and because the prosecutor did not deliberately elicit the testimony in question. As in Walker, there is no evidence in the instant case that the prosecutor was attempting to elicit information about other crimes or bad acts; rather, the questioning was aimed at setting up the sequence of events leading to defendant’s arrest. The prosecutor asked both witnesses what they did to further the investigation, and Sergeant Galliano and Officer Ward both gave non-responsive answers to that question. Officer Ward responded that he was familiar with defendant from prior incidents, and Sergeant Galliano testified that he observed and identified defendant from a previous incident. Also, as in Walker, there was no specific mention of a prior crime or bad act by the sergeant or the officer in the instant case. Lastly, although the trial judge sustained the objection to Officer Ward’s testimony, defense counsel did not request an admonition to the jury to disregard the comment in accordance with LSA-C.Cr.P. art. 771.

In light of the foregoing, we find that the trial judge did not err by denying the motion for a mistrial based on the witnesses’ testimony regarding their familiarity with defendant from prior incidents.

ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

We will address these two assignments of error together because they are related. In assignment of error number two, defendant alleges his right to a fair trial was hopelessly compromised by permitting the jury to consider the wholly unreliable opinion testimony of Sergeant Shane Klein on the ultimate issue of appellant’s guilt. In assignment of error number three, defendant argues the trial 11scourt erred in permitting Sergeant Klein to express an expert opinion on the ultimate issue of guilt.

Defendant argues that the trial judge erred by allowing Sergeant Klein to express his expert opinion on the ultimate issue of guilt, and he further argues that the State’s evidence did not satisfy the four factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1998), and that the trial judge failed in his “gatekeeper” role. Defendant admits that his counsel did not object to either the expertise of Sergeant Klein or to the ultimate issue testimony; however, he submits that the errors were so grave as to warrant reversal even absent a contemporaneous objection.

The State responds that defendant failed to preserve this issue for appeal because his counsel did not request a pre-trial Daubert hearing, and because his counsel accepted Sergeant Klein as an expert without objection at trial. The State also contends that the instant case does not warrant the application of the exception to the contemporaneous objection rule. Alternatively, the State argues that, even if defendant had preserved this issue for appeal, the claim has no merit. The State asserts that the trial judge did not err in allowing Sergeant Klein to testify as an expert, noting his experience and training, and the fact that this Court has accepted similar testimony in other cases.

With respect to his background, Sergeant Klein testified at trial that he had been employed by the Jefferson Parish Sheriffs Office for ten years, and that he had been in the narcotics division for nine years. He explained that he was a group supervisor at the present time. He further testified that in his capacity as a sheriffs deputy he had made thousands of arrests for drug offenses. Sergeant Klein stated that he was a senior at Loyola University seeking a bachelor’s degree in criminal justice and a minor in forensics. He asserted that he had attended approximately |u28 narcotics schools, including the DEA as well as the Regional Drug Training Academy. Sergeant Klein explained that those extra classes gave him specific training in the field of narcotics and the narcotics business. He testified that he had been involved in thousands of cases pertaining to possession with intent to distribute narcotics, and that he had worked in an undercover capacity purchasing narcotics on numerous occasions.

Sergeant Klein asserted that he had been qualified as an expert in several divisions of the 24th Judicial District Court in the field of possession with intent to distribute narcotics, possession of narcotics, and the packaging and cost of narcotics. He said he had never been denied qualification as an expert in the 24th Judicial District Court. On cross-examination, Sergeant Klein admitted that he had been qualified five times as an expert in Jefferson Parish, and that he had not been qualified in any other courts. After hearing the testimony, the trial judge qualified Sergeant Klein without objection as an expert in “possession with intent to distribute narcotics and in particular with respect to packaging, quantity, and distribution of narcotics.”

Sergeant Klein subsequently testified that with respect to possession of narcotics, you might find pipes, hypodermic syringes, needles, straws, or “push rods” used to push crack cocaine into a pipe. He explained that a pipe could be used to smoke crack cocaine or powder cocaine, and that you would expect to find a crack pipe with a crack user. Sergeant Klein stated that kitchen Brillo pads were commonly used as filters in crack pipes.

With respect to distribution of narcotics, Sergeant Klein testified that one of the most important things was a scale, and that other things to look for would be money and packaging material. Sergeant Klein explained that distributing narcotics was a business, and that distributors want to make sure the measurements 11sare accurate “to make the most out of what they have.” With respect to money, Sergeant Klein testified that distributors mostly have a lot of 10s and 20s, and that it was rare to have a lot of 100 dollar bills. Sergeant Klein stated that crack cocaine users commonly buy a 20 dollar rock.

Sergeant Klein examined the evidence in this case, including three pieces of crack cocaine found in a bag. He testified that each one was approximately .2 gram per rock, and that a normal size sold on the street would be .1 gram. He further testified that there were other objects in the bag, including numerous bags used to package cocaine. Sergeant Klein noted that those were regular kitchen sandwich bags where the corners were cut off each side and one could put crack cocaine rocks in each corner, twist it up, and tie it for resale purposes. He stated that there were eight bags like that. Sergeant Klein testified that when one purchases cocaine for street level use, “it does not look like that.”

Sergeant Klein also reviewed other evidence in this case, including the scale and the money (two 100 dollar bills, ten 20 dollar bills, two ten dollar bills, four five dollar bills, and the rest in ones). He testified that, “Based on the seized evidence, clearly this is someone who was in possession with intent to distribute.” Sergeant Klein explained that there were no pipes or syringes or any paraphernalia used to consume this “yourself.” He further explained that the only paraphernalia found was that used in the distribution of narcotics, including the packaging material, the digital scale, the amount of cocaine, and the money that was seized.

Sergeant Klein testified that the powder cocaine found in this case weighed half an ounce, and it was worth approximately $600.00 or $700.00. He asserted that if one took the amount of cocaine in State’s Exhibit 2, turned it into crack cocaine, and broke it down into 20 dollar rocks, that person would have between $2,500.00 and $3,000.00 worth of crack cocaine. Sergeant Klein testified on crossjexamina-tion16 that based on the paraphernalia associated with this case and the lack of paraphernalia showing someone who was a user, “it’s clearly indicative to me of someone who is in possession with the intent to distribute, not using.”

Also on cross-examination, Sergeant Klein explained, “Although it may look small to most, a half ounce of cocaine is clearly someone who is in the business of distributing cocaine rather than just using.” Sergeant Klein subsequently testified that he saw white specks on the scale as well as loose marijuana, even though he heard the officers testify that they only found marijuana on the scale.

The record shows that defendant did not lodge an objection when the trial judge qualified Sergeant Klein as an expert, nor did he challenge the reliability of the methodology used by the expert. Also, he did not lodge an objection to Sergeant Klein’s testimony, and he did not move for a pre-trial Daubert hearing in the trial court. As such, we find that defendant’s failure to make a contemporaneous objection or to request a Daubert hearing in the trial court results in a waiver of those issues on appeal. LSA-C.Cr.P. art. 841; State v. Borden, 07-396, p. 22 (La.App. 5 Cir. 5/27/08), 986 So.2d 158, 172, writ denied, 08-1528 (La.3/4/09), 3 So.3d 470; State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, 714, writ denied, 09-1316 (La.3/5/10), 28 So.3d 1002; State v. Addison, 05-378, p. 22 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 898, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36.

Defendant admits that his trial counsel did not object to either the expertise of Sergeant Klein or to his “ultimate issue” testimony. However, he asks this Court to consider this issue nonetheless based on LSA-C.Cr.P. art. 920(2) and the jurisprudential exception to the contemporaneous objection rule. LSA-C.Cr.P. art. 920 provides:

The following matters and no others shall be considered on appeal:
I,7* *****
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

On very rare occasions, the courts have refused to apply the contemporaneous objection rule as a bar to review an error which was so fundamental that it struck at the very essence of the reliability of the fact-finding process. State v. Arvie, 505 So.2d 44, 47 (La.1987); State v. Norman, 99-600, pp. 7-8 (La.App. 5 Cir. 2/16/00), 756 So.2d 525, 529, writ denied, 00-971 (La.3/23/01), 787 So.2d 1007. In Arvie, the court found that the circumstances of the case did not warrant making an exception to the contemporaneous objection rule where the defendant sought appellate review of the prosecutor’s use of his post-arrest silence for impeachment purposes and had not objected to the prosecutor’s questions that elicited the information.

The court acknowledged that there are exceptions to the rule, as in State v. Williamson, 389 So.2d 1328 (La.1980) and State v. Green, 493 So.2d 588 (La.1986).

In Williamson, supra, the court addressed the issue despite the lack of objection, when the jury was improperly charged with the wrong definition of the charged crime. The Supreme Court reasoned that, “a substantial error in the very definition of the charged crime was of such importance and significance as to violate the fundamental requirements of due process.” Arvie, 505 So.2d at 47. In Green, supra, the court refused to apply the contemporaneous objection rule because there was an omission in a fundamental jury instruction. In Norman, this Court recognized another exception. In that case, defendant alleged that the trial judge made improper comments on the evidence in front of the jury. Norman, 99-600 at 8, 756 So.2d at 529. Although this Court recognized that a judge’s improper | iscomments can be an exception to the contemporaneous rule, this Court further found that the judge’s comments in that case were not comments on the evidence, and did not contribute to the guilty verdict.

In State v. Rochon, 98-717 (La.App. 5 Cir. 3/10/99), 733 So.2d 624, defendant alleged that the trial court erred by allowing highly prejudicial testimony from Sergeant Bruce Harrison, among other things; however, defendant did not object to it at trial. On appeal, defendant admitted as much, but urged this Court to review the issues nonetheless, arguing that appellate review was appropriate in these instances absent contemporaneous objections. This Court found that with regard to the alleged highly prejudicial testimony from Sergeant Harrison and the alleged highly prejudicial comments and improper questions by the prosecutor in his cross-examination of defendant, the relevancy or the prejudice of witness testimony was not one of the limited exceptions to the contemporaneous objection rule. This Court found that the errors, if any, could easily have been addressed and corrected by the trial court with an objection. Thus, this Court declined to extend the limited exceptions to the contemporaneous objection rule to include alleged prejudicial errors in witness testimony. Accordingly, this Court concluded that pursuant to LSA-C.Cr.P. art. 841 A, absent a contemporaneous objection, the issues were not properly before this Court. Id., 98-717 at 3-6, 733 So.2d at 627-28; State v. Hayes, 364 So.2d 923 (La.1978); State v. Colligan, 95-880 (La. App. 3 Cir. 8/7/96), 679 So.2d 184.

In this case, we find the facts do not warrant an exception to the contemporaneous objection rule. The error, if any, in Sergeant Klein’s expert testimony was not an error which was so fundamental that it strikes at the very essence of the reliability of the fact-finding process. Ar-vie, supra. Additionally, this error is not one of the limited exceptions described in the cases discussed 113above. Further, this Court has declined to extend the limited exceptions to the contemporaneous objection rule to include prejudicial errors in witness testimony. Rochon, supra.

Since the defendant in the instant case failed to object to Sergeant Klein’s testimony or to move for a pre-trial DaubeH hearing, and this is not the type of error which justifies the use of the exception to the contemporaneous objection rule, we decline to address this issue on appeal.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following errors patent are presented for review.

Enhanced Sentence

The transcript and the commitment indicate that when the trial judge imposed the enhanced sentence, she did not order it to be served without benefit of probation or suspension of sentence as mandated by LSA-R.S. 15:529.1 G.12. Additionally, the transcript and the commitment indicate that the trial judge did not order the first two years of the enhanced sentence to be served without benefit of parole, probation, or suspension of sentence as required by the underlying statute, LSA-R.S. 40:967 B((4)(b)). The restrictions on parole eligibility imposed on habitual offender sentences under LSA-R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879, p. 30 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n. 24, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983. Although the trial judge failed to prohibit benefits in imposing the enhanced sentence, no corrective action is required because the “without benefits” provision is self-activating. LSA-R.S. 15:301.1(A); State v. Williams, 2000-1725, p. 10 (La.11/28/01),20 800 So.2d 790, 799; Esteen, 01-879 at 29, 821 So.2d at 78. Therefore, no further action is necessary by this Court.

Post-Conviction Relief Advisal

The commitments pertaining to the original and enhanced sentencing reflect that defendant was properly advised of the prescriptive period for filing for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. However, the transcript reflects that defendant received incomplete advisals prior to the imposition of his original and enhanced sentences, when the trial judge stated defendant had “two years to seek post-conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis as found in original). Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Therefore, we advise defendant by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. See State v. Neely, 08-707, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Lionel BURTON.
    No. 10-KA-972.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Vincent Paciera, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

| STATEMENT of the case

On March 26, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Lionel Burton, with possession of a firearm by a convicted felon and possession of cocaine in excess of 28 grams but under 200 grams in violation of LSA-R.S. 14:95.1 and R.S. 40:967 F, respectively. Defendant was arraigned on April 13, 2009, and pled not guilty. On June 5, 2009, the State amended the bill as to Count 2 to charge defendant with possession with intent to distribute heroin in violation of LSA-R.S. 40:966 A. On that same date, defendant was re-arraigned on the amended bill and pled not guilty.

Defendant filed a motion to suppress the evidence and statements on June 3, 2009. On December 2, 2009, defendant filed a motion to suppress the evidence, identification, and confession. On January 15, 2010, the trial judge denied the motions after a hearing. On May 6, 2010, the State amended the bill as to Count 1 to delete one of the predicate convictions (case number 386-937). Also on that date, defendant pled guilty to Count 1, and withdrew his not guilty plea and pled guilty to Count 2 under State v. Crosby, 338 So.2d 584 (La.1976). During the guilty plea colloquy, the prosecutor provided a factual basis for acceptance of the pleas. He stated that on February 24, 2009, a Jefferson Parish deputy heard a |sbroadcast involving an armed robbery, which caused him to stop the vehicle defendant was driving because it was of a similar character as the vehicle that was described as used in the robbery. The prosecutor explained that when the deputy stopped the vehicle and had defendant stand outside by the police car, the deputy looked inside defendant’s car and, without entering the car, saw a weapon — a .40 caliber Glock loaded with numerous live rounds in the clip. When the officer went back to the defendant and moved him, there were two large packets of heroin where defendant had been standing. The prosecutor stated that the crime lab had found the substance positive for heroin and that the heroin weighed approximately 40 grams. Lastly, the prosecutor stated that defendant had approximately $12,000.00 on him at the time of his arrest.

On May 6, 2010, the trial judge sentenced defendant to imprisonment at hard labor for 15 years on Count 1 and to imprisonment at hard labor for 20 years on Count 2 to run concurrently. Both sentences were ordered to be served without benefit of parole, probation, or suspension of sentence.

Also on May 6, 2010, the State filed a multiple bill alleging defendant to be a second felony offender to which defendant stipulated. The trial judge vacated the sentence on Count 1 and re-sentenced defendant under the multiple bill statute to imprisonment at hard labor for 20 years without benefit of parole, probation, or suspension of sentence to be served concurrently with the sentence on Count 2. On May 19, 2010, defendant filed a timely motion to reconsider sentence that was denied and a timely motion for appeal that was granted.

ASSIGNMENT OF ERROR NUMBER ONE

In his assignment of error number one, defendant argues that he was denied his right to appeal the ruling on the motion to suppress because the transcript of those proceedings cannot be obtained. He requests that this Court remand the | ¿matter for a new suppression hearing. He also argues that the guilty pleas should be vacated and set aside since those guilty pleas were predicated on his ability to appeal the ruling on the motion to suppress. The State responds that appellate review of the ruling on the motion to suppress is not possible because testimony at the suppression hearing was erroneously not recorded. As such, the State contends that defendant is entitled to have his motion to suppress re-heard, ruled upon and, if denied, proceed to his Crosby appeal in this Court on the properly recorded and transcribed testimony. The State further contends that defendant is not entitled to have his guilty pleas withdrawn because the defect can be cured and, therefore, defendant cannot show the requisite prejudice to entitle him to have his convictions vacated.

La. Const. Art. I, § 19 provides that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based....” LSA-C.Cr.P. art. 843 requires, in all felony cases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” Additionally, LSA-R.S. 13:961 C provides that, in criminal cases tried in the judicial districts, the court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the proceedings required.

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. State v. Frank, 99-553, p. 20 (La.1/17/01), 803 So.2d 1, 19; State v. Bright, 03-489, p. 8 (La.App. 5 Cir. 10/28/03), 860 So.2d 196, 202, writ denied, 03-3409 (La.4/2/04), 869 So.2d 875. On the other hand, inconsequential omissions or slight inaccuracies do not require reversal. State v. Frank, 99-553 at 21, 803 So.2d at 20; State v. Bright, supra. A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Bright, supra.

In State v. Archie, 462 So.2d 248, 249 (La.App. 4 Cir.1984), cited by the State in its brief, defendant was convicted and sentenced. On appeal, he contended the trial court erred in denying his motion to suppress. Defendant also contended that he was entitled to have his conviction and sentence vacated because a portion of the transcript of the hearing on the motion to suppress was lost and, therefore, he was deprived of a meaningful review on appeal. The Fourth Circuit found that the circumstances did not warrant vacating the conviction and sentence at that point. It stated that all that was required was for the trial judge to conduct another hearing on the motion to suppress and again act on the motion. The appellate court further stated that should the trial judge decide to grant the motion, she would be required to vacate the sentence. On the other hand, should the trial judge deny the motion, the Fourth Circuit found that the case should be returned to the appellate court for complete review.

In the instant case, the record does not contain a transcript of the hearing on the motion to suppress. In fact, the record contains a memo from John Andressen, Chief of Court Reporters for Jefferson Parish, to this Court dated October 19, 2010, explaining that the 24th Judicial District Court had experienced a “loss of connectivity” with the audio server on January 15, 2010 (the date of the hearing), and they were unable to retrieve the audio files. As such, Mr. Andressen stated that a transcript from that date would not be able to be produced. He added that a | (¡backup recording system had been installed to ensure that such a problem would not occur again.

We find that without the transcript of the suppression hearing, we cannot determine whether the trial judge erroneously denied the motion to suppress. As such, we remand the matter to the trial court so the trial judge can conduct another hearing on the motion to suppress, as was done in State v. Archie, supra. If the trial judge denies the motion again, defendant can appeal the ruling to this Court with a transcript of the proceedings.

ASSIGNMENT OF ERROR NUMBER TWO

In his assignment of error number two, defendant argues that he pled guilty under State v. Crosby, supra, so he could appeal the trial judge’s denial of his motion to suppress; however, because he is unable to appeal the ruling on the motion due to the lack of a transcript, he contends that he is entitled to withdraw his guilty pleas. The State responds that defendant is not entitled to withdraw his guilty pleas because he is not prejudiced since this Court can remand the matter to the trial court for a new suppression hearing, and defendant can thereafter appeal again if necessary.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra.

In the instant case, a review of the Boykin colloquy indicates that defendant entered his guilty pleas freely and voluntarily, and that the Boykin colloquy was 17adequate. Although defendant pled guilty under State v. Crosby in order to appeal the adverse ruling on the motion to suppress, defendant will still be able to appeal the ruling if the trial judge again denies the motion to suppress on remand. In light of the foregoing, we find that defendant is not entitled to withdraw his guilty pleas.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals the following errors patent.

First, the trial judge did not impose the mandatory fine when he originally sentenced defendant on Count 1 as required by LSA-R.S. 14:95.1. However, the trial judge vacated the original sentence on Count 1 before imposing the enhanced sentence and, therefore, we find that the argument related to the original sentence for this offense is moot. State v. Hanson, 00-1168, p. 4 (La.App. 5 Cir. 12/13/00), 778 So.2d 43, 45.

Second, the trial judge ordered the sentence on Count 2 to be served without benefit of parole, probation, or suspension of sentence; however, LSA-R.S. 40:966 B(l) does not restrict parole. Therefore, we amend defendant’s sentence on Count 2 to delete the denial of parole eligibility. State v. Watts, 98-2594 (La.1/29/99), 736 So.2d 821 (per curiam); State v. Uloho, 04-55, p. 25 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 934, writs denied, 04-1640 (La.11/19/04), 888 So.2d 192, and 08-2370 (La.1/30/09), 999 So.2d 753.

Accordingly, we remand this matter to the trial court and order that another hearing be held on defendant’s motion to suppress. We further amend defendant’s sentence on Count 2 to delete the denial of parole eligibility.

REMANDED WITH INSTRUCTIONS; SENTENCE AMENDED


text:
    STATE of Louisiana v. Mitchell PARKER.
    No. 10-KA-1038.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Paul Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Ernest C. Chen, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

1 2Pefendant appeals his sentence and conviction for possession of a firearm by a convicted felon. For the reasons which follow, we affirm defendant’s conviction, vacate defendant’s sentence, and remand the matter for further proceedings.

STATEMENT OF THE CASE

On March 4, 2010, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Mitchell Parker, with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. Defendant pled not guilty to this charge on March 5, 2010, at his arraignment. On September 2, 2010, defendant’s motion to suppress evidence was denied. Thereafter, defendant withdrew his not guilty plea and pled guilty as charged pursuant to State v. Crosby. Defendant was sentenced to ten years imprisonment with the Department of Corrections without benefit of parole, probation, or suspension of sentence. This sentence was ordered to run concurrently with the sentence imposed in case number 10-1326 and with any revocation defendant had in Orleans Parish. Defendant now appeals.

I -ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant argues that the trial court erred in denying his motion to suppress because the arresting officer lacked probable cause to believe that the occupants of the vehicle had been, were, or were about to be engaged in criminal activity at the time he stopped the vehicle in which they were riding. Noting that Detective Tregre knew few details surrounding the burglary, defendant argues that the detective’s suspicion was not objectively reasonable and did not provide a sufficient basis to support the stop. Defendant contends that the plain view exception should not apply to permit the admission of the evidence because the detective was not in a place where he had a right to be at the time that he made the observation of the weapons.

The State responds that the detective had reasonable suspicion that the occupants of the vehicle had been involved in the “robbery.” It adds that the detective had probable cause to stop the vehicle and remove and detain the occupants of the car after he received information that a Dodge Magnum with a Texas license plate was involved in a burglary that occurred in New Orleans three days earlier and then verified the matching license plate number.

On September 2, 2010, a hearing was held on the motion to suppress evidence based on an improper stop. Detective David Tregre of the New Orleans Police Department was the sole witness to testify at the hearing. He testified that on January 27, 2010, at approximately 6:15 p.m., he was sitting at a red light, about to get on the Interstate when he observed a silver Dodge Magnum entering the on-ramp at St. Bernard and 1-610, heading westbound in Orleans Parish. Earlier, he had received a call regarding a silver Dodge Magnum with Texas plates that was involved in a burglary. Detective Tregre got behind the vehicle in his unmarked unit, which matched the description of the suspected vehicle, and called another ^detective to verify the plate number. The plate number matched those numbers from the suspected vehicle that was involved in the burglary. He then called for back-up. Detective Tregre followed the vehicle and crossed the parish line into Jefferson Parish, waiting for back-up. A marked unit arrived and assisted in making the stop. Detective Tregre requested that the dispatcher advise the Jefferson Parish Sheriffs Office for deputies to meet them at the location.

Detective Tregre testified that he stopped the vehicle because it was suspected to be a vehicle involved in a burglary. A witness gave a description of the vehicle and said there were three occupants in the silver Magnum with Texas plates. A specific license plate number was also given. He said that he saw the vehicle that matched the description of the suspect vehicle and then verified the license plate number. Once he verified the plate, he decided to initiate the stop. He explained that the other New Orleans’ officer approached the driver’s side of the vehicle and removed the driver from the vehicle, while Detective Tregre approached the passenger’s side. There were three occupants in the vehicle. Defendant was one of the passengers, but Detective Tregre did not recall if he was in the front or backseat of the vehicle. Detective Tregre removed the passengers from the vehicle and they were handcuffed and detained until Jefferson Parish deputies arrived. Detective Tregre testified that as he was pulling the passenger out of the vehicle he observed two handguns between the seats and the center console. He explained that the guns were obvious to him. Detective Tregre testified that the guns were in “plain view.”

Detective Tregre did not recall the date of the burglary and was not sure about where it occurred. The report reflected that the burglary was three days before the stop, and he assumed that was correct. He explained that he had the authority to follow the suspect vehicle from Orleans Parish into Jefferson Parish. | flHe activated his red light and siren “[p]robably right close to the Parish line.”

In his motion to suppress, defendant argued there was insufficient probable cause for the stop, noting that the burglary had occurred three days before and the detective lacked details of the burglary. He argued a search warrant should have been obtained and that any evidence produced from the invalid stop should be suppressed. The State responded that there was probable cause for the stop because the vehicle matched the description of a vehicle involved in a burglary and the license plate number matched the vehicle. It argued that the evidence was found in plain view and a warrant was unnecessary. The trial judge determined this was “good police work” and that the detective acted properly. The motion to suppress was denied. Defendant objected to this ruling.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Burns, 04-175, p. 4 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075. It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. State v. Stone, 94-155, p. 4 (La.App. 5 Cir. 7/26/94), 641 So.2d 652, 655, writ denied, 95-0631 (La.1/6/97), 685 So.2d 129 (citing State v. Owen, 453 So.2d 1202 (La.1984)).

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Ayche, 07-753, p. 6 (La.App. 5 Cir. 3/11/08) 978 So.2d 1143, 1148, twits denied, 08-2291 (La.1/30/09), 999 So.2d 752 and 08-1115 (La.2/13/09), 999 So.2d 1140.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized the investigatory stop as an exception to the warrant requirement. State v. Sam, 08-220, p. 5 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769, writ denied, 08-1984 (La.5/15/09), 8 So.3d 577. Under LSA-C.Cr.P. art. 215.1(A), a law enforcement officer may stop and question a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit a criminal offense. Sam, 08-220 at 5, 988 So.2d at 769 (emphasis added). These principles are also applicable to an investigatory stop of an automobile. State v. Kelly, 576 So.2d 111, 116 (La.App. 2 Cir.1991), writ denied, 580 So.2d 666 (La. 1991).

Investigatory stops require reasonable suspicion of criminal activity. State v. Boss, 04-457, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts must look at the totality of the circumstances of each case, a process which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. State v. Boyer, 07-0476, pp. 17-18 (La.10/16/07), 967 So.2d 458, 469-70 (quotations omitted; citations to quoted material omitted). The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. Sam, supra. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have |7sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. Sam, 08-220 at 5, 988 So.2d at 769. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. Boss, 04-457 at 5, 887 So.2d at 585.

In the present case, Detective Tregre observed a vehicle that matched the description given by a witness of a vehicle that was believed to be involved with a burglary — a silver Dodge Magnum with a Texas license plate. He recalled that a specific license plate number was given, so he called to confirm the license plate number and discovered that the vehicle was a match.

“If an officer knows that a crime has been committed and has information which gives a reasonable basis to suspect a given person of having committed the offense, he is justified in making an investigatory stop.” State v. Square, 433 So.2d 104, 106 (La.1983). In Square, the Louisiana Supreme Court held that the officer “was clearly justified in making a stop for further investigation” when the officer was aware that an armed robbery had been committed and followed an automobile that matched the description of the vehicle used to flee the scene of that robbery and had a license plate number that was virtually identical. Id. at 106.

In State v. Cooper, 45,568, (La.App. 2 Cir. 12/8/10), 55 So.3d 873, the Second Circuit found that that the vehicle stop was valid since the officer possessed the requisite probable cause to initiate the stop of the vehicle because of an equipment violation. The court went on to add that the officer was also within his authority to stop the vehicle based upon reasonable suspicion that the individuals had just committed an armed robbery.

In State v. Kang, 01-1262 (La.App. 5 Cir. 2/23/04), 866 So.2d 408, 413, writ denied, 04-0944 (La.11/24/04), 888 So.2d 226, this Court found that there was reasonable suspicion to support an investigatory stop of the vehicle. In that | Scase, the detective was on patrol and heard a radio dispatch that a black Lexus with three Asian males from the Westbank was being sought in connection with a shooting and stopped a black vehicle with Asian male occupants. This Court found that even though the vehicle was a Honda and not a Lexus, the officer’s training and experience justified a continuation of the investigatory stop.

As such, we find that Detective Tregre possessed reasonable suspicion to justify the vehicle stop. Thereafter, Detective Tregre observed firearms in the vehicle between the console and seats. Because Detective Tregre was justified in conducting an investigatory stop of the vehicle, but had no search warrant for the vehicle, we must determine if the firearms were properly discovered pursuant to the “plain view” exception to the warrant requirement.

Police may seize evidence under the “plain view” doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate, 09-619, p. 12 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300-01 (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). “Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” State v. Leger, 05-0011 p. 65 (La.7/10/06), 936 So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. Tate, 09-619 at 12, 33 So.3d at 301. In this instance, the officer was standing outside of the vehicle. As previously discussed, the officer had a right to be ^standing there. Based on the detective’s testimony, we find the firearms were obvious to him and it was immediately apparent the items were evidence or contraband. Therefore, we find the firearms were properly seized and the trial court correctly denied the motion to suppress.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters are presented for review.

Just prior to sentencing, defense counsel explained that defendant had a revocation pending in Orleans Parish and counsel asked the court to run the sentence in Jefferson Parish concurrent with the potential revocation sentence, recognizing that the last judge who sentences has the right to run the sentence concurrent or not. Counsel requested that if the judge in Orleans Parish did not run the sentences concurrent, for the Jefferson Parish court to entertain a motion to withdraw the plea and resentence defendant so that the judge in Jefferson Parish could be the last judge who sentenced him.

The commitment provides that defendant’s sentence was ordered to run concurrently with the sentence imposed in case number 10-1326 and with any other sentences defendant may be serving, along with “Probation revocation in Orleans Parish.” However, the transcript only reflects that the sentence was imposed to run concurrently with the sentence imposed in case number 10-1326 and with “any revocation” defendant had in Orleans Parish. The commitment is more specific as to the type of revocation and includes that the sentence would run concurrently with any other sentence that defendant may be serving, which the transcript does not provide for.

hoWhile there is no prohibition against a trial court ordering a sentence to run concurrent with a parole revocation, LSA-C.Cr.P. art. 901(C)(2) states that only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrent or consecutively with the sentence on the later conviction. State v. Bruce, 03-918 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 859.

The instant case appears similar to the circumstances in State v. Hines, 07-313, p. 3 (La.App. 5 Cir. 11/27/07), 970 So.2d 707, 708. In Hines, this Court conducted an error patent review and found that the trial judge imposed an illegal sentence when he ordered the defendant’s 12-year sentence to be served concurrently with any probation violation. The record did not reflect that a revocation sentence had been imposed at the time of sentencing on the charged offense. This Court recognized that only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrently or consecutively with the sentence on the later conviction. Thus, this Court found that the trial court lacked authority to order defendant’s sentence to be served concurrently with any probation revocation. Id.

This Court went on to explain that admittedly, the trial judge imposed the illegal sentence in conformity with a plea agreement, but that a defendant does not have a constitutional or statutory right to an illegal sentence. Hines, 07-313 at 3, 970 So.2d at 709. This Court noted that in State v. Fairman, 06-366 (La.App. 5 Cir. 10/31/06), 945 So.2d 783, 785, this Court said that

Criminal plea agreements are analogous to contracts in that they are formed by the consent of the parties established through offer and acceptance. Louisiana courts generally use civil contract law as guidance in determining the validity of plea bargains. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 445; State v. Robinson, 01-946 (La.App. 5 Cir. 1/29/02), 807 So.2d 1085, 1089 writ denied, 02-0638 (La.11/1/02), 828 So.2d 563. Under our civil code an obligation cannot exist without a lawful cause. In La. C.C. art. 1966. La. C.C. art. 1968 provides that “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy”

Hines, 07-313 at 3, 970 So.2d at 709. This Court found that as in Fairman, the plea bargain in the case afforded the defendant an illegally lenient sentence and that such an agreement is an absolute nullity which cannot be confirmed on appeal. Id., 07-313 at 4, 970 So.2d at 709. This Court concluded that the defendant’s sentence was illegal and was imposed pursuant to an illegal plea agreement. Accordingly, this Court vacated the sentence and remanded the matter to the trial court for further proceedings, reserving to the defendant the right to withdraw his guilty plea.

In State v. Campbell, 08-1226 (La. App. 5 Cir. 5/26/09), 15 So.3d 1076, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842, this Court explained that an illegally lenient sentence imposed pursuant to a plea bargain is only an absolute nullity if the plea bargain has an unlawful cause or a negotiated sentence prohibited by law. This Court decided the plea bargain in Campbell was not an absolute nullity even though the sentence was illegally lenient due to the failure to impose a mandatory fíne. This Court further recognized an error patent in the defendant’s enhanced sentence, finding the sentence illegal and indeterminate because it was ordered to run concurrent with “any parole violation or probation violations (defendant) may have, or revocations.” Id., 08-1226 at 9,15 So.3d at 1081. After recognizing that only the judge that revokes probation can order the sentence on the probation revocation to run concurrently or consecutively with the sentence of a later conviction, this Court used its authority to correct the illegal sentence at any time and vacated that portion of the sentence. Id.

|12In the present case, the waiver of rights form reflects that it was agreed that defendant’s sentence would run concurrently with any probation revocation in New Orleans. As such, the running of the sentence concurrently with probation revocation was part of the plea agreement. Therefore, we will follow Hines, and vacate defendant’s sentence and remand the matter to the trial court for further proceedings, reserving to the defendant the right to withdraw his guilty plea.

We also find that defendant’s sentence is indeterminate because the transcript does not specify what type of revocation the sentence was ordered to run concurrent with. Thus, we find the sentence is also indeterminate because the defendant’s probation status is unclear. The trial judge simply ran defendant’s sentence concurrently with any revocation defendant had in Orleans Parish.

In State v. Bazley, 09-358, (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 25-26, this Court decided to remand the matter to the trial court to clarify the defendant’s parole and/or probation status. Further, this Court amended the sentence to vacate the portions of the defendant’s sentence stating that the sentence run concurrently with “any revocation” because the trial court lacked authority to order the defendant’s sentence to be served concurrently with any sentence the defendant received in a probation revocation proceeding. Id.

As discussed above, we have vacated defendant’s sentence and remanded the matter to the trial court. Therefore, no further action is required on this error patent.

Further, the commitment reflects that the State agreed not to multiple bill defendant. However, the transcript and the waiver of rights form do not reflect that this was part of the plea agreement. Since we have remanded this matter for correction, as discussed above, we direct the district court on remand to make the entries in the minutes reflecting these changes and direct the clerk of court to | ^transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Next, the date of the offense reflected in the bill of information is incorrect. The bill of information reflects that the date of the offense was March 2, 2010. However, the arrest report indicates that defendant was arrested on January 27, 2010. Also, the evidence presented at the suppression hearing suggests that the offense occurred on January 27, 2010. The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Williams, 04-1309, p. 24 (La.App. 5 Cir. 4/26/05), 902 So.2d 485, 500, writs denied, 05-1640 (La.2/3/06), 922 So.2d 1173 and 05-1640 (La.2/3/06), 924 So.2d 144 (citing State v. Gainey, 376 So.2d 1240, 1243 (La. 1979)). A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. Williams, supra. The record does not reflect that a motion to quash was filed in this matter. Therefore, any claim as to a defective indictment has been waived. Williams, 04-1309 at 24, 902 So.2d at 500-01.

Next, the commitment reflects that defendant was properly advised of the prescriptive period for seeking post-conviction relief. However, the transcript provides that defendant had “two years from the date the sentence becomes final to file post conviction relief applications.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Further, the waiver of rights form also provides an insufficient advisal— that defendant had “two (2) years of the date that this sentence becomes final” to seek post-conviction relief. This Court has held that |uthe failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. We have vacated defendant’s sentence and remanded the matter for further proceedings in accordance with the above discussion. Therefore, upon remand, we instruct the trial court to inform defendant of the prescriptive period for filing a post-conviction relief application after resentencing.

Accordingly, we affirm defendant’s conviction of possession of a firearm by a convicted felon, vacate defendant’s sentence, and remand the matter to the trial court for further proceedings.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

      . State v. Crosby, 338 So.2d 584 (La.1976).


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Donald K. SWANZY.
    No. 10-KA-483.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
    Cate Bartholomew, Attorney at Law', New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

|2The defendant/appellant, Donald K. Swanzy (“Swanzy”), appeals his conviction and sentence on two counts of theft over $500 in violation of La. R.S. 14:67. For the reasons that follow, we find this appeal is not in the correct procedural posture for our consideration, and, therefore, we dismiss this appeal and remand this matter to the trial court for a ruling on the outstanding defense motion for post-verdict judgment of acquittal.

Swanzy was charged by bill of information with two counts of theft in excess of $500, violations of La. R.S. 14:67. He pled not guilty at arraignment and proceeded to trial on August 20, 2009. At the end of trial, the jury returned a verdict of guilty as charged as to both counts of theft.

The charges were brought against Swanzy alleging he sold two pieces of industrial equipment that he did not own. Swanzy’s defense was that he- was the |3lawful owner since he hired an attorney to secure title to the equipment for nonpayment of repair bills and storage costs.

Swanzy subsequently filed a motion for post-judgment verdict of acquittal, arguing that the State failed to meet its burden of proof on the charges. On November 30, 2009, the trial court sentenced Swanzy to a term of imprisonment of six years at hard labor on both theft counts, to run concurrently. The trial court suspended Swan-zy’s sentence and placed him on two years of active probation, to be followed by three years of inactive probation. The trial court also imposed special conditions, including $25,000 restitution to the victim. This timely appeal follows.

In his sole assignment of error, Swanzy contends that the evidence presented by the State at trial was insufficient to support his conviction.

Upon review of the record for errors patent, we find the trial court failed to rule on Swanzy’s motion for post-judgment verdict of acquittal prior to sentencing. A defendant may move for a post-verdict judgment of acquittal following the verdict, and such motion must be made and disposed of prior to sentencing.

In this matter, after oral argument, the State filed a supplemental brief confirming that the motion for post-judgment verdict of acquittal has not been ruled on in the trial court and asking this Court to conditionally affirm the conviction and remand the matter to the trial court for consideration of the outstanding motion.

In prior cases, this Court has remedied such errors by conditionally affirming the defendant’s conviction, vacating the sentence, and remanding for rulings on the defendant’s motions; or by simply vacating the defendant’s sentence [4and remanding for rulings on the defendant’s motion without considering the merits of the other assignments of error.

However, in this matter the issue in the motion for post-judgment acquittal is sufficiency of evidence to prove the charges. Since that is the sole matter at issue in this appeal, it would be inappropriate for this Court to follow the prior course. Should we decide the issue of sufficiency of evidence, we would effectively render the motion for post-verdict judgment of acquittal moot. Therefore, we deny the State’s request for a conditional affirm; we dismiss this appeal and remand this matter to the trial court for a ruling of Swanzy’s motion for post-verdict judgment of acquittal.

APPEAL DISMISSED; MATTER REMANDED

      . La. R.S. 14:67 was amended by a bill in the 2010 Louisiana legislative session. The amendment is not relevant here.

      . La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990).

      . La.C.Cr.P. art. 821.

        .See, State ex rel. T.J., 01-384 (La.App. 5 Cir. 10/17/01), 800 So.2d 969, 973; State v. Davis, 01-1275 (La.App. 5 Cir. 4/10/02), 817 So.2d 171.