author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Timothy VICTOR.
    No. 11-KA-45.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Matthew Clauss, Jacqueline Maloney, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bertha M. Hillman, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2The defendant, Timothy Victor, has appealed his conviction for possession with intent to distribute cocaine in violation of LSA-R.S. 40:967 A. For the reasons that follow, we affirm defendant’s conviction and sentence.

FACTS

At trial, Detective Mark Layrisson of the Jefferson Parish Sheriffs Office Narcotics Division testified that he received information from a Confidential Informant (“Cl”) that led to a narcotics investigation involving the residence located at 2912 Destrehan Avenue, Apartment C, in Harvey, Louisiana. A controlled buy with the Cl was set up. Prior to the buy, the Cl’s clothing and vehicle were searched and found to be free of contraband. Detective Layrisson, assisted by his partner Detective Eric Boland, then conducted physical surveillance of the location where the controlled purchase was to take place. Constant visual surveillance on the Cl was maintained until he entered the apartment. Detective Layrisson testified that the Cl remained inside the apartment for approximately two [.-¡minutes. Once the Cl exited the apartment, constant surveillance was again maintained until he reached the prearranged meeting location. When the Cl arrived at the pre-arranged meeting location, he supplied the detectives with a rock-like substance that he purchased at the apartment, which field-tested positive for cocaine.

During the surveillance, Detective Lay-risson observed a vehicle parked outside of the residence in question. After the controlled purchase was concluded, he ran the vehicle’s license plate number through the Sheriffs Office database. Records indicated that the vehicle was registered to Kimberly Carter and was also associated with Calvin Brown. Detective Layrisson then proceeded to obtain a photograph of Calvin Brown.

Detective Layrisson subsequently applied for and obtained a search warrant for 2912 Destrehan Avenue, Apartment C, in Harvey, Louisiana. The warrant was executed the next day, on October 14, 2009. Both Detectives Layrisson and Boland participated in the execution of the warrant. After gaining entry into the residence, the detectives discovered a male, later identified as defendant, and a female lying on an air mattress, in the rear bedroom on the second floor. The defendant, who was completely nude, stood up. The female, later identified as Kimberly Carter, who was nude from the waist down, remained on the air mattress covered with a blanket from the waist down. Detective Layrisson observed a shirt, a pair of men’s pants, men’s underwear, and a pair of women’s pants on the floor in the bedroom. Defendant was handcuffed. Ms. Carter was allowed to dress and was removed from the air mattress. Defendant requested his pants, while motioning to the pair of men’s pants on the floor in the bedroom.

Before giving defendant his pants, Detective Boland searched them for weapons or contraband. This search yielded a clear plastic bag containing |4numerous off-white, rock-like substances, individually wrapped, consistent with crack cocaine. Detectives Layrisson and Boland testified that defendant did not appear to be surprised by this discovery. This substance field-tested positive for crack cocaine. No other drugs were found in the residence.

Detective Layrisson testified that he then advised defendant of his Miranda rights and brought him alone in the second bedroom on the second floor to speak to him. When questioned, defendant stated that his name was Calvin Brown. Detective Layrisson responded: “You’re not Calvin Brown. I have a picture of Calvin Brown, and you’re not him.” Defendant then admitted that his name was Timothy Victor and further gave Detective Layris-son his correct date of birth.

When Detective Layrisson spoke with Ms. Carter, she provided her correct name. She stated, however, that defendant’s name was Calvin Brown. When Detective Layrisson advised Ms. Carter that defendant’s name was not Calvin Brown, she stated that they had been dating for the past two weeks and that he had lied to her and told her that his name was Calvin Brown. Yet, defendant’s social security card was discovered inside of Ms. Carter’s purse, which was searched after being located in the rear second floor bedroom.

Also seized from the residence were an opened box of plastic sandwich bags found on the first floor in a kitchen drawer, and a cellular phone found near the air mattress in the same room where defendant and Ms. Carter were located. Ms. Carter further stated that the cellular phone belonged to her, but that defendant had frequently used it.

After presentation of the State’s evidence, Ms. Carter testified that she lived in the apartment on Destrehan Avenue with Pat LaCarter, Vernon Clayton, whom she knew as Bucky, and defendant. She further testified that the detectives | .^searched defendant’s pants then gave them to him, but she never saw them pull anything out of his pants and defendant did not have drugs in his possession that day. She also testified that she had never seen defendant sell, smoke, or buy crack cocaine. On cross-examination, she asserted that the police were lying about finding cocaine in defendant’s pocket, and that her roommate, Vernon Clayton, was the person selling cocaine out of the residence.

Thomas Angelica of the Jefferson Parish Sheriffs Office crime lab, an expert in forensic science in the identification and analysis of controlled dangerous substances, tested the evidence in this case and authored a report of his findings. He testified that the evidence consisted of fifteen rocks that were individually wrapped in plastic, all inside of another plastic bag. He tested a random sampling from five of the fifteen rocks and found all five contained cocaine. The net weight of the drugs was between 1.5 to 2 grams.

Sergeant Joe Williams of the Jefferson Parish Sheriffs Office Narcotics Division, an expert in the field of use, packaging, distribution, and value of narcotics, testified that the quantity and packaging of the evidence was consistent with distribution of cocaine rather than personal use.

Additionally, Ms. Aiseha Prudhomme of the Jefferson Parish Sheriffs Office crime lab, an expert in fingerprint identification and comparison, fingerprinted defendant on the day of trial. She compared these fingerprints to the fingerprints taken in a conviction packet in which defendant was convicted of possession with the intent to distribute marijuana, and testified that both sets of fingerprints belonged to defendant.

By unanimous verdict, defendant was found guilty of possession with intent to distribute cocaine. After defendant’s motion for a new trial was denied, he was sentenced to seven years imprisonment. Defendant then admitted to a multiple bill |fiof information charging him as a second felony offender. The original sentence was vacated and he was sentenced to fifteen years imprisonment. This appeal followed.

ASSIGNMENT OF ERROR NO. ONE— Improper denial of Motion for Continuance

It was reversible error for the court to deny defendant’s motion to continue where counsel had only two days [sic] notice that the state would try Timothy Victor on April 12, 2010, rather than the other cases set for trial that day and defense counsel is an indigent defender with an excessive caseload.

In his first assignment of error, defendant contends that the trial court erred in denying his motion for a continu-anee that was based on his appointed counsel’s lack of preparedness for trial. He maintains that defense counsel was unable to conduct any meaningful investigation and preparation for trial because of inadequate notice and a heavy workload. Specifically, defendant asserts that the State only gave his counsel two days’ notice concerning which trial of several trials the State intended to try on April 12, 2010, “which left counsel scrambling to secure witnesses and prepare for trial.” Defendant further alleges that the denial of his motion to continue violated his Sixth Amendment right to counsel, prior to trial, which is not subject to review for harmless error.

The State responds that the trial court did not commit error in denying defendant’s motion to continue asserting that defendant failed to show specific prejudice resulting from the denial of the motion to continue because defense counsel was able to secure the presence of his witness for the trial. The State also submits that defendant’s claim that he was denied his Sixth Amendment right to counsel when the requested continuance was denied also fails because defense counsel had a substantial period of time to perform a meaningful investigation, he |7in fact secured witnesses, and subjected the State’s case to meaningful cross-examination. Thus, the circumstances in this case do not fall within the purview of cases where prejudice would be presumed.

The denial of a motion for continuance on grounds of counsel’s lack of preparedness does not warrant reversal unless counsel demonstrates specific prejudice resulting from the denial. State v. Snyder, 98-1078, p. 33 (La.4/14/99), 750 So.2d 832, 856-57, citing State v. Haarala, 398 So.2d 1093, 1099 (La.1981). This specific prejudice requirement has been disregarded [by the Louisiana Supreme Court] in cases where the preparation time was so minimal as to call into question the basic fairness of the proceeding. Id., citing State v. Jones, 395 So.2d 751 (La.1981); State v. Durio, 371 So.2d 1158 (La.1979). The Louisiana Supreme Court has also held that when preparation time is unreasonably short, counsel has been diligent, and there is a general allegation of prejudice, denial of a motion for a continuance is an abuse of discretion which constitutes reversible error.

In this case, the record reflects that defendant was arraigned on December 22, 2009. He was represented by attorney Raul Guerra for arraignment purposes only. On that same day, attorney Jacques Touzet of the Public Defender’s Office was appointed. Mr. Touzet represented defendant at trial. Defense counsel appeared on January 28, 2010 for a pretrial conference where the State provided discovery to defense counsel and a motion hearing date was set for February 25, 2010. The motion hearing was continued to March 25, 2010, at the State’s request. On March 25, 2010, the motion hearing was held and trial was set for the week of April 12, 2010. Written notice was given to defendant at that time. On April 7, |r2010, the State filed a motion for discovery and a notice of intent to introduce La.Code of Evidence art. 404(B) evidence. These motions were set to be heard on April 12, 2010. On April 12, 2010, defense counsel requested a continuance of the State’s hearings because he was not prepared to proceed. The trial court granted defendant’s request and set the motions and trial for the next day, April 13, 2010.

On April 13, 2010, defense counsel filed written motions to again continue the Article 404(B) hearing and the trial. Defendant’s written motion to continue the trial specifically asserted that he was not informed until Saturday, April 10, 2010, just two days before the trial was scheduled, that the State would try defendant’s case over four other cases set for trial in the same division. He further stated that defense counsel was also assigned to Division “L” of the trial court in which he also had cases set for trial. Last, defense counsel argued that he struggled to secure a witness, who was not in court as of the filing of the motion. Defense counsel requested a six-day continuance until April 19, 2010.

At the hearing, defense counsel stated the following:

Your honor, before we proceed, I did file out of an abundance of caution a motion to continue the trial. A lot of it’s what we talked about yesterday. It’s embodied in the motion. The main issue was a witness that was in north Mississippi near the Alabama border. I’ve had constant contact with her, and I lost contact with her. This weekend I did re-establish, and she’s present in the courthouse as of a couple of minutes ago. So I do have this motion. It’s in the record. It’s been served upon the State, but I will notify the Court that one of the bigger issues aside from preparation, one of the bigger issues was the missing witness, and I have cured that problem .... So I will leave it to the Court’s discretion to grant or deny it.

The trial court denied both the motion to continue the Article 404(B) hearing and the motion to continue the trial, over defense counsel’s objection, noting that defense counsel had adequate time to prepare and that it had given defense counsel additional time for preparation. It also noted that “Division ‘L’ was not in the | ^section yesterday afternoon and is not in the section today. So I’m [sic] don’t see any direct conflict with their docket[.]”

There were approximately three and a half months between defendant’s arraignment and trial. Defendant and appointed counsel appeared at a hearing and received discovery on January 28, 2010, over two months prior to trial. Further, defendant received notice of the trial date at the hearing on the motions to suppress that was held on March 25, 2010, approximately two-and-a-half weeks before the scheduled trial date. Three-and-a-half months for preparation of this straightforward case is not so unreasonably short as to call into question the basic fairness of the proceeding.

Contrary to defendant’s contention, the record reflects that defense counsel had a sufficient amount of time to perform a meaningful investigation. The record shows that defense counsel effectively cross-examined the State’s witnesses, was familiar with the facts of the case, and gave opening and closing arguments. As the State asserts, defense counsel even admitted photographic evidence as well as presented a witness that challenged Detectives Layrisson and Boland’s testimonies in reference to an essential element of the charged offense, which, defense counsel admitted, cured an underlying issue upon which the continuance was originally requested. Finally, the trial court continued the trial for an additional day, which gave the defense counsel additional time to secure the witness and prepare for trial.

In Haarala, supra, the defendant argued that defense counsel received assurances that another client’s case would be tried first, and when that case was continued, counsel was left inadequately prepared to try defendant’s ease. The Louisiana Supreme Court found no merit in the defendant’s argument, noting that: hndefense counsel had adequate time to prepare, as he was actively engaged in the representation of the defendant for about ten weeks prior to trial; the trial date was set immediately after arraignment; discovery was completed well prior to trial; the defense’s trial strategy never materially varied and was not unduly complicated; and, no claim of prejudice was made, nor did the record support such a claim. The Supreme Court noted that despite ample advanced notice of the accused’s trial date, the defense failed to seek a continuance until the day of trial.

As in Haarala, supra, defendant in this case also argues that defense counsel was not given adequate notice that defendant’s case would be tried over other cases also scheduled for trial in the same section of court, which left counsel unprepared to try defendant’s case. Like the Haarala court concluded, we find that defense counsel in this case had adequate time to prepare for trial as he was actively engaged in the representation of defendant for at least two months prior to trial. Discovery was also completed well in advance of trial, and defense counsel’s strategy did not appear to materially change nor did it appear unduly complicated. Although defendant failed to request a continuance until the day of trial, the trial court continued the trial for an additional day because defendant was not prepared to move forward. Furthermore, defendant failed to show he was prejudiced by the denial of his motion to continue. Particularly, he failed to demonstrate how his strategy would have been any different had the trial court granted a continuance. Accordingly, we find that the trial court did not err in denying defendant’s motion to continue.

|, ^ASSIGNMENT OF ERROR NO. TWO — Denial of Batson challenges

The trial court erred in accepting the prosecutors [sic] reasons for using peremptory challenges to remove minority jurors.

In his second assignment of error, defendant argues that the trial court erred in accepting the prosecutor’s reasons for using peremptory challenges to remove minority jurors based on race. Specifically, defendant challenges the excusal of African-American jurors Walter Robinson and Sue Bowman. He contends that Walter Robinson appeared perfectly suited for service as a juror. After defendant lodged a Batson objection, the State attempted to give race-neutral reasons for the strike. Defendant further argues that when he challenged the State’s backstrike of Sue Bowman, the State cited inattentiveness, unwillingness to answer questions, and other behavioral issues that could have risen to a challenge for cause. Defendant alleges that the State instead waited until defendant had no peremptory challenges left to backstrike Sue Bowman, which allowed the State to essentially choose the remaining three white jurors by using its remaining peremptory challenges to strike minorities.

Defendant further argues that there was only one African-American juror to serve on the jury and she stated that she had served on a jury before and voted guilty along with the majority. Defendant contends that the State was successful in eliminating all Asians, Hispanics, and almost all African-Americans. The defendant notes that Ronald Jackson and Terri Banks, both African-Americans, were challenged and dismissed for cause over defendant’s objections. The State also used a peremptory challenge to strike Cheng Tsai, who was Asian, but who otherwise appeared fit for service. Defendant concludes that the peremptory strikes by the prosecutor against minorities, the statement and actions of the | ^prosecutor, the composition of the jury finally empaneled, and the backstrike of juror Sue Bowman establish purposeful race discrimination.

The State responds that the trial court properly denied defendant’s Batson objection as he failed to prove purposeful discrimination in the selection of the jury. It contends that although a Batson objection was raised by the defense regarding the excusal of African-American juror Walter Robinson, the trial court ruled that a pri-ma facie case of discrimination had not been established; however, the State had already offered that the basis of the peremptory challenge was because Mr. Robinson had serious problems with the use of confidential informants in drug investigations, which was relevant because the State used a confidential informant to develop information and obtain a warrant in defendant’s case. The State further contends that Sue Bowman’s behavior was problematic in that she was either not listening or had a hearing problem and the trial court confirmed these observations. The State concludes that the trial court found no purposeful discrimination in the exercise of the peremptory challenge, and its decision is entitled to great deference. The State further notes that defendant did not object to the State’s exercise of a peremptory challenge with respect to prospective juror Cheng Tsai. In fact, the State asserts that defendant noted that the juror had a heavy accent and agreed that the “language barrier” might cause some difficulty in following the testimony. Likewise, defendant has not assigned as error the granting of State’s challenges for cause in reference to Ronald Jackson or Terri Banks. Contrary to defendant’s assertions, the State points out that it appears that a Hispanic juror, Lorena Gutierrez Toy, served on the jury. Finally, the State notes that although defendant asserts that the statements of the 11sprosecutors further establish purposeful discrimination, he fails to cite to any specific statement, nor does the record provide any such evidence. Therefore, the State concludes that the trial court properly denied defendant’s Batson challenge as he failed to prove purposeful discrimination in the selection of the jury.

The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. LSA-Const. art. 1, § 17. The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination on the basis of race in the exercise of peremptory challenges. See Batson v. Kentucky, supra. The Batson decision is codified in LSA-C.Cr.P. art. 795(C), which provides that no peremptory challenge made by the State or the defendant shall be based solely upon the race of the juror. Article 795(C) further provides that if an objection is made that the State or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race-neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror.

In Batson, the United States Supreme Court established a three-step analysis to be applied when addressing a claim that peremptory challenges of prospective jurors were based on race. State v. Jacobs, 07-887, 67 So.3d 535, 554 (La.App. 5 Cir. 5/24/11). Under Batson and its progeny, the defendant challenging the peremptory strike must first establish a prima facie case of purposeful discrimination. State v. Sparks, 88-0017, p. 37 (La.5/11/11) 68 So.3d 435, 468-69. Second, if a prima facie showing is made, the burden shifts to the State to articulate a neutral explanation for the challenge. Id. Third, the trial court then | Mmust determine if the defendant has carried the ultimate burden of proving purposeful discrimination. Id.

In order to establish a prima fa-cie case, the defendant must demonstrate: (1) the prosecutor’s challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of his being a member of that cognizable group. Id. This three-prong demonstration by the defendant gives rise to “the necessary inference of purposeful discrimination” by the prosecutor. Id. (Citations omitted.) “The inference is ‘necessary5 because if such an inference cannot be drawn from the evidence presented by the defendant, he is unable to make a prima facie case of purposeful discrimination and his Batson challenge expires at the threshold.” Id. (Citations omitted.) If the trial court finds that the defendant failed to establish the threshold requirement of a prima facie case, then the analysis is complete and the burden never shifts to the prosecutor to articulate neutral reasons. Id. (Citations omitted.)

However, a trial judge’s demand that a prosecutor justify his peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose. State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 288. In any case, after the State offers a race-neutral explanation for the peremptory challenge, and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing becomes moot. Id.

In determining whether the defendant has established a prima facie case of purposeful discrimination in the State’s use of its peremptory challenges, the trial court should consider all relevant circumstances, including any pattern of strikes by the State against members of a suspect class, statements or actions of the | ^prosecutor which support an inference that the exercise of the peremptory strikes was motivated by impermissible considerations, the composition of the venire and the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination. Id. The overall racial composition of the venire and the jury ultimately seated is a significant factor often considered in determining whether a prima facie case has been established because it provides a “point of reference.” State v. Holand, 10-0325, pp. 10-11 (La. App. 4 Cir. 4/18/11) 64 So.3d 330, 336 (citations omitted).

If the prima facie showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Jacobs, supra at 555 (citing Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24). This second step does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam). The race-neutral explanation must be one that is clear, reasonably specific, legitimate and related to the case at bar. State v. Collier, 553 So.2d 815, 820 (La.1989). At the second step of the Batson inquiry, the issue is the facial validity of the prosecutor’s explanation. Purkett, supra. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. Id.

The trial court must then determine whether the defendant has established purposeful discrimination. Jacobs, supra at 555 (citing Batson, 476 U.S. at 98, 106 S.Ct. at 1724). It is at this third step that implausible explanations offered by the prosecution “may (and probably will) be found to be pretexts for purposeful discrimination.” Jacobs, supra (quoting Purkett, 514 U.S. at 768, 115 S.Ct. at 1771). The final step of Batson involves evaluating the persuasiveness of the justification proffered, but the ultimate burden of persuasion regarding racial | ^motivation rests with, and never shifts from, the opponent of the strike. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771.

In determining whether a defendant has met his burden of showing purposeful racial discrimination in the State’s exercise of peremptory challenges, the proper question is whether the proof offered by the defendant, when weighed against the State’s proffered race-neutral reasons, is strong enough to convince the trier of fact that the claimed discriminatory intent is present. State v. Bourgeois, 08-457, pp. 9-10 (La.App. 5 Cir. 12/16/08), 1 So.3d 738, 738, writ denied, 09-0336 (La.11/6/09), 21 So.3d 298. Thus, the focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. State v. Tilley, 99-0569, p. 5 (La.7/6/00), 767 So.2d 6, 12, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). The Supreme Court has held “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005).

A trial judge’s findings on a claim of purposeful discrimination are entitled to great deference by the reviewing court because they depend largely on credibility evaluations. Credibility can be measured by factors including the prosecutor’s demeanor, how reasonable or how improbable the explanations are, and whether the proffered reason has some basis in accepted trial strategy. State v. Wilson, 09-170, p. 13 (La.App. 5 Cir. 11/10/09), 28 So.3d 394, 405, writ denied, 09-2699 (La.6/4/10), 38 So.3d 299. The trial judge has the advantage of observing the characteristics and demeanor of the attorneys and prospective jurors. Therefore, the court occupies the best position for deciding whether a discriminatory objective underlies the peremptory challenges. Id. “[A] trial | ^court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008) (citing Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991)). “The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire persons, the nuances of questions asked the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript.” State v. Juniors, 03-2425, p. 32 (La.6/29/05), 915 So.2d 291, 319, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). The Constitution forbids even the striking of a single prospective juror for a discriminatory purpose. See Snyder, 552 U.S. at 478, 128 S.Ct. at 1208.

The Supreme Court subsequently affirmed and applied the three-part Batson test in Miller-El, Snyder, and in Thaler v. Haynes, 559 U.S.-, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010) (per curiam). In Miller-El, the Supreme Court emphasized the trial judge’s responsibility to assess the plausibility of the prosecutor’s proffered race-neutral reason “in light of all evidence with a bearing on it.” Miller-El, 545 U.S. at 251-52, 125 S.Ct. at 2331-32. The Supreme Court further stated:

A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.

Miller-El, 545 U.S. at 252, 125 S.Ct. at 2332.

Subsequently, in discussing the third step of the Batson inquiry in Snyder, the Supreme Court stressed the trial judge’s pivotal role in determining the plausibility of the State’s race-neutral explanation. The Supreme Court explained ||Sthat the third step requires the trial court to evaluate the prosecutor’s credibility by assessing “not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder, supra at 1208. Referencing its earlier decision in Miller-El, the Supreme Court again stressed that “all of the circumstances that bear upon the issue of racial animosity must be consulted” in determining whether the explanation given for the strike is convincingly race-neutral. Snyder, supra.

In Thaler, supra, the United States Supreme Court considered the question of whether any decision of the Supreme Court “clearly establishes” that a judge, in ruling on an objection to a peremptory challenge under Batson, must reject a demeanor-based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror’s demeanor on which the explanation is based. Id. at 1172. The Supreme Court in Thaler found that, although it appeared that the court of appeals concluded that either Batson or Snyder clearly established such a rule, it believed the court of appeals read far too much into those decisions and its holding, if allowed to stand, would have important implications. As such, the Supreme Court granted the petition for certiorari and reversed the judgment of the court of appeals. Id.

The Supreme Court in Thaler determined that neither Batson nor Snyder held that a demeanor-based explanation for a peremptory challenge must be rejected unless the judge personally observed and recalls the relevant aspect of the prospective juror’s demeanor. Id. at 1174. In reversing the judgment of the court of appeals, the Supreme Court held that no decision of the United States Supreme Court clearly established the categorical rule on which the court of appeals relied. Id. at 1175.

| Review of voir dire in this case

Our review of the voir dire in this case indicates that, during the first panel, the State exercised three peremptory challenges to excuse non-black jurors. Defendant, however, exercised a peremptory challenge against Jermaine Gordon, a black juror whom the State had found acceptable.

During the second panel, the State excused one non-black juror. Again, defendant exercised a peremptory challenge against Druescellar Dumas, a black juror whom the State had found acceptable.

During the third panel, the State excused one non-black juror. Next, the State and defendant accepted Mary Sehul-theis, the only known black to serve on the jury. The State then used its sixth peremptory challenge to backstrike Paul La-Rosa, a white male. The State used its seventh peremptory challenge to excuse its first black juror, Walter Robinson. When excusing Mr. Robinson, the State offered that it was excusing him because he “expressed serious concerns about using confidential informants’ testimony.”

Defendant lodged a Batson challenge stating: “... I’m trying to remember where we were with regard to the American — I’ll just lodge a Batson challenge at this point.” The Court inquired as to whether defendant saw a pattern. Defendant responded that once a Batson objection was lodged, it was the State’s duty to show that there is not a pattern, not the reverse. The State responded that it would accept that and argued that it previously accepted Mr. Gordon, a black male and two African-American females, Ms. Dumas and Ms. Schultheis; therefore, it did not believe that there was a pattern, and the trial court agreed. The State then noted that it previously stated its reason for excusing Mr. Robinson relative to the fact Rothat he had serious problems using confidential informants’ testimony. Defendant countered that he asked Mr. Robinson if he could follow the law, and Mr. Robinson responded in the affirmative. The State responded: “Anybody who has a serious problem with potential evidence in the State’s ease is certainly grounds to exercise a peremptory challenge.” The court then responded: “Okay. And I do not see any pattern.” Defendant then noted his objection.

The State exercised its eighth peremptory challenge against prospective juror Katy Dunn. The State then used its ninth peremptory challenge to backstrike Sue Bowman, a black female juror, who was the first person to be called on the first panel. Defendant noted that the State was striking another black juror. Defendant argued that, in the third panel, the State excused Walter Robinson, its first black juror, and Sue Bowman, a black female, who he previously found acceptable in the first panel, to reach the remaining jurors because they were white. Defendant further requested that his challenge be granted based on the fact that the State’s last two strikes were two black jurors in a row. The prosecutor argued that there was no pattern as he had previously accepted several black jurors: Ms. Dumas, Mr. Gordon, and Ms. Schultheis.

The trial court then asked for the race-neutral reason. The State expressed concern regarding Ms. Bowman’s inattentiveness stating either she had a hearing problem or was not listening. The State noted that her name was called out twice because she failed to rise the first time. During the course of questioning, she did not answer responsively to the court’s questions, and she gave incorrect answers or inappropriate responses to questions. The trial court noted that the State’s reasons [2iwere consistent with the court’s observations. Specifically, the court stated that its notes were similar and reflected that Ms. Bowman had a smirk on her face, and she did not seem to comprehend at times.

Defendant argued that the State’s reasoning rose to a challenge for cause; however, not only did it not challenge Ms. Bowman for cause, but it considered her acceptable. The trial court found that it did not rise to the level of cause, but it did observe the behavior that the State was pointing out. The State interjected that after Ms. Bowman was accepted when she was sworn in, she got up to leave after she was asked to stay. Defendant responded “that makes her ditsy.” The State countered that “not being able to hear, not listening, not being able to comprehend is a raise notable for reasoning.” Defendant asked to call Ms. Bowman back for further questioning. However, the trial court found that it was “satisfied based on what [it] saw that [the State] has articulated reasons that are consistent with what the court observed. Defendant again objected to the trial court’s ruling.

Review of peremptory excusal of juror Walter Robinson

The record reflects that when the State used its seventh peremptory challenge to excuse Walter Robinson, it immediately offered a race-neutral explanation, i.e., that Mr. Robinson expressed serious concerns in reference to confidential informants. Defendant then lodged a Batson objection and the trial court inquired as to whether he perceived a pattern. Defendant argued that the State had to prove that there was not one. The prosecutor asserted that the State previously accepted other black jurors; therefore, he did not believe there was a pattern and the trial court agreed. The State again asserted its race-neutral reason for excusing Mr. Robinson and defendant countered that Mr. Robinson said he could follow the law. The State responded that when a person has an issue with | ¡^potential evidence in the State’s case, it provides grounds for a peremptory challenge. The court reasserted that it did not see a pattern and defendant objected.

Thus, the record reflects that in ruling on defendant’s Batson challenge with respect to Mr. Robinson, the trial court found that defendant did not meet his initial burden of establishing a prima facie case of racial discrimination. The trial court was correct in so ruling. The record indicates that although defendant established that Mr. Robinson was a member of a cognizable racial group because he was black and the State used a peremptory challenge to strike him, defendant did not prove relevant circumstances that raise the inference that Mr. Robinson was struck on the basis of race. Mr. Robinson was the first black juror struck by the State. Moreover, the State’s comments do not indicate that the strike was racially motivated; rather, it was based on Mr. Robinson’s issues towards the use of confidential informants, which were used by the police in this case.

Furthermore, the record supports the State’s explanation. Specifically, when the State questioned the prospective jurors as to whether they have any problem with confidential informants being used as a tool in investigations by the Sheriffs Office, Mr. Robinson answered: “I think it’s a flaw too. I think the person has zero credibility because you don’t know why they are bring [sic] that information forward. You know, it could be to protect their own self to get their self out of trouble.” Accordingly, the trial court did not err in denying defendant’s Batson challenge with respect to Mr. Robinson.

Review of peremptory excusal of juror Sue Bowman

When the State used its ninth peremptory challenge to backstrike Sue Bowman, defendant again raised a Batson challenge alleging that the State struck two black jurors in a row and was using its challenges to strike black jurors | ^because there were only white jurors left and defendant had used all of his peremptory challenges. Again, the record reflects that the trial court did not expressly rule that defendant met his burden of establishing a prima facie case of racial discrimination. However, after listening to defendant’s and the State’s arguments, the trial court asked the State to offer a race-neutral reason.

As previously noted, when the trial judge does not rule on whether a defendant asserting a Batson challenge has met his burden to establish a prima facie case of racial discrimination, but rules on the ultimate question of intentional discrimination after the State offers a race-neutral explanation for the peremptory challenge, the issue of whether the defendant made a prima facie showing becomes moot. The record reflects that the State offered a race-neutral reason for the challenge, i.e., inattentiveness, and the trial court properly determined that defendant failed to carry his burden of proving purposeful discrimination. The trial court accepted the race-neutral reasons and commented on the reasons, which indicates that the court was weighing the reasons with the evidence presented by defendant and finding credibility and truthfulness in the State’s offered reasons. Specifically, the trial court asserted that the State’s reasons were consistent with what the court observed and placed in its notes.

Defendant argues that Mary Schultheis, the only alleged African-American juror, had prior jury service on a jury that found the accused guilty. However, it is noted that Sue Bowman also served on a jury that voted guilty, yet she was still dismissed. Defendant also argues that the State used a peremptory challenge to excuse black juror Sue Bowman in the third panel, who was initially accepted on 124the jury in the first panel, to reach the remaining prospective jurors, who were all white. However, juror Paul LaRosa, who was a white male, was also accepted for service by the State in the second panel then excused by the State in the third panel. This rebuts any inference or conclusion that the State backstruck Ms. Bowman to place more white jurors on the jury because it also removed a white juror who it had previously accepted from the panel.

Based on a careful review of the entire voir dire transcript, we find that defendant failed to meet his burden of proving purposeful discrimination in raising a Batson challenge with regard to Ms. Bowman. The State used a peremptory challenge to strike Ms. Bowman because during the voir dire of the subsequent panels, it became apparent that Ms. Bowman either could not hear the instructions given to her or was not paying attention to the instructions given. Thus, the trial court did not abuse its discretion in denying defendant’s Batson challenge with regard to Ms. Bowman.

This assignment of error is without merit.

ERRORS PATENT REVIEW

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).

This review indicates that defendant was not properly informed of the time period for seeking post-conviction relief. The original and habitual offender transcripts reflect that the trial court generically informed defendant that he had “two years to seek post-conviction relief.” This advisal is incomplete. Hence, defendant is advised by way of this opinion that pursuant to LSA-C.Cr.P. art. 930.8(A), no application for post-conviction relief, including applications which |2-,seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See State v. Stokes, 10-171, p. 14 (La.App. 5 Cir. 10/12/10), 50 So.3d 884, 893.

The record also indicates that trial court did not impose defendant’s multiple offender sentence without the benefit of parole for the first two years, as required by the LSA-R.S. 40:967. When a defendant is sentenced as a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. State v. Bruins, 407 So.2d 685, 687 (La.1981). Similarly, the conditions imposed on the sentence are those called for in the referenced statute. Id. However, this error does not require corrective action, because the without-benefits provision of a statute is self-activating. State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A).

CONCLUSION

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

AFFIRMED

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

      . Id.., citing Durio, 371 So.2d at 1161; State v. Winston, 327 So.2d 380 (La.1976) (conviction for distribution of heroin reversed when defense counsel was given only three days in which to prepare for trial); State v. Simpson, 403 So.2d 1214 (La.1981) (trial court constructively denied defendant right to counsel by appointing new attorney on the day of trial who presented no defense, but only cross-examined the State's witnesses).

      .Particularly, the witness testified that the detectives never pulled cocaine from the pocket of defendant’s pants.

      . 398 So.2d at 1096.

      . Id.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . It is noted that the prospective juror’s name appears to be Asian; however, the juror’s race is unclear from the record.

      . The State points out that defendant did not object to this excusal during voir dire; however, the State appears to be incorrect in its assertion that defendant agreed that the language barrier might be a problem. The language barrier discussion was made relative to juror Bin Le, whom defendant moved and dismissed for cause.

      . "In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant.” LSA-C.Cr.P. art. 799.

      . It is noted that the racial composition of the jury venire and the empaneled jury are not evident in the record. However, during defendant’s third panel Batson challenge, he noted that the State struck its first two African American jurors at that point, which leads to the conclusion that the peremptory challenges used by the State before that point, in the first two panels and a portion of the third panel, were against non-black jurors.

      . It appears that defendant was incorrect in his assertion that the trial court struck two black jurors in a row. The record reflects that Katy Dunn was struck in between Mr. Robinson and Ms. Bowman. Although Ms. Dunn’s race is not evident, it appears from the record that both Mr. Robinson and Ms. Bowman were black jurors. Mr. Robinson, Ms. Dunn, and Ms. Bowman were struck consecutively. However, defendant only alleged that two black jurors were struck in a row. If Ms. Dunn were also black, the State would have struck three black jurors in a row. Moreover, in his brief, defendant alleges that Ms. Dunn was white.

      . The composition of the venire and the jury finally empaneled are unknown; however, it is clear that at least one of the empaneled jurors was black, Mary Schultheis.

      . It is noted that inattentiveness has been found to be an acceptable demeanor-based, race-neutral explanation. See e.g. State v. Johnson, 621 So.2d 1167 (La.App. 2 Cir. 1993), writ denied, 626 So.2d 1178 (La.1993) (veniremen appeared inattentive and unresponsive); State v. Young, 613 So.2d 631 (La. App. 1 Cir.1992), writ denied, 626 So.2d 1186 (La.1993) (same); State v. Manuel, 517 So.2d 374 (La.App. 5 Cir. 1987) (same); State v. Griffin, 618 So.2d 680 (La.App. 2 Cir.1993), writ denied, 625 So.2d 1063 (La.1993) (veniremen all smiles and giggles during voir dire on death penalty).

      . LSA-R.S. 40:967(B)(4)(b) states: "Distribution, dispensing, or possession with the intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture ... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; ...."


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mackenxo SAINT-VIL.
    No. 10-KA-1052.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

|?In this criminal matter, defendant/appellant, Mr. Maekenxo Saint-Vil’s appellate counsel, filed a motion to withdraw with accompanying brief stating that no non-frivolous issues exist which arguably support an appeal. After an independent review of the record, we agree that no non-frivolous issues exist. Therefore, Mr. Saint-Vil’s convictions and sentences are affirmed.

Facts and Procedural History

On July 15, 2004, Mr. Saint-Vil was charged by bill of information, in case number 04-4735, with one count of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 and two counts of simple burglary in violation of La. R.S. 14:62. He pled not guilty at the arraignment, but on January 29, 2009, Mr. Saint-Vil withdrew his not guilty pleas and tendered pleas of guilty. Pursuant to a plea agreement, he was sentenced to 12 years imprisonment for each count in the [¡¡Department of Corrections. The sentences were to run concurrently with the sentences imposed in case numbers 04-3033 and 08-2930.

On October 14, 2010, Mr. Saint-Vil filed an application for post-conviction relief seeking an out-of-time appeal, alleging that his pleas were not knowingly and intelligently made. The trial court granted an out-of-time appeal for case numbers 04-4735 and 08-2930 and appointed the Louisiana Appellate Project to represent Mr. Saint-Vil.

Discussion

Mr. Saint-ViPs appellate counsel filed a motion to withdraw and brief with this Court stating that, after a conscientious and thorough review of the record, no non-frivolous issues exist to arguably support an appeal. When appointed counsel has filed such a brief, Anders requires that counsel move to withdraw. State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990).

In Anders v. California, 386 U.S. 738, 744 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), the United States Supreme Court stated that appellate counsel may request permission to withdraw if, after a conscientious examination of the record, he finds the case to be wholly frivolous. The request, however, must “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. This provides the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” State v. Haynes, 09-109, p. 15-16 (La.App. 5 Cir. 2/9/10), 34 So.3d 325, 335 quoting McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

An Anders brief need not tediously catalog every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit. State v. Jyles, 96-2669, p. 2 (La.12/12/97), 704 So.2d 241. Rather, it must ensure the court that the defendant’s constitutional rights have not been violated. Id. Appellate counsel must demonstrate to the court by full discussion and analysis that he has “cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

In this case, we find that appellate counsel has complied with the requirements set forth in Anders. Counsel notes that the only pretrial ruling in this case was regarding Mr. Saint-Vil’s request for funds to hire a personal investigator and for DNA testing. Appellate counsel also notes that Mr. Saint-Vil was fully informed of the legal consequences of his pleas by both his trial counsel and the trial court. She found that the Boykin form and trial court adequately informed Mr. Saint-Vil of the offenses he was pleading guilty to, the rights he was relinquishing, and the sentences he would receive.

The State responded noting that appellate counsel’s brief shows a conscientious and thorough review and recitation of the case’s procedural history. The State further agrees that appellate counsel cast an advocate’s eye over the record when she determined there were no significant non-frivolous issues upon | ¿which to base an appeal. The State requests this Court to affirm Mr. Saint-Vil’s convictions and sentences.

When an Anders brief is filed, the appellate court must conduct an independent review of the record. Haynes, supra at 335. After a full examination of all the proceedings, the appellate court proceeds to determine whether the case is wholly frivolous. Anders, supra at 744, 87 S.Ct. 1396. If it so finds, it may grant counsel’s motion to withdraw and dismiss the appeal. Id. The motion will not be acted upon, however, until the appellate court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his own behalf. Benjamin, supra at 531.

This Court mailed Mr. Saintr-Vil a letter on January 4, 2011, informing him that his appellate counsel filed a brief with this Court stating that no non-frivolous issues exist for this Court to review on appeal. We also informed him that he could file a supplemental brief on his own behalf and gave him until January 27, 2011 to do so. He filed a supplemental brief on January 11, 2011. As the State pointed out, however, the supplemental brief Mr. Saint-Vil filed raises issues pertinent to case 04-3033, which is not the subject of this appeal. We will, therefore, proceed with an independent review of the record which will consist of:

1) a review of the bill of information or indictment to insure the defendant was properly charged; 2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; 3) a review of all pleadings in the record; 4) a review of the jury sheets; and 5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Id.

Our review of the record supports appellate counsel’s assertion that no non-frivolous issues arguably support an appeal.

We have reviewed the record in its entirety, including the bill of information, all minute entries, pleadings, and the transcript. Mr. Saint-Vil was ^present and represented by counsel at arraignment when he entered his not guilty pleas and during the Boykin hearing when he withdrew those pleas and tendered pleas of guilty as required by La.C.Cr.P. art. 831(A). The transcript of the Boykin hearing and the Boykin form indicate that Mr. Saint-Vil was adequately advised of the right to a jury trial, the right of confrontation, and the privilege against self-incrimination. The trial judge explained to Mr. Saint-Vil the offenses with which he was charged, the sentencing range for those offenses, and the sentences he would receive pursuant to the agreement. Further, Mr. Saint-Vil acknowledged that he understood his rights and wished to waive them. In addition, he acknowledged that he did, in fact, commit the offenses. As appellate counsel pointed out, the only pretrial ruling involved a request for funding.

Because the record reveals no non-frivolous issues and no ruling which arguably supports an appeal, Mr. Saint-Vil’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw is granted.

Error Patent Discussion

Appellate counsel has requested that this Court review the record for errors patent in conformity with La.C.Cr.P. art. 920. See State v. Oliveaux, 812 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

We first note that the trial judge imposed the sentences in the Department of Corrections rather than stating the sentences were imposed at hard labor. When the trial judge states that the sentence is to the Department of Corrections, the sentence is necessarily at hard labor. Rochon v. Blackburn, 97-2799, p. 4 (La.App. 1 Cir. 12/28/98), 727 So.2d 602, 604. Therefore, no corrective action is necessary.

We also note that Mr. Saint-Vil’s sentence on Count 1 — simple burglary of an inhabited dwelling — was imposed without restrictions. However, La. R.S. 14:62.2 provides:

17[w]hoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without the benefit of parole, probation or suspension of sentence, nor more than twelve years, (emphasis added)

When a criminal statute requires that all or portion of a sentence be served without the benefit of probation, parole, or suspension of sentence, La. R.S. 15:301.1(A) provides:

[t]he failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence, (emphasis added).

The Louisiana Supreme Court stated in State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, that in instances where the restrictions are not recited at sentencing, La. R.S. 15:301.1(A) “deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court.” La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction. Id.

Due to the self-activating provision of La. R.S. 15:301.1, Mr. Saint-Vil’s sentence for violating La. R.S. 14:62.2 is imposed without the benefit of parole, probation or suspension of sentence.

Decree

For the foregoing reasons, the convictions and sentences are affirmed. The motion to withdraw as counsel is granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . On January 28, 2009, Mr. Saint-Vil pled guilty to manslaughter in case numbers 04-3033 and was sentenced to 30 years imprisonment at hard labor. The next day, he pled guilty to introducing contraband into a penal institution in violation of La.R.S. 14:402 and was sentenced to five years imprisonment.

      . The transcript from that hearing, which was held on June 15, 2007, reflects that cases 04— 4735 and 04-3033 (the manslaughter offense) were both handled during that proceeding. Thus, it appears that the ruling on the request for funding concerned case number 04-3033.


author: MARC E. JOHNSON, Judge.

text:
    In re SUCCESSION OF Elliot L. BAILEY.
    No. 11-CA-147.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      David H. Alfortish, Attorney at Law, Kenner, LA, for Plaintiffs/Appellees.
    L. Gerome Smith, Attorney at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|zThis appeal arises from the maintaining of a Peremptory Exception of Prescription in favor of Appellees, Lenair M. Bailey and Michelle P. Bailey, and against Appellants, D’Juan Marshall, Rhonda Marshall, Treniece Marshall, Elliot Marshall, and Ryan Marshall, which dismissed a Petition to Establish Paternity filed in the 24th Judicial District Court, Division “O”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Elliot L. Bailey (hereinafter referred to as “Decedent”) was only married one time to Mildred Bailey. From this union, two legitimate children were born, Lenair M. Bailey and Michelle P. Bailey. During Decedent’s marriage to Mildred and subsequent to his divorce from her on August 17, 1976, five children were born who also claim Decedent as their biological father: Rhonda (born on August 5, 1970); Tren-iece (born on July 2, 1972); Elliot (born on June 7, 1973); Ryan (born on October 20, 1978); and D’Juan (born on May 22,1980). Decedent died on April 7, 2009.

On April 16, 2009, Appellees filed an Expedited Petition for Eviction, ^Possession of Premises, Return of Property, Temporary Restraining Order and Payment of Attorney’s Fees against Appellants. Thereafter, Appellants filed a Petition for Possession with Appointment of Administration on July 24, 2009. Within one year of Decedent’s death, Appellants filed a Petition to Establish Paternity on April 1, 2010. In response, Appellees filed a Peremptory Exception of Prescription on September 29, 2010, arguing the time period to establish filiation had prescribed. On November 3, 2010, Appellants filed their memorandum in opposition to the exception, in which they argued their petition was timely pursuant to LSA-C.C. art. 197 and, in the alternative, equitable estop-pel.

After a hearing on the merits, the trial court signed a judgment maintaining Ap-pellees’ peremptory exception and dismissing Appellants’ petition. Subsequently, Appellants filed a Motion for New Trial and/or Reconsideration, which argued there is a gap in the laws regarding filiation. After a hearing on the merits of the motion, the trial court denied the motion on December 7, 2010. The instant appeal follows.

ASSIGNMENTS OF ERROR

Appellants raise the following assignments of error for review: 1) whether LSA-C.C. art. 4 required the trial court to apply principles of equity to fill in the gap in the law between the 2005 repeal of former LSA-C.C. art. 209 and the enactment of LSA-C.C. art. 197 regarding filiation claims by individuals who are over the age of nineteen; 2) whether the trial court committed manifest error in failing to rule that the doctrine of equitable estoppel prevented prescription where there is uncon-troverted evidence that the Decedent claimed and raised Appellants as his children their entire lives; 3) whether the trial court committed reversible error when it failed to grant a new trial in this case where the trial court refused to apply principles of equity, even though LSA-C.C. art. 4 expressly required it to do |4so; and 4) whether the trial court erred in failing to rule that repealed LSA-C.C. art. 209 is unconstitutional because the difficulties in proving paternity that lead the Louisiana Supreme Court to uphold the constitutionality of that article in 1985 no longer exist, in light of DNA technology.

LAW AND ANALYSIS

Denial of the Motion for New Trial

Appellants aver the trial court abused its discretion when their Motion for New Trial was denied. Consequently, Appellants assert the trial court rendered a judgment that was contrary to the law and facts of the case.

Denial of a motion for new trial is an interlocutory and non-appealable judgment. Smith v. Smith, 08-575, p. 11 (La. App. 5 Cir. 1/12/10); 31 So.3d 453; Roger v. Roger, 99-765, p. 3 (La.App. 5 Cir. 1/12/00); 751 So.2d 354, 356. However, the Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant’s brief that he intended to appeal the merits of the case. Id.; See, e.g., Punctual Abstract Co. Inc. v. U.S. Land Title, 09-91, p. 5 (La.App. 5 Cir. 11/10/09); 28 So.3d 459. It is obvious from Appellants’ brief that they intended to appeal the merits of judgment rendered on November 9, 2010. We will consider the merits of the appeal from that judgment.

Use of LSA-C.C. art. I

Appellants allege the trial court committed reversible error when it filled in the gap in legislation with judicial decisions instead of using principles of equity, as required by LSA-C.C. art. 4. Appellants contend there is a gap in legislation for filiation claims because the repeal of LSA-C.C. art. 209 removed the age restriction for individuals over the age of nineteen; yet, the enactment of LSA-C.C. |sart. 197 does not provide for retroactive application. Appellants further contend that repealed Article 209 and judicial decisions are not “legislation” or custom as referred to in Article 4. As a result, Appellants assert there is no existing legislation which applies to claims brought by individuals who had already reached the age of nineteen in 2005 when Article 209 was repealed and Article 197 was enacted.

According to LSA-C.C. art. 2, legislation is a solemn expression of legislative will. Custom results from practice repeated for a long time and generally accepted as having acquired the force of law, and it cannot abrogate legislation. LSA-C.C. art. 3. When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. LSA-C.C. art. 4. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9.

Prior to its repeal in 2005, LSA-C.C. art. 209(C) provided that a child initiating a filiation claim had to file the claim within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever occurs first. After Article 209 was repealed in 2005, LSA-C.C. art. 197 was enacted and removed the age restriction. Currently, Article 197 only imposes a preemptive period of one year from the day of the death of the alleged father for succession purposes only.

In the case at bar, each of the Appellants involved had attained the age of nineteen prior to the repeal of LSA-C.C. art. 209 in 2005. Article 209 was the clear and unambiguous law in effect at the time each appellant had reached the age of nineteen. Like the First and Third Circuit Courts of this state, we agree that the Reflect of Article 209 at the time the alleged heir reached nineteen years of age extinguished the filiation claim and could not be revived by the enactment of Article 197. See, In re Succession of Donald Clay Smith, 09-969 (La.App. 3 Cir. 2/3/10); 29 So.3d 723, 725, rehearing denied, 09-969 (La.App. 3 Cir. 2/3/10); In re Succession of James, 07-2509 (La.App. 1 Cir. 8/21/08); 994 So.2d 120, 126, writ denied, 08-2302 (La.12/12/08); 996 So.2d 1119. Consequently, we find there is no gap in legislation between the repeal of Article 209 and the enactment of Article 197 for the individuals over the age of nineteen because they were preempted from proving filiation, and there is no need to apply the principles of equity because there is positive law on the issue.

Therefore, we find no merit to Appellants’ argument.

Equitable Estoppel

Appellants allege the trial court committed manifest error in failing to rule that Appellants’ uncontroverted evidence supported their argument for equitable es-toppel. Appellants contend they proved all of the elements of equitable estoppel by clear and convincing evidence that: 1) Decedent, Mr. Bailey, made a representation through conduct by claiming Appellants as his children on documentation under the penalty of perjury and providing home, food and care for them; 2) Appellants justifiably relied on the representation that Decedent was their father; and 3) there was a change in Appellants’ position to their detriment (inability to inherit) because of their reliance that Decedent was their father.

Equitable estoppel is defined as “the effect of voluntary conduct of a party whereby he is precluded from asserting rights against another who justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.” Morris v. Westside Transit Line, 02-1029 (La.App. 5 Cir. 2/25/03); 841 So.2d 920, 926, citing Wilridge v. Capitol Mfg. Co., 97-574 (La.App. 3 Cir. 12/17/97); 704 So.2d 966. Equitable estop-pel is a doctrine of last resort; it is not favored by Louisiana courts and will be applied only when justice so demands. Gunderson v. F.A. Richard & Associates, 09-1498 (La.App. 3 Cir. 6/30/10); 44 So.3d 779, 789. Equitable considerations and es-toppel cannot prevail in conflict with the positive law. Id., citing LSA-C.C. art. 4; Palermo Land Co. v. Planning Comm’n, 561 So.2d 482 (La.1990).

As mentioned earlier in this opinion, repealed LSA-C.C. art. 209 was the clear and unambiguous positive law in effect at the time Appellants reached the age of nineteen. As such, equitable estoppel cannot prevail against Article 209, which mandated Appellants to establish filiation within one year of the death of their alleged father or within nineteen years of their births, whichever occurred first. Accordingly, the application of equitable estoppel in this matter is not justified.

Therefore, we find Appellants’ argument lacks merit.

Constitutionality of LSA-C.C. art. 209

Appellants allege the trial court erred when it refused to rule that repealed Civil Code Article 209 is unconstitutional. Appellants contend the compelling state interest found to support Article 209’s age restriction in Succession of Grice, 462 So.2d 131 (La.1985), appeal dismissed, 473 U.S. 901, 105 S.Ct. 3517, 87 L.Ed.2d 646 (1985) is no longer justified because of the more recent developments of DNA testing.

In M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-450 (La.4/27/07); 956 So.2d 573, 574 the Louisiana Supreme Court reiterated its finding in Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94); 646 So.2d 859 by stating the following regarding the pleading of the unconstitutionality of a statute:

Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing | ¿jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, and amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. (Emphasis in original). (Citations omitted).

In the instant matter, a review of the record indicates the issue of constitutionality was first raised in appellants’ Memorandum in Opposition to Exception of Prescription. A memorandum is not a pleading recognized under the Code of Civil Procedure, and is, therefore, not a proper method to challenge the constitutionality of a statute. M.J. Farms, 07-450; 956 So.2d at 574. Since the unconstitutionality of repealed LSA-C.C. art. 209 was not properly raised in the lower court, it is not properly before us for review. Alternatively, even if the unconstitutionality of repealed LSA-C.C. art. 209 had been properly raised at the trial court level, Succession of Grice, supra, is still the controlling law for this state which upheld the constitutionality LSA-C.C. art. 209. Additionally, the Louisiana legislature did not declare Article 209 unconstitutional when it was repealed.

Therefore, we find Appellants’ argument lacks merit.

DECREE

For the foregoing reasons, we affirm the trial court’s maintaining of Appellees’, Le-nair M. Bailey and Michelle P. Bailey, Peremptory Exception of Prescription and the dismissal of Appellants’, D’Juan Marshall, Rhonda Marshall, Treniece Marshall, Elliot Marshall, and Ryan Marshall, Petition to Establish Paternity. Appellants are to bear the costs of this appeal.

AFFIRMED


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Nathaniel A. HERNANDEZ.
    No. 11-KA-146.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, E. Clifton Milner, J. Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellate.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Nathaniel A. Hernandez, was convicted of possession of a firearm after having been convicted of a felony in violation of LSA-R.S. 14:95.1, and was sentenced to 12 ⅛ years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging that the trial court erred in failing to grant his jury challenge for cause of juror Eric Rish, and that the evidence presented at trial was insufficient to support the conviction.

The following was adduced at trial. Detective Stanley Brown with the Burglary-Theft Unit of the Jefferson Parish Sheriffs Office testified that he was assisting Detective Steven Abadie in an investigation of which Mr. Timothy Naquin was the subject. On the evening of November 5, 2009, Detective Brown observed Naquin standing on a motel balcony in front of a room with the door open and radioed Detective Abadie to convene at that location. After Abadie and backup had arrived on the scene, Detective Brown approached Naquin with his pistol drawn and Detective Abadie approached with an assault rifle drawn. When | c,Naquin complied with the officers’ commands to place his hands on the balcony railing, Brown ascended the staircase with Abadie right behind him. After reaching the top of the stairs, as Brown handcuffed Naquin, Abadie made his way into the room through the open door. While Brown was still securing Na-quin on the balcony, he heard Abadie shout, “Let me see your hands!” Seconds later, as soon as Naquin was secured, Brown entered the room with his pistol drawn and heard Abadie exclaim “ninety-five,” the code which indicates the presence of a gun.

Upon entering the motel room, Detective Abadie testified that he observed defendant lying on his side, with his back facing the officer, on the bed farthest from the doorway. Abadie observed defendant make “a move, to what, I don’t know what it was. He made a move to the object that was around his crotch area.” “He motions to his waistband area — I don’t know if he was laying on something, something was in his waistband. I couldn’t tell. It could have been beneath him. I’m not really sure what it was. And he motioned to the side of the bed.” “I wasn’t sure if he was actually taking something from his waistband or, where he was laying, he was shoving something, or was he going to retrieve something.” Unsure of defendant’s intentions, Abadie ordered “Let me see your hands!” Defendant complied and Abadie directed defendant off the bed and onto the wall. As soon as defendant was out of the bed, Abadie noticed the butt of a gun sticking out from between the mattress and the box spring, underneath where defendant had been lying and in the same area where defendant had been reaching. He exclaimed “ninety-five” and secured the weapon for safety reasons since two females and several children were present in the room.

The defense witnesses offered conflicting testimony about defendant’s location within the room when the officers entered. Ms. Krystye Burciaga, | .(defendant’s girlfriend, testified that when Officer Abadie entered the room, she was on the bed farthest from the door and defendant was near the television helping the children link up a video game. She further testified that she had never seen the gun before, did not know it was in the room, and had she known about it, would not have allowed the gun in the room with her one-year old son. Similarly, Naquin testified that when the police entered the room, defendant was “by the TV messing with a video game.” He also maintained that the gun recovered from underneath the mattress was his gun, which he claimed to have placed there earlier in the day without the knowledge of defendant or any other occupant of the room. When asked why he was testifying, Naquin responded, “Because that’s my gun. And it’s the right thing to do. I took my charge for everything else, I ain’t going to see somebody else take a fall for something he didn’t do.” He also admitted to pleading guilty to possession of the gun.

In this appeal, defendant argues that the evidence was insufficient to support his conviction beyond a reasonable doubt. He contends that the officers contradicted one another in their testimony and that their testimony contradicted the testimony of the two defense witnesses. These contradictions, he contends, rendered the evidence insufficient to prove that defendant had possession of the gun. Conversely, the State argues that, regardless of the contradictions and inconsistencies, the evidence was sufficient to convict defendant beyond a reasonable doubt because the evidence was sufficient to establish that defendant had possession of the gun.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond |Ba reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Jones, 08-20 at 7, 985 So.2d at 240.

In the instant case, defendant was convicted of possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. That statute provides, in pertinent part, that “[i]t is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony ... to possess a firearm or carry a concealed weapon.” LSA-R.S. 14:95.1(A). To support a conviction under LSA-R.S. 14:95.1, the State must prove that the defendant possessed the firearm, that the defendant has a prior conviction for an enumerated felony, that the defendant possessed the firearm within ten years of the prior conviction, and that defendant had general intent to commit the crime. State v. Watson, 08-214, p. 7 (La. App. 5 Cir. 8/19/08), 993 So.2d 779, 784.

At trial, defense counsel stipulated that defendant is a-convicted felon and that his prior convictions qualify under LSA-R.S. 14:95.1. Thus, defendant does not challenge the evidence regarding his prior convictions or the ten-year cleansing period, but disputes the sufficiency of the evidence of possession and intent.

| fiActual possession of a firearm is not necessary to satisfy the possession element of LSA-R.S. 14:95.1; constructive possession is sufficient. Watson, 08-214 at 7, 993 So.2d at 784; State v. Blount, 01-844, p. 4 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, 775. Constructive possession is a legal term describing the situation in which a person who is not in actual possession of an object can nevertheless be considered in legal possession of the thing if it is subject to his dominion and control. State v. Curtis, 99-45, p. 21 (La.App. 5 Cir. 7/27/99), 739 So.2d 931, 944; State v. Francis, 95-194, pp. 5-6 (La.App. 5 Cir. 11/28/95), 665 So.2d 596, 600. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. Watson, 08-214 at 8, 993 So.2d at 784. However, mere presence in an area where a firearm is found, or mere association with an individual found to be in possession of a firearm, does not necessarily establish possession. Curtis, supra.

In addition, the jurisprudence has added an aspect of awareness to the offense. Watson, supra. Therefore, the State must also prove that the offender knew that a firearm was in his presence and that the offender had the general criminal intent to possess the weapon. State v. Webber, 99-23, p. 5 (La.App. 5 Cir. 7/27/99), 742 So.2d 952, 955; Curtis, supra; see also State v. Mickel, supra; State v. Storks, 02-754 (La. App. 5 Cir. 12/30/02), 836 So.2d 638, 641.

This Court has recognized that when a gun is found in an area that the defendant has customarily occupied, the courts have generally found this to be evidence of constructive possession. State v. Ware, 01-194 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 500. See State v. Michel, supra; State v. Paul, 05-612, pp. 7-8 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 350,; State v. Johnson, 98-604, 98-605 (La.App. 5 Cir. 1/26/99), 728 So.2d 901, writ denied, 99-0624 (La.6/25/99), 745 So.2d 1187; State v. Jackson, 97-1246, p. 7 (La.App. 5 Cir. 4/13/98), 712 So.2d 934, 938, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37.

In the instant case, defendant’s girlfriend testified that she, defendant, defendant’s cousin, and the children had been living in the motel room for “about a month,” while Naquin had been staying in the room for “maybe a week, if that long,” and that the room was registered under defendant’s cousin’s name. Additionally, Officers Brown and Abadie, as well as Naquin, testified that the occupants were residing in the motel room — the room “was cluttered with their clothing and a bunch of objects.” Furthermore, Officer Abadie testified that he observed defendant lying on the bed and made a move toward the area which later revealed the gun; and Officer Brown testified that upon his entry into the room, defendant was in a seated position on the side of the bed, about to stand up.

Although Burciaga and Naquin offered conflicting testimony that placed defendant near the television rather than on the bed, and Naquin stated that the gun belonged to him and was placed in the room without defendant’s knowledge, the jury made a credibility determination and believed the testimony of the State’s witnesses rather than the defense witnesses’ testimony. When the trier-of-fact is confronted with conflicting testimony, fact findings rest solely with that judge or jury, who may accept or reject, in whole or in part, any witness’s testimony. State v. Watson, 08-214, p. 9 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 785. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.

It was not established that the bed in which the gun was found was the bed in which defendant regularly slept, but defendant had been residing in the motel room and the gun was found in the bed in which he was lying. Plus, it is well established that a person’s dominion over a weapon constitutes constructive ^possession even if it is only temporary in nature and even if control is shared. Watson, 08-214 at 8, 993 So.2d at 784. Even assuming that the gun was temporarily in the room and that it did belong to Naquin, it was nevertheless in the room in which defendant resided, if not in the bed in which he slept. Therefore, in accord with the jurisprudence, we find that the temporary presence of the gun and the shared control of the motel room did not preclude the finding that defendant constructively possessed the gun.

Further, to establish possession of a firearm by a convicted felon, proof is required that the offender was aware that a firearm was in his presence, and that he intended to possess the weapon. State v. Michel, 09-953 at p. 5, 41 So.3d at 535. Such guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. In light of defendant’s proximity to the gun and his movements towards the area from which the gun was later recovered, we find that the jury could have reasonably inferred that defendant was aware that the gun was in his presence and that he intended to possess it. Thus, we find that the evidence presented át trial was sufficient to convince a rational trier of fact that all of the elements of the crime were proven beyond a reasonable doubt.

Accordingly, this assignment of error is without merit.

Defendant also alleges that the trial court erred in denying his challenge for cause of Mr. Eric Rish, an officer in the New Orleans Police Department. He contends that Officer Rish should have been struck for cause because he was an active police officer. He further supports his contention by asserting that the court was inconsistent in its granting of challenges for cause by excusing other jurors for cause who allegedly were more impartial than Rish, but then denying the challenge for Rish. In response, the State argues that the law is well settled that a person is not automatically disqualified to serve as a juror simply because of his status as a |flpolice officer. Additionally the State contends that the other jurors, for whom the defense’s challenges for cause were granted, were clearly more biased than Officer Rish and so their excu-sáis for cause were warranted.

Article I, § 17 of the Louisiana Constitution guarantees that an accused has a right to full voir dire examination of prospective jurors and to peremptory jury challenges. A district court’s erroneous ruling depriving a defendant of a peremptory challenge substantially violates that defendant’s rights and constitutes reversible error. State v. Mazique, 09-845, p. 15 (La.App. 5 Cir. 4/27/10), 40 So.3d 224, 235-36, writ denied, 10-1198 (La.12/17/10), 51 So.3d 19. Prejudice is presumed when the trial court erroneously denies a challenge for cause, and the defendant ultimately exhausts his peremptory challenges. Mazique, 09-845 at 15, 40 So.3d at 236. Thus, to prevail on appeal, a defendant must demonstrate 1) erroneous denial of his challenge for cause; and 2) use of all his peremptory challenges. Id. Additionally, the defendant must show that when the trial court denied his challenge for cause, he used one of his peremptory challenges cúratively to remove that juror — thereby reducing his number of peremptory challenges — or waive the issue on appeal. Mazique, 09-845 at 15-16, 40 So.3d at 236. This is so even in a case where the defendant uses all of his peremptory challenges. Mazique, 09-845 at 16, 40 So.3d at 236.

The record in this case reflects that defendant did, in fact, exhaust all of his peremptory challenges and that a peremptory challenge was also used to excuse the prospective juror at issue here. Therefore, the complaint as to the trial court’s refusal to grant his challenge for cause is properly before this Court.

A trial court is given broad discretion in ruling on challenges for cause, and such rulings will only be reversed when a review of the entire voir dire reveals the | mtrial court abused its discretion. Mazique, supra. The grounds for a challenge for cause are set out in LSA-C.Cr.P. art. 797 which provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

A prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a district judge’s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if, after further questioning, the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. Mazique, 09-845 at 17, 40 So.3d at 236-37. A challenge for cause should be granted, however, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render a judgment according to law may be reasonably implied. Mazique, 09-845 at 17, 40 So.3d at 237.

In the instant case during voir dire, the trial judge asked Officer Rish, “The fact that you are associated with law enforcement, would that affect your ability to give the State and Defense a fair and impartial trial?” Officer Rish responded, “No, it wouldn’t.” In response to defense counsel’s question about whether defendant’s prior convictions and his decision to not testify, if he chose to do so, could be held against him, Officer Rish responded, “I’m impartial either way. And many times, just from being through court cases, a lot of times defendants do not testify. And it’s nothing to hold against them.” Further, in response to defense |T counsel’s question about whether jurors would attribute more credibility to a commissioned police officer than to any other witness, Officer Rish responded, “No.” Again, when asked whether he would automatically believe police officers as opposed to lay witnesses, Officer Rish responded, “No, ma’am, not necessarily. It just depends on the situation or what the circumstances were to an incident.” He further stated:

From a law enforcement perspective, I mean it can go either way sometimes where, after the fact, when we get called out, so we did not witness initially what happened. Sometimes we’re there first hand where we saw everything from the beginning to the end, whereas another witness may have only caught part of it. So, it really depends on the circumstances of the situation.

When asked if he would give any favoritism to a police officer, Officer Rish stated, “Not until I have all the facts, no, ma’am.”

When challenges for cause were being entertained by the court, defendant moved to challenge Officer Rish for cause “simply because of the fact that he’s an active police officer.” The trial court denied the challenge finding that the officer had not said anything that would indicate that he was biased. Thereafter, defense counsel used a peremptory challenge to strike Officer Rish.

In regard to defendant’s first contention, that Officer Rish should have been stricken based on the fact that he is an active police officer, the Louisiana Supreme Court has held that a person is not automatically disqualified to serve as a juror simply because of his status as a police officer. State v. Jones, 03-3542, p. 11 (La.10/19/04), 884 So.2d 582, 589 (citing State v. Ballard, 98-2198 (La.10/19/99), 747 So.2d 1077). The supreme court further stated that the fitness of a prospective juror, including an actively employed law enforcement officer, should be determined on a case-by-case basis after consideration of the grounds to support a challenge for cause set forth in LSA-C.Cr.P. art. 797. State v. Manning, 03-1982, p. 34 (La.10/19/04), 885 So.2d 1044, 1080, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005).

In the instant case, the transcript reflects that the defense sought to strike Officer Rish “simply because of the fact that he’s an active police officer.” As the jurisprudence indicates, this is an impermissible basis for a challenge for cause. For this reason, we find that the trial judge did not abuse his discretion in denying the challenge for cause. Moreover, we have fine that none of Officer Rish’s testimony during voir dire indicated any bias or partiality. He stated that his association with law enforcement would not affect his ability to give the State and defense a fair and impartial trial; he stated that he would not hold against defendant his prior convictions and his decision not to testify; and he stated that he wouldn’t afford a police officer any more credibility or any more favoritism than any other witness.

In regard to defendant’s second contention, that the trial judge was inconsistent in granting challenges for cause of other jurors while denying the challenge for Officer Rish, a review of the record belies this assertion. There were seven prospective jurors struck for cause. Two were struck because they indicated that they would give more credibility to a police officer’s testimony than to that of a lay witness. Another two were struck because they indicated that they would hold the defendant’s two prior convictions against him. One was struck because she indicated that she would give more credibility to a police officer’s testimony and would hold defendant’s prior convictions against him. The last two were struck by joint motions of the State and defense, one stating that she would favor the testimony of a police officer and that she couldn’t be fair, and the other stating that because she had been the victim of a crime, her ability to give the State and defense a fair and impartial trial would be affected. In contrast, Officer Rish made 113no statements indicating he would be biased or partial in any way. The trial judge even noted that defendant “didn’t say anything that would have rung any bell.” “He was most even keeled.”

Accordingly, we find that the trial judge did not abuse his discretion by denying defendant’s challenge for cause as to prospective juror, Officer Rish. This assignment of error is without merit.

We have reviewed the record 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), and note the following that require our attention.

The trial court failed to inform defendant of the prescriptive period within which he must apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. Accordingly, we hereby advise defendant that, pursuant to La.C.Cr.P. art. 930.8, 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 has become final under the provisions of La. C.Cr.P. art. 914 or 922. See State v. Ramsey, 10-333, p. 10 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42; State v. Davenport, 08-463, p. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Second, defendant’s sentence is illegally lenient because the trial judge failed to impose the mandatory fine as required by LSA-R.S. 14:95.1(B), which provides for a fine of not less than $1,000.00 nor more than $5,000.00. However, because the State did not raise the issue of illegality in the trial court or on appeal, we decline to take any corrective action. State v. Michel, 09-953 at p. 9, 41 So.3d at 537.

Lastly, the commitment is inconsistent with the transcript as it fails to indicate that defendant’s sentence is to be served without benefit of parole, 114probation, or suspension of sentence. Where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, to ensure an accurate record, we remand this matter for correction of the commitment to bring it into conformity with the sentencing transcript. The district court is directed to make the entries in the commitment reflecting this change and the clerk of court is directed 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). The corrected commitment is also to be transmitted to the Department of Correction’s Legal Department.

For the foregoing, the defendant’s conviction and sentence are affirmed, and this matter is remanded for corrective action as discussed above.

AFFIRMED AND REMANDED