text:
    STATE of Louisiana, Appellee v. Kenneth R. DILLARD, Appellant.
    No. 45,633-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.
    Charles Rex Scott, II, District Attorney, Catherine M. Estopinal, R. Bennett Lang-ford, III, Kodie K. Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

h Kenneth R. Dillard was convicted of first degree robbery, La. R.S. 14:64.1, adjudicated a second felony offender under La. R.S. 15:529.1, and sentenced to 60 years in prison at hard labor without benefits. He appeals his conviction and his sentence. We affirm in all respects.

FACTS

On February 14, 2008, Dillard went to the Family Dollar Store on Centenary Boulevard in Shreveport. Wearing a faded red flannel shirt, a light-colored windbreaker, black stocking cap, and white pants, he asked the manager, Bonnie Bounds, where a particular brand of shaving cream was located. He then picked up a can and went to the register. Angie Osborne, a customer in the store, knew him and even called him by name, wishing him a Happy Valentine’s Day. When Dillard reached the cash register, he had one hand in the pocket of his windbreaker. Indicating that he had a weapon, he told Bounds to give him the money from the safe or he would shoot her. Bounds could not open the nearby safe. Dillard demanded that she ring up the shaving cream so that the register drawer would open. She did so. He grabbed a bunch of cash in denominations of tens, fives and ones, then fled the store on a pink bicycle.

|2On his way out of the store, he bumped into Aaronetta Moore. The cashier called to Moore that she had been robbed by that man, and Moore bravely got into her car and followed the defendant. Moore called the police to report what she was doing, providing her location as well as a description of defendant. She also reported that the suspect had fallen off his bicycle and left it in a ditch on the corner of East Merrick Street and Cornwell Avenue.

Moore lost sight of the defendant momentarily, but saw him again after she circled the block. Dillard had removed his windbreaker and cap, but Moore observed his plaid shirt and white pants. She flagged down Shreveport Police Department Corporal Joseph A. Dews and told him that the defendant had entered Mr. Jim’s Chicken (“Mr. Jim’s”) on Youree Drive and was attempting to blend in with the crowd. When Dews arrived at Mr. Jim’s, he saw that Corporal Steve Hawthorne had already responded to the radio report, gone to the restaurant, identified the suspect, and taken him into custody. Hawthorne found on Dillard’s person a wad of money in small denominations.

Detective Jack Miller and Corporal Tim Adgate of the Shreveport Police Department conducted an immediate show-up with two witnesses, each of whom identified Dillard as the robber. Bounds also identified him.

| ^.Shreveport Police Department Corporal Michael Greaver met with several witnesses. One was George Lindle, who told him that he saw the suspect run out of the store. Greaver took Lindle to Mr. Jim’s to view the suspect. The witness was nervous, saying, “That’s the man but that’s not the clothes he was wearing. He had a green jacket on.”

After he got back to the store, Greaver heard that Officer David Emberton had located the suspect’s bike at the corner of East Merrick and Cornwell, and needed an officer to handle it. Greaver responded, photographed the bike, and watched it until detectives decided what they wanted to do with it. He later released the bicycle to Angela Goldsmith, who told him that she and Dillard lived together, and that he had left their house on the bicycle that morning.

Emberton found a black nylon skullcap behind a house on East Olive Street. Greaver took photos of the skullcap and seized it. While Emberton was still looking for the rest of the clothing, Greaver spoke to Leonard Flemón, who was raking leaves on the northwest corner of East Merrick and Cornwell. Greaver testified that Flemón said he saw a man removing his coat as he ran behind a house.

Emberton walked around the house and found, hidden behind the cinder blocks of the house, a white, green, and black windbreaker with a black knit cap wadded up inside the coat. Greaver photographed the clothing, then seized it.

On March 4, 2008, Dillard was charged by bill of information with violating La. R.S. 14:64.1, first degree robbery. He was appointed an |4attorney, who filed a motion for discovery and a supplemental discovery request in this matter, and the state filed answers. The case was first set for trial on February 2, 2009. On February 4, 2009, a jury was seated and testimony had begun when the state filed a supplement to its prior discovery responses and a notice under La. C. Cr. P. art. 768. The discovery response included reports from Dews and Hawthorne. Dews’ report included information that Demetrious Baker had seen a man who abandoned the pink bicycle. Baker was taken to Mr. Jim’s to identify the suspect, but was not sure that Dillard was the person he had seen on the bicycle. Because the prosecution had failed to provide the defense attorney with Dews’ report, which might have contained Brady material, the state joined the defense in filing a motion for a mistrial, and the mistrial was granted.

The matter was reset for trial for April 29, 2009. A jury was seated and four witnesses had appeared when the state attempted to put Officer Greber (apparently referring to Greaver) on the stand. Greaver’s report had not been provided to the defense attorney in discovery. The report contained the names of three people with whom the officer had been in contact: George Lindle, Leonard Flemón, and Angela Goldsmith. The defense attorney objected and asked the court for time to investigate these witnesses because he had not seen the Greaver report. The judge called a recess to allow the defense attorney time to locate the three witnesses, but he was unable to do so in the time allotted. The defense moved for another [ .¡mistrial. The trial court declared a second mistrial and reset the matter for May 18, 2009.

The defendant filed motions to quash the bill of information on the basis that double jeopardy had attached, and that the proceedings had been tainted because the state had provided every witness a complete copy of every police report and witness statement. A hearing was held prior to the trial on May 18, 2009. The motions were denied. The trial court found that failure of the state to provide the defendant with discovery that might contain Brady material was not caused by bad faith or intentional prosecutorial misconduct. Further, the trial court found that the state’s purpose in providing all the witnesses with a copy of the entire file was to assure that after two attempts at trying the defendant and having mistrials declared, the state had given true and accurate information to Dillard’s attorney and that no exculpatory evidence was being omitted from the information to be turned over to the defense. For those reasons, the motions to quash were denied.

The jury was selected for the third trial, and testimony began on May 19, 2009. At trial, five police officers and Bounds testified. According to the defendant, the state was allowed to elicit hearsay testimony regarding issues of identification of the suspect. One subpoenaed witness, Yvonne Staton, failed to appear. The jury returned a verdict of guilty as charged on May 20, 2009.

On May 21, 2009, a contempt hearing was held and Staton was allowed an opportunity to explain why she had failed to appear. The trial | ficourt was satisfied that there had been miscommunication between Staton and the District Attorney’s office. She claimed that she was the victim of the robbery. The judge asked, “Ma’am, you say you were the one that was held up?” and she answered, “Yes, me and Bonnie. She was the manager and I was the assistant manager and he had the gun pointed on me or whatever he had in his pocket, I didn’t see it but he had something pointed at me.”

The defendant filed a motion for new trial or alternatively a motion for post-verdict judgment of acquittal on the grounds that Staton, not Bounds, was the victim, and that the state had been allowed to introduce testimony of identification by Angie Osborne without her ever testifying.

The state filed a multiple offender bill charging Dillard as a second felony offender. A hearing was held on September 24, 2009, which addressed first the motions for new trial or post-verdict judgment of acquittal. Those motions were denied. Next, the trial court took up the matter of the second felony offender bill. Dillard was adjudicated a second felony offender because he had been convicted of three counts of armed robbery in 1989 and had been concurrently sentenced to 15 years at hard labor on each count. Dillard had been released from prison in early 2004 and released from parole in September of 2006.

A sentencing hearing was held on October 27, 2009. Dillard was sentenced to 60 years at hard labor without benefit of probation, parole, or suspension of sentence. A motion to reconsider sentence was filed and |7denied. Dillard filed this appeal seeking review of his conviction and sentence.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

The defense claims that the state failed to meet its burden of proof under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires that the conviction must be based on proof sufficient for any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime proven beyond a reasonable doubt.

The first element the defense claims was not sufficiently proven was the identification of Dillard as the perpetrator of the crime.

The defense argues only one witness testified as to what actually happened at the Family Dollar Store, and only one witness had a firsthand opinion that Dillard was indeed the robber; that witness was Bounds, the manager of the store who also claimed to be the victim in the robbery.

Dillard argues that Bounds only identified him as the perpetrator when an unknown police officer drove him back to the store. Bounds’ identification in court was positive, though couched in terms of “changes” in Dillard’s looks. Dillard questions the reliability of this identification.

Dillard further argues that all other witnesses who took the stand were unable to identify him as the robber or as the person who left the bicycle on the ground at Corn-well Avenue and East Merrick Street.

1 sDillard also complains that all other identifications of him were made through hearsay. Corporal Adgate testified that he took Yvonne Staton, an employee of the Family Dollar Store, and Angie Osborne, the person who claimed to know the defendant already, to Mr. Jim’s to make an identification of the suspect, and both positively identified Dillard as the perpetrator. Since neither Staton nor Osborne testified, Dillard was unable to confront the witnesses against him.

Dillard also argues that the state failed to meet its burden of proof because there was no evidence presented at trial that the amount of money he had with him when arrested was the same amount taken from the store. Further, the defense argues that no fingerprint evidence was introduced and no videotape was produced, even though such evidence was supposedly available for production.

The state argues in opposition that:

1. Dillard only disputed his identification by the other witnesses;
2. Dillard had changed his appearance between arrest and trial;
3. Nevertheless, Bounds clearly identified him as the person who robbed her;
4. Several officers who identified Dillard as the person they had arrested at Mr. Jim’s Chicken also noted changes in his appearance;
5. Witnesses Staton and Osborne also identified him as the robber; and
6. Even if these identifications are excluded as hearsay, the testimony of one witness, if believed by the jury, is sufficient to support a finding of guilt.

| flOur law on reviewing the evidence for sufficiency is well settled.

The evidence presented by the prosecution in this case is easily sufficient to support the jury’s finding. Bounds’ testimony proved every element needed for a finding of guilty as charged.

II. HEARSAY

Statements by Aaronetta Moore

Prior to trial, defense counsel filed motions in limine seeking to prohibit the introduction of hearsay evidence by Miller and Dews regarding |inthe statements made to them by the now-deceased witness Aaronetta Moore, as she followed the suspect right after the robbery. On September 24, 2009, the trial court held the hearing on the motion for new trial and motion for post-verdict judgment of acquittal. At the hearing, the issue of the prior motions in limine was brought up, with the trial court sagely stating:

We had a situation where an eyewitness passed away before the trial took place. There was a motion in limine concerning the testimony of that deceased witness. The Court granted the motion in limine in part and denied it in part. The Court, with regard to any information that deceased witness gave the police officers as she, as the chase was ensuing, the Court allowed the testimony concerning that information because it was present sense impression and perhaps an excited utterance; however, the information that deceased witness gave to police officers a day or two after the incident took place was prohibited from being admitted at trial since it did not come within the present sense impression or the excited utterance exception.
We agree.

La. C.E. art. 803 contains the hearsay exceptions when the availability of the de-clarant is immaterial. It states in pertinent part as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

In State v. Heggar, 39,915 (La.App.2d Cir.8/17/05), 908 So.2d 1245, a motion in limine had been filed in the lower court to exclude hearsay about a phone call made by a homicide victim to his girlfriend just | nmoments before he was murdered and in which he told her that his murderer was driving up the driveway. The trial court had admitted the testimony under the present sense impression exception to the hearsay rule. The defendant argued that this testimony denied his right to confront the witnesses against him. This court found no constitutional or statutory impediment to the use of the testimony.

In this case, the statements by Aaronet-ta Moore, who was deceased at the time of the trial, qualified under the present sense impression exception to the hearsay rule. The only statements allowed to be introduced concerned what she said to Dews when she flagged him down and described the man she had followed from the Family Dollar Store and his location. Such information described a condition, the perpetrator’s location and description, and was made while Moore perceived the event or condition, or immediately thereafter, and lawfully conformed to the present sense impression exception to the hearsay rule.

Identifications of Dillard by Staton and Osborne

Dillard attacks his identification through the testimony of certain officers, rather than by the testimony of the actual persons who made the identifications. He asserts these hearsay identifications violated his right to confrontation of witnesses.

Yvonne Staton was the store cashier who failed to appear at trial due to a miscommunication with the District Attorney’s office. Angie Osborne actually knew Dillard and allegedly called him by name at the store. Neither Staton nor Osborne testified.

1 i2The defense argues Dews was allowed to testify that Adgate had brought two witnesses to Mr. Jim’s to identify Dillard, but that he did not even know the witnesses’ names. Dillard also complains that other officers (including Hawthorne and Miller) were allowed to refer to the identification of him by these two witnesses at other parts of the trial.

Adgate testified that he was the person who took the two women to Mr. Jim’s and that they positively identified the suspect in custody as the person who had robbed the Family Dollar Store. Further, Bounds testified that a customer in the store had greeted Dillard by name.

In response to this argument, the state claimed the defense did not make a contemporaneous objection regarding the officers’ testimony as to the identifications made by Staton and Osborne. The defense’s objections as to hearsay were limited to Miller’s reference to statements by Bounds, to Adgate’s efforts to recall “exactly” what Osborne had said, and to a question regarding what Flemón told Greaver. There were no contemporaneous objections, as required by La. C. Cr. P. art. 841.

In State v. Haynes, 09-109 (La.App. 5th Cir.2/9/10), 34 So.3d 325, the court held the defendant waived for appellate review a claim that the officer’s trial testimony regarding what an informant told him about an arranged drug deal was impermissible hearsay when the defendant failed to make a timely objection at trial. The court found that while a law enforcement officer may not testify as to the contents of an informant’s tip because such testimony violates the accused’s right to confront and cross-examine witnesses, under certain circumstances, the testimony of a police 11sofficer may include information provided by a third party without constituting hearsay, if it is offered to explain the police investigation and the steps leading to the defendant’s arrest.

Even if hearsay evidence is erroneously admitted at trial, confrontation errors are subject to a harmless error analysis. Id. An error is harmless when the guilty verdict was surely unattributable to the error. State v. Robertson, 2006-1537 (La.1/16/08), 988 So.2d 166. Factors to be considered include the importance of the evidence to the state’s case, whether the testimony was cumulative, the presence or absence of additional corroboration of the evidence, the extent of cross-examination permitted, and the overall strength of the state’s case. Haynes, supra.

In this case, Dillard waived the right to object to the introduction of the identifications of him by Yvonne Staton and Angie Osborne. The officers testified that the women identified the suspect in custody as the person who had robbed the Family Dollar Store, and were only repeating the steps that had been taken during the investigation and were not asserting the truth of the matter.

Confrontation errors are subject to a harmless error analysis. Here, the state identified the suspect through the testimony of the victim, Bounds. Therefore, the police officers’ testimony that Dillard had also been identified by Yvonne Staton and Angie Osborne was cumulative, and provided only corroborating identification. Dillard was given the opportunity to cross-examine all the witnesses. Given the fact that Dillard escaped on a pink bicycle and was closely tailed by someone who left the | ^parking lot at the same time that he did, the state’s case was strong. Even if Dillard’s counsel had made a contemporaneous objection to the mention of the women who positively identified the robber, the introduction of the evidence was at most harmless error.

III. DENIAL OF MOTION FOR NEW TRIAL/POST-JUDGMENT VERDICT OF ACQUITTAL

Dillard argues that Yvonne Sta-ton’s testimony, given at her contempt hearing the day after trial was concluded, should entitle him to a new trial. Staton claimed at the hearing that she had also been the victim of the robbery. At trial, Bounds had made no mention of Staton being robbed, and testified only that the defendant took money from her register. Dillard claims that this testimony, if provided at the trial, would somehow have had a significant impact on the verdict, and it is, at any rate, new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during trial.

The state’s opposition to this motion points out that at the contempt hearing, after Staton claimed to have been the victim of the robbery, the trial court asked, “Ma’am, you say you were the one that was held up?” Staton answered, “Yes, me and Bonnie. She was the manager and I was the assistant manager and he had the gun pointed on me or whatever he had in his pocket, I didn’t see it but he had something pointed at me.”

This “evidence” did not warrant a new trial. The fact that both employees could consider themselves as victims is quite reasonable. In any event, it is difficult to assess how this could be significantly helpful to the defendant.

11fiThe grounds for a new trial are listed in La. C. Cr. P. art. 851. The denial of a motion for new trial is not subject to appellate review except as to errors of law. La. C. Cr. P. art. 858. A trial court’s ruling on a new trial motion will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Macon, 2006-481 (La.6/1/07), 957 So.2d 1280. There is no abuse of discretion here. We find that the trial court properly denied this motion. We note that Staton’s name was on the witness list, and but for the misunderstanding with the District Attorney’s office, she would have appeared as a witness at the trial.

IV. DOUBLE JEOPARDY/DISCLOSURE OF THE STATE’S FILE TO ALL WITNESSES

Dillard argues that he filed two motions to quash his indictment. Both were denied by the trial court. The first motion claimed double jeopardy in that two juries had been seated prior to the third trial of the matter, and he had been granted two mistrials after the seating of those juries. The second motion to quash claimed that his constitutional right to a fair and impartial trial was violated because the state provided every witness with a complete copy of every police report, every witness statement, the criminal history of the defendant, case dispositions regarding the defendant, photos of the crime scene, and witness lists.

Double Jeopardy

In support of the motion which raises the double jeopardy issue, Dillard cites U.S. Const. Art. V, which provides that no person shall be twice put in jeopardy of life or limb for the same offense. Dillard also cites La. Const. Art. I, § 15, which provides that no person shall be twice placed 11ñin jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained. La. C. Cr. P. art. 592 concerns when jeopardy begins and states that when the defendant pleads not guilty and is tried by a jury, jeopardy begins when the jury panel is sworn pursuant to La. C. Cr. P. art. 790.

Dillard claims he was forced to move for a mistrial twice after the jury had been seated due to the actions of the prosecution in withholding exculpatory and impeachment evidence after being ordered to turn over the evidence to defense counsel. Dillard also argues the prosecutorial actions were motived by bad faith, and thus, retrial was not permissible because to hold another trial would violate double jeopardy-

In support of his argument that double jeopardy should attach, Dillard cited State v. Paddio, 2002-722 (La.App. 3d Cir.12/11/02), 832 So.2d 1120, writ denied, in which the court stated that to bar a second prosecution after mistrial, under the doctrine of double jeopardy, a prosecutor’s conduct must be overreaching and considered bad faith harassment which seriously prejudices the defendant, causing him to reasonably conclude that a continuation of the tainted proceeding would result in a conviction.

Dillard argues that his case is most similar to State v. Elzey, 2005-0562 (La.App. 4th Cir.1/11/06), 923 So.2d 182, writ denied, in which it was found that the state had intentionally violated a ruling prohibiting any further testimony concerning prior bad acts, thus provoking the defendant into moving for a mistrial, and retrial would have violated the double jeopardy clause.

[ 17The state argued that double jeopardy does not attach when a defendant moves to set aside his conviction. In cases regarding a retrial, intentional acts and bad faith are required for double jeopardy to attach even when the defendant moves for a mistrial. In support of this argument, the state cites Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), and State v. Koelemay, 497 So.2d 321 (La.App. 2d Cir.1986), writ denied.

The state points out that the trial court denied the motion to quash based on double jeopardy because it found that Dillard’s counsel had specifically stated his belief that the failure to disclose possible Brady material was not the result of any bad faith or intentional act by the prosecutor, even though two mistrials were called because of the state’s failure to turn over all pertinent evidence. Therefore, the state argues the trial court found no basis for Dillard’s assertions of prosecutorial bad faith, and the motion to quash was properly denied.

Our law on reviewing mistrial requests is well settled.

|iRIn this case, the trial court found that the first two mistrials had to be called because the prosecutor inadvertently left police reports out of the discovery provided to the defense attorney. In the first trial, the defense attorney specifically stated that he did not believe the prosecutor was intentionally withholding evidence. In fact, the case was originally being tried by a different prosecutor, and then it was turned over to the prosecutor who actually took the case to trial. The state joined in the defense attorney’s motion for a mistrial in the first case because the material may have contained Brady evidence.

The second time the case was declared a mistrial, another police report was discovered unfurnished during trial. Defense counsel was not aware he was missing the report until after the jury was seated and four witnesses had been called. The officer testified that he had interviewed three witnesses, and according to the report, two of the witnesses were unable to identify Dillard as the person they had seen. The trial court gave defense counsel time to have his investigators locate these witnesses, to no avail.

Dillard moved for both mistrials. Because the actions of the state in failing to provide the defense attorney with the reports was simply negligence, not intentional, and because Dillard was not prejudiced by the mistrials, we do not find that the double jeopardy rule was violated by the third trial taking place.

1Propriety of the State’s Allowing File Access to All Witnesses

The state gave every witness access to the entire file in this case. Dillard claims this violated his right to a fair and impartial trial and is contrary to the Sixth Amendment of the U.S. Constitution and La. Const. Art. I, § 16, urging that each witness is supposed to testify only from his own personal knowledge. He argues that provision of all this other material denied his right to due process and a fair trial.

The state argues that it provided the witnesses with the documents only because, after two mistrials, it wanted to be absolutely certain that no other evidence was inaccurate or missing from the information it intended to provide to opposing counsel. The state points out that other than claiming that the state’s witnesses were “tainted” by having seen these files, Dillard did not ask the court for any relief with regard to the tainted witnesses. Therefore, the state argues, Dillard cannot now raise a new basis for objection on appeal.

The state points out that La. C. Cr. P. art. 841 provides that to preserve an objection, it is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action he desires the court to take. Because Dillard did not object to the testimony of the officers or Bounds specifically on the basis that they had seen all the police reports prior to trial, the state claims Dillard waived his right to raise the issue now.

l2nAt the hearing on the motions to quash, the trial court inquired as to why the prosecutor provided the files to the witnesses. This response was made:

Your honor, the purpose was to ensure that there was no additional discoverable material that was not listed in the police report. As far as witness statements, there may have been something in the police report that a witness said that was not in the police report. This is to ensure that there is no additional Brady material due to the history of this case, Your Honor. The State is just making sure that every stone is not left unturned. We’re trying to make sure that all evidence will be turned over before trial. That’s the reason why we sent police reports to every witness, Your Honor.

The trial judge asked if the reports were sent to all witnesses or just law enforcement, and the prosecutor responded, “All witnesses.” The judge asked what the purpose was of sending them to lay witnesses, and the prosecutor responded, “[T]o make sure that the statements made by lay witnesses in police reports were accurate. And also to make sure that the witnesses did not make any statements that were not listed in the police report.” Thereafter, the court found that it was not inappropriate, considering the history of the case, for the state to forward a copy of the file to the state’s witnesses in an attempt to find any other Brady material. The trial court found the state was proceeding with due diligence in attempting to find any other evidence which it did not have in writing. ■

Our law on motions to quash is well settled.

121Pillard filed his motion to quash and argued that the state had tainted the testimony of potential witnesses by providing each witness with the entire file on the case, thereby revealing evidence which other witnesses would be relating to the trier of fact. However, as the state argued, the defendant’s attorney failed to specify the relief he sought as a result of this procedural faux pas by the state in its effort to provide him with all potential Brady material.

While there were certainly other ways the state could have handled this problem that would have protected one witness from knowing what the other intended to say in his testimony, at least in this case, the sharing of this evidence did not result in fundamentally flawed or tainted testimony being given at trial. The only lay witness presented at trial was Bounds, and she identified Dillard as the person who robbed her on the date the incident occurred. Therefore, any file Bounds received later revealing what other witnesses, all of whom were law enforcement, may testify to regarding the incident, would have had no effect on her testimony. She was the victim, she knew what happened to her, she identified the suspect on the day of the incident, and she recognized him in the courtroom. Therefore, any problem created by sharing this file with other witnesses did not cause Dillard to lose his right to a fair and impartial trial. Certainly, all witnesses were subject to cross-examination. Under these facts, there is no error on this issue.

| mV. EXCESSIVENESS

Dillard argues that the imposition of a sentence of 60 years at hard labor is unconstitutionally excessive and nothing more than a needless infliction of pain and suffering. At the hearing on the second felony habitual offender offense, the state introduced evidence of Dillard’s first felony conviction, including court minutes indicating that he had pled guilty to three counts of armed robbery on May 17, 1989, and was sentenced to 15 years at hard labor on May 19, 1989. Phillip Adkins, probation and parole supervisor for the Louisiana Department of Corrections, testified that he supervised Dillard as a parolee.

Dillard contends the trial court incorrectly stated the number of counts of armed robbery convictions, and misstated the time period during which Dillard was out of prison. Because the trial court repeatedly made these mistakes at the sentencing hearing, Dillard argues that the trial court failed to tailor the punishment to him. Further, Dillard argues that the sentence is grossly disproportionate to the severity of the crime, considering the harm done to society.

The trial court was indeed mistaken in reiterating the number of counts of armed robbery; however, no one at sentencing sought to correct the trial court’s misunderstanding on this issue. The state notes this was raised not in Dillard’s motion to reconsider sentence but only for the first time on appeal.

| ^Without a contemporaneous objection, Dillard now has only constitutional grounds upon which to complain about his sentence. Our law on the review of a sentence for excessiveness is well settled.

The jury found Dillard guilty of first degree robbery, which carries a possible sentence of three to 40 years at hard labor, all without benefits.

In due course, Dillard was adjudicated a second felony offender under La. R.S. 15:529.1. That statute provides that if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. Under 124these facts, the range of sentence was 20 to 80 years at hard labor, all without benefits.

At the sentencing hearing, the trial court noted that in 1989, Dillard was sentenced to 15 years at hard labor, and that he exited prison in 2006. The trial court noted that at the time Dillard entered his guilty plea in the previous case, the plea was entered and considered as one plea and one conviction, although there were multiple offenses charged. The trial court noted that since that time, the law had changed, and it considered that Dillard had already received a substantial benefit under the law as it existed at the time of the guilty plea.

The trial court considered the factors presented under La. C. Cr. P. art. 894.1 in an effort to arrive at an appropriate sentence, mentioning that it had seriously’considered each and every category before arriving at the sentence it intended to impose. The court found an undue risk that during the period of a suspended sentence or probation, Dillard would commit another crime based on his criminal history. The court further found that:

• the defendant was in need of correctional treatment;
• any lesser sentence would deprecate the seriousness of this crime; and
• the fact that the defendant committed this crime after he had previously pled guilty to armed robbery indicated that he did not learn his lesson.

The trial court noted that Dillard grabbed money by threat of death or great bodily harm. The trial court did not consider as a mitigating factor the fact that a gun was never found. In fact, because Dillard had been found |2sguilty of first degree robbery, he had made the victim think she was at risk of death. It also found Dillard used threats of actual violence in committing the crime.

The trial court considered mitigating circumstances under La. C. Cr. P. art. 894.1, and found that none of them applied. Thereupon, the trial court sentenced Dillard to 60 years in prison at hard labor, without benefits. At no point did counsel make clear to the court the correct number of robbery counts, nor the date of release from prison. Any objection to these errors are waived.

The trial court clearly justified this sentence, which is within the constitutional range of 20 to 80 years mandated by statute for second felony offense adjudications. We detect no abuse of discretion in the sentence.

CONCLUSION

The evidence presented at trial was sufficient for a reasonable jury to conclude that Dillard committed this crime. The motions to quash were properly denied. The admission of hearsay was harmless error, at worst. A new trial or post-judgment verdict of acquittal was not warranted simply because another person felt herself to also be a victim of the robbery. The sentence is appropriate and lawful.

DECREE

The conviction and sentence are AFFIRMED.

      . La. R.S. 14:64.1 states as follows:
      A. First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.
      B. Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation, or suspension of imposition or execution of sentence.

      . This raises the question: Considering what happened next, how was he actually planning to get away with this crime?

      . At the time of the trial, Moore was deceased.

      . In the record, this officer's name is sometimes spelled “Aggate.”

      . A "show-up” is a one-on-one viewing of a suspect by a witness right after a crime.

      . One of these witnesses was Yvonne Staton, an employee of the Family Dollar Store. The other witness was Angie Osborne, the person who knew defendant personally and greeted him in the store immediately before the robbery. Neither testified at trial.

      . Evidence in the state’s custody which is favorable to the accused must be shared with the defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Although at the sentencing hearing the trial court noted the defendant had pled guilty to seven counts of armed robbery, in fact, the defendant had pled guilty to three counts of armed robbery and four other counts against him had been dismissed.

      . He had changed his hair, shaved, wore glasses, and gained weight. Even George Lindle noted that the defendant appeared “heavier” than when he saw him at Mr. Jim’s.

      . When a defendant alleges both insufficiency of evidence and one or more other trial errors, the appellate court should first determine the sufficiency challenge. State v. Hearold, 603 So.2d 731 (La.1992); State v. Warren, 28,889 (La.App.2d Cir. 12/11/96), 712 So.2d 500.
      The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied.

      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965 (La.1986).

      . In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the court held that a mistrial does not normally bar a second prosecution unless the conduct of the prosecutor, which caused the mistrial, was intended to provoke the defendant into moving for a mistrial. The prosecutor’s conduct must be overreaching and considered bad faith harassment which seriously prejudices the defendant, and causes him to conclude that a continuation of the tainted proceeding would result in a conviction. U.S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).
      In State v. Paddio, 2002-722 (La.App. 3d Cir.12/11/02), 832 So.2d 1120, writ denied, the court stated that mere negligence by a prosecutor is not sufficient to bar a second prosecution on the same charges. State v. Amato, 96-0606 (La.App. 1st Cir.6/30/97), 698 So.2d 972, writs denied. When such conduct does not indicate bad faith on the part of the prosecutor, retrial is permissible. State v. Cannon, 383 So.2d 389 (La.1980), cert. denied.

      In Paddio, supra, the defendant’s first case ended in a mistrial because an inexperienced criminal prosecutor called the defendant as his first witness. He had informed defense counsel that he planned to do this, but the defense counsel thought he was joking. When the mistrial was ordered, the prosecutor apologized to everyone in the court for the error, offered to be publicly reprimanded by the court in lieu of a mistrial, and vigorously argued that the trial should continue. The trial court in the second trial accepted the representation of the prosecutor that his actions in the first trial were unintentional and not intended to provoke a mistrial in the case. The trial court also found that the defendant had suffered no prejudice as a result of the mistrial. The appellate court agreed and found no double jeopardy.

      . La. C. Cr. P. art. 531 concerns the motion to quash and the nature of the motion. It states as follows:
      All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of "not guilty” and of "not guilty and not guilty by reason of insanity,” shall be urged by a motion to quash.
      A motion to quash is essentially a mechanism by which pretrial pleas are urged, that is, pleas that do not go to the merits of the charge. In a hearing on such a motion, evidence is limited to procedural matters, and the question of factual guilt or innocence is not before the court. State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, cert. denied.

      In regard to relief sought when a defendant files a motion to quash, when there are several grounds in a motion to quash a bill of information, the court is not powerless to grant partial relief, even though there is no specific statutory provision for divisibility of a motion to quash. State v. Mitchell, 319 So.2d 357 (La.1975).

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writs denied. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied.

      Second, a sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dor-they, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied.

      . This was also in error. Dillard was released in 2004.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Victoria G. MICKAIL, Appellant.
    No. 45,786-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Lemmon Law Firm, L.L.C., Hahnville, LA by Andrew A. Lemmon, Megan E. Methany, Anatole J. Plaisance, for Appellant.
    Jerry L. Jones, District Attorney, Madeleine Slaughter-Young, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   GASKINS, J.

hThe defendant, Victoria G. Mickail, was charged with two counts of aggravated arson, two counts of simple arson, and two counts of obtaining a controlled dangerous substance (CDS) by fraud. Pursuant to a plea agreement, she was allowed to plead guilty to one count of aggravated arson, one count of simple arson, and one count of obtaining a CDS by fraud. She was sentenced to agreed-upon terms of 15 years at hard labor for the simple arson and five years at hard labor, suspended, with five years of supervised probation for the CDS charge. The plea bargain set a sentencing cap of 15 years for the aggravated arson; she received a sentence of 14½ years at hard labor, with the first two years to be served without benefit of parole, probation or suspension of sentence. Also pursuant to the plea agreement, the arson sentences were imposed concurrently with each other but consecutive to the CDS sentence. The defendant appeals. We affirm the defendant’s convictions and sentences.

FACTS

In July 2004, the defendant set two separate fires several days apart at the home of neighbors in Monroe; the house was a total loss. In the same time period, the defendant also set two separate fires several days apart at her own home. During the first fire at the defendant’s house, the defendant, her husband and one of her sons were inside; no one was injured. During the second fire, her husband was asleep upstairs; however, he was awakened by the smoke and escaped injury. Investigators discovered that the defendant had a history of arson and drug abuse.

LThe defendant was charged with two counts of aggravated arson for the fires set at her own home and two counts of simple arson for the fires set at her neighbors’ home. She was also charged with two counts of obtaining CDS by fraud pertaining to drugs she obtained for her own use through a pharmacy where she worked as a pharmacist.

The defendant entered a plea of not guilty and not guilty by reason of insanity. While awaiting trial, her attorney apparently made oral motions that a sanity commission be formed to assess the defendant’s capacity to stand trial. In a minute entry dated October 20, 2004, the trial court denied the motion. In a minute entry dated August 21, 2006, the trial court found that the defendant was capable of standing trial and again denied her motion for the appointment of a sanity commission.

Although a sanity commission was never appointed, the defendant was examined by Dr. Saxon Elliott, a clinical psychologist, and Dr. George Seiden, a psychiatrist. Dr. Elliott saw the defendant in May 2006. In his report, he suggested that she had a history of severe mood disorder, dissociative disorder, and personality disorder with borderline, histrionic, dependent and avoidant features. Dr. Seiden saw her in May 2007. He issued a report to the state which detailed all of the medical records he reviewed. In Dr. Seiden’s expert opinion, there was no evidence that the defendant “suffered from any mental disease or defect that interfered with her ability to know the rightness or wrongness of her behavior at the time that she committed the behavior.” He also concluded that she was capable |3of assisting her attorney in her defense. Dr. Seiden viewed her claims of dissociative episodes “with skepticism.”

In July 2007, the defendant withdrew her pleas of not guilty and not guilty by reason of insanity. She then pled guilty to one count of aggravated arson, one count of simple arson, and one count of obtaining CDS by fraud. The state agreed to dismiss the other three charges and not file a habitual offender bill against the defendant, who had a prior felony conviction for Medicaid fraud. The terms of her plea agreement provided for an agreed-upon sentence of 15 years at hard labor, the maximum possible term of imprisonment, for the simple arson charge. As to the CDS charge, the plea bargain set forth a sentence of five years at hard labor; this sentence was to be suspended and the defendant was to be placed on five years of supervised probation following her release from prison. As to the aggravated arson, the plea established a sentencing cap of 15 years; also, it was agreed she would be sentenced pursuant to a presentence investigative (PSI) report. The sentences for the arsons were to be served concurrently with each other and consecutively with the CDS charge. Following a sentencing hearing at which the victims were allowed to address the court, the trial court sentenced the defendant in compliance with the plea bargain. On the count of aggravated arson, the trial court sentenced the defendant to 14½ years at hard labor without the benefit of parole, probation, or suspension of sentence.

The defendant filed a timely motion to reconsider sentence in which she asked the court to reconsider the length of the 14½ year sentence for |,, aggravated arson and the imposition of the “without benefits” provision to the entire sentence. She asserted that the sentence was excessive and would cause hardship to her family. Due to confusion, the hearing on the motion to reconsider was not held until two years later in October 2009. Before the trial court ruled on the specific issues raised in the motion to reconsider, it indicated that it would allow post-sentencing certificates earned by the defendant during her incarceration and evidencing her rehabilitation to be introduced for mitigation purposes. The state immediately applied for writs to this court as to the admission of the certificates.

This court found that the defendant’s sentence was not subject to appeal or review because it was imposed in conformity with a sentencing agreement set forth in the record and involved a specific sentence or a sentencing cap. However, we found that the original sentence on the aggravated arson charge was illegal because the entirety of the sentence was imposed without benefit of parole, probation, or suspension of sentence; the matter was remanded to the trial court for correction. We did not rule on the issue of the admissibility of the certificates of progress.

After this court remanded the case to the trial court for resentencing, the defendant filed a motion requesting that a supplemental PSI report be ordered; the trial court denied the motion. During the re-sentencing hearing, the trial court reversed itself as to the admission of the certificates. The record reflects that prior to resentencing, the trial court allowed the defendant and her counsel to review the original PSI report. The trial court sentenced the defendant on the aggravated arson charge to 14½ years at | shard labor, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence, to run concurrent with her 15-year sentence for simple arson.

The defendant filed the instant appeal, asserting five assignments of error.

EVIDENCE OF REHABILITATION

In two assignments of error, the defendant contends that the trial court committed manifest error in not admitting evidence of her rehabilitation efforts since her first sentencing. Specifically, she claims that the trial court erred in not ordering a supplemental PSI report to consider more current mitigating evidence. Additionally, she argues that the trial court should have admitted “certificates of progress” evidencing her rehabilitation; she asserts that the information was not “post-sentence” but “pre-sentence” to the resentencing. In opposition, the state contends that the decisions to deny the motion for a supplemental PSI report and to not admit the certificates rest within the trial court’s broad sentencing discretion.

Law

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2).

Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed | grange cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. La. C. Cr. P. art. 881.2(A)(2). State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214; State v. Small, 44,554 (La.App.2d Cir.8/19/09), 17 So.3d 491, writ denied, 2009-2057 (La.4/5/10), 31 So.3d 356.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882(A). Further, the appellate court may notice sentencing errors as error patent. State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790; State v. Strother, 43,363 (La.App.2d Cir.8/20/08), 990 So.2d 130, writ denied, 2008-2289 (La.5/15/09), 8 So.3d 580.

Defendants have no constitutional or other right to demand a presentence investigation. That investigation is conducted at the option of the court. La. C. Cr. P. art. 875 A(1). If a PSI is conducted, and a report compiled, a defendant is entitled to a fair and accurate report. State v. Lockwood, 439 So.2d 394 (La.1983).

Discussion

The defendant entered into a plea agreement which included two agreed-upon sentences and a sentencing cap. She initially received an illegal sentence on the charge of aggravated arson as the entire sentence was imposed without benefits as opposed to two years of the sentence being without benefits. On a writ application, this court instructed the trial court |7to correct that error. During the resentenc-ing hearing, the trial court corrected the aggravated arson sentence as instructed by this court. Since the sentence was entered into as part of a plea agreement and the illegality that she complained of has now been corrected, the defendant does not have a right of review pertaining to that sentence.

These assignments of error are merit-less.

SANITY COMMISSION

In two other assignments of error, the defendant contends that she had mental deficiencies that precluded her from fully comprehending the plea she entered and that the trial court should have held a sanity commission to make certain she understood the plea bargain. She asserts that the plea is not constitutionally valid because nothing in the record indicates she was sane enough to agree to the plea. On the other hand, the state maintains that the record contains ample evidence demonstrating the defendant’s competency.

Law

A defendant does not have an absolute right to the appointment of a sanity commission simply upon request. A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant’s mental capacity to proceed. La. C. Cr. P. art. 643. It is well established that “reasonable grounds” exist when one should reasonably doubt the defendant’s capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. To determine a defendant’s capacity, |sLa. C. Cr. P. arts. 642, 643, and 647 provide guidance. State ex rel. Seals v. State, 2000-2738, p. 5 (La.10/25/02), 831 So.2d 828, 832.

La. C. Cr. P. art. 642 allows that the defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. This article additionally requires that when the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution until the defendant is found to have the mental capacity to proceed. La. C. Cr. P. art. 643 provides, in pertinent part, “The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.” Last, if a defendant’s mental incapacity has been properly raised, the proceedings can only continue after the court holds a contradictory hearing and decides the issue of the defendant’s mental capacity to proceed. See La. C. Cr. P. art. 647; State ex rel. Seals v. State, supra at 832-33. This protection, however, does not require that every time a defendant feigns incapacity the court must order a full-blown sanity commission. In State v. Berry, 391 So.2d 406, 411 (La.1980), the Louisiana Supreme Court firmly held that the trial court is granted great discretion in determining if a defendant should be afforded a mental examination to determine capacity. Indeed, where a trial judge finds enough evidence to doubt a defendant’s capacity, the court may order that the defendant be examined by a single psychiatrist to satisfy the requirements of La. C. Cr. P. art. 643. In other words, there is no need for a sanity commission to be appointed each time |3capacity of a defendant is questioned. State ex rel. Seals v. State, supra at 833.

The determination of sanity is a factual matter. State v. Edwards, 44,552 (La.App.2d Cir.8/19/09), 17 So.3d 1037. A reviewing court owes the trial court’s determinations as to the defendant’s competency great weight, and the trial court’s ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. State v. Edwards, supra.

Discussion

Our review of the record reveals no error in the trial court’s denial of the defendant’s motion for the appointment of a sanity commission. The record is replete with evidence establishing that she was competent to stand trial, and the trial judge substantially complied with the dictates of La. C. Cr. P. art. 643 by allowing her to be evaluated by Dr. Seiden. In his written report to the court, the doctor concluded that the defendant was competent to stand trial and able to fully assist her trial counsel. Additionally, he found no evidence that she could not distinguish right from wrong at the time of the offenses. We note that Dr. Seiden interviewed the defendant less than two months before her guilty plea. Finally, the colloquy between the trial judge and the defendant at the time of her guilty plea, her responses to questions, her statement to the victims, and her later statement to the court before sentencing, all show that the defendant was completely coherent, rational and able to comprehend the proceedings against her.

These assignments of error are without merit.

|inPLEA BARGAIN

In her final assignment of error, the defendant contends that her plea was invalid because the trial judge failed to stay within the bounds of the plea agreement.

In the instant case, the state, the defendant, and the trial court all agreed to a sentencing cap or ceiling of 15 years on the charge of aggravated arson. Additionally, they all agreed to the specific sentences imposed for the other two crimes to which the defendant pled guilty. The defendant was sentenced within those bounds. Therefore, under La. C. Cr. P. art. 881.2(A)(2), the defendant is precluded from appealing the sentence imposed within the bounds of an agreed-upon plea bargain.

This assignment of error lacks merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . These certificates pertain to the defendant's participation in various religious and/or educational programs and the "Locks of Love” hair donation program.


author: STEWART, J.

text:
    Carolyn BRITT and Glenn Britt, Plaintiffs-Appellees v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 45,513-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      The Malone Law Firm, Shreveport, LA by Mary E. Winchell, for Appellant.
    Norman Gordon & Associates, Shreveport, LA by Richard S. Feinberg, for Ap-pellees.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   STEWART, J.

| ,This appeal arises from a trial court judgment in favor of the plaintiffs, Glenn and Carolyn Britt, and against the defendant, the City of Shreveport (“City”). The suit concerns damages resulting from a tree falling on Carolyn Britt’s car. The City now appeals the trial court’s judgment. For the reasons stated herein, we affirm.

FACTS

On August 5, 2003, Carolyn Britt was traveling on Thornhill Street toward a crew of City employees, who were engaged in trimming a tree. One of the employees signaled Mrs. Britt to proceed through the area. While she was passing, a large tree limb, approximately three feet in diameter and ten feet in length, fell and landed on top of her vehicle. Mrs. Britt did not receive any medical attention at the scene of the accident, choosing instead to call her daughter to pick her up from the accident scene and take her home.

As a result of the accident, Mrs. Britt sustained multiple injuries to her head, neck, shoulder, lower back, and legs. Her vehicle, a 1991 Astrovan, sustained about $3,500.00 in damages, and was declared a total loss.

On August 13, 2003, Mrs. Britt sought treatment for the first time from a local chiropractor, Dr. John A. Thompson. Dr. Thompson diagnosed Mrs. Britt with a cervical sprain/strain with muscle spasms; a lumbar sprain/strain with moderate to severe muscle splinting/spasming across the left SI level and lumbar radiculitis with pain along the L5 nerve root into the left hip and lower extremity; a thoracic sprain/strain with muscle 12splinting/spasming along the paraspinals; and headaches. After providing chiropractic treatment to Mrs. Britt from August 13, 2003, to December 8, 2003, Dr. Thompson noted remarkable improvements in the cervical and thoracic regions, as well as a decrease in headaches.

Dr. Thompson referred Mrs. Britt for an MRI of the lumbar region, so that he could isolate the source of her complaints. Mrs. Britt did not have the suggested MRI. Dr. Thompson released Mrs. Britt from his care, since she was not improving in the lumbar region.

Approximately six months after the August 5, 2003, accident, Mrs. Britt sought treatment from Dr. Richard Kamm. At her initial visit, Mrs. Britt complained of neck pain, lumbar pain with pain radiating into her left buttock and posterior thigh, and headaches. Dr. Kamm instructed her to avoid any activity that produced pain or discomfort to the affected areas, including lifting, bending, and stretching. Additionally, he instructed her to apply cold to the affected areas and prescribed her the medications Bextra, Soma, and Lortab.

On February 11, 2004, Mrs. Britt returned to Dr. Kamm complaining that there weren’t any improvements in her physical condition. Dr. Kamm recommended that she be evaluated by an orthopedic surgeon or neurosurgeon. Dr. Kamm also recommended an MRI of the lumbar region. On April 21, 2004, Mrs. Britt returned to Dr. Kamm for a followup visit. Again, she reported no change in her physical condition. She also informed him that she had not made an appointment for her MRI, but she had seen Dr. Austin Gleason, an orthopedist, as requested.

Is At time of her next appointment with Dr. Kamm on June 16, 2004, Mrs. Britt had not scheduled her MRI. On September 4, 2004, Mrs. Britt informed Dr. Kamm that the severity and frequency of her headaches had decreased and that she also had the MRI. However, she had not scheduled a follow-up appointment with Dr. Gleason to receive the results of the MRI. She also told him that Dr. David Adams performed a nerve conduction study, which was negative. After Dr. Kamm reviewed the MRI, he determined that she had received maximum medical improvement under his care and that she should see Dr. Gleason for further treatment.

Mrs. Britt initially began treatment with Dr. Austin Gleason on March 9, 2004. After a physical examination, Dr. Gleason diagnosed her with chronic neck and back syndrome. He recommended an MRI of the lumbar spine. During her follow-up visit with Dr. Gleason on August 23, 2004, she complained of pain in her back with radiation into her left hip and leg, down to the calf. The MRI showed multi-level degenerative changes with only moderate spinal stenosis. Dr. Gleason opined that Mrs. Britt was not a candidate for surgery at that time and recommended conservative management. He gave her a prescription for Neurontin and advised her to return in three weeks to check the progress of the medication. Mrs. Britt did not have the prescription filled, nor did she return for a follow-up visit.

On November 8, 2004, Mrs. Britt sought medical treatment from Dr. Marco Ramos, a neurosurgeon. Dr. Ramos diagnosed her with probable cervical myelopathy, secondary to lumbar and lumbosacral radi-culopathy. He requested an MRI of her cervical spine. The MRI revealed a herniated |4nucleus pulposus and osteophyte at the C5-C6 and C6-C7 levels, a corpectomy at C6 and a strut fusion to be followed by anterior instrumentation from C5-C7. Even though Dr. Ramos reviewed the same MRI that Dr. Gleason reviewed, he recommended surgery to correct these problems.

Mrs. Britt’s counsel referred her to Doug Tietjen, a physical therapist, for functional capacity examination. Tietjen determined that she was not a candidate for functional capacity testing, and suggested that she be enrolled in a physical therapy rehabilitation program with emphasis on McKenzie mobilization, exercises and traction. Mrs. Britt never enrolled in the recommended physical therapy rehabilitation program.

The City hired Dr. Anil Nanda to perform an independent medical examination on Mrs. Britt. This examination took place on August 7, 2007. Based on Mrs. Britt’s complaints and a review of the MRI, Dr. Nanda determined that Mrs. Britt had a tightness at C3-4, C5-6, C6-7, and L5-S1. Dr. Nanda noted that there were many alternative means of rehabilitating Mrs. Britt’s symptoms, such as physical therapy. He commented that surgery should be the last alternative. The City also retained Terry Eberhardt, a physical therapist who also opined that physical therapy is the favored means of rehabilitating Mrs. Britt.

Mrs. Britt, along with her husband Glenn Britt, filed a petition to recover damages resulting from personal injuries to Mrs. Britt, including pain and suffering, medical expenses, lost wages, loss of earning capacity and loss of enjoyment in life. The City stipulated to total fault in this action |sfor the August 5, 2003, accident. On July 10, 2009, the trial court awarded Mrs. Britt $371,963.96 in general and special damages. Mr. Britt was awarded $10,000 for loss of consortium. The trial court also assessed the costs, interests and fees of the medical experts against the City.

The City now appeals, asserting four assignments of error.

LAW AND DISCUSSION

Mitigation of Damages/Failure to Undergo the Recommended Surgery

In the City’s first assignment of error, it asserts that the trial court erred in finding that it only proved in part that Mrs. Britt had not dutifully mitigated her damages. More specifically, the City argues that the medical evidence proves that had Mrs. Britt submitted to the recommended physical therapy regimen, she would have had a 50% chance of not needing the recommended cervical and lumbar surgeries.

Similarly, in the third assignment of error, the City argues that the trial court erred in determining that Mrs. Britt was justified in refusing to undergo the recommended surgery because she would have to expend her own money to pay for the medical treatment. Since the first and third assignments of error both relate to Mrs. Britt’s duty to mitigate her damages, we will discuss these interrelated issues together.

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless such finding is “clearly wrong,” and where there is a conflict in the testimony, reasonable inferences of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own | (¡evaluations and inferences are as reasonable. Crownover v. City of Shreveport, 43,521 (La.App. 2 Cir. 9/17/08), 996 So.2d 315; Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App. 2 Cir. 10/16/03), 859 So.2d 225. In fact, where two permissible views of evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

An injured party has a duty to take reasonable steps to mitigate her damages. Fletcher v. Simmons, 37,758 (La.App. 2 Cir. 10/29/03), 859 So.2d 292; Aisole v. Dean, 574 So.2d 1248 (La.1991). However, the burden rests on the tortfea-sor to show that the injured plaintiff failed to mitigate his damages. The defendant must show (1) that the plaintiffs conduct after the injury was unreasonable and (2) that the unreasonable conduct had the consequence of aggravating the harm. Fletcher, supra.

The victim does, indeed, have an affirmative responsibility to make every reasonable effort to mitigate damages, but the care and diligence required of him are the same as that which would be used by a man of ordinary prudence under like circumstances. Sepulvado v. Turner, 37,912 (La.App. 2 Cir. 12/10/03), 862 So.2d 457. The victim need not make extraordinary efforts or do what is unreasonable or impractical in his efforts |7to minimize the damages, but his efforts to minimize them must be reasonable and in accordance with the rules of common sense. Id.

Thus, his recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery. Jacobs v. New Orleans Public Service, 432 So.2d 843 (La.1983). The expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person’s refusal to submit to treatment. Id. Moreover, an unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victim’s recovery. Id. The tortfeasor has the burden of showing both the unreasonableness of the victim’s refusal of treatment and the consequent aggravation of the injury. Id.

As stated above in the facts section, Mrs. Britt never commenced the physical therapy program recommended by Tietjen. Mrs. Britt stated that she did not have the financial means to pay for the physical therapy or the corrective surgery. The Britts listed the cost of the cervical surgery and subsequent care at $29,400.00 and the cost of the lumbar surgery and subsequent care at $27,600.00. Even though Mr. Britt testified that the couple had approximately $52,000.00 in a checking account at the time of the accident, it had been reduced to $3,000.00 from paying bills as a result of Mrs. Britt being unable to work. The Britts testified that they were using their savings to cover living expenses. Mrs. Britt had also accumulated $12,769.96 in unpaid medical bills at the time of the trial. Additionally, the Britts had to obtain a loan to purchase a vehicle to replace the one involved in the accident.

|sThe trial court made the following findings in its ruling regarding Mrs. Britt’s duty to mitigate damages:

The defense has proven, in part, that Mrs. Britt has not dutifully mitigated her damages. While at her age and health Mrs. Britt has understandable trepidation of the lumbar and cervical surgeries, and while both she and Mr. Britt may be justifiably reluctant to exhaust their somewhat modest life savings on two surgeries and a physical therapy -regimen, the Court is of the belief that without those courses of action, Mrs. Britt will never recover ... Because the Court finds that Mrs. Britt has not scrupulously made reasonable efforts in some respects to mitigate damages, her damages are accordingly reduced and the Court factors that finding into analysis particularly in setting general damages ...

While the trial court sympathized with the Mrs. Britt’s trepidation of the lumbar and cervical surgeries, as well as the subsequent physical therapy regimen, it did not agree that such trepidation justified Mrs. Britt’s refusal to submit to the necessary treatment. For that reason, the trial court found that Mrs. Britt failed to reasonably mitigate her damages and reduced her damages accordingly. The City asserts that the trial judge erroneously failed to indicate the percentage by which he reduced the damage award after finding that Mrs. Britt failed to mitigate her damages, and argues that the damage award should be reduced at a minimum of 50%.

In reviewing a damages award, an appellate court must first look at the individual circumstances of that case. Campbell v. Webster Parish Police Jury, 36,391 (La.App. 2 Cir. 9/18/02), 828 So.2d 170. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury of the particular plaintiff under the particular circumstances that the appellate court should ^increase or reduce the award. Hunt v. Safeway Ins. Co., 35,306 (La.App. 2 Cir. 12/5/01), 804 So.2d 724; Crownover, supra.

Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper. An abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. Hunt, supra; DeYoung v. Simons, 32,378 (La.App. 2 Cir. 10/27/99), 743 So.2d 851. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact.

After a careful review of the entire record, we find no abuse of discretion in the general damage award amounting to $185,000.00 and do not find it necessary to make a comparison with similar cases. Mrs. Britt has been living in an unbearable amount of pain since the August 5, 2003, accident. She has been unable to take care of herself, her family, and her household. Even her disposition has changed.

We agree with the trial court’s determination that Mrs. Britt failed to reasonably mitigate her damages and find that it correctly reduced the damage award by taking her failure to mitigate into account when determining the award. Therefore, assignments of error one and three are meritless.

11(VPre-existing Condition

The City contends in its second assignment of error that the trial court erred in its general damage award to Mrs. Britt because it is excessive under the circumstances of her pre-existing condition. The City believes that Mrs. Britt’s bulging disc protrusions and lumbar pain were pre-existing conditions from a car accident that she was involved in on March 2, 1995. Regarding the general damages award, the City urges that the $185,000.00 award is greatly disproportionate when compared to awards in other cases involving similar circumstances and injuries.

“General damages” are those which are inherently speculative in nature and cannot be fixed with mathematical certainty, including pain and suffering. Hunt, supra; Moody v. Blanchard Place Apartments, 34,587 (La.App. 2 Cir. 6/20/01), 793 So.2d 281. When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. La. C.C. art. 1999. In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1. This discretion is great, even vast, so that an appellate court should rarely disturb an award of general damages. Crownover, supra.

It is a well established principle of law that a tortfeasor takes his victim as he finds her; and, although the damages caused are greater because of the victim’s prior condition, which is aggravated by the tort, the tortfeasor is, nevertheless, responsible for the consequences of his tort. Sepulvado, supra.; Aisole, supra.

InDr. Ramos stated in his deposition that the August 5, 2003, accident caused Mrs. Britt’s problems with her neck and back, making surgery necessary. Dr. Kamm agreed that the neck problems were caused by the August 5, 2003, accident and deferred to Dr. Ramos regarding the back condition. Additionally, Mr. Britt testified that Mrs. Britt continued to work after the March 2, 1995, accident without taking any time off. The Britts’ daughter also testified that Mrs. Britt was not having any neck or back problems prior to the August 5, 2003, accident.

Mrs. Britt testified that after the August 5, 2003, accident, she was unable to work and enjoy her life. The record reveals that Mrs. Britt was able to do both of those things prior to the August 5, 2003, accident.

We conclude that the $185,000.00 general damage award was a not an abuse of the trial court’s discretion. Mrs. Britt has demonstrated that her injuries were caused by the accident in question. This assignment of error is without merit.

Loss of Consortium

The City alleges that the trial court erroneously awarded Mr. Glen Britt damages in the amount $10,000.00, since he withdrew his claim for loss of marital relations. The City asserts that Mr. Britt’s loss of consortium claim is worth no more than $3,000.00 and requests that we reduce the trial court’s award to this amount.

In general, a claim for loss of consortium has seven elements: (1) loss of love and affection, (2) loss of society and companionship, (3) impairment of sexual relations, (4) loss of performance of material services, (5) loss of | ^financial support, (6) loss of aid and assistance, and (7) loss of fidelity. To be compensable, it is not necessary for a claim for consortium to include damages from each type of loss. Crownover, supra. A loss of consortium award is a fact-specific determination, to be decided case-by-case and is disturbed only if there is a clear showing of an abuse of discretion. Bassett v. Toys “R” Us Delaware, Inc., 36,434 (La.App. 2 Cir. 12/30/02), 836 So.2d 465.

Mr. Britt withdrew a portion of his loss of consortium claim, which involved marital relations, for unspecified reasons. Even though Mr. Britt withdrew his claim for loss of marital relations, he maintained the remainder of the consortium claim.

We find that the trial court was not manifestly erroneous in awarding $10,000.00 for Mr. Britt’s loss of consortium claim. The August 5, 2003, accident significantly affected the Britts’ 29-year marriage. Mr. Britt testified that Mrs. Britt’s condition has not improved since the accident and noted that her disposition has changed. Mr. Britt had to assume all of the household activities. Mrs. Britt even agreed that she was not the companion to Mr. Britt that she once was. Their daughter, Glendale, also testified that her parents’ relationship had changed.

For these reasons, we will not disturb the trial court’s award to Mr. Britt of $10,000.00 for his loss of consortium claim. This assignment of error is without merit.

| ^CONCLUSION

For the reasons assigned, we affirm the judgment of the trial court. Total costs of this appeal are assessed against the City of Shreveport in accordance with La. R.S. 13:5112 in the amount of $221.50.

AFFIRMED.