author: TERRI F. LOVE, J.

text:
    STATE of Louisiana v. Emanuel RANDALL.
    No. 2010-KA-0027.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 27, 2010.
    Rehearing Denied Dec. 13, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   TERRI F. LOVE, J.

|!Emanuel Randall appeals his adjudication as a triple offender and sentence of five years imprisonment imposed under La. R..S. 15:529.1. We find that the appellant’s assignments of error lack merit and affirm the multiple offender adjudication. We further find that due to an error patent, the sentence must be amended, and as amended, affirmed.

PROCEDURAL HISTORY

On May 2006, the State filed a bill of information in case number 465-121, charging the appellant with possession of crack. The appellant entered a not guilty plea in July 2006, and in April 2007, the district court found probable cause and denied the motion to suppress the evidence. The State entered a nolle prosequi on May 2007, and the State reinstituted the case a month later under case number 471-113, which is the instant matter. In July 2007, a six — member jury found appellant guilty of attempted possession of cocaine.

At the sentencing hearing, the State filed a multiple bill, charging the appellant as a fourth felony offender; the appellant entered a not guilty plea to the multiple bill, and a hearing was scheduled. After denying the motions for new trial and for post-verdict judgment of acquittal, the district court sentenced appellant to |2serve two and one-half years at hard labor to run concurrently. A motion was made to reconsider sentence, which was denied. A motion for appeal was granted; this Court later affirmed the appellant’s conviction and original sentence in an unpublished opinion. State v. Randall, unpub., 08-0289 (La.App. 4 Cir. 8/13/08).

In January 2008 the appellant appeared for a multiple bill hearing. The State amended the bill to charge the appellant as a third offender instead of a fourth offender. However, the hearing did not proceed because the appellant moved for his appointed counsel to be removed, which request the court granted. The trial court set the matter for a determination of counsel. In February 2008, the Department of Corrections notified the trial court that the appellant had been released.

Over the next year, the proceedings were continued multiple times for various reasons, including the necessity of determining who would represent the appellant and an inability to locate and serve the appellant. In January 2009, the appellant’s new appointed counsel filed a motion to quash with supporting memorandum, asserting two grounds to quash the bill, and a “Second Motion for Discovery” seeking copies of all the certified convictions that the State intended to introduce at the multiple bill hearing.

The multiple bill hearing was eventually conducted in March 2009. After the trial court heard argument in connection with the motion to quash, the court denied the motion. After hearing testimony and viewing the State’s exhibits, the court found the appellant to be a third offender. The court vacated the appellant’s original sentence and resentenced him to serve the maximum sentence of five years imprisonment without the benefit of probation, parole, or suspension of sentence, with credit for time served, to run consecutively to any other sentence.

13 After the appellant’s adjudication and sentencing as a multiple offender, no oral or written motion to appeal was filed. Instead, the appellant filed a pro se writ application seeking review of the denial of his motion to quash the multiple bill. The writ was denied in a per curiam in which this Court noted that the appellant should seek an out of time appeal in the trial court. State v. Randall, 09-0651 (La.App. 4 Cir. 7/16/09). Through counsel, the appellant filed a motion for an out of time appeal, which the trial court granted. This appeal follows.

The facts established at the appellant’s trial are not relevant to this appeal, which is from a sentencing proceeding only. A complete recitation can be found in this Court’s original appeal opinion at State v. Randall, unpub., 08-0289, p. 2 (La.App. 4 Cir. 8/13/08).

ERRORS PATENT

The record reveals one error patent relative to the multiple offender sentence. The March 13, 2009 minute entry on the appellant’s sentencing reflects that the trial court imposed the sentence without benefit of probation or suspension of sentence. The March 13, 2009 transcript of the multiple offender sentencing also shows that the trial court imposed the sentence without the benefit of probation or suspension of sentence. However, in July 2009, the court directed that the March 13, 2009 minute entry and the commitment order be “corrected” to reflect that the sentence is without the benefit of probation, parole, or suspension of sentence. Where there is a conflict between the transcript and the minute entry, the transcript controls. State v. Rideau, 05-0462, p. 34 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 147; State v. Kirkling, 04-1906, pp. 9-10 (La.App. 4 Cir. 5/18/05), 904 So.2d 786, 792. Further, La. R.S. 40:967 C(2), which provides the sentence for possession of cocaine, states that “[a]ny person who violates this Subsection as ] 4to any other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.” The attempt statute, La. R.S. 14:27 D(3), does not alter how the sentence is to be served in that respect. Also, while the multiple offender sentence imposed under La. R.S. 15:529.1 must be served without the benefit of probation or suspension of sentence, the statute does not provide that the sentence be served without the benefit of parole. La. R.S. 15:529.1(G). Therefore, we find that the record must be corrected to delete the prohibition on parole from the appellant’s sentence.

We do not find that any other errors patent relative to the multiple offender adjudication or sentence have been noted. A discussion of errors patent found upon a review of the record in connection with the original appeal can be found in Randall, 08-0289, pp. 3-4.

MOTION TO SUPPLEMENT

The appellant raised a single assignment of error in the original brief filed in this matter. Through his counsel, he argued that his right to a full review of his multiple offender adjudication would be denied if the Exhibits S-l through S-5, introduced at the hearing, were not made a part of the appellate record. The appellant noted that, prior to briefing, his counsel moved to have the exhibits made a supplement to the record, but that motion was denied in an order signed by a | .judge of this Court. The appellant conceded that, pursuant to La. Const, of 1974 Art. V, § 2, a single judge of a court of appeal has the authority to issue an order in aid of its jurisdiction, but the exercise of that authority is subject to review by the entire court. Further, the appellant argued that the order denying his request should be reviewed and reversed by the three-judge panel assigned to hear this appeal, and that the failure to do so would deny him his right to an appeal.

Exhibit S-l is part of the appellate record. According to the testimony of Officer Joseph Pollard, who was stipulated to be an expert in the taking, examination, and comparison of fingerprints, Exhibit S-l is an inked fingerprint card on which Officer Pollard placed the appellant’s fingerprints on the day of the hearing. At lodging, the record did not contain the other exhibits however, which suggests that they may have been misplaced before they could physically be placed in the trial court record. This Court has received written confirmation from the Property and Evidence Room of the Orleans Parish Criminal District Clerk’s Office that no exhibits from the multiple offender hearing were submitted to the Property and Evidence Room. Thus, Exhibits S-2 through S-5 could not be located to be made a part of the record. Therefore, even if the motion to supplement had been granted at the time it was filed, the exhibits would not have been available to be made a part of the record for review by appellate counsel.

The remaining issue raised in the appellant’s original brief was whether the omission of the exhibits from the record denied him the right to an appeal of the multiple offender adjudication. However, that issue has now become moot and will not be addressed because copies of the exhibits were discovered by the appellant’s counsel when she reviewed a second appeal, lodged in this Court as | R2010-KA-1027, after the appellant’s original brief was filed. Because copies of the exhibits were available for review, the appellant through counsel moved for and was granted the right to file a supplemental brief raising two supplemental assignments of error.

PROOF OF DISCHARGE DATES

In the first supplemental assignment of error the appellant contends that the State failed to prove the discharge date for his last conviction and thus failed to prove that the “cleansing period” had not expired prior to the commission of his current offense. The appellant further contends that this issue was preserved for review when his counsel objected at the conclusion of the State’s case, although he concedes that his counsel failed to object specifically to the lack of proof of the discharge dates.

In State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72, this Court discussed the procedural requirements for objecting to the sufficiency of State’s evidence regarding a defendant’s prior convictions as follows:

Following the Louisiana Supreme Court decision in State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Legislature amended La. R.S. 15:529.1(D)(l)(b) to place the burden of challenging a predicate conviction in a multiple bill proceeding on the defendant. That subsection now provides, in pertinent part:
Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the 17prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack a sentence.

Cossee, 95-2218, p. 2, 678 So.2d at 72-73 [Emphasis added.]

In the instant case, the record contains a “form” motion to quash the multiple bill filed by the appellant’s original attorney in 2007. This motion to quash the multiple bill set out three grounds: (1) The State has failed to prove that the defendant was previously convicted of any crimes; (2) The State has failed to prove that the defendant was properly Boykinized in his prior eonviction(s); and (3) The State has failed to comply with the provisions of La. R.S. 15:529.1. The record also contains a lengthy memorandum in support of a motion to quash; this memorandum was filed in 2009, by the appellant’s second appointed counsel. In the memorandum, two different grounds were asserted and argued: (1) The State has failed to provide counsel with any formally charged prior convictions or any proof of a date of discharge; and (2) The lapse in time since the filing of the multiple bill violates the defendant’s right to a speedy trial. At the same time that counsel filed the memorandum in support of the motion to quash, he filed a pleading entitled “Defense Second Motion for Discovery” in which he requested that he be provided with “All Certification of Convictions’ which the State intends to use in relation to Mr. Randall’s Multiple-Bill Hearing on January 13, 2009.”

According to comments made by the prosecutor at the multiple bill hearing, a few months before the hearing, the State provided the defense counsel with |scopies of the certified convictions that it intended to use to prove the appellant’s status as a third offender. Defense counsel informed the court that he was prepared to go forward with the multiple bill in this case, but not in the defendant’s later case. Counsel informed the court that it could not proceed on the second case because he believed it alleged predicate convictions for which he had not yet received discovery, implying that he had received discovery for the instant case as the State indicated. Counsel did not supplement the motion to quash with any written objections detailing a defect in any of the predicate convictions.

As to objections made orally at the hearing, the transcript of the multiple bill proceeding reflects that at the beginning of the hearing, defense counsel argued the second issue raised in the memorandum in support of the motion to quash, that the State should be precluded from proceeding with the hearing because of the time lapse between the filing of the bill and the hearing. Defense counsel noted that the appellant had been released from the Department of Corrections; however, defense counsel conceded that the appellant was still on parole. The trial court rejected the defense argument, finding that the delays were in large part due to the appellant’s own actions, not to any failing on the part of the State. Defense counsel made no mention of any potential defect in the appellant’s prior convictions.

Officer Pollard, an expert in the identification and comparison of fingerprints, then testified at the hearing. Officer Pollard testified to taking the defendant’s fingerprints in open court (S-l) and comparing them to fingerprints on an arrest register (S-2) bearing the appellant’s name. Officer Pollard then viewed the State’s “Exhibit 3,” which he described as a certified pack of documents relating to a conviction for possession with the intent to distribute. He testified that the name and item number on S-2 matched the arrest register in S-3. The charges | non both were the same, possession of cocaine with the intent to distribute. Officer Pollard further testified that he compared the fingerprints on S-l with those on a different arrest register (S-l); the fingerprints matched. Finally, Officer Pollard testified that the fingerprints on S-l matched those on the back of a bill of information contained in the State’s “Exhibit 5.”

Following the State’s direct examination of Officer Pollard, the defense counsel declined to cross-examine him. The court then excused the witness, and the assistant district attorney advised the court that the State had nothing further and “submits. State offers, files, and introduces State’s Exhibits one through five.” The State tendered the documents, and the trial court reviewed them; the court then stood in recess. When the proceedings resumed, the court began to render its judgment, but defense counsel interrupted, noting that the State had moved to offer and introduce the evidence, and if the court was going to admit the evidence, defense counsel wished to object “to perfect the record.” Defense counsel then set out the grounds for his objection as follows:

Assuming the evidence is admitted, the defense would like to object on the basis that, to protect my client’s rights on appeal for the Louisiana Appellate Project, that the state submitted before the evidence was admitted. We’d like to make our objection for the record.

The court responded by stating that the evidence was admitted and made a part of the record. The court then found, based on the testimony of Officer Pollard and the documents presented, that the appellant was guilty as charged of being a third-offender. Defense counsel noted the defense’s objection without pointing to any particular deficiencies in the sufficiency of the State’s evidence.

After finding that the appellant was a triple offender, the court reviewed the | mappellant’s criminal history at length. After vacating the original sentence, the court sentenced the appellant to the maximum term of five years. Defense counsel noted an objection to vacating the original sentence, arguing that the appellant had already completed the sentence. At the very end of the hearing, defense counsel informed the court that the appellant wanted him to make one more objection for the record and stated that his client wished the record to reflect that one continuance of the multiple bill hearing, which the court had attributed to the defense when reviewing the record in connection with the motion to quash, was in fact due to a trial in progress.

Review of the record and the transcript reflects that the only objection, aside from the issue of the timeliness of the hearing raised in the memorandum in support of the motion to quash and orally argued at the hearing, was lodged. That objection was to the trial court considering any/all of the State’s exhibits because the State failed to offer and introduce the exhibits prior to submitting its case. Nevertheless, appellant contends that the general objection made by his counsel following the trial court’s formal adjudication of the appellant as a third offender is sufficient to preserve the issue for review.

While this Court has held an oral objection may be sufficient to preserve the issue of whether the State proved the defendant’s identity and the validity of the prior guilty plea, see State v. Anderson, 97-2587 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, this Court has also held that the lack of an objection to the proof of a discharge date precludes review. See State v. Juengain, 09-0425 (La.App. 4 Cir. 1/20/10), 41 So.3d 499. In this case, counsel made a specific objection on one issue for the express purpose of preserving the issue so that appellate counsel could raise the issue on appeal. Trial counsel also, at the request of his client, objected to what the appellant believed was the trial court’s mischaracterization by a cause of a previous continuance of the multiple bill hearing. Further, as noted above, the record in this matter establishes that, months pri- or to the hearing, trial counsel in writing requested copies of the multiple bill exhibits, including information regarding discharge dates, which the State intended to introduce at the hearing. At the hearing, the State informed the court that it had complied with counsel’s request; the appellant’s trial counsel informed the court that he was prepared to proceed with the hearing and did not dispute that the State had complied with his request.

The record in the instant matter establishes clearly that trial counsel made certain specific objections at the multiple bill hearing but elected to make none as to the alleged lack of proof of a discharge date. This lack of an objection on this issue precludes review on appeal.

DENIAL OF THE EFFECTIVE ASSISTANCE OF COUNSEL

In a second, alternative, assignment of error, the appellant avers that, if it is determined that counsel’s failure to object to the purported lack of proof of the discharge dates precludes consideration of the issue, then his trial counsel was ineffective in not making an objection. In order to prevail on such a claim, the appellant must prove both deficient conduct and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The record shows 112that the appellant was not prejudiced.

As noted herein, the trial court reviewed the appellant’s criminal history as set out in the presentence investigation report prepared for the sentencing in case number 467-770. The court noted that the defendant had a conviction for manslaughter in 2004. This plea was entered after this Court had reversed the defendant’s 1995 conviction and life sentence for second degree murder and remanded for further proceedings. See State v. Randall, 02-0248 (La.App. 4 Cir. 10/16/02), 830 So.2d 1062. On remand, the State amended the indictment to charge manslaughter; the defendant pled guilty; and the court sentenced him to eleven years.

In her supplemental brief, appellate counsel concedes in a footnote that this manslaughter conviction was included in the multiple bill, but later the bill was amended to remove it. However, the manslaughter conviction was not removed from the multiple offender bill filed in case number 467-770, the appeal of which is pending in this Court under docket number 2010-KA-1027. Further, the multiple bill exhibits in the record of 2010-KA-1027 are cited by the appellant in the supplemental brief filed by counsel. These exhibits include a complete certified “Pen Pack” from the Department of Corrections. This material contains the Department’s records of the defendant’s dates of convictions, incarcerations, and discharges from custody and supervision. The records show that appellant was physically in the custody of the Department of Corrections from January 1996 until August 2003. He was also incarcerated in the Department of Corrections during the years 1993 and 1994 as a result of probation revocations in case numbers 340^376 (five-year sentence) and 344-978 (three-year sentence), which are the predicate convictions which form the basis of the appellant’s adjudication as a third offender in the instant case. The records further show that, on May 15, 1992, the appellant was arrested for second degree murder and was later convicted and sentenced to life under case number 363-554. After the conviction and life sentence were vacated by this Court on appeal, the appellant entered a guilty plea to manslaughter and was sentenced to eleven years at hard labor, with credit for time served, on March 3, 2004.

In computing the ten-year cleansing period, La. R.S. 15:529.1(0 provides that “any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.”

The appellant was incarcerated for the majority of the years between the revocation of his probations in 1992 in the two predicate convictions and when he committed the instant offense on February 5, 2006. Thus, he cannot show prejudice by his trial counsel’s failure to object to the State’s alleged failure to prove the discharge dates for the predicate convictions as the records before the trial court amply reflected that, due to his incarceration, the “cleansing period” did not expire.

| i4Following the trial court’s adjudication of the appellant as a third offender, the court stated that it had reviewed both records and the predicate convictions that formed the basis for the adjudication. The court noted that the appellant’s probation had been revoked by the trial judges in his two earlier cases and that warrants had been issued in both for failing to appear in court. The trial court reviewed the appellant’s entire criminal record, including his conviction for second degree murder in case number 363-554 and his subsequent guilty plea on March 3, 2004 to the reduced charge of manslaughter. Neither defense counsel nor the appellant disputed the court’s recitation of the appellant’s criminal record.

The appellant was incarcerated for the majority of the years between the revocation of his probations in 1992 in the two predicate convictions and when he committed the instant offense on February 5, 2006. Thus, he cannot show prejudice by his trial counsel’s decision not to object to the State’s alleged failure to prove the discharge dates for the predicate convictions as the records before the trial court amply reflected that, due to his incarceration, the ten-year “cleansing period” did not expire.

DECREE

The appellant’s multiple offender adjudication is affirmed. The appellant’s sentence is amended to delete the prohibition on parole, and as amended, the appellant’s sentence is affirmed. The trial court is directed to issue a corrected commitment order to the Department of Corrections.

CONVICTION AFFIRMED; SENTENCE AMENDED; AFFIRMED AS AMENDED.

      . The July 1, 2009 minute entry also purported to correct the March 13, 2009 minute entry to reflect that the appellant’s sentence was to run consecutively. The original March 13, 2009 minute entry reflected that the sentence was concurrent. The transcript is silent on whether the sentence was to be served concurrently or consecutively. By operation of law, if the court is silent on whether the sentence is to be served concurrently, it must be served consecutively. La.C.Cr.P. art. 883. Therefore, the July 1, 2009 correction was proper.

      . Based upon a motion of the appellant pro se, this Court furnished him with a copy of the record and time in which to file a supplemental brief to that filed by his appointed counsel. He has not done so.

      . The appeal in 2010-KA-1027 is from the appellant’s adjudication as a fourth offender and sentence to life imprisonment in district court case number 467-770. The original sentencing in case number 467-770 occurred on March 13, 2009, the same date the appellant was adjudicated and sentenced as a third offender in the instant matter.

      . The court had obtained a presentence investigation report in connection with the sentencing in the appellant's later case, case number 467-770. Defense counsel did not dispute any of the information that the court read into the record, including the recitation of the appellant's prior five felony convictions, probation revocations, and parole revocations.

      . The appellant has not raised the issue of the late submission of the exhibits in either his original or supplemental briefs.

      . Because the manslaughter conviction was not removed from the multiple bill in case number 467-770, the appellant was adjudicated a fourth offender and sentenced to life in prison.

      . In the original appeal from the conviction for second degree murder on October 20, 1993, and the sentence of life imprisonment imposed on October 12, 1995, this Court in State v. Randall, unpub., 98-1633 (La.App. 4 Cir. 7/26/2000), conditionally affirmed the defendant’s conviction and remanded the case to the trial court to determine whether a witness' entire prior testimony was introduced at the trial. The trial court conducted an evidentiary hearing and determined that the witness’ entire testimony was presented to the jury. In an out-of-time appeal from that ruling, this Court reversed the appellant's conviction and remanded for further proceedings. State v. Randall, 02-0248 (La.App. 4 Cir. 10/16/02), 830 So.2d 1062.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Leroy MASSEY.
    No. 2009-KA-1728.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| í STATEMENT OF CASE

On January 17, 2007, the State charged the defendant, Leroy Massey, with two counts of the attempted first-degree murder of Travis Bonvillian and Joshua O’Quinn. The defendant entered a plea of not guilty at his arraignment on January 24, 2007. On February 8, 2007, the court denied the Motion to Suppress the Identification and found probable cause. On May 9, 2007, the State filed its Prieur notice. Following a hearing on June 22, 2007, the trial court took the matter under advisement. On August 8, 2007, the defense filed a Memorandum in Opposition to the State’s request to introduce evidence of other crimes. On August 16, 2007, the trial court denied the State’s motion to introduce evidence of other crimes. Trial in this matter began on September 5, 2007. On September 10, 2007, the jury found the defendant guilty on both counts of attempted first degree murder. At that time, the court ordered a pre-sentence investigation and set sentencing for November 16, 2007. The defendant was subsequently charged as a multiple offender based on a prior conviction for possession of cocaine. The defendant entered a not guilty plea |2to the multiple bill. At the November 16, 2007, sentencing hearing, the defendant pled guilty to being a multiple offender and waived all delays. The trial court sentenced the defendant to thirty years without benefit of probation, parole, or suspension of sentence on each count with the sentences to run concurrently. On May 22, 2009, the court granted the defendant’s motion for out-of-time appeal.

STATEMENT OF FACT

Police Dispatch Supervisor Janell Jones testified that her job responsibilities include the operation of the NOPD Communications Division which involves receiving and monitoring 911 calls. Ms. Jones is also the custodian of the 911 call tapes. Ms. Jones identified the incident recall sheet and the 911 tape incident to this matter.

Trauma surgeon Dr. Allen Marr testified that on September 16, 2006, he treated the victims, Travis Bonvillian and Joshua O’Quinn, at Elmwood Trauma Center. Mr. Bonvillian arrived at the trauma center in stable condition with no life threatening injuries. However, he did suffer four wounds — one in each buttock, one in his back and one to his side. One bullet remains lodged in Mr. Bonvillian’s body. Mr. O’Quinn, on the other hand, suffered major blood loss — seven pints of blood-from his wounds-large entrance and exit wounds on his left side and also a wound in his back. The gunshot injuries caused Mr. O’Quinn to lose both his spleen and his left kidney and endure several hours of surgery. Rating the severity of Mr. O’Quinn’s injuries on a scale of one to ten, Dr. Marr assigned an eight to his condition. Blood tests for alcohol on both victims proved negative.

| .¡Officer John Blatcher testified that on September 16, 2006, at approximately 5:00 p.m. he responded to a complaint of aggravated battery by shooting in the 600 block of Pacific Street. As the first officer on the scene, he noted that the front of the house was riddled with bullet holes and the front door to the house was partially open. He observed several AD-47 and 9 millimeter bullet casings on the ground and a trail of blood from the front to the rear of the shotgun house into the back yard where he located the two victims. The officer identified photographs of the house and backyard where the victims were located. Both victims told Officer Blatcher that they had just returned to the house from a trip to the grocery store when an unknown 5' 9" black male with an assault weapon ambushed them as the victims walked up the steps to the house. One of the victims said that the assailant was dressed in black with a cap on his head. The other victim related that the assailant ordered them not to enter the house. However, when the victims ran into the house, the assailant started shooting.

Mr. Wayne Hebert, who lives in the 600 block of Pacific across the street from the Bonvillian residence, testified that at the time of the shooting he was at his home watching television when he heard gunshots. Prior to the shooting, he noticed three black males walking across the street near the Bonvillian residence. After the shooting, Mr. Hebert looked out his front door and noticed the assailants running from the area still shooting in the direction of the Bonvillian residence.

Don Bonvillian, Jr., Travis Bonvillian’s brother, stated that he arrived at his home on Pacific Street on the day of the shooting to find his brother, Travis, and 14Joshua O’Quinn at the home. Approximately five minutes after his arrival, Don entered the kitchen and Travis and Joshua left the house to purchase beer. Approximately ten minutes later, Don heard gunfire in front of the house. Don ran to the front of the house and found both Travis and Joshua on the ground bleeding heavily. Don moved both of the victims from the house and into the backyard for safety. Someone called 911. The police arrived about seven minutes later.

Detective Mark McCord testified that he was the lead detective investigating this double shooting on Pacific Street on September 16, 2006. By the time McCord arrived on the scene, EMS personnel were ready to transport the victims to the hospital. McCord identified fifteen assault rifle shell casings fired from two different weapons. The detective spoke with Don Bonvillian on the day of the incident and to Wayne Hebert a few days later. He was unable to speak to the victims for several days after the shooting. When McCord interviewed the victims, they both described the assailant as 5' 9" to 5' 11" in height, about 150 pounds, with a thin build, a dark complexion, between twenty to twenty-five years of age with dreadlock style braids. McCord also learned that the shooter was clothed in black with a cap and black gloves. Joshua O’Quinn gave McCord a newspaper photograph of the defendant and identified him as the shooter. McCord presented both victims with six person photo lineups from which the victims identified the defendant as the person who shot them. McCord prepared an arrest warrant for the defendant.

1 sTravis Bonvillian testified that on the day of the shooting, Joshua O’Quinn arrived at the Bonvillian residence at about 4:80 p.m. The two visited with family members in the house for a few minutes and then left to purchase beer. When the pair returned to the residence, Travis walked to the door, followed by O’Quinn, and heard someone shout “Don’t shut the door, you m-f-.” Travis turned toward the person who shouted at him and at that moment saw the person point a gun at him. Travis ran into the house with O’Quinn behind him at which time gunfire brokeout. Travis described the shooter to the police as a black male with a “chi-wee” hair style, dressed in black and carrying an assault rifle. Travis was shot four times as he ran through the house out into the backyard. His injuries necessitated surgery and a three-day stay in the hospital. Several days after the shooting, Travis visited O’Quinn who showed Travis a picture from the newspaper. Travis recognized the photo as a picture of the defendant, the man who shot him. Shortly after his visit with O’Quinn, Travis viewed a photo lineup presented to him by Officer McCord. Travis identified the defendant from the photo lineup but was only 50 to 60% positive of the identification.

Joshua O’Quinn testified corroborating Travis Bonvillian’s recounting of the facts up to the time of the shooting. Joshua added that when he and Travis parked in front of the Bonvillian residence, there was no one else on the street. However, as he held the front door for Travis, Joshua heard a noise which attracted his attention. He turned to see the defendant walking quickly toward him brandishing an assault rifle. The defendant shouted, “Don’t shut that f- door.” Joshua and ftTravis made it into the house, and Joshua slammed the door behind them. The defendant sprayed bullets into the front of the house and into the hallway leading to the rear yard of the residence. A few seconds after closing the door, Joshua was shot in the back. Joshua got up and ran out the rear of the house into the yard where he slumped into a chair and found Travis sprawled on the ground. The police arrived minutes after the shooting stopped. While Joshua was recovering from his injuries, he noticed the defendant’s picture in the newspaper. In a subsequent conversation with Detective McCord, Joshua informed the detective that he had seen the defendant’s picture in the newspaper. Detective McCord compiled a six man photo lineup from which Joshua unequivocally identified the defendant as the shooter.

ERRORS PATENT

A review for errors patent on the face of the record reveals one error. The bill of information is missing from the record. According to State v. Buttner, 411 So.2d 35 (La.1982), this constitutes an error patent. However, in State v. Mitchell, 553 So.2d 915 (La.App. 4th Cir.1989), this Court found that a record lacking a bill of information was harmless error, where, as in the instant case, the defendant made no complaint that he was unable to properly defend himself, and the docket master indicated that the bill of information had been filed.

In this case, although the bill of information is not included in the record, the docket master indicates that the defendant waived the reading of the bill of information at his arraignment. Additionally, the trial transcript reveals that at the 17beginning of trial, the trial judge read the bill of information to the jury in the defendant’s presence. There is no indication that defendant was unaware that he was charged with two counts of attempted first-degree murder. Furthermore, the defendant has not alleged any prejudice because of absence of the bill of information from the record herein.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that his right to appellate review based on a complete record guaranteed under Art. 1, sec. 19 of the Louisiana Constitution has been violated because of trial record deficiencies. Specifically, the defendant contends that the record does not contain any trial or pretrial minute entries or a transcript of the arraignment proceedings, nor does it contain various motions and pleadings filed into the record, including the bills of information charging him with attempted first degree murder and as a multiple offender, Motion to Suppress Identification, Prieur notice, trial memoranda, and witness list. Consequently, the defendant argues that his conviction must be reversed.

La. Const. Art. I, § 19 provides that “[n]o person shall be subjected to imprisonment .,. without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.... ” La.C.Cr.P. art. 843 requires, in all felony eases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of | scounsel.” As a corollary, La. R.S. 13:961(C) provides that, in criminal cases tried in the district courts, the court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the proceedings required. A criminal defendant has a right to a complete transcript of his trial proceedings, particularly where appellate counsel on appeal was not also trial counsel. State v. Landry, 97-0499, p. 3 (La.6/29/99), 751 So.2d 214, 215.

In State v. Frank, 99-0553, p. 21 (La.1/14/01), 803 So.2d 1, 19-20, the Louisiana Supreme Court enunciated a three-part standard for reviewing incomplete record claims. First, “[mjaterial omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal.” 99-0553 at pp. 20-21, 803 So.2d at 19-20, citing State v. Robinson, 387 So.2d 1143 (La.1980)(re-versing given that testimony of a state and defense expert witness was missing); State v. Ford, 338 So.2d 107 (La.1976)(finding omissions material, given that substantial portions of the record were missing, including the testimony of four state witnesses, voir dire examination of prospective jurors, and the prosecutor’s opening statements); see also State v. Bright, 2000-1255, p. 8 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112, 1117 (finding record inadequate, given “[t]he cumulative effect of the missing portions of testimony of the defendant and other material witnesses, and the frequency of ‘inaudible’ and ‘spelled phonetically’ in the transcript”); State v. Diggs, 93-0324 (La.App. 4 Cir. 6/29/95), 657 So.2d 1104, citing Ford, supra, (finding the unavailability of an officer’s complete testimony necessitated a new trial because it could not be determined whether the IflHiissing testimony was substantial or inconsequential). Second, “inconsequential omissions or slight inaccuracies do not require reversal.” Frank, supra, citing State v. Goodbier, 367 So.2d 356, 357 (La.1979) (declining to reverse when record did not include transcript of voir dire examination and the court reporter’s affidavit indicated that no objections were made by the attorneys during voir dire); see also State v. Lyons, 597 So.2d 593 (La.App. 4 Cir.1992) (declining to reverse when record did not include some of the jury charges, transcript of voir dire, impaneling of jury or opening statement). Third, and “[fjinally, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts.” Frank, supra, citing State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773. However, this court has held that under some circumstances a complete appellate review of a conviction and sentence can be accomplished, even when there are missing portions of the trial record. See, e.g., State v. Cooley, 98-0576, p. 9 (La.App. 4 Cir. 11/17/99), 747 So.2d 1182, 1187. An incomplete record may be adequate for appellate review. State v. Hawkins, 96-0766, p. 8 (La.1/14/97), 688 So.2d 473, 480. Finally, a defendant is not entitled to relief absent a showing of prejudice based on the missing portions of the transcripts. State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773.

In this case, the defendant does not complain that any portions of the trial proceedings are omitted from the record. The full transcript of the trial is part of the appellate record. Rather, defendant claims that minute entries reflecting trial | inand pretrial activity and various pretrial pleadings, including Bills of Information, Motion to Suppress, Prieur notice, trial memoranda, and witness list, are missing from the record. He does not argue that there was a basis to suppress the identifications, nor does he allege a basis exists for a motion for new trial.

In this case, the two victims testified at trial. They made positive pre-trial identifications of the defendant and each testified that he was certain the defendant shot at them because of the length of their view of, and close proximity to, the defendant during the incident. The victims supplied the police with identical physical and clothing descriptions of the defendant. One of the victims unequivocally and immediately identified the defendant from a photographic lineup, which he viewed independently of anyone but the investigating officers. Moreover, the victims emphatically testified that they were neither influenced nor coerced to identify the defendant’s picture. Moreover, Detective McCord’s trial testimony corroborated that the victims’ identifications of the defendant were independent and untainted by suggestion or coercion.

Given that the missing portions of the trial record in this case are not evidentia-ry, coupled with the defendant’s failure to make a showing of prejudice based on the missing portions of the record and the overwhelming evidence of the defendant’s guilt, the missing portions of the record of these proceedings is inconsequential and does not warrant a reversal of the defendant’s conviction. This assignment has no merit.

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

CONVICTION AND SENTENCE AFFIRMED.


text:
    Yolanda SMITH v. DEPARTMENT OF POLICE.
    No. 2010-CA-0718.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 2010.

      Gerald Wasserman, Law Offices of Gerald Wasserman, LLC, Metairie, LA, for Plaintiff/Appellant, Yolanda Smith.

      Nannette Jolivette Brown, City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee, Department of Police.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|2Yolanda Smith prosecutes this appeal from the judgment of the Civil Service Commission, City of New Orleans (CSC). Ms. Smith has permanent status as a police dispatcher with the New Orleans Police Department (NOPD). She has been employed by the City of New Orleans since 1978 and by the NOPD since 1984, when she began her service as a complaint operator. In 1994, she was promoted to her present position. Ms. Smith was charged with failing to report for duty during the emergency activation of personnel caused by the approach of Hurricane Gustav in August of 2008. Following an NOPD investigation, she was advised that violations of two NOPD rules were sustained. NOPD, by letter from Superintendent Warren Riley, suspended Ms. Smith for ten working days for her sustained violation of Rule 4: Performance of Duty, paragraph 1 — Reporting for Duty pursuant to Hurricane Gustav activation orders. The letter from Superintendent Riley also notified Ms. Smith that she was terminated for her sustained violation of Rule 4: Performance of Duty, paragraph 2 — Instructions from an Authoritative Source: Hurricane Gustav activation orders instructed by the ^Superintendent of Police; and the Communications Division Standard Operations Procedures Manual (Policy 81.18, NOPD, Specifics: 5. Alert Level One).

Ms. Smith appealed her suspension and termination to the CSC, and her appeal was heard on August 20, 2009, before Hearing Examiner Jay Ginsberg. Ms. Smith, NOPD investigator Gesielle Rous-sel, NOPD Sergeant Claude A. Flot, Jr., and NOPD Chief Lawrence Weathersby testified at the hearing.

Ms. Smith testified that she understood that as a police communications dispatcher, she is part of the designated essential personnel for the City of New Orleans, and was required to appear for work when emergency activation orders were in effect. She admitted that she was notified of the activation of first responders for Hurricane Gustav, but did not report as required on Sunday, August 31, 2008. Ms. Smith testified that she was in Monroe, Louisiana when she was called in to work. She had worked the day before with a headache, and left New Orleans because she did not have a cell phone and did not know if she was going to be safe remaining at home alone. She claimed that she did not want to be alone in case she needed medical help. When she ultimately went to a doctor, on September 10, 2008, she was told that she had hypertension and diabetes.

Ms. Smith admitted that she had been notified of NOPD Policy 81.13 regarding level one alerts. Part of the notification included the requirements that she prepare in advance for any evacuation needs of her dependents or others who relied on her, and be prepared to come in and work twelve-hour shifts during such an alert. She admitted that she signed a property cognizance form stating that she 14read and understood the policy. She acknowledged that although she had received and understood the policy, and received specific instruction to report for duty on August 31, 2008, she failed to follow or comply with the instructions.

Ms. Smith testified that she remained in Monroe until Wednesday or Thursday (September 2 or 3, 2008), when she returned to New Orleans. She said that she tried without success to locate her doctor. She ultimately sought medical advice on September 10, 2008 at a “walk-in clinic”, where she was seen by a doctor who provided her an NOPD Form 50 certifícate dated that day, indicating a current diagnosis of diabetes mellitus and borderline hypertension. The doctor noted that these conditions caused Ms. Smith to have a headache. The doctor certified that she was able to return to full duty on September 10, 2008.

Ms. Roussel testified that, in her position as an Assistant Police Communications Supervisor in the NOPD’s Communications Division, she investigated the incident concerning Ms. Smith’s failure to appear during the Hurricane Gustav emergency activation. She sustained Ms. Smith’s violation of NOPD Rule 4, Paragraph 1:

“A member shall promptly report for duty at the time and place required by assignment or orders. But in the event of inability to perform or to begin punctually, he shall notify his commanding officer or a member of his unit authorized to receive such information before the designated time for commencement.”

She also sustained Ms. Smith’s violation of NOPD Rule 4, Paragraph 2, Instructions from Authoritative Source, to wit: Hurricane Gustav, activation orders. The basis for this charge was that Ms. Roussel received orders from Captain |5B urcett to notify and advise her subordinate staff that the Chief of NOPD had activated for the hurricane pursuant to Policy 81.18. The alert level for the hurricane emergency was Alert Level One, the highest level. She so advised Ms. Smith, who did not report for duty until September 10, 2008.

Ms. Roussel identified City Exhibit 4, relating to Alert Level One, which provides, inter alia:

SICK LEAVE
An employee reporting sick within forty-eight hours of the activation of any alert level shall:
1. Document the illness with a Form 50.
2. Notify the Branch Director over the Office of Compliance of the illness and estimated date of return.
3. Notify his/her immediate supervisor of their [sic] illness and estimated date of return.
4. If instructed by a supervisor, report to the police physician for an examination.
5. Follow all procedures for requesting and remaining on sick leave.

Ms. Roussel testified that this policy was applicable to Ms. Smith. Ms. Roussel identified City Exhibit 2, the Form 50 provided by Ms. Smith’s doctor. Ms. Smith provided the form on September 10, 2008, eight days after the forty-eight hour time limit set by the policy.

Ms. Roussel identified City Exhibit 3, a transcription of a taped telephone call Ms. Smith made to Ms. Roussel on August 31, 2008. The transcription reads in relevant part:

APCS Roussel: Command Desk.
PD Smith: Um, this is Yolanda Smith calling.
APCS Roussel: Yes.
PD Smith: ... sick.
APCS Roussel: You calling in sick.
PD Smith: Yeah.
APCS Roussel: What is your illness?
PD Smith: I have a headache.
|rTAPCS Roussel: Okay, do you know when you are coming back?
PD Smith: No, I don’t know when I am coming back.
APCS Roussel: Okay via Sgt. Flot he needs you to come in and turn in your ID in [sic] ...
PD Smith: Uh huh.
APCS Roussel: And you need a Form 50.
PD Smith: Uh huh.
APCS Roussel: To return but he needs you to turn in your ID.
PD Smith: Okay and alright.
APCS Roussel: Okay and do you know when you
PD Smith: But listen.
APCS Roussel: Uh huh.
PD Smith: I am not in New Orleans.
APCS Roussel: Okay one moment— where are you?
PD Smith: I’m in Monroe.
APCS Roussel: She not, she’s not in [pause] Okay when you do return you have to return with Form 50.
PD Smith: That’s fíne.
APCS Roussel: And um and if you can report we need you to report to the Convention Center.
PD Smith: Okay alright I will be able to reach y’all at this number.
APCS Roussel: Hold on a minute, okay, no, you can’t report to the Convention Center. You will have to report to Hammond, Louisiana, and you need to report to Captain Thomas and you need to take this address down.
APCS Roussel: It’s 601 West Coleman Avenue
APCS Roussel: Hammond, Louisiana
PD Smith: Houma.
APCS Roussel: Hammond.
PD Smith: Hammond, Louisiana.
APCS Roussel: And you need to report to Captain John Thomas ... [phone number]
APCS Roussel: Yes and what is the address where you are in Monroe?
PD Smith: [gave her address in Monroe]
APCS Roussel: Alrighty [sic], thank you.
PD Smith: Okay, bye bye.

|7The hearing officer received City Exhibits 2, 3, and 4 into evidence without objection.

On cross-examination, Ms. Roussel testified without equivocation that she did not fire or terminate Ms. Smith on August 31, 2008, and did not advise her that she was being terminated. Furthermore, when asked by the hearing officer if it was her understanding that Ms. Smith was being terminated, Ms. Roussel replied that was not her understanding. Ms. Smith testified that when Ms. Roussel told her that Sergeant Flot said to turn in her identification, she thought she was fired. We note that there is nothing in the taped conversation between Ms. Roussel and Ms. Smith to indicate that Ms. Smith thought she had been fired. We also note that, when questioned by her counsel, Ms. Smith admitted that when she returned to work on September 10, 2008, she did not think there was any problem. She worked eight hour days and overtime when requested until June 1, 2009. This is inconsistent with a belief that she was fired. She testified, in fact, that no one told her during that nine-month period that she was going to be fired. She denied having spoken to Sergeant Flot about the incident.

Ms. Roussel testified that she had been advised by her superiors, either Sergeant Claude Flot or Captain Tammy Burcett, to advise persons calling in sick to turn in their identification. Ms. Roussel did not know the reason for that directive and had not had any discussions with Sergeant Flot about the policy. Ms. Roussel testified that to her knowledge Ms. Smith was still employed by the NOPD, so she advised her to bring a Form 50 when she returned to work.

On re-direct examination, Ms. Roussel testified that there was no NOPD work going on at the time in Monroe. She originally told Ms. Smith to go to the Convention Center because the NOPD had been attempting to establish a | ^temporary site there for people who were unable to return to work. That plan was altered, and such persons were to report to Captain John Thomas of the Public Integrity Bureau in Hammond, as she advised Ms. Smith. Based on her investigation, Ms. Roussel found no indication that anyone in Ms. Smith’s chain of command had given her permission to be absent from August 31, 2008 through September 10, 2008. Had Ms. Smith received such permission, Ms. Roussel would not have sustained the violations.

Sergeant Flot, an NOPD sergeant assigned to the Administration and Support Bureau, Communications Division, testified that it was his duty during the Hurricane Gustav activation to oversee the activities of the police dispatchers. He testified that he instructed Ms. Roussel to request the police identification badges of personnel who did not appear during the hurricane activation. Because of problems that had arisen in the aftermath of Hurricane Katrina involving inappropriate use of NOPD-issued credentials, he and Captain Burcett decided that they did not want anyone who had not reported in response to the activation to have the use of their identification. Sergeant Flot testified that he did not give Ms. Smith permission to be absent during the emergency activation period in question and did not advise her that she did not have to comply with the requirements of the Alert Level One policies relating to sick leave. In fact, he could not have granted her permission to be absent because of sickness during the emergency activation, and was unaware that any other supervisor gave her such permission. Sergeant Flot also noted that particularly during emergency situations, when personnel work twelve-hour shifts, the absence of an employee negatively affects the performance and efficiency of the NOPD Communication Department.

|;,On cross-examination, Sergeant Flot testified that he was informed by one of the supervisors that Ms. Smith had called in sick from Monroe, Louisiana. He said that he believed that personnel who were on sick leave or other leave during the emergency were allowed to return to work. He made no recommendation concerning Ms. Smith’s termination.

Ms. Smith testified that her only contact with Chief Weathersby was on May 19, 2009, for her Commander’s Hearing. She denied having seen Chief Warren Riley. Ms. Smith admitted that she did not speak to anyone in the Office of Compliance about her headache. She admitted that she evacuated from New Orleans to Monroe with her husband and the rest of her family. On September 16, 2008, she gave a statement concerning her absence. She was informed that the statement was necessary because she had not shown up for work during the emergency activation, and understood that she was the subject of an investigation. She testified that she thought the matter had concluded after she gave her statement.

Chief Weathersby testified that he is the Deputy Chief for the NOPD Administration and Support Bureau and previously served as a Major over Compliance in the office of the NOPD Superintendent. He described the hierarchy of the communication office. Captain Tammy Bureett is the Commander. Under Captain Bureett are the sergeants, including Sergeant Flot. The command desk is under the sergeants. Anyone to whom the Captain gives authority to do so may tell an officer to turn in his or her identification. Turning in identification has multiple meanings, depending on the circumstances. In case of the storm, Captain Bureett made a decision that it would be advisable to collect the identification badges of personnel going out of town. Also, persons who are reassigned, on medical leave |inor psychiatric leave, may be asked to turn in their identification. Chief Weathersby said there are a multitude of reasons for asking a person to turn in his or her identification. From the NOPD’s standpoint, a request to turn in identification is not equivalent to firing the person, specifically because every member of the police department knows that termination requires a hearing and that only the Superintendent can make the final determination of a termination. Chief Weathersby noted that even he is able only to make a recommendation to the Superintendent following a hearing. Chief Weathersby testified that in Ms. Smith’s case, following the hearing, he decided to recommend her termination. At the time she did not return to work he did not suspend or terminate her, because there had not been a hearing.

When questioned by the hearing officer concerning the nine month delay before the termination, Chief Weathersby testified that there were multiple cases involving dispatchers and complaint officers who did not report when ordered to do so. Each case was investigated individually, and when the investigation was completed, the matter was scheduled for a Bureau Commander’s hearing. Once it was determined that these matters would involve Bureau hearings, the actual scheduling began, with each case scheduled for an individual hearing with Chief Weathersby, based upon his availability. He noted that he had other ongoing responsibilities that contributed to the delay. During the interim, while awaiting their hearings, the dispatchers and complaint officers returned to full duty with full benefits, and were not deprived of any benefit.

Chief Weathersby testified that he examined each case individually, considering the individual circumstances and factors that were involved. After this consideration, he determined if the appropriate penalty would be suspension, | n termination, or no penalty at all. In Ms. Smith’s case, he noted that she was at work when the emergency activation was enacted, so she knew that she was expected to be at work and could not leave. She worked the night before the morning she left town. When she called back later that day, she was already six to eight hours away from New Orleans and had made the decision that she wasn’t going to return in a timely manner. She took ten days to go to the hospital, claiming she had a severe migraine headache, but provided no medical records to support this. The Form 50 indicates that she did not see a doctor until September 10, 2008, because she needed a Form 50 in order to be allowed to report back to work. Chief Weathersby concluded that she had made up her mind that she was not coming to work, and left the city when she knew she was supposed to stay. Then, when she knew she needed documentation to return to work, she went to a doctor ten days later. Although she claimed to be in a severe and grave medical situation, she did not see a doctor for ten days. Chief Weathersby testified that he also took into consideration the fact that she had worked for the NOPD for about twenty years, her medical condition as reported on the Form 50, and her statement admitting that she left town the day after her night shift and called in from her evacuation destination that day.

Following the hearing, on October 27, 2009, the hearing officer found that the NOPD had established by a preponderance of evidence that it disciplined Ms. Smith for cause. The hearing officer concluded:

The Appointing authority [NOPD] rejected the Appellant’s belated medical certification. Internal rules require a medical certification within forty-eight hours of the emergency activation. The Appellant failed to follow that requirement. The timing of the Appellant’s illness is suspect. Further, the fact that the Appellant waited until after the emergency activation, and after she returned to |i2the City to seek medical treatment suggests that her illness was contrived to avoid her responsibilities as an essential employee. Finally, the Appellant went to a doctor on the same day she was released to return to work. Her actions strongly suggest that she did not need to see a doctor because she was ill, but merely to provide justification for her failure to perform her duties during an emergency.

The CSC denied Ms. Smith’s appeal on March 29, 2010, finding, for the reasons cited by the hearing officer, that the NOPD had established by a preponderance of evidence that it disciplined her for cause.

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. The employee may appeal from such disciplinary action to the CSC. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8 (1974); Mitchell v. Department of Police, 09-0724, pp. 2-3 (La.App. 4 Cir. 3/17/10), 34 So.3d 952, 953. The CSC’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X, § 12(B). The CSC has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Mitchell v. Department of Police, supra at p. 3, 34 So.3d at 953, citing Walters v. Department of Police of the City of New Orleans, 454 So.2d 106, 113 (La.1984). Legal cause for disciplinary action exists whenever an employee’s conduct impairs the efficiency of the public service in which that employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990). The appointing authority has thejjoburden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service. Id.

In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. First, as in all civil matters, deference will be given to the factual conclusions of the CSC, so that in deciding whether to affirm the CSC’s factual findings, we apply the clearly wrong or manifest error standard of review. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647. Second, in evaluating the CSC’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, we are not to modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Id. “Arbitrary or capricious” means that there is no rational basis for the action taken by the CSC. Id.

Ms. Smith contends that the NOPD’s disciplinary action was excessive, and failed to take into account any mitigating factors, such as her long service as an NOPD employee without any major infractions, and was arbitrary, capricious, and an abuse of discretion. She also contends that the CSC erred in finding that she elected to see a doctor not because she was ill, but merely to provide justification for her failure to perform her duties during an emergency.

Ms. Smith cites cases in which NOPD imposed suspensions of varying terms against police officers who left their posts for between two and fourteen days during and after Hurricane Katrina, suggesting that her termination was an excessive punishment and that the disciplinary action was arbitrary and capricious. In Allen v. Department of Police, 09-0589 (La.App. 4 Cir. 11/12/09), 25 So.3d 966, writ denied, 09-2714 (La.2/26/10), 28 So.3d 273, this Court addressed the |14specific issue of whether termination was excessive discipline for a police officer who had been absent from her position for two months after Hurricane Katrina and found that termination was reasonable. Likewise, in LeBlanc v. Department of Police, 07-1168 (La.App. 4 Cir. 11/21/07), 972 So.2d 398, this Court affirmed a CSC finding that termination of an NOPD officer who failed to report for duty during the aftermath of Hurricane Katrina, from August 28, 2005 to September 19, 2005 was not excessive. As noted in a concurring opinion in that case, “[T]he discipline imposed was not excessive in that it was consistent with the uniform amount of discipline set forth by the Superintendent for those officers who were missing for the same amount of time as was Mr. LeBlanc and the punishment was commensurate with the infraction.” In light of the fact that the displacement of New Orleans citizens in the aftermath of Hurricane Katrina was far more extensive in both time and place than that occasioned by Hurricane Gustav, we cannot say that the NOPD or the CSC were arbitrary or capricious or acted unreasonably in approving termination for Ms. Smith, who was absent for ten days. On the record of these proceedings taken as a whole, we do not find the discipline imposed under the particular circumstances of this case to be excessive.

Ms. Smith refers in brief to her personnel record, and suggests that it contains negative material referring to another NOPD employee of the same name. The personnel record is not a part of this record and there is no indication that the NOPD, the hearing officer, or the CSC relied on any adverse material contained therein. Ms. Smith admits in brief, “Whether Deputy Chief Weathersby and Superintendent Riley mistakenly relied on this error is strictly conjecture.” Such conjecture by the appellant, based on material dehors the record, cannot form a | ^reasonable basis for a finding of manifest error or arbitrary and capricious behavior by the CSC.

Ms. Smith, as a long-term employee of the NOPD, was aware of the significant role communications personnel such as she play in the continuing operations of the department during such a crisis. There is uncontroverted testimony in the record indicating that her absence impaired the efficient operation of the department during the emergency activation occasioned by the imminent arrival and aftermath of Hurricane Gustav. It is clear from the uncontradieted testimony in the record that Ms. Smith was on duty after the emergency activation was declared and evacuated with her family without prior notice to her superiors within hours of having left her post. We find no error in the NOPD’s finding that Ms. Smith violated its rules by having failed to provide a medical certification within forty-eight hours of the emergency activation. We likewise find nothing manifestly erroneous or clearly wrong in the hearing officer’s and CSC’s evaluation of Ms. Smith’s testimony and their subsequent conclusion that the timing of her illness is suspect and that her delay in seeking medical treatment was contrived to avoid her responsibilities as an essential employee. These reasonable credibility determinations will not be disturbed on appeal. We find no manifest error in the CDC’s factual conclusions, and nothing arbitrary or capricious in its determinations that Ms. Smith was terminated for cause and that the discipline imposed by the NOPD was reasonable under all of the circumstances of this case.

For the foregoing reasons, we affirm the order of the CSC upholding the discipline imposed by the appointing authority.

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Wendell SANTAMARINA.
    No. 2010-KA-0028.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, Wendell Santamarina.
    Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

1,011 November 16, 2007, the State of Louisiana charged Wendell Santamarina by bill of information with one count of violating La. R.S. 40:966(A), possession with intent to distribute heroin. The defendant appeared before the trial court for arraignment and pled not guilty to the charge. At a later date, the trial court heard the defendant’s motion to suppress evidence, motion to suppress statement, motion to suppress identification, and held a preliminary hearing. At the close of the hearing the trial court ordered the parties to submit memoranda and took the matter under advisement. On April 10, 2008, the trial court granted the motion to suppress the evidence, found no probable cause, and ordered the defendant’s release. The State then sought writs from this Court. This Court, with Judge Belsome dissenting, granted the State’s writ application, reversed the trial court’s April 10, 2008 decision to grant the motion to suppress the evidence, and remanded the matter back to the trial court for further proceedings. State of Louisiana v. Wendell Santamarina, 2008-0442 (La.App. 4 Cir. 10/10/08).

The defendant elected to have his case tried by the trial judge and the trial commenced on August 3, 2009. At trial, the State presented testimony from four | ^witnesses. After closing arguments, the trial court found the defendant guilty of simple possession of heroin.

Subsequently, the trial court sentenced the defendant to four years at hard labor ■with the Department of Corrections. After the State filed a multiple bill, the parties appeared before the trial court for a hearing. At the close of the hearing, the trial court found the defendant to be a second felony offender. The trial court then vacated its previous sentence and re-sentenced the defendant to five years at hard labor. At the defendant’s request, the trial court ordered the defendant to enter and complete the Blue Waters Drug Program. This appeal followed.

As his sole assignment of error, the defendant asserts that the search warrant in this case cannot sustain a finding that there was probable cause to search and should not be accorded any “good faith” because of the alleged intent to defraud the magistrate. Accordingly, the defendant argues that the trial court’s finding of guilt should be reversed because it is based upon unlawfully seized evidence. In other words, the defendant again assails the same warrant that this Court ratified in State of Louisiana v. Wendell Santamarina, 2008-0442 (La.App. 4 Cir. 10/10/08).

Although this Court has previously ruled on the sufficiency of the probable cause in granting the search warrant, the defendant re-urges the argument in this appeal claiming that new evidence was produced at trial revealing misrepresentations and fraud in obtaining the warrant. As noted in State v. Gillet, 99-2474, p. 5 (La.App. 4 Cir. 5/10/00), 763 So.2d 725, 728-29:

This Court has stated that “an appellate court will not reverse its pretrial determinations ... unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result”. While a different decision on appeal is not absolutely precluded, judicial efficiency demands that great deference be accorded to the earlier decision, (citations omitted).

When a search warrant is involved, the issue is whether, given the circumstances set forth within the four corners of the affidavit, there was a fair probability that evidence of a crime or contraband will be found in the place listed. The reviewing court’s task is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed.

According to the warrant application, Officer Varnado sought to search the residence at 3127 Pauger Street, the assigned FEMA trailer, and a gold Lexus with license plate OVT 729. According to Officer Varnado’s affidavit, “Sgt. Mornay received information from a reliable and tested source, that HEROIN was possibly being stored and sold from 3127 Pauger Street.” On September 20, 2007 at about 10:45 p.m. the sergeant initiated surveillance at the Pauger Street address and noted a trailer on the property with no signs of activity. The sergeant noted a gold Lexus with license plate OVT729, checked the plate, and found that the Lexus was registered to the defendant, who had a felony conviction for armed robbery and two drug offenses; the last arrest occurred in that area at the corner of North Dorgenois and Allen Streets (the defendant was released from probation in December 2006). The sergeant’s surveillance terminated about 12:05 a.m., and he returned to the location at about 1:00 a.m., but the Lexus was still parked and had not moved.

The defendant asserts that this Court should reverse itself and find the warrant unlawful because the police failed to tell the reviewing magistrate that: 1) their opinion that the property was being used as a stash house for heroin was based on one visit to the house by a known drug dealer; 2) the defendant was not | identified as the person who met with Jude Henry outside of the house; 3) the canine’s alert to the console area of the car proved unreliable because no drugs were found after the initial examination by Officer Hinrichs; and 4) the defendant had been arrested prior to the execution of the warrant and questioned although no drugs or significant cash were found on his person.

Thus, the defendant contends that the evidence seized pursuant to the warrant should have been suppressed because the record indicates that the officers were acting in bad faith. The State maintains that the facts set out in the warrant affidavit are consistent with the testimony adduced at trial and the motion hearing. After reviewing the record, we agree.

The defendant first argues that the search warrant should be found invalid because the police failed to inform the magistrate that their sole basis for thinking that 3172 Pauger was being used in connection with narcotics trafficking was the informant’s observation of a visit to the property by a known drug dealer. The record does not bear out this contention. Simply put, the warrant application reveals that the opinion that 3127 Pauger Street was being used in connection with narcotics trafficking was based on the following observations: 1) information provided by a trusted informant, which, in this case, proved to be a D.E.A. agent; 2) the Lexus observed on the property was found to be registered to the defendant, who had a felony conviction for armed robbery and two drug offenses; 3) one of the drug arrests occurred at the corner of North Dorgenois and Allen Streets, where Lthe defendant was being detained at the time of the warrant application; 4) Officer Var-nado observed what he thought, based on his experience, to be a quick, street-level drug transaction at 3127 Pauger Street; 5) a police canine alerted to several spots on the defendant’s vehicle, which led Officer Varnado to conclude that narcotics had once been stored inside of the vehicle and that it had been used to transport narcotics for distribution; and 6) the defendant’s statements to Lieutenant Mornay were untruthful and evasive. Clearly, the search warrant at issue in this matter was based on more than the information provided to the N.O.P.D. by the D.E.A.

Further, after reviewing the record, it does not appear that the warrant misrepresents the nature of the information relayed by the D.E.A. The warrant application notes that the informant relayed information that 3127 Pauger Street might possibly be used to store and sell heroin. At trial, Special Agent McLaughlin testified that Special Agent Philben informed Lieutenant Mornay that 3127 Pauger Street was being used as a stash house for heroin. At trial, Lieutenant Mornay testified that he was contacted by a D.E.A. agent who informed him that the property at 3127 Pauger Street might possibly be involved in narcotics trafficking. As noted by the State, Special Agent McLaughlin never spoke with Lieutenant Mornay. Rather, Special Agent Philben, who did not testify at trial, spoke with Lieutenant Mornay. Clearly, the slight differences represented by the foregoing accounts do not support the defendant’s contention that the police misled the magistrate on this point or that any officer was intentionally misrepresenting the truth.

| BThe defendant next asserts that warrant should be found invalid because it failed to indicate that no one identified the defendant as the person who met with Jude Henry outside of the residence. However, the defendant fails to explain the importance of this alleged omission or identify the “new evidence” that was adduced at trial on this issue. Moreover, as noted, the information contained in the warrant application that is attributable to the informant does not misrepresent the nature of the information relayed by the D.E.A. to Lieutenant Mornay. Thus, the omission of the foregoing fact does not support the defendant’s argument or warrant the reversal of his conviction and sentence.

Next, the defendant asserts that the search warrant should be found improper because the police failed to inform the magistrate that no drugs were found in or around the center console of the defendant’s vehicle. Again, this is not new evidence. This information was available and brought to the attention of this Court in defendant’s previous writ application.

The warrant application clearly states that the canine’s actions suggested that “narcotics were once stored inside of the vehicle.” Additionally, the police dog also alerted to the vehicle’s locked trunk, an area not searchable by the police without a warrant. As noted by the record and the warrant application: 1) Lieutenant Mor-nay had received information from a source that the property at 3127 Pauger might be used in the drug trade; 2) through subsequent surveillance, Officer Varnado observed the defendant make numerous trips from the trailer to the vehicle and from the residence to the vehicle; 3) Officer Varnado observed the defendant engage in what he thought to be a narcotics transaction; 4) shortly after the foregoing, the defendant was followed to the corner of North Dorgenois and Allen streets; and 5) the defendant had already been arrested once before at the |7corner of North Dorgenois and Allen streets for narcotics trafficking. In other words, it does not appear that the omission of the foregoing fact is indicative of deception. Rather, the facts indicate that the police had a reasonable belief that the defendant’s vehicle was being used to store and transport narcotics regardless of whether anything was found in the center console.

Lastly, the defendant asserts that this Court should strike the search warrant because the magistrate was not told that the defendant had been arrested and questioned prior to the execution of the warrant and that no drugs or significant amounts of cash were found on his person.

This Court is reluctant to find the warrant application is deficient because it failed to make the legal conclusion that the officers questioning of the defendant amounted to an arrest prior to the warrant application. Whether or not the defendant was arrested within the meaning of the law is a legal conclusion. Nevertheless, an examination of the warrant application reveals that it indicates accurately that: 1) Lieutenant Mornay approached the defendant for questioning; 2) Lieutenant Mor-nay advised the defendant of his Miranda rights, and the defendant offered to cooperate; and 3) the defendant spoke at length with Lieutenant Mornay about his actions over the preceding evening. Clearly, on this point the warrant application accurately described the stop and questioning of the defendant.

Suppression of evidence is the appropriate remedy only if:

(1) the affiant misled the magistrate by including in the affidavit misleading statements which the affiant knew were false or would have known were false, except for reckless disregard for the truth; (2) the magistrate abandoned his neutral and detached role; (3) the affi-ant was so lacking of indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant was deficient and could not be presumed valid.

ls(Footnotes omitted) State v. Horton, 2001-2529, p. 7 (La.6/21/02), 820 So.2d 556, 561, citing United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677. None of the four scenarios seem to apply in this case. It appears that the officers who executed the warrant had a good faith belief that their actions were justified by the issuance of the search warrant. The defendant has failed to present new evidence tending to show that this Court’s previous decision was patently erroneous and produced an unjust result.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . According to Lieutenant Mornay's testimony at the motion hearing, he knew the person making the call even though no name was given. The informant had provided reliable information in the past; after the arrest, the informant called back to check to see what had happened. Further, Lieutenant Mornay stated that the informant also described the FEMA trailer and the car.

      . On this point, the defendant cites to State v. Horton, 2001-2529 (La.6/21/02), 820 So.2d 556, for the proposition that evidence seized pursuant to a warrant can be suppressed when it is shown that officers omitted key information from a warrant application. In Horton, the Supreme Court held that the officers acted in bad faith when they failed to inform the magistrate that: 1) the confidential informant bought no drugs from the defendant and was paid $700.00 for the information provided; 2) after extensive surveillance, the officers did not observe the defendant engage in any suspicious activity; and 3) a subsequent search of a bag given by the defendant to a third person failed to turn up any contraband.