author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Benjamin WRIGHT, Appellant.
    No. 45,980-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Bruce Gerard Whittaker, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

12After a two-day jury trial on November 13-14, 2006, defendant, Benjamin Wright, was convicted on 23 counts of possession of child pornography in violation of La. R.S. 14:81.1(A)(3). Thereafter, defendant was sentenced as follows: on Counts 1-12, and 23-24: concurrent terms of ten years at hard labor without benefit on each count; on Counts 14-22, concurrent terms of ten years at hard labor without benefit on each count, but to run consecutive with the cumulative sentence imposed for Counts 1-12 and 23-24, for a total sentence of 20 years, with credit for time served. Defendant now appeals, urging six assignments of error. We affirm.

Facts

On March 18, 2004, Wright was arrested pursuant to an arrest warrant for public intimidation of a child protection investigator. After defendant [awas arrested, a routine inventory search of his vehicle revealed 17 videotapes in the trunk, some of which were labeled as pornographic.

After a search warrant was obtained, closer inspection of the videotapes seized during defendant’s arrest revealed that many were pornographic, and some were of female customers changing clothes in the dressing room of defendant’s clothing store. Specifically, several videotapes contained footage of women and young girls changing clothes and in various stages of undress.

These videotapes served as the basis for a second search warrant of defendant’s place of business for evidence of electronic devices for photographing unknown customers while in the dressing room or restrooms of the business without their consent, for tapes of past customers, and for any electronic devices used for editing, viewing and transmitting such images of unknown customers. A cursory search of a computer at the business revealed three different audio/video files of young girls involved in child pornographic acts. Electronic storage media (CDs and 3½ inch floppy disks) was found around the computer and in a private office area of the store. Also found in the back area was a piece of paper with a list of websites. All of these items were seized. A search of the dressing rooms at the store revealed that cameras had been present but had been removed.

^Officers then obtained a search warrant for a forensic search of the computer, monitor, media and electronic storage devices located at defendant’s business, and in the search, child pornography was discovered. Specifically, 24 images were found on two of the seized 3½ inch floppy disks. Certain websites were listed on paper found in'defendant’s private office. These sites were devoted to child pornography.

On May 10, 2004, defendant was charged by bill of information with 50 counts of possession of child pornography in violation of La. R.S. 14:81.1(A)(3). Counsel was appointed to represent defendant and he was arraigned and entered a plea of not guilty that same day. On February 7, 2005, the court heard.and denied a motion to suppress evidence seized during the search of defendant’s clothing store. On September 30, 2005, defendant’s court-appointed attorney made an oral motion to withdraw as counsel which was granted the same day. Another attorney was appointed to represent defendant. On April 26, 2006, defendant filed a pro se motion to quash the indictment alleging that charges against him should be dismissed for lack of prosecution pursuant to the delays provided in La. C. Cr. P. art. 532(7). After a contradictory hearing was held on June 26, 2006, this motion was denied.

|sOn July 7, 2006, the state filed an amended bill of information charging 24 counts of possession of child pornography in violation of La. R.S. 14:81.1 (A)(3). Defendant was arraigned on the amended bill and maintained his plea of not guilty. Defendant’s second appointed attorney made a motion to withdraw which was granted. The trial court appointed another attorney to represent defendant. Trial was then set for August 7, 2006; however, the trial court granted defendant’s request for a continuance on that date, despite opposition from the state. Accordingly, trial was reset for November 13, 2006. On October 18, 2006, defendant filed another pro se motion to quash the indictment for lack of prosecution. The trial court denied this motion.

On November 13, 2006, the case proceeded to trial. That morning, defendant filed a motion for change of venue. Jury selection took five- hours; several challenges for cause were granted by the trial court. The state used 6 peremptory challenges, and the defense used its allotted 12 peremptory challenges. The trial court supported its denial of defendant’s motion to change venue with extensive reasons. Thereafter, following presentation of testimony and evidence by both sides, the jury found defendant guilty as charged on Counts 1-12 and 14-24 and not guilty on Count 13. On February 21, 2007, defendant was sentenced as stated herein above.

| ^Defendant filed a pro se post-judgment motion for acquittal, motion for a new trial, and motion to reconsider/modify sentence, all of which were denied by the trial court. Following a writ to the supreme court, the trial court granted defendant’s motion for an out-of-time appeal. State ex. rel. Wright v. State, 09-1215 (La.03/26/10), 29 So.3d 1256.

Discussion

Sufficiency of the Evidence

According to defendant, the evidence failed to show that he intentionally possessed pornography involving children under the age of 17. He claims that because the information contained on the computer disk is virtually invisible to the naked eye, and meaningless unless decoded by way of an appropriate computer device, one could quite innocently possess a ¡disk containing child pornography and be completely unaware of its criminal content.

As it read at the time of defendant’s arrest, La. R.S. 14:81.1(A) provided in pertinent part:

La. R.S. 14:81.1. Pornography involving juveniles

A. Pornography involving juveniles is any of the following:

|7(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.

Pornography involving juveniles is a general intent crime. See State v. Cinel, 94-0942 (La.11/30/94), 646 So.2d 309, cert. denied, 516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995). General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). The words “intentional possession,” taken in their usual sense, mean that the individual knowingly and voluntarily possessed the pornography, in contrast to circumstances in which a person downloads images from the internet without realizing that some images included in the download were child pornography. State v. Horton, 42,199 (La.App.2d Cir.06/20/07), 962 So.2d 459, 466, writ denied, 07-1819 (La.01/25/08), 973 So.2d 755.

La. R.S. 14:81.1(E)(1), at the time of defendant’s arrest, provided that:

Whoever commits the crime of pornography involving juveniles shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:81.1(G) provided at the time of defendant’s arrest that:

|sIn prosecutions for violations of this Section, the trier of fact may determine, utilizing the following factors, whether or not the person displayed or depicted in any photograph, videotape, film, or other video reproduction introduced into evidence was under the age of seventeen years at the time of filming or recording:
(1) The general body growth, bone structure, and bone development of the person.
(2) The development of pubic or body hair on the person.
(3) The development of the person’s sexual oi'gans.
(4) The context in which the person is placed or the age attributed to the person in any accompanying video, printed, or text material.
(5) Available expert testimony and opinion as to the chronological age or degree of physical or mental maturity or development of the person.
(6) Such other information, factors, and evidence available to the trier of fact which the court determines is probative and reasonably reliable.

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); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App.2d Cir.08/15/07), 963 So.2d 497.

The state must prove several elements to establish the offense of possession of pornography involving juveniles. First, that the victim was under 17 years of age. Second, that the offender had general criminal intent to possess materials depicting sexual performances involving a person or persons under the age of 17. Third,, that the offender knew or should have known that the victim was under 17 years of age. State v. Cinel, supra.

| inViewed in the light most favorable to the prosecution, we find that the evidence is sufficient to support defendant’s conviction on all counts. First, Dr. Ann Springer, an expert in pediatric and child abuse medicine, testified that the 24 photographs depicted children under the age of 17 engaged in various sexual situations with adult males. Dr. Springer stated that the 24 photographs had been chosen from a much larger collection of photos because they most conclusively showed juveniles under the age of 17. She based her conclusions concerning the age of the victims on the physical developmental characteristics of each child, such as whether the victim -had breast development, pubic hair, or the ability to maintain an erection. She explained to the jury exactly which physical developmental characteristic(s) led her to the conclusion that each exhibit depicted a child under the age of 17 as it was introduced into evidence Furthermore, six of the children were specifically identified by Matthew Wright of the Bossier-Webster District Attorney’s Office as being listed in the database of the National Center for Missing and Exploited Children database as victims of child pornography.

Second, the state proved defendant’s intentional possession and knowledge that the computer disk contained child pornography. Matthew Wright stated that the images on the computer disks reflected a conscious or willful act by one to save the images onto the disk. Specifically, Wright Instated, “there has to be an effort to put the disk into the floppy drive of the computer and to select the photographs which they choose to put on there, to click save or save as to the floppy disk, and at that point it’s placed on there. There’s got to be an effort to put a photo on a disk.” When asked whether the images could have appeared accidentally, 24 times on two different 3½ inch floppy disks, Wright answered “no.” To connect defendant to the disks, testimony was presented to the jury that in addition to containing. child pornography, some of the seized floppy disks contained defendant’s business records. Moreover, evidence regarding the list of web sites which were devoted to child pornography that was found in defendant’s office was presented to the jury as well. Taken as a whole, the evidence was sufficient to show that defendant did not accidentally download the images or “innocently possess a disk containing child pornography” but, rather, that he intentionally and knowingly possessed the photographs containing pictures of children under the age of 17.

Denial of Motion for Change of Venue

In this assignment of error, defendant contends that the trial court erred in failing to grant his motion for change of venue based upon his claim of extensive and prejudicial pretrial publicity. At trial, defendant submitted a variety of printed materials to the trial court in support of his motion for a |12change of venue. The materials included several stories about the incident in the local media, as well as evidence of the likely circulation or coverage of the stories. However, the court opted to consider the motion after the completion of voir dire in order to get an accurate impression of the impact of the media coverage on the venire.

La.C.Cr. P. art. 622 provides that:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

A defendant must prove more than mere public general knowledge or familiarity with the facts of the case to have his trial moved to another parish. State v. Lee, 05-2098 (La.01/16/08), 976 So.2d 109, cert. denied, — U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Frank, 99-0553 (La.01/17/01), 803 So.2d 1. There is no bright line test for determining the degree of prejudice existing in the collective mind of the community. The defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial. State v. Frank, supra; State v. Clark, 02-1463 (La.06/27/03), 851 So.2d 1055.

|1SA defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue merely by showing a general level of public awareness about the crime. State v. Lee, supra; State v. Clark, supra. Several factors which are pertinent in determining whether actual prejudice exists, thus rendering a change in venue necessary, include: (1) the nature of pretrial publicity and the degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. State v. Lee, supra. Also, jurisprudence shows that courts have examined the number of jurors excused for cause for having a fixed opinion as another gauge of whether prejudice exists in the public mind. State v. Lee, supra; State v. Clark, supra.

The news reports of this incident included information that: (1) the instant case arose when defendant allegedly threatened to kill a child protection agent; (2) when the police stopped defendant to arrest him for the threat, they found videos of children undressing in his store; (3) upon 114searching the store, the police allegedly found child pornography; (4) defendant was charged with several counts of possession of child pornography; and (5) defendant was previously convicted of two counts of carnal knowledge of a juvenile and three counts of video voyeurism. None of the news accounts of this incident were particularly inflammatory. Instead, the news accounts were largely concerned with a recounting of the facts’ of the event and, later with the fact that charges had been brought against defendant. The parties conducted extensive examination of the prospective jurors concerning the influence that these accounts would have on their ability to remain impartial.

During voir dire 33 prospective jurors were questioned and 23 indicated that they had heard something concerning the case. A 12-person jury was selected after five hours of voir dire. Only -one prospective juror stated that she had formed an opinion and that it was “not very strong.” More specifically, out of the first voir dire panel of 12, 7 of the jurors had heard something about the case: Crystal Duncan, Jerold Jones, Yolanda Theus, Eric Walker, Leonard Reeves, Gina Reeme, and Glendon Wallace. After further questioning, Ms. Duncan stated that what , she had heard and read about the case was that defendant had video cameras in his dressing room and this was “always going to be in [her] mind.” However, she stated that [1sshe would be able to be neutral because she had no prior knowledge or information after she was told that the instant charges had nothing to do with defendant videotaping people in his dressing rooms. (Ms. Duncan served on the jury.) Jones said he had read about the case. Specifically, Jones related that the prior knowledge he had was concerning cameras in the dressing rooms of defendant’s store. He felt that he could set this aside and decide the case solely on the evidence presented in court. (Jones served on the jury.) Ms. Theus stated that she had heard snippets of gossip about the case (that it was about child pornography) and maintained it would have no impact on her decision. (Ms. Theus served on the jury.) Walker heard and read about the case in the media and had discussed it with fellow employees at work. However, he maintained that he had not formed an opinion on the issue of guilt, particularly since what he had heard and read about was related to cameras in defendant’s dressing rooms. (Walker was excused by a peremptory challenge filed by defendant.) Ms. Reeme heard a news report but believed she could decide the case on the evidence. (Ms. Reeme was excused by a peremptory challenge filed by both the state and defense.) Reeves stated that he knew “what everyone here knows (about cameras in the dressing rooms of defendant’s store), what’s on television and what’s been in the paper.” He noted that it had “been on the news every day[.]” J^Reeves stated that he considered what he heard tp be the reporters’ opinions, which to .him didn’t amount to anything. (Reeves was excused by a peremptory challenge filed by defendant.) Wallace stated that he had heard on the news and read in the paper that the trial was starting and there were 20-some-thing counts. His thought was, “Uh oh, that’s going to start in Minden and I’ve got jury duty.” (A challenge for cause filed by defendant was granted as to Wallace.)

In the next voir dire group of seven, four had heard about the case: Shirley Kemp, Judy Grubbs, Glean Moore, and Leevorn Walter. Walter stated that the media had reported that defendant had been convicted on three counts, received a 25 year sentence, etc. Walter stated that he believed that he could put that knowledge aside in deciding this case because this was a “totally different thing.” (Walter served on the juryO 'Ms. Moore had heard that pornographic tapes were found at the store involving defendant and a Ms. Morris and that as a result Ms. Morris lost her children. She believed that she could be fair nonetheless. (The state used a peremptory challenge on Ms. Moore.) Ms. Grubbs remembered reading about defendant’s first arrest and his moving his business and getting caught with some tapes in his car. According to Ms. Grubbs, she could be fair. (The defense used a peremptory challenge on Ms. Grubbs.) Ms. Kemp learned about the case- “off the street 117and from the newspaper.” Most of what she heard was from lots of people who go to his store. Specifically, Ms. Kemp heard that defendant was taking pictures of young ladies in his dressing rooms. (The state used a peremptory challenge on Ms. Kemp.) ■

In the next voir dire group of four, two potential jurors had heard about the case: Krystal Tatro and Garry Pope. Pope stated that' he saw something in the paper but didn’t know the details and believed that he could be fair. (Defendant filed a peremptory challenge against Pope.) Ms. Ta-tro stated that she knew “somebody that was a juror on one of the last trials, one of their mothers, ... and she told me a lot about it, and I read up a lot about it in the newspaper ...” Ms. Tatro stated that she would have a problem being fair and impartial. (The court granted a challenge for cause for Ms. Tatro.)

In the next voir dire group of four, three people had heard about the case: Darlena Wesley, Daniel Tesnow and Wayne Priest. Ms. Wesley stated that she learned about the case from gossip and the newspaper and was “a little bit” biased against defendant as a result. (The state filed a challenge for cause against Ms. Wesley alleging that she had a close relationship with defendant and his mother based upon years of doing business with them. This challenge was granted by the court based upon Ms. Wesley’s response during voir dire that she did not believe that she could vote to convict 11sdefendant.) Priest saw “a little bit in the paper and heard a little bit on the news.” Specifically, what Priest had read/heard was that the case was making its way through the court system. (The state filed a peremptory challenge against Priest.) Tesnow “breezed through” an article in the newspaper about the seizure of some hard drives but didn’t think it would affect his ability to fairly and impartially judge the evidence. (Tes-now served on the jury.)

In the next voir dire group of three, two had heard about the case: Johnny Farmer and Henry Lester. Farmer stated that he had heard that the case involved cameras or peepholes in a dressing room. (Farmer served on the jury.) Lester stated that he read that after defendant’s first conviction he got arrested again for pornographic material involving juveniles. Lester felt that he could be a fair and impartial juror. (Lester served on the jury.)

In the next group, only one name was drawn. Linda Montgomery stated that she had read about the case in the newspaper and on television. (A challenge for cause filed by defendant was granted based upon Ms. Montgomery’s initial response during voir dire that she had already formed an opinion in this case.)

In the next group, again only one juror’s name was drawn. Peggy Pedroza stated that she read about the case in the newspaper. Specifically, | i9she remembered something about video cameras in the dressing rooms. Ms. Pedroza stated that she could be fair and impartial. (Ms. Pe-droza served on the jury.) The only alternate subjected to voir dire, Lindsay Sampson, stated that she had not read or heard anything about the case. (Ms. Sampson served as the alternate.)

After consideration of the evidence and argument of counsel, the trial court determined that a fair and impartial jury had been selected and denied defendant’s motion for a change of venue. Before denying defendant’s venue motion, the trial court noted that 33 jurors were questioned during voir dire. Of the 33, 13 persons, or about 39% of the jury pool, had heard absolutely nothing about the case. The court observed that it granted three defense challenges and one state challenge for cause based upon juror knowledge or opinion. The court further stated that of the remaining jurors who had heard something about defendant’s case, they had little recall. The court opined that while there had been publicity concerning this case, it had not risen to the level of being so inflammatory that defendant could not receive a fair trial in this venue. The court further stated that it felt that the jurors selected by both defense counsel and the prosecutor could be fair and impartial.

|2nWe find no error in this ruling and observe that there were 8 jurors who had some prior knowledge of this case and served on the jury. None of them were challenged, for cause or peremptorily, by either side.

Denial of Pro Se Motion to Represent Self

In his first pro se assignment of error, defendant argues that the trial court erred by denying defendant’s pro se motions to represent himself on October 25, 2004, September 30, 2005, and July 26, 2006. According to defendant, the trial court’s denial of his motions amounted to a violation of his Sixth Amendment right to represent himself.

Both the Louisiana and federal constitutions guarantee a criminal defendant’s right to the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Campbell, 06-0286 (La.05/21/08), 983 So.2d 810, cert. denied, — U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008); State v. Brooks, 452 So.2d 149 (La.1984). A defendant may elect to represent himself if the choice is knowingly and intelligently made and the assertion of the right is clear and unequivocal. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Campbell, supra; State v. Yates, 44,391 (La.App.2d Cir.07/01/09), 15 So.3d 1260. Whether a defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined on |21a case-by-case basis, considering the facts and circumstances of each case. State v. Leger, 05-0011 (La.07/10/06), 936 So.2d 108, 147-48, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Requests that vacillate between self-representation and representation by counsel are equivocal. Id.

After reviewing the trial court record, we find no merit to defendant’s argument. The record does not reveal that defendant ever made a clear and unequivocal request to the trial court, either personally or through his trial counsel, to represent himself. More specifically, the record does not contain any written motion by or on behalf of defendant requesting self representation, nor does it contain such a ruling from the trial judge granting such a request. Similarly, the minute entries for the dates that defendant refers to do not show that a motion for him to proceed pro se was addressed at a pretrial hearing. If anything, the record reflects that defendant wished to be represented by counsel as he indicated to the trial court at one point during a pretrial proceeding that he would pay for his own attorney. Later, defendant filed a motion to proceed in forma pauperis, thus entitling himself to a court-appointed indigent defender. Although the record is replete with pleadings filed by defendant pro se, as well as pleadings filed by his court-appointed counsel, there are no minute entries, written motions, or rulings by | ¡athe trial court indicating that defendant attempted to exercise his right to self representation. This pro se assignment of error is meritless.

Violation of State’s Evidentiary Obligation

In his second pro se assignment of error, defendant takes issue with the fact that it took “2 years 3 months to send the computer and floppy dis[ks] to the Lab.” He argues that the trial court’s introduction of the floppy disks into evidence was in violation of the state’s obligation “to present timely evidence.” He also argues that the custody receipt for the evidence seized during the search of his store “shows no floppy dis[ks] being seized as evidence.” As a result, he questions “where did the pictures come from.”

During cross-examination, Matthew Wright, who worked in the D.A.’s office, testified that although the floppy disks were seized in March 2004, he did not examine them until July 2006. No explanation was given for the delay. No evidence was presented during trial that there were any chain of evidence issues. Moreover, defendant’s contention that the custody receipt for the evidence seized during the search of his store does not show that any floppy disks were seized is incorrect. Officer Tucker’s March 18, 2004, handwritten list of items seized from defendant’s store specifically states that “assorted CDs and 3½ floppy disks” were seized.

This assignment of error is without merit.

| ^Denial of Motion to Quash

In his third pro se assignment of error, defendant argues that the trial court erred by denying his motion to quash the first indictment on June 26, 2006. According to defendant, the time limitations for prosecution passed and the trial court should have dismissed the case.

La. C. Cr. P. art. 578(A)(2) provides in pertinent part that, except as otheiwise provided in this chapter, no trial shall be commenced in other felony cases after two years from the date of institution of the prosecution. Subpart (B) provides that the offense charged shall determine the applicable limitation.

La. C. Cr. P. art. 579(A)(2) provides, in pertinent part, that the period of limitation established by La. C. Cr. P. art. 578 shall be interrupted if the defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.

La. C. Cr. P. art. 579(B) provides that the periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. La. C. Cr. P. art. 580 provides that when a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be 1 ^suspended until the ruling of the court thereon; but in no ease shall the state have less than one year after the ruling to commence the trial.

In the context of this case, “institution of prosecution” occurred upon the filing of the bill of information, which was on May 10, 2004. La. C. Cr. P. art. 934(7); see, State v. Butler, 302 So.2d 585 (La.1974). Therefore, absent interruption or suspension, the state had until May 10, 2006, to commence trial.

A preliminary pleading is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Brooks, 02-792 (La.02/14/03), 838 So.2d 778. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particular. Id.

Defendant was initially charged on May 10, 2004, by bill of information with multiple counts of possession of pornography involving juveniles, a violation of La. R.S. 14:81.1(A)(3), and a felony. Defendant’s motion to quash was filed on April 27, 2006, which was prior to the two-year time limitation set forth in La.C.Cr.P. art. 578. The trial court’s ruling on this motion was on June 26, 2006. Thereafter, not even considering further defense pleadings and motions filed in the interim which would have further suspended or interrupted the time limitation for commencement ofjjgtrial, the state had until June 26, 2007, to bring defendant to trial under the first bill of information. An amended bill of information was filed on July 27, 2006, and trial commenced on November 13, 2006. Thus, defendant’s trial commenced timely, and the trial court properly denied the April 27, 2006, motion to quash. This assignment of error is without merit.

Denial of Motion for Pretrial Discovery

In his final pro se assignment of error, defendant argues that the trial court erred by failing to grant his oral motion for discovery before trial. According to defendant, this denial of his motion resulted in his not having complete access to the evidence against him before trial.

La. C. Cr. P. art. 718 provides:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(2) are intended for use by the state as evidence at the trial....

La. C. Cr. P. Art. 721 provides:

Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the state’s intent to use statements |2r,of coconspirators pursuant to Louisiana Code of Evidence Article 801(D)(3)(b).

La. C. Cr. P. Art. 722 provides:

Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confessions or inculpatory statements made by a co-defendant and intended for ■ use' at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.

The record reveals that defense counsel made an oral motion for discovery during a pretrial hearing on May 10, 2004. The trial court denied the oral motion and instructed defendant’s attorney to file a written motion for discovery. Defense counsel complied with the trial court’s ruling and filed a written motion for discovery on May 13, 2004. The May 13, 2004, written motion requested exculpatory evidence and also sought to inspect and copy the photographs at issue in the case. On October 1, 2004, the trial court granted defendant’s discovery motion, but because the evidence against defendant consisted of pornographic photographs of juveniles, ordered that defense counsel attorney only be allowed to view the photographs at the courthouse.

This assignment of error has no merit. Although the trial court denied the oral motion for discovery, it was within the court’s sound discretion to order that the motion be in writing. Furthermore, defense counsel was given |27access to the discovery materials almost two years before trial, so his argument that he was somehow denied “complete access to evidence against him before trial” is merit-less.

Conclusion

Defendant’s conviction and sentence are affirmed.

      . In a separate trial, Wright also was convicted of three counts of video voyeurism. Wright was sentenced to serve five years' imprisonment at hard labor on count one, ten years on count two and ten years on count three without benefit, with the sentences to be served concurrently. We affirmed the convictions but vacated the sentences and remanded for resentencing. State v. Wright, 40,945 (La.App.2d Cir.05/19/06), 931 So.2d 432, writ denied, 06-1727 (La.03/16/07), 952 So.2d 694.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Frederic Lubron BIRGANS, Appellant.
    No. 45,982-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Louisiana Appellate Project, by G. Paul Marx, for Appellant.
    Frederic Lubron Birgans, Jerry L. Jones, District Attorney for Appellee..
    Geary Stephen Aycock, Madeleine Slaughter-Young, Fred Royee McGaha, Assistant District Attorneys.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

| ¡.Frederic Lubron Birgans appeals his conviction for the crime of possession of marijuana with intent to distribute. He further appeals his sentence of 17 years at hard labor. We affirm in all respects.

FACTS

On Saturday, January 31, 2009, around 1:30 a.m., defendant was driving a rental car from Dallas, Texas to Hillsboro, Alabama on 1-20 in Ouachita Parish. Trooper Michael Linton clocked defendant driving 70 miles per hour in a 60 mile per hour zone. The trooper followed defendant some distance, noticing some weaving •within his lane of traffic. The trooper chose not to stop defendant until he had crossed the Ouachita River because the portion of the interstate over the . river is elevated with no safe place to pull over. Once over the bridge, the trooper turned on his lights, and at that |smoment the camera in his vehicle was automatically activated. Linton initially forgot to activate his microphone, so there is no audio at this point.

Defendant produced his license, rental agreement and insurance card, advising that his address on the license was wrong, but correct on the insurance card.

Defendant insisted he was not driving 70 mph. Linton thought defendant looked nervous and sounded as if he had “dry-mouth.” When asked about any prior traffic violations, he said he had paid off all except one, and that was the purpose of this trip to Alabama. Defendant told the trooper that court was to be held on Tuesday and that he was going to Alabama early so he could watch the Super Bowl there. The trooper thought this to be odd. He asked defendant if he had a criminal record for drugs, which was first denied, then admitted without explanation.

When the trooper took defendant’s documents back to his unit, he realized he had not turned his microphone on. He turned it on and gave a short narrative of what had transpired during the stop to that point. The computer check revealed that the name on the car rental agreement and insurance card was that of defendant’s son, Brandon. As defendant was listed on neither document, he was not an authorized driver of the rental car, 14and the insurance card did not cover him. At this point, Officer Chris Ballard with the Monroe Police Department arrived to provide backup.

Linton ran a criminal background check and found defendant had been convicted of distributing marijuana several times in his past. The trooper prepared a written consent to search and got defendant to exit the car. Linton told defendant that he did not intend to give him a citation but continued to question him about the documents and the lack of a correct address. Defendant could not recall his home municipal number, further convincing the trooper of his nervousness. Defendant did not sign the written consent to search and became argumentative.

Linton called a K-9 unit, advising defendant that if the dog did not alert, he would be free to go. While waiting for the canine unit, defendant asked if he could get his jacket and cigarettes from the car. Linton opened the car’s back door and quickly retrieved the jacket, which contained the cigarettes in a pocket.

Seven minutes after the call, Trooper John Peters arrived on the scene with the dog, Andy. Peters asked Linton to turn off the engine of defendant’s car so that Andy could walk around the car safely. Linton did so. There was no search at this point.

|fiAndy and his handler walked around the car. The dog, according to his handler, subtly alerted to the driver’s side door.

The troopers:

• searched the car as a result of Andy’s alert;
• found in the trunk a black suitcase containing 11.5 pounds of vacuum-sealed packages of marijuana mixed with dryer sheets and a deodorizer ball;
• handcuffed and arrested defendant, and administered Miranda warnings;
• called Agent Shelton Z. Crooks to pick up the car and the marijuana;
• took defendant to State Police Headquarters; and
• booked defendant with two traffic tickets plus the felony drug charge.

The case was assigned to Judge Carl V. Sharp. A 72-hour hearing was held and defendant was appointed counsel, Ms. Elizabeth Brown. On March 16, 2009, defendant was arraigned via video transmission. Another attorney from the Ouachita Parish Indigent Defender’s Office, Lee Perkins, appeared with defendant, waiving formal arraignment, and pleading him not guilty.

At least three times prior to and during trial, defendant insisted that he had never been arraigned. He claimed that nobody ever asked him how he pled. Each time defendant objected, the trial judge told him he had been |fiarraigned via video on March 16, 2009. Eventually the state offered a plea bargain whereby defendant would plead guilty and serve 10 years, and in exchange, the state would not charge him as a habitual offender. Defendant rejected that offer and countered with his own that he would serve five years and reserve the right to appeal a motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976), but the state rejected that proposal.

Counsel filed motions to suppress evidence on defendant’s behalf, each being denied. The motions related to:

• a challenge of the initial stop, because of no corroboration of bad driving;
• the missing audio on the first portion of the tape; and
• the trooper’s initial representation that he was not going to ticket defendant.

The trial began on February 1, 2010, and prior to opening argument, defendant asked the trial court to let him represent himself. The trial judge discouraged defendant from taking this action, but he eventually allowed him to do so with Ms. Brown acting as standby counsel. At trial he inexpertly attempted to impeach the credibility of the witnesses.

The jury convicted defendant as charged. He filed a “Motion for Ineffective Assistance of Counsel,” which the trial court denied. The court sentenced defendant to 17 years at hard labor, denying defendant’s oral |7motion to reconsider sentence. His appointed appellate lawyer raised three assignments of error; he raised seven in a pro se brief. We have combined some assignments in the interest of better organization and discussion.

DISCUSSION

I. Arraignment

By his first assignment of error and his fourth pro se assignment of error, defendant alleges that he was not properly arraigned. Even though counsel was appointed to represent him at the 72-hour hearing, he alleges that no attorney ever spoke to him or asked him if he wanted to waive formal arraignment or how he intended to plead. Instead, he complains that on March 16, 2009, at a video arraignment, a public defender waived formal arraignment and entered a plea of not guilty for him. Somehow he alleges that this violated his right to due process.

This issue is the reddest of all herrings. Perhaps the question to be asked is exactly what harm did defendant suffer? The answer is nothing.

A logical starting point may be a quick review of La. C. Cr. P. art. 552, which lists the only four possible pleas:

• guilty,
• not guilty,
• not guilty and not guilty by reason of insanity, and
nolo contendere.

IsWhich pleas would he have preferred? Nothing in the record indicates a desire on his part to plead guilty or nolo contende-re — -just the opposite. And defendant has made no claim to have been insane at the time of the offense. The argument is completely without substance.

The state argues that the video arraignment of defendant on March 16, 2009, was legal and properly conducted. The state points out that counsel, Ms. Brown, had been appointed to represent him at the 72-hour hearing. On the date of the hearing, the attorney who conducts the arraignments for the Indigent Defender Board, Mr. Perkins, appeared on his behalf for Ms. Brown. Therefore, there was an attorney present for defendant on that date. Defendant remained silent throughout the exchange and never objected to the attorney waiving formal arraignment or pleading not guilty. The trial court spoke directly to defendant by video and informed him of his right to choose a bench trial or a jury trial. If a defendant is silent at arraignment, the result is the entry of a not guilty plea. See La. C. Cr. P. art. 554. The trial judge clearly explained this to him on May 14, 2009. We fail to see any harm suffered by defendant on this issue. These assignments of error lack merit.

II. Fourth Amendment Issues

Lawfulness of the Traffic Stop and the Subsequent Search

|9By his second assignment of error, and three of his pro se assignments of error, defendant challenges the propriety of the stop, search and seizure, and for the sake of brevity will be addressed together.

Defendant alleges that:

• the initial stop lacked reasonable suspicion that criminal activity was afoot, as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
• officers may rely on the totality of the circumstances, but they may not disregard facts which tend to dissipate the causes of suspicion;
• there must be some level of reasonableness in the circumstances to discern between simply a random stop, as opposed to one with a reasonable basis, under U.S. v. Rangel-Portillo, 586 F.3d 376 (5th Cir.2009);
• the speeding charge and the alleged lane misusage were simply ruses for the initial stop, and nothing that developed amounted to probable cause for a search;
• the law provides that the police are strictly limited as to how long a motorist can be detained for a motor vehicle violation, under La. C. Cr. P. art. 215.1(D), and that time is no longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent the development of reasonable suspicion of criminal activity;
• the trooper here held him for much longer than reasonably necessary to cite him for any violation, and in fact, depended on the drug dog to finally establish some reason for the stop and probable cause for the search;
• even then, the dog’s alert was so subtle that it was only through the dog’s handler’s subjective opinion that probable cause to search was created;
|in* the stop resulted from of an unlawful narcotic checkpoint by the State Police;
• the search was unwarranted because there was no probable cause deriving from any canine alert, because no canine alert actually occurred;
• the troopers first searched the trunk even though the drug dog allegedly alerted to the driver’s side door, if at all;
• no ticket was issued on 1-20; five hours later he was ticketed at Troop F; and
• his rights were violated twice when Trooper Linton broke the “legal threshold” of his car before the dog sniffed it.

The state responds that:

• Trooper Linton clocked defendant with his radar gun as driving'70 mph in a 60-mph zone, at which point he pulled out of the median and followed, observing him weaving within his lane of traffic;
• Linton stopped him when it was safe to do so;
• the video began at the point Trooper Linton first turned on his flashing lights;
• the trial court found the trooper to be credible as to what had occurred prior to the beginning of the tape; ■
• there was probable cause to stop defendant’s vehicle for speeding and improper lane usage;
• the Louisiana State Police do not perform drug checkpoints;
• many factors led the trooper to conclude that this was no simple traffic stop;
In* defendant’s allegations that the trooper violated the requirements of La. C. Cr. P. art. 215.1(D) are unwarranted because it specifically states that the officer may detain the person for longer than necessary to issue a citation if the officer has reasonable suspicion to believe there was other criminal activity involved;
• when the trooper returned to his unit and found defendant’s documents to be lacking, he found out that defendant had been lying to him about previous arrests for drug trafficking, thereby developing the reasonable suspicion necessary to continue detaining him until the drug dog arrived; and
• Trooper John Peters, the dog’s handler, testified that the dog did alert at least twice, providing an objective basis to search the car.

The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is well settled.

In regard to the length of the detention, La. C. Cr. P. art. 215.1(D) specifically provides that while the officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation, absent reasonable suspicion of additional criminal activity, the officer may also compel or instruct the motorist to comply with the administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950. Therefore, an officer is allowed to conduct a routine driver’s license and vehicle registration check and may engage in conversation with the driver and any passenger while doing so. State v. Lawrence, 45,061 (La.App. 2 Cir. 3/3/10), 32 So.3d 329, writ denied, 10-0615 (La.10/8/10), 46 So.3d 1265.

In Lawrence, the court was required to review a K-9 sniff which resulted in an arrest for possession of a large amount of cocaine. The court stated that a K-9 smelling the air around a vehicle is not a “search” within the meaning of the Fourth Amendment. Citing Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999), the court held that once a K-9 alerts on the vehicle, the officers have probable cause to search the vehicle without first obtaining a warrant.

In Lawrence, the court found it of no consequence to the legal validity of the stop that the officer decided to refrain from ticketing the defendant for a traffic violation. The defendant appeared nervous- and exhibited suspicious behavior, and gave explanations of his travel plans that were inconsistent with those given to the officer by a passenger in the car. The court found the actions of the occupants provided ample reasonable suspicion that criminal activity was afoot. This reasonable suspicion justified extending the stop so that the officers could continue to investigate the matter more thoroughly. The court stated that in spite of defendant’s argument that the 30-minute stop was im-permissibly long, there exists no bright-line rule for determining the appropriate length of traffic stops.

| iaIn this case, Trooper Linton testified that he clocked defendant driving 70 mph in a 60-mph zone. He also testified that defendant’s car was weaving within the lane of traffic in which he was driving. Therefore, his testimony furnished the necessary reasonable suspicion to believe that a traffic violation had been committed and the trooper had grounds for a lawful traffic stop during which he was permitted to check the information given by defendant regarding the license, registration, and insurance on the vehicle. The totality of the facts presented to Trooper Linton justified a further detention, on account of additional reasonable suspicion of ci’iminal activity that developed after the stop.

The trooper’s decision to call the dog justified the extension of the duration of the stop. The trooper had the right to investigate his suspicions further. The K-9 is allowed to sniff the exterior of the car because that is not a search. Once the K-9 alerted to the vehicle, and his handler was able to identify the alert, the troopers had probable cause to believe there were drugs inside the trunk. The fact that the dog alerted at the door of the car rather than the trunk is of no consequence. The handler of the dog, Trooper Peters, explained that although trunks in new cars are sealed extremely well, the odor of marijuana in the trunk can filter through the interior of the car and seep through the seams where the doors meet the car body. The traffic stop 114was legal and the marijuana was lawfully seized. All actions of the officers at the scene were objectively reasonable. These assignments of error lack merit.

III. Jury Nullification

By this third assignment of error, defendant argues jury nullification is a recognized practice which allows the jury to disregard uncontradicted evidence and instructions by the trial court. State v. Divers, 38,524 (La.App.2d Cir.11/23/04), 889 So.2d 335, writ denied, 04-3186 (La.4/8/05), 899 So.2d 2, and cert, denied. He claims that jurisprudence has allowed jurors to return a lesser responsive verdict fully supported by the same evidence that would also demonstrate, beyond a reasonable doubt, that the charged crime occurred. State v. Porter, 93-1106 (La.7/5/94), 639 So.2d 1137.

He further argues that he assumed the role of self-representation in the case and sought to impeach the investigating officers by focusing on inconsistencies and issues related to the search. However, the trial court noted that the motion to suppress had. been denied several times and informed defendant many times that the path he was pursuing was a question of law that was not within the purview of the jury’s decision. Defendant argues that while the trial court was correct in holding that the jury does not decide issues of search and seizure, the court erred in restricting the defense | ^because the jury retained the power and authority to reject the state’s case, for any reason, including by finding that the search was illegal. Therefore, he claims his impeachment of police officers over issues related to the stop should have been permitted.

The trial court did not restrict defendant from asking appropriate questions of the witnesses. His problem lay in arguing his interpretation of the law with witnesses instead of asking questions. Any reasonable questions were unrestricted. The court did not err by illegally interfering with this attempt at jury nullification.

In State v. Chatman, 43,184 (La.App.2d Cir.4/30/08), 981 So.2d 260, the court concluded that the failure of a trial court to give a requested instruction regarding jury nullification did not constitute reversible error. The court concluded the failure to include the instruction was not a miscarriage of justice, it did not prejudice the substantial rights of defendant, and it did not violate a constitutional or statutory right.

Birgans attempted to impeach the testimony of the trooper and convince the jury that the fruits of the search were illegally obtained, thereby providing the jury with a method by which it could ignore uncontra-dicted evidence and instructions by the judge.

| isThe trial court’s action in limiting defendant to questioning witnesses rather than arguing his case to them was not improper and did not deny defendant the right to the benefits of jury nullification. There was no miscarriage of justice. The trial court’s ruling did not prejudice the substantial rights of defendant, and did not violate a constitutional or statutory right. La. C. Cr. P. Article 921. These assignments of error lack merit.

IY. Plea bargain

By his fifth pro se assignment of error, defendant alleges that a plea bargain had been made and accepted whereby he would plead guilty to possession of marijuana with intent to distribute in exchange for a five-year sentence and a reservation to appeal the issue of the motion to suppress pursuant to Crosby, supra. He claims that on April 6, 2009, at a hearing at the Ouachita Correctional Center, his attorney approached him with a plea agreement and explained the state had offered a plea of 10 years. Defendant allegedly told her that was too extreme and she offered to see if she could get the state to lower the plea. She allegedly came back and told him the state had offered a five-year sentence. He claims he said that would be all right with him if it included the right to plead guilty under Crosby, supra. He claims they went into court and he was shocked that his attorney had told the 117court he was willing to plead, but ADA Harkins was not willing to give him the Crosby plea. This is the basis for his argument that he was denied his right to plea bargain and invoke a Crosby plea.

Defendant further alleges that he alluded to the Crosby plea in his PSI interview and in a letter he had written to the trial judge regarding sentencing. In the letter he allegedly told Judge Ellender he had no intention of going to trial if the state or court had accepted the plea agreement of five years with a Crosby plea. He also alleges that both he and his former attorney alluded to the plea at sentencing, but each time it was mentioned, the transcription was bleeped out.

The state asserts that there is nothing in the record to indicate that anything defendant alleges ever took place. The state also claims that even if this court were to accept his story as true, the record is devoid of any discussions of a guilty plea under Crosby with Judge Sharp, the judge who first had the case. Further, the state claims the minutes of April 6, 2009, do not even indicate that defendant was in court that date. The record reflects that on May 14, 2009, Judge Sharp held a hearing on a bond reduction, and the issue of a plea bargain was brought up. ADA Har-kins, apropos of nothing, stated, “His plea offer is five years. Take it or leave it.” ADA Harkins then stated, “I sent a letter offering ... dated March 30th where I say I ishe could plead to ten years and I would not file a habitual bill.” Shortly thereafter, ADA Harkins said, “But I backed off of that.” On November 16, 2009, before Judge Sharp, the ADA indicated that an offer had been made, but it was rejected and withdrawn. Otherwise, this record is silent as to any plea bargain being reached.

Our law on evaluating plea bargains is well settled.

In this case, there was never a meeting of the minds in regard to a plea bargain agreement. Instead, the state made defendant an offer, which he refused. He counteroffered, but the state did not accept it. It is within the discretion of the district attorney’s office to decide whether to offer a defendant a plea agreement. No such agreement was ever reached. This assignment of error lacks merit.

Y. Denial of compulsory process

By his sixth pro se assignment of error, defendant voices displeasure with the fact that he sought discovery of every radio transmission from any patrol cars dispatched to the scene of his arrest and any video that might be available. He claims he was denied the compulsory process to which he is entitled under due process. Further he argues that once it became known that what was previously thought to be a silent video actually had audio, the trial |mjudge should have granted him a continuance so that he could seek professional help in preparation of his defense.

Defendant also requested training records of the drug dog, but was never provided with the training records or certifications of the dog or the handler.

The state argues that prior to defendant’s decision to represent himself at trial, his former attorney, Ms. Brown, discovered that the video had audio. She asked the court for a continuance of the trial and it was granted. She sought professional help in an effort to enhance the sound coming from the recording. Her expert concluded that it was clearly audible and no further enhancement could be had. Defendant did not seek another continuance. The state also argues that in regard to his complaint that he requested audio and video from other persons responding to the scene, all of the witnesses testified that they did not have any other audio or video; ie., no further production of audio or video was possible because it did not exist.

In regard to defendant’s complaint that the records pertaining to the drug dog and its handler were not provided to him, the state points out that the record is devoid of any such request for the records, and that when the defendant had Trooper Peters on the stand, he did not ask for the records to be produced—in essence, a waiver.

IgpThe issue regarding the need for a continuance after the discovery that the video contained audio is a non-issue. The trial court granted a continuance upon motion of defendant’s former attorney. No other motion for continuance was made. All involved law officers appeared at trial, subject to cross-examination. None had any audio or video to provide to defendant even had the information been subpoenaed. There was no substantive denial of compulsory process.

Birgans, representing himself, failed to properly request any records or documents that he believed were subject to discovery, ie., the training records of the K-9 and any certification the trooper and dog might have indicating their competency in their professional field. He had the trooper who handled the dog on the stand and was free to cross-examine him; therefore, he was not denied compulsory process with regard to the trooper and dog who conducted the search of his vehicle. This assignment of error lacks merit.

VI. Waiver of (allegedly) Unprepared Counsel

By his final pro se assignment of error, defendant contends that his waiver of counsel was not voluntary. He contends that he lost faith in his court-appointed attorney because of differences they had concerning the direction in which his defense was heading. He complains that he found her |21so incompetent that he felt he had to take over his own defense; therefore, he unwillingly, although perhaps intelligently, sought to represent himself. The trial court appointed Ms. Brown as his standby counsel, even though he did not want her. Now he claims his waiver of counsel was involuntary. The record belies this.

Our law on the right to counsel is well settled.

In this case, defendant knowingly and unequivocally waived his right to counsel. The trial court repeatedly warned him of the perils and pitfalls of self-representation. The subject was broached before and during trial. Defendant showed sophistication and intelligence in his decision to waive counsel. The trial court determined that he had represented himself in court before on a previous drug charge in another state. Because of his insistence on representing himself, the trial court allowed him the right to waive counsel, but insisted that Ms former attorney serve as standby counsel to answer any questions he might have about procedure. This was an appropriate and reasoned decision by the trial court, completely in accord with the fair administration of justice. This assignment of error lacks merit.

DECREE

Defendant’s conviction and sentence are AFFIRMED.

      . This was allegedly a five-year-old ticket for having an inoperable headlight.

      . See La. C. Cr. P. art. 230.1.

      .The timing of this alleged plea bargain proposal, and in fact, whether it ever existed, is unclear. Defendant has raised an issue relating to the alleged agreement as an assignment of error. Therefore, it is mentioned, at this point in the facts because defendant said it happened then.

      . Defendant tended to argue the law and ultimate issues to the witnesses, rather than ask factual questions.

      . The court treated it as if it were- a “Motion for a New Trial.”

      . An interesting claim, but no evidence was provided on this allegation.

      . First to get his jacket and cigarettes; second to turn off the motor. Each entry and exit lasted about two seconds. Nothing was seized.

      . A brief traffic stop can be made by an officer’s observation of merely reasonable suspicion of criminal activity. To justify the immediate issuance of a citation, the traffic stop would require the satisfaction of a higher burden: probable cause.

      . These included: Birgans gave him several different home addresses, he was driving a rental car even though he was not an authorized driver, the rental agreement specifically excluded anyone from driving the car except authorized (named) additional drivers,, the lack of proof of liability insurance on the car, defendant’s story of where he was going and why he was going there seemed implausible, he lied to the trooper about his prior drug trafficking arrests and convictions, he was unable to give the trooper the car registration, and he appeared extremely nervous. Our jurisprudence recognizes that the training and experience of a law enforcement officer may arouse suspicions of criminal activity that would elude an untrained civilian. The totality of the officer’s observations are examined together, not in a vacuum, and the trooper's developing additional reasonable suspicion of criminal activity during the stop led to his right to continue to detain defendant briefly to dispel or confirm these suspicions and to conduct the canine search.

      . Evaluation of traffic stops involves the two-step formulation articulated in Terry v. Ohio, supra; State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841. The court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” U.S. v. Shabazz, 993 F.2d 431 (5th Cir.1993), quoting Terry v. Ohio, supra.

      For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal • activity, such as a traffic violation, occurred or is about to occur before stopping the vehicle. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective-beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Lawrence, 45,061 (La.App. 2 Cir. 3/3/10), 32 So.3d 329, writ denied, 10-0615 (La.10/8/10), 46 So.3d 1265. Therefore, when an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable.

      . Less than 31 minutes transpired from the moment of the stop until the commencement of the search.

      . Amazingly, there is some authority that has found jury nullification to be a recognized practice allowing a jury to disregard uncon-tradicted evidence and instructions by the judge. See 2 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 21.1 (1984).

      . The trial court patiently explained the law to defendant:
      Sir, and we went over that a few times off the record — I mean out of the presence of the jury. I’ll do it again.... The court has ruled that that stop is admissible. That the fruits of the stop are admissible. It’s ruled that the statements made by you are admissible. That’s not what’s going to — that’s not properly before the jury. Whether the court was right or wrong in ruling on the admissibility that's a legal issue that a different court will resolve whether this court made the proper call, but it’s not a decision for the jury. The jury is here to make a factual finding. They're not here to determine whether or not — what the law is.
      * * *
      [Yjou have been charged with Possession of Marijuana with Intent to Distribute. There'll be — I gave you a copy of the proposed jury charge. It sets forth a definition of the statute. They’ve got to find — if they were going to find you guilty it’s beyond a reasonable doubt that you violated that statute. If they find you not guilty it's — they have every right to do that as well. But they're not going to decide whether or not there was probable cause to stop you, whether or not the evidence was properly admitted into this trial. Those are the decision that this court has already made. Whether you agree with those decisions or not you have every right to disagree with the decision, but the decision has already been made. So the juiy is not going to make a determination about whether there was probable cause to stop you.

      . In State v. Roberts, 01-3030 (La.App. 1st Cir.6/21/02), 822 So.2d 156, writ denied, 02-2054 (La.3/14/03), 839 So.2d 31, the court discussed the legal relations between the state, the defendant, and a court in a plea agreement. The court cited State v. Lewis, 539 So.2d 1199 (La.1989), in which the supreme court stated it relied on contract principles to reach a decision in State v. Nall, 379 So.2d 731 (La.1980), reasoning that a plea bargain is a contract between the state and one accused of a crime. A longstanding rule of contract law is that consent of both parties is required for a valid contract. The contract is formed by the consent of the parties established through offer and acceptance. The offer and acceptance may be verbal unless the law prescribes a requirement of writing. Once there is an offer and acceptance, the agreement is subject to specific performance. Plea agreements are "constitutional contracts.” Roberts, supra.

      . La. C. Cr. P. art. 511 concerns the right to counsel: "The accused in every instance has the right to defend himself and to have the assistance of counsel.” La. C. Cr. P. art. 513 concerns assignment of counsel in cases other than capital cases and provides that when a person is indigent, and the court finds the statement of indigency to be true, the court shall provide for counsel in accordance with the provisions of La. R.S. 15:145.
      In State v. Franklin, 43,173 (La.App.2d Cir.9/17/08), 996 So.2d 387, writ denied, 08-2371 (La.5/22/09), 9 So.3d 138, this court stated that a defendant may elect to represent himself if the choice is knowingly and intelligently made and the assertion of the right is clear and unequivocal. A trial court may not force a lawyer upon a defendant when the defendant insists he wants to conduct his own defense and voluntarily and intelligently elects to proceed without counsel; however, he must ask clearly and unequivocally to proceed pro se and make this request in a timely manner. The right to counsel and to counsel of one’s choice cannot be manipulated to. obstruct the orderly procedure of the courts or used to interfere with the fair administration of justice. Absent a justifiable basis, there is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Felton Wayne DUKES, Appellant.
    No. 46,029-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Peggy Sullivan, Louisiana Appellate Project, for Appellant.

      Charles Rex Scott, District Attorney, for Appellee.
    Jason Trevor Brown, J. Dhu Thompson, Suzanne M. Owen, Assistant District Attorneys.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

1 pThe defendant, Felton Wayne Dukes, was convicted of possession of a Schedule I controlled dangerous substance (CDS), ecstasy, and distribution of a Schedule II CDS, cocaine. He was subsequently adjudicated a fourth felony offender and sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals. The defendant’s convictions, adjudication as a fourth felony habitual offender and sentence as such are affirmed. However, finding error patent in the trial court’s failure to sentence the defendant on his conviction for possession of ecstasy, we remand.

FACTS

The defendant was arrested on January 21, 2009, after selling cocaine to and buying ecstasy from an undercover (UC) narcotics agent. The defendant was charged by bill of information with one count of possession of a Schedule I CDS, ecstasy, in violation of La. R.S. 40:966(E), and one count of distribution of a Schedule II CDS, cocaine, in violation of La. R.S. J240:967(A)(1)(A). On May 26, 2009, in response to the defendant’s motion for discovery, the state filed a response in which it notified the defendant of its intent to offer a “certified lab report” into evidence as proof of its contents “in conformity with La. R.S. 15:499-501.”

The certificate attached to the responses indicated that on February 2, 2009, at 10:35 a.m., K. Knox delivered to Tiffany Davis one sealed plastic bag which contained two plastic bags containing 15 brown tablets with logos, and one sealed plastic bag containing five plastic bags with white material. The certificate indicates that a CDS analysis was requested on the items and that Randall Robillard conducted the analysis on February 23, 2009. Lastly, the certificate indicated the results of the analysis as follows:

ITEM 1 WAS DETERMINED TO CONTAIN 3,4-METHYLENEDIOXY-METHAMPHETAMINE (MDMA), SCHEDULE I.
ITEM 2 WAS DETERMINED TO CONTAIN COCAINE, SCHEDULE II.

The certificate was signed by Randall Ro-billard and certified by Dr. Pat Wojtkiew-icz, the director of the North Louisiana Criminalistics Laboratory.

On November 17, 2009, the defendant was tried before a jury. The state attempted to introduce as evidence the certificate of analysis issued by the North Louisiana Criminalistics Laboratory to establish that the substance |4the defendant sold to the UC agent was cocaine and that the substance he purchased from the UC agent was ecstasy. Because Mr. Robillard was not available at trial, the state called Bruce Stentz, another analyst from the lab, to testify as to the report’s contents. The defense objected to the use of the report and Mr. Stentz’s testimony because Mr. Robillard was not available for cross-examination. Finding that the state had complied with the statutory requirements for use of a certificate of analysis as prima facie proof of the facts shown thereon in accordance with La. R.S. 15:499-501, the trial court overruled the defendant’s objections and allowed the introduction of the certificate and Mr. Stentz’s testimony.

After the conclusion of the evidence, the jury found the defendant guilty as charged on both counts. After the verdict was read, the state informed the court that it was filing a bill of information to have the defendant adjudicated a fourth felony habitual offender. The defendant waived formal arraignment and pleaded not guilty. At the defendant’s request, the trial court also ordered the preparation of a presen-tence investigation (PSI) report. Subsequent motions by the defendant seeking a new trial and a post-verdict judgment of acquittal were denied. On March 18, 2010, the defendant was adjudicated a fourth felony habitual |soffender on the basis of the present conviction for distribution of Schedule II CDS and the following prior convictions:

(1) On December 6, 1994, the defendant pled guilty to one count of possession of a Schedule II CDS in docket number 171,278, on the docket of the First Judicial District Court, Parish of Caddo.
(2) On November 14, 1997, the defendant pled guilty to one count of possession of marijuana, a Schedule I CDS (second offense), in docket number 191,490 on the docket of the First Judicial District Court, Parish of Caddo.
(3) On November 14, 1997, the defendant pled guilty to one count of distribution of a Schedule II CDS, in docket number 189,724 on the docket of the First Judicial District Court, Parish of Caddo.
(4)On April 24, 2006, the defendant pled guilty to one count of possession with intent to distribute a Schedule II CDS, in docket number 249,963 on the docket of the First Judicial District Court, Parish of Caddo.

The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The trial court denied the defendant’s Dorthey motion for a downward departure from the mandatory life sentence.

The defendant appeals, making three assignments of error.

LABORATORY REPORT

The defendant argues that the trial court erred in allowing the trial testimony of a lab technician who did not perform the tests on the alleged drugs seized in this case and in permitting this witness to provide the foundation for the introduction of the laboratory report. The defendant 1 ^maintains that the certificate of analysis should not have been admitted into evidence in light of the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), which found that admitting such reports violates the confrontation clause and the holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The state argues that Louisiana’s statutory scheme for use of crime lab certificates of analysis is not violative of a defendant’s rights under the Confrontation Clause because, unlike the affidavit which the court held objectionable in Melendez-Diaz, the certificates are not testimonial in nature. In support of this argument, the state cites the Louisiana first circuit court of appeal’s recent opinion in State v. Beauchamp, 2010-0451 (La.App. 1st Cir.9/10/10), 49 So.3d 5.

Law

At the time of the defendant’s trial, La. R.S. 15:499 authorized all criminalistics laboratories, coroners, forensic pathologists, and other persons or entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means to make proof of that examination and analysis of physical evidence by the certificate of the person in charge of the facility, which certificate shall contain:

|7(1) The date and time such evidence was delivered to such facility.
(2) The name of the person making such delivery, and the person receiving same.
(3) A brief description of the evidence.
(4) The type of examination or analysis requested.
(5) The name of the person making the examination or analysis.
(6) The date or dates of the examination or analysis.
(7)The results of the examination or analysis.

Subparagraph B of the statute also required that the certificate give the name and address of the facility in which the examination or analysis was made, and be signed by the person making the examination or analysis and by the person in charge of the facility. La. R.S. 15:500 provided that the courts shall receive as evidence any certificate made in accordance with La. R.S. 15:499 as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom. Prior to its use as evidence, however, La. R.S. 15:501 specifically required the party seeking to introduce a certificate to give written notice of that intent no less than 10 days prior to the commencement of trial and to include [sa copy of the certificate with said notice. The party against whom such certificate was offered could then subpoena the person who performed the examination or analysis of the evidence. If the subpoena was requested at least five days prior to the commencement of trial or the person subpoenaed responded to the subpoena, the certificate would not be prima facie proof of its contents or of proper custody. La. R.S. 15:501(B)(1).

The Confrontation Clause of the Sixth Amendment provides that, “[in] all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him,” and limits the admission of testimonial hearsay statements at criminal trials to situations when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, supra. The Sixth Amendment safeguards the defendant’s right to confront his accusers and to subject then-testimony to rigorous testing in an adversary proceeding before the trier of fact. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Kennedy, 2005-1981 (La.5/22/07), 957 So.2d 757, reversed in part on other grounds, Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008). See also La. Const. art. 1, § 16.

In Melendez-Diaz v. Massachusetts, supra, the United States Supreme Court held that an analyst’s affidavit that certain contraband tested positive for cocaine constituted “testimonial” evidence, and was inadmissible in the absence of the trial testimony of the analysts who performed such tests, pursuant to the Confrontation Clause of the Sixth Amendment. Melendez-Diaz, 129 S.Ct. at 2532. Justice Sca-lia, writing for the court, stated that the affidavit fell within the “core class of testimonial statements,” the sole purpose of which was to establish in court the identity of the substance removed from the accused as cocaine.

In State v. Davidson, 44,916 (La.App.2d Cir.2/10/10), 32 So.3d 290, writ denied, 2010-0579 (La.10/1/10), 45 So.3d 1096, a crime lab report was admitted at trial over the objection of defense counsel, on the ground that he had not been notified of the report. On appeal, this court concluded that the report was “clearly testimonial, as was the report at issue in Melendez-Diaz.” 32 So.3d at 297.

In State v. Beauchamp, supra, the Louisiana first circuit court of appeal distinguished the Massachusetts law permitting the use of “certificates of analysis” as proof, which was struck down in Melendez-Diaz, from Louisiana’s notice-and-demand statutory scheme for use of an analyst’s report as evidence. The court noted that Melendez-Diaz itself recognized that | pother states’ “notice-and-demand statutes” did not shift the burden by converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause. Because “[t]he defendant always has the burden of raising his Confrontation Clause objection,” the court reasoned “notice-and-demand statutes simply govern the time within which he must do so.” State v. Beauchamp, 49 So.3d at 8, citing Melendez, - Diaz, — U.S. at -, 129 S.Ct. at 2541.

In addressing the “notice-and-demand” scheme set forth in La. R.S. 15:499 et seq., the Beauchamp court concluded that the admission of a scientific analysis report in accordance therewith “did not violate Melendez-Diaz ...” as the scheme “merely requires a defendant to exercise his Confrontation Clause rights prior to trial.” State v. Beauchamp, 49 So.3d at 9-10.

The Beauchamp court also noted that in a pre-Melendez-Diaz opinion, the Louisiana Supreme Court had concluded that Louisiana’s “notice-and-demand” statutes were constitutional under Crawford v. Washington, supra. See State v. Cunningham, 2004-2200 (La.6/13/05), 903 So.2d 1110. In rejecting the challenge to the scheme’s constitutionality, the Louisiana Supreme Court noted that to defeat the use of the certificate without the analyst, the defendant need only request a subpoena of the individual five In days prior to trial. The court held this requirement did not “infringe upon defendant’s constitutional right to confrontation.” State v. Cunningham, 903 So.2d at 1121.

In light of Beauchamp, it is worth noting that Justice Scalia’s opinion in Melendez-Diaz briefly addressed the question of whether a “notice-and-demand” statutory scheme which requires a defendant to note his objection by subpoenaing the analyst is constitutional. Justice Scalia, in footnote 12, opined that in its simplest form, a notice-and-demand statute requiring the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial, is constitutional.

Discussion

In the present case, as in State v. Beauchamp, supra, the state complied with the statutory requirements of La. R.S. 15:499, et seq., in its May 26, 2009, response to defendant’s discovery request. In its response, the state expressly advised the defendant of its intent to offer into evidence a certified copy of the lab report, which was included in the discovery response, as proof of its contents in conformity with the aforementioned 112statutory articles. This response, including the lab report, was delivered to defense counsel almost six months prior to trial. A review of the certifícate itself indicates that it conformed with the minimum requirements set forth in the law. Accordingly, the issue to be resolved by the court is whether Louisiana’s “notice-and-demand” statutory scheme is such that it would pass constitutional muster under Melendez-Diaz.

In principle, there appears to be nothing constitutionally offensive about the approach of Louisiana’s statutory scheme requiring the defendant to assert his Confrontation Clause rights prior to trial. The United States Supreme Court’s opinion in Melendez-Diaz stated as much in rejecting the dissent’s argument against striking down the Massachusetts approach which provided for no “notice-and-demand.” The issue, if any, would center on whether requiring a defendant to assert that right by virtue of his right to compulsory process is constitutional. In Melendez-Diaz, Justice Scalia wrote the following in rejecting the argument that the defendant’s right to subpoena the analyst of his own accord precluded a finding of a Confrontation Clause violation:

[The power to subpoena] — whether pursuant .to state law or the Compulsory Process Clause — is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. Converting the prosecution’s duty under the | ^Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into. court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.
[Citations omitted.]

Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2540.

Unlike the scenario in Melendez-Diaz, however, the state’s duty under the Confrontation Clause is not converted into the defendant’s privilege under the Compulsory Process Clause. Under the Massachusetts law, the state’s use of the certifícate of analysis was not dependent on the defendant’s failure to object; the state apparently could use the certificate as prima facie proof of its contents regardless of whether the defendant subpoenaed the analyst. In Louisiana, the mere request for a subpoena by the defendant five days prior to trial rendered the certificate useless to the state as prima facie proof of its contents or of proper custody. La. R.S. 15:501(B)(1). Accordingly, an unavailable or uncooperative analyst becomes the state’s problem in meeting its burden of proof and not the defendant’s in exercising his right to confrontation.

114Therefore, we find that Melendez-Diaz is not controlling in cases where the state has followed the proper procedures under La. R.S. 15:499 et seq., and that the admission of the certificate of analysis into evidence at trial did not violate the defendant’s rights under the Confrontation Clause. The state presented sufficient evidence that the substances forming the basis of the two charges against the defendant were cocaine and ecstasy.

This assignment is therefore without merit.

PSI REPORT

In his second assignment of error, the defendant contends that the trial court erred in sentencing him without the benefit of a PSI report, when such a report was ordered but never prepared. The defendant argues that in the absence of the PSI report, the trial court could not have considered the factors set forth in La. C. Cr. P. art. 894.1. The state argues that the defendant’s sentence of life imprisonment is mandatory for a person adjudicated as a fourth felony habitual offender and the law is well settled that in the cases where a sentence is mandatory, the trial court need not justify the sentence under La. C. Cr. P. art. 894.1.

Law

La. R.S. 15:529.1(A)(l)(c)(ii) mandated a sentence of life imprisonment for a fourth felony offender whose current offense and two of | lfihis prior offenses are violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for 10 years or more.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Thomas, 41,734 (La.App.2d Cir.1/24/07), 948 So.2d 1151, writ denied, 2007-0401 (La.10/12/07), 965 So.2d 396; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Sewell, 35,549 (La.App.2d Cir.2/27/02), 811 So.2d 140, writ denied, 2002-1098 (La.3/21/03), 840 So.2d 535.

La. C. Cr. P. art. 875(A)(1) provides in relevant part that “the court may order ... a presentence investigation.” In State v. Bell, 377 So.2d 275 (La.1979), the Louisiana State Supreme Court found that “[tjhere is no mandate ... that a presen-tence investigation be ordered.” The supreme court then held that “[sjuch an investigation is an aid to the court and not a right of the accused.” Bell at 281. See also State ex rel. B.A.A., 44,494 (La.App.2d Cir.5/20/09), 13 So.3d 1183.

Discussion

11BThe trial judge in the present case ordered the preparation' of a PSI report after the jury rendered its verdicts on the defendant’s current offenses. However, that order was given before the defendant was adjudicated a fourth felony offender subject to the mandatory sentencing provisions of the statute. Once a mandatory sentence is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. Therefore, the fact that a PSI report was previously ordered became inconsequential. Furthermore, we note that the jurisprudence holds that such a report is merely an aid to the court and not a right of the defendant.

This assignment lacks merit.

EXCESSIVE SENTENCE

In his last, assignment of error, the defendant argues that the trial court erred in denying his Dorthey motion to deviate from the mandatory sentence of life imprisonment for a fourth felony habitual offender. He claims that the sentence is both “grossly disproportionate” to the gravity of his offenses given the “relatively small quantity of drugs” and not “meaningfully tailored” to him as reflected by the trial court’s failure to review a PSI report. The state argues that the defendant fails to point to any circumstances showing that his case is exceptional and that he is a victim of the legislature’s failure to assign sentences meaningfully tailored to his case.

luLaw

At the time of defendant’s adjudication as a fourth felony offender, La. R.S. 15:529.1 provided in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction • of said felony, shall be punished as follows:
[ (c) ](ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisr oned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In State v. Dorthey, supra, the. Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no measurable contribution to acceptable goals of punishment, or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, he is duty bound to reduce the sentence to one that would not be constitutionally excessive.

In State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672, 676, the Louisiana Supreme Court further qualified the Dorthey holding permitting a downward departure- from a mandatory minimum sentence in the context of the Habitual Offender Law. Specifically, the court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

A trial judge may not rely solely upon the nonviolent nature of a crime before the court or of past crimes as evidence that justifies rebutting the presumption of constitutionality. State v. Johnson, supra.

Discussion

The present case clearly falls within the circumstances enumerated in former La. R.S. 15:529.1(A)(1)(c)(ii) which mandated a sentence of life imprisonment for a fourth felony offender when the defendant’s instant felony and two of his prior felonies are defined as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for 10 years or more. The defendant’s instant cocaine distribution conviction and two of his prior felonies involved violations of the Uniform Controlled | ^Dangerous Substances Law punishable by imprisonment for 10 years or more. Because the mandatory life sentence is presumptively constitutional, and therefore not excessive, the defendant was obligated to “clearly and convincingly” show that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

The jurisprudence holds that the defendant cannot do so by solely relying upon the nonviolent nature of his most recent or prior offenses. Nor is the defendant’s argument that all his crimes were drug crimes and involved relatively small quantities of drugs persuasive. First, the statute clearly contemplates that a defendant may have convictions on any combination of the enumerated crimes, and the mere fact that the defendant has not committed one particular type does not render him exceptional. Second, the defendant fails to make any showing regarding the quantity of drugs involved in his crimes or in relation to what amount should be deemed “relatively small.” The record before the court yields little information as to the amount of drugs possessed by the defendant, but it should be noted that at least two of his prior convictions were possession of Schedule II CDS with intent to distribute and distribution of Schedule II CDS, both offenses Lnwith exposure of up to 30 years at hard labor. The defendant has failed to satisfy his heavy burden.

This assignment is without merit.

ERROR PATENT

We note that the habitual offender proceedings involved the defendant’s conviction for distribution of cocaine in the instant case; the life sentence was imposed as to that conviction. However, the record does not disclose that any sentence was imposed for the defendant’s instant conviction for possession of ecstasy. This was error. Accordingly, we remand the matter to the trial court for imposition of sentence for this conviction.

CONCLUSION

The defendant’s convictions, adjudication as a fourth felony habitual offender and sentence of life imprisonment are affirmed. The matter is remanded for imposition of sentence for the conviction of possession of ecstasy.

DEFENDANT’S CONVICTIONS, ADJUDICATION AS FOURTH FELONY OFFENDER AND SENTENCE AS FOURTH FELONY OFFENDER AFFIRMED.

REMANDED FOR SENTENCING ON CONVICTION FOR POSSESSION OF ECSTASY.

      . Methylenedioxymethamphetamine (MDMA) is commonly known by the street name "ecstasy.”

      . Because the convictions occurred on the same date, the trial court properly considered this offense and the preceding one as one conviction.

      . State v. Dorthey, 623 So.2d 1276 (La.1993).

      . La. R.S. 15:499 and 501 were amended by Acts 2010, No. 693, § 1. As to Section 499, the legislature merely eliminated the requirement in subparagraph B that the certificate of analysis be signed by the person in charge of the facility. In regard to Section 501, the legislature amended the statute to require the party seeking to introduce a certificate to give written notice of that intent no less than 45 days prior to the commencement of trial. Furthermore, the statute no longer- requires the party against whom it is offered to subpoena the person who performed the examination in order to prevent the subpoena from being deemed prima facie proof of its contents. Section 501 now only requires that the defendant demand — in writing . and served upon the district attorney or attorney general seeking to introduce the certificate — that the person making the examination or analysis testify. If such a demand is made timely as set forth below, the certificate shall not constitute prima facie proof of the facts thereon as set forth in La. R.S. 15:500. Such written demand must be made within 30 days'of the receipt of the notice by the district attorney of its intent to use the certificate, subject to extension for good cause shown if such request is made prior to the expiration of the 30 days.

      . The statute was amended in 2010; the amendments have no bearing on the instant case and would not change the sentence.