text:
    STATE of Louisiana, Appellee v. Theodore R. MOORE, Appellant.
    No. 46,252-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.
    Jerry L. Jones, District Attorney, Ellen R. Eade, Madeleine M. Slaughter, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Theodore Roosevelt Moore, was charged with second degree murder. After a jury trial, Defendant was convicted as charged and sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant’s conviction is affirmed.

FACTS

On August 11, 2006, around 10:00 a.m., Annie Mae Jackson, a housekeeper at the Palms Motel in Monroe, Louisiana, discovered Joseph Murphy lying unresponsive on a motel bed in Room 25. Paramedics were called to the scene and discovered that Mr. Murphy had been severely beaten. He was taken to the hospital, diagnosed as having suffered a lethal brain injury and placed on a respirator. Four days later, after he developed severe pneumonia, medical personnel made the decision to terminate Mr. Murphy’s life support. Mr. Murphy was 28 years old at the time of his death.

Investigating officers of the Monroe Police Department (“MPD”) found a broken 2x4 board in the motel room lying across the bed next to the bed where Mr. Murphy’s body was found. A smaller piece of the same 2x4 board that had broken off was found on the floor between the two beds. Officers concluded that there were no signs of forced entry into the motel room. Defendant, who had been sharing the room with Mr. Murphy, was missing. Officers immediately began the process of locating Defendant so they could question him about Mr. Murphy’s injuries.

| ¡.Officer Dawayne Crowder of the MPD found Defendant walking near Pine Street in Monroe and stopped to talk to him. Defendant agreed to go to the police station where, after being advised of his Miranda rights, he denied having anything to do with Mr. Murphy’s injuries. While questioning him at the station, officers asked Defendant if he would give them his socks, shoes and pants for testing and allow them to obtain a DNA sample at St. Francis Hospital. Defendant agreed and gave officers the items. The officers provided Defendant with other clothes to wear, ended the interview and subsequently transported Defendant to the hospital for a DNA test.

Forensic lab results indicated that both Defendant’s and Mr. Murphy’s DNA were found on the small broken piece of the 2x4 board which was found on the floor of the motel room. Mr. Murphy’s DNA was found on the larger piece of the broken 2x4 board. Consequently, officers executed a warrant for Defendant’s arrest. On May 3, 2007, Defendant was charged with the second degree murder of Mr. Murphy.

On February 26, 2008, Defendant filed a motion to suppress, alleging that the officers had failed to properly inform him of his Miranda rights prior to taking his statement on August 11, 2006. Defendant further claimed that the officers had misled him as to the nature and purpose of their questioning because they told him they were investigating an aggravated battery, rather than an attempted murder.

| a A hearing was held on Defendant’s motion to suppress on February 28, 2008. The State’s first witness was Officer Mark Nappier of the MPD who testified that he assisted with the investigation of the murder. Officers learned from motel staff that Defendant and Mr. Murphy had been sharing a room at the motel, a notice was sent to all MPD officers to “be on the lookout” (BOLO) for Defendant because he was needed for questioning. Later that same afternoon, officers located Defendant and he accompanied them to the police station for questioning.

The police interview with Defendant was recorded with audio and video equipment and relevant portions of the videotape were played for the trial judge during the hearing. Officer Nappier met with Defendant and explained that he was not under arrest. Defendant was then advised of his Miranda rights and signed a waiver of rights form. The waiver of rights form signed by Defendant also indicated that he was not under arrest, but was being questioned in relation to an offense. Detective Nappier explained during questioning that Defendant was being questioned in relation to the aggravated battery of Mr. Murphy. At the time Detective Nappier first questioned Defendant, Mr. Murphy was still alive in the hospital and in critical condition.

At one point during the interview, Officer Nappier questioned Defendant about a prostitute that he claimed to have hired on the night Mr. Murphy was beaten. Defendant replied, “I think I need me a lawyer now. Because sir I’m not gone ... I’m not gone go into about what I did with this person or ...” Officer Nappier then clarified that he was not asking RDefendant what he did with the prostitute but, rather, how much money he had spent on her. At that point, Officer Rhodes interrupted the questioning and asked Defendant whether or not he wanted to continue the interview. Defendant did not respond clearly, so Officer Rhodes then stated, “... [Y]ou said something earlier ... you said I think I need a lawyer ... Do you want a lawyer?” Defendant replied that he did not want to give officers the details of his encounter with the prostitute and then stated, “I don’t need a lawyer cause I haven’t done anything.”

As previously stated, after concluding the interview, Officer Nappier and the other officers provided Defendant with clothes and transported him to St. Francis Hospital to collect a DNA sample. Once they finished at the hospital, Detective Nappier dropped off Defendant in town.

Detective Nappier testified that he did not have contact again with Defendant until a warrant was issued for his arrest and officers located him in Dallas, Texas. In March 2007, Defendant was arrested at which time refused to talk to police or sign a waiver of rights form.

[BThe State’s next witness was Officer Dawayne Crowder of the MPD. Officer Crowder testified that he saw Defendant walking through a private parking lot and stopped to talk to him. Once he began talking to Defendant, he recognized Defendant as the person described in the BOLO notice and asked Defendant if he would come to the station for questioning. Defendant agreed and Officer Crowder escorted Defendant to the police station, but did not ask him any questions or read him his Miranda rights at that time.

The State’s next witness was Officer Thomas Rhodes of the MPD. Officer Rhodes generated the BOLO notice with Defendant’s image and pertinent information. Officer Rhodes met Defendant after he was escorted to the police station and witnessed him being apprised of his Miranda rights prior to the interview. Officer Rhodes testified that Defendant was told he was being questioned about an aggravated battery. He also corroborated Detective Nappier’s testimony that Defendant initially indicated that he may need a lawyer, but, after being asked to clarify, said he did not need a lawyer. Detective Rhodes also testified that Defendant was asked for his pants and his shoes near the end of the interview, but that it was clear he was not required to give them to the officers.

The State then rested, Defendant did not present anything further and the trial judge denied the motion to suppress. The trial judge concluded that Defendant’s statements were intelligently and voluntarily made based on the totality of the circumstances. Defendant voluntarily came to the police station, was told he was not under arrest several times and was not in handcuffs during the interview. Defendant was advised of his Miranda rights prior to questioning and signed a waiver of rights form. There was no clear and unequivocal invocation of his right to an attorney. It was only when Defendant was asked about paying a prostitute money that he said, under his breath, that he may need a lawyer. When asked to clarify, Defendant said he did not need a lawyer because he had done nothing wrong.

| fiThe interview room used by officers to interview Defendant was also used to interview witnesses and victims.. Additionally, Defendant’s attitude, as demonstrated on the video recording, indicated that Defendant was aware that he was not under arrest. Defendant answered the questions he wanted to answer and refused to answer those he did not want to answer.

On August 9, 2010, the State filed notice of its intention to use Defendant’s statement at trial. The State additionally requested that Defendant be prohibited from mentioning the fact that he agreed to take a lie detector test during the interview because, when the test was actually offered, Defendant refused to take it. On August 10, 2010, following a hearing on the issues, the trial judge ruled that the State would be permitted to use Defendant’s statement at trial. Defendant agreed to the redaction of his statement agreeing to take a lie detector test.

On May 27, 2010, Defendant filed a motion to quash which alleged that the State’s two-year time limitation to prosecute Defendant’s case had expired. On August 11, 2010, following jury selection, the trial judge denied Defendant’s motion to quash, concluding that the two-year time limitation had been suspended from running several times due to pending motions.

After the trial court denied Defendant’s motion to quash, the trial began. The State called Cynthia Cole, a clerk at the Palms Motel, to testify as a witness. Ms. Cole remembered Mr. Murphy and Defendant. She testified that the two men stayed together in Room 38 on August 6, 2006, and in Room 25 from August 7-11, 2006. Ms. Cole recalled going into 17Room 25 when the housekeeper came to her office and reported that she saw a lot of blood in the room on the morning of August 11, 2006. Ms. Cole testified that, when she entered the room, she saw that the telephone was turned over and that a board was lying on the empty bed across from the bed Mr. Murphy was in. Mr. Murphy was lying on the other bed with one leg hanging off and his head was turned in an unnatural way, with the cover of the bed drawn up to his neck. Ms. Cole told an employee to call 911.

Ms. Cole observed that the board appeared to have come from an outdoor area between the trash bin and a storage building which were on an island in the center of the motel. The motel staff stacked materials there that were used for motel repairs. Room 25 is located directly behind the storage building. Later in the trial, Ms. Cole testified that anyone attempting to get into one of the motel rooms would have to pass the front desk, which was attended 24 hours a day. The motel has no surveillance cameras.

The State called as its next witness Annie Mae Jackson, a housekeeper at the Palms Motel. Ms. Jackson testified that, on the morning of August 11, 2006, she had stopped by Room 25 to collect the linen and there was no answer when she knocked on the door. Ms. Jackson opened the door a crack to make sure the room was vacant, but she saw someone lying in one of the beds, so she went on to the next room. When she came back some time later, she noticed that the person who had been lying in the bed, Mr. Murphy, had changed positions and was completely unresponsive. The bathroom door was closed as well. Ms. Jackson went and alerted her [ ¿manager, Ms. Cole, who came to the room to see if anything was wrong with Mr. Murphy. When Mr. Murphy proved completely unresponsive, Ms. Cole left to contact police and Ms. Jackson stayed with Mr. Murphy.

Another witness for the State was Margo Mikeska, an expert in forensic serology and forensic DNA testing. Ms. Mikeska testified that she had performed DNA tests on the two pieces of the broken 2x4 board and compared her findings with known DNA samples from Defendant and Mr. Murphy. The smaller piece of the 2x4 board contained blood identified as Mr. Murphy’s and DNA identified as belonging to Defendant. There was also a weaker amount of DNA on the smaller piece of wood indicating another individual’s presence. Ms. Mikeska opined that, because the amount of DNA was so small, it could have been on the board a longer amount of time. The larger piece of wood contained only Mr. Murphy’s DNA.

Brian Weston, a paramedic, also testified for the State. Mr. Weston testified that, on August 11, 2006, he was called to the Palms Motel because one of the guests was unconscious. When Mr. Weston arrived and entered Room 25, he saw Mr. Murphy lying on the bed, his feet were on the floor and blankets were tucked beneath his shoulders. He was unresponsive and bleeding from his head. Initially, Mr. Weston thought Mr. Murphy had been shot in the head, but then saw the broken 2x4 on the other bed. Mr. Weston and his partner placed Mr. Murphy on oxygen and rendered additional aid. Mr. Weston testified that Mr. Murphy was naked, had a Lblack left eye, was bleeding from his left ear and had a l]6-inch laceration on the back of his head.

Officer Richard Jones of the MPD also testified for the State. Officer Jones took photographs of the crime scene, which were admitted into evidence. He stated that the 2x4, which had been broken into two pieces, looked “weathered.” The larger piece of the board was lying on the larger bed and the smaller piece was on the floor by the bed. Officer Jones further testified that there were no signs of a struggle, the furniture appeared unmoved and the window of the room did not appear to have been tampered with. Officer Jones stated that, since there were no signs of a forced entry, it was likely that the perpetrator “had been in the room legitimately.”

The State’s next witness was Officer Nappier of the MPD. Officer Nappier testified that, on the morning of August 11, 2006, after helping paramedics get Mr. Murphy onto a stretcher, he learned from the motel office that Mr. Murphy and Defendant were sharing the room. He returned to the room to investigate the scene and found the 2x4 board lying on the larger bed. He also saw a blood stain on the floor and found a check stub for Mr. Murphy. After he finished investigating the scene, Officer Nappier went to the hospital to speak to Mr. Murphy. Mr. Murphy was unresponsive, but Officer Nappier was able to obtain a blood sample from him.

Officer Nappier testified that Officer Rhodes prepared a BOLO for Defendant because he was registered for the same motel room as Mr. Murphy. Officer Nappier also testified as to the events leading up to | ^Defendant’s first police interview at the station. Defendant’s statement was then played for the jury, who was also provided with a written transcript of the interview.

During the police interview, Officer Rhodes asked Defendant to explain what he did the night before Mr. Murphy was found. Defendant stated that he got off of work a little after 6:00 p.m., picked up his paycheck and went across the street with Mr. Murphy to cash their checks and buy beer. When they were finished, a coworker named Willie Cook, along with another coworker, took them both back to the Palms Motel. According to Defendant, Mr. Murphy told him that he was not going to go to work the next day, August 11, 2006.

Defendant then stated that, after returning to the motel room, he drank some beer and went to a nearby laundromat to wash his and some of Mr. Murphy’s clothes while Mr. Murphy went to a grocery store to buy food. Defendant said he spoke with an acquaintance who was going to an Alcoholics Anonymous meeting before going to the laundromat and that he was unsure as to what time he returned from the laundromat. He refused to try to estimate a certain time of return. During the interview, Defendant also claimed that he used to be a police officer in New York City.

Defendant stated that, when he and Mr. Murphy returned to the motel room, they ate dinner and Defendant left again around 10:30 p.m. “looking for some fun.” Defendant stated that he met up with a girl named “Adrian Jackson” and the two of them returned to the motel room around midnight and woke up Mr. Murphy. Defendant and Adrian only stayed for h ,30 minutes because Mr. Murphy wanted to go back to sleep. According to Defendant, Mr. Murphy had been drinking liquor and smoking cigarettes.

Defendant then stated that he took Adrian to her friend’s house, which he referred to as “a little pot house.” Defendant and Adrian stayed there for a while, but then returned to the motel room. Defendant stated that Mr. Murphy had the only key to the room and unlocked the door to let him in once he returned. Defendant said that he and Mr. Murphy watched a western on TV and talked for a little while, but that he left the motel room around 2:30 a.m. to meet up with Adrian again. Defendant stated that Mr. Murphy told him once again that he was going to miss work the following morning on August 11, 2006.

Defendant stated that, when he left the motel and met up with Adrian again at her friend’s house, he “bought everything she wanted.” Defendant paid $15 for a room at the house, bought Adrian some “stuff’ and bought himself a beer. Defendant refused to say what he did with Adrian in the bedroom, but said that he stayed there with her until 8:30 or 9:30 a.m. that morning. Defendant further refused to disclose the location of the “crack house.”

Defendant said that he could not buy Adrian much “stuff’ because he only had $50 when he went to the house with her. He had no money left at the time he spoke to the officers. Defendant stated that he left the crack house around 9:00 a.m. He went to Willie Cook’s house to fix his car and make some money, but did not do so because Willie could not pay him. Defendant then stated that he went back to the crack house where he stayed |1Pfor three more hours. He then left the crack house and began walking down Pine Street to go to his friend, Carlos’s, house to detail cars.

Officer Rhodes then questioned Defendant as to where he spent the money he had earned the previous day. Defendant stated that his paycheck was for $132. He first paid Mr. Murphy $40 that he owed to him and then he paid $2 to get the laundry washed and dried, bought his beer and cigarettes and bought a $50 money order, which he mailed home to Mer Rouge. Officer Rhodes then questioned Defendant as to where he got the remaining money to buy beer, drugs and the prostitute, and Defendant said that he had received an additional check for $30.

Officer Rhodes asked Defendant why he went back to the crack house after he left Willie’s house if he had no money and Defendant replied that he had gotten $15 from Mr. Murphy when he went back to the motel room at 1:30 a.m. Defendant said that the last time he saw Mr. Murphy was at 2:30 a.m. Defendant allowed the officers to take his pants and shoes and have them tested for blood, the interview was concluded, officers took Defendant to St. Francis Hospital for a DNA test and then dropped him off in town.

The State’s next witness was Dr. Frank Peretti, the forensic pathologist who performed Mr. Murphy’s autopsy. Dr. Peret-ti testified that, when Mr. Murphy was admitted to the hospital, he tested negative for drugs and alcohol. He had two black eyes as a result of fractures at the base of his skull. Dr. Peretti diagnosed Mr. Murphy as having suffered cranial cerebral trauma, facial lacerations and abrasions and three skull fractures. Dr. Peretti |1sopined that Mr. Murphy’s injuries, which were the result of blunt force trauma, most likely came from contact with a flat, broad surface, like a piece of wood. Mr. Murphy also had a rug burn on his shoulder. Dr. Peretti opined that the 2x4 board found at the motel room could have caused Mr. Murphy’s injuries and that, given the nature of the largest skull fracture, it was possible that the 2x4 could have broken from the blow. Dr. Peretti concluded that, if Mr. Murphy not been taken off of life support, he would have been in a vegetative state for the remainder of his life and would have eventually died from his injuries.

Later in the trial, the State recalled Officer Nappier to testify. Officer Nappier stated that, after the interview was over and Defendant was released, he went back to the station to see if he could locate “Adrian Jackson,” but the detectives were unable to find her.

Officer Nappier confirmed that Defendant had cashed a check for $130.71 and that Mr. Murphy had cashed a check for $121.47 on August 10, 2006. Officer Nappier also confirmed that Defendant and Mr. Murphy worked as temporary labor employees and that they were both scheduled to work on August 11, 2006. This information was corroborated by the custodian of records at Labor Finders.

Marcus Manning, an employee of Apple-gate Insulation, also testified for the State. Mr. Manning testified that Applegate hired Defendant and Mr. Murphy from Labor Finders and that both men were scheduled to work August 11, 2006, but neither showed up.

114The State’s next witness was Willie Cook, an employee of Labor Finders. Cook verified that, on August 10, 2006, he drove Defendant and Mr. Murphy to a store, where they cashed their paychecks, and then he dropped them back off at the Palms Motel. Cook testified that he returned to the motel on Friday morning to pick up Mr. Murphy and Defendant for work, but no one answered the door when he knocked.

The State also called James Holland to testify. Holland testified that he worked with Mr. Murphy and Defendant at Labor Finders. He stated that Mr. Murphy was a hard worker and never missed work. Holland further testified that he went with Mr. Murphy and Defendant to cash their checks. Mr. Murphy bought beer and cigarettes and told Holland that he had $180 left after making his purchases.

The State called Officer Rhodes of the MPD as its next witness. Officer Rhodes corroborated the testimony of Officer Nappier with regard to the fact that police could not locate “Adrian Jackson.” Following officer Rhodes’ testimony, both the State and Defendant rested.

As previously stated, on August 13, 2010, the jury found Defendant guilty as charged of second degree murder. On August 25, 2010, Defendant waived the preparation of a presentence investigation report and waived the recitation of the trial court’s reasons for sentencing under La. C. Cr. P. art. 894.1. Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction.

\ ^DISCUSSION

Assignment of Error Number One (verbatim): The evidence adduced at trial was insufficient to convict Theodore Moore of second degree murder.

In his first assignment of error, Defendant contends that the evidence presented at trial was insufficient to support his second degree murder conviction. In support of this assertion, Defendant points out that there were no eyewitnesses linking him to the murder, that the only physical evidence was DNA found on the 2x4 board, that a third person’s DNA was found on the board and that his pants and shoes which were taken by police had tested negative for blood. Defendant further claims that the State failed to exclude every reasonable hypothesis of innocence, including his story that he was with a prostitute when Mr. Murphy was being beaten. We disagree.

The criterion for evaluating sufficiency of evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all the elements of the crime proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Gray, 26,115 (La.App.2d Cir.6/22/94), 639 So.2d 421. This standard, now legislatively embodied in La. C. Cr. P. art. 821, is applicable to eases involving direct and circumstantial evidence. State v. Charleston, 33,393 (La.App.2d Cir.6/23/00), 764 So.2d 322, writ denied, 00-2603 (La.9/14/01), 796 So.2d 672.

Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue. State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), unit denied, 16597 So.2d 1027 (La.1992). Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Major, 604 So.2d 137 (La.App. 2d Cir.1992), writ denied, 609 So.2d 255 (La.1992).

In order to convict using circumstantial evidence, every reasonable hypothesis of innocence must be excluded. La. R.S. 15:438; State v. Charleston, supra. The circumstantial evidence provision set forth in La. R.S. 15:438 does not establish a stricter standard of review than the more general Jackson v. Virginia, supra, formula, but a hypothesis of innocence that is sufficiently reasonable and strong must necessarily lead a rational fact finder to entertain a reasonable doubt as to guilt. State v. Charleston, supra. Whether circumstantial evidence excludes every reasonable hypothesis of innocence is a question of law. Id. Ultimately, all evidence, whether direct or circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Charleston, supra.

La. R.S. 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or inflict great bodily harm; or
|17(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery ... [or] simple robbery ... even though he has no intent to kill or to inflict great bodily harm.

Viewing the evidence in the light most favorable to the State, the evidence presented at trial clearly supported Defendant’s second degree murder conviction. Jackson, supra. While there was no direct evidence from eyewitnesses linking Defendant to the murder, the circumstantial evidence adduced at trial excluded any reasonable hypothesis of Defendant’s innocence. La. R.S. 15:438; State v. Charleston, supra.

As pointed out by the State, Defendant had the motive, the opportunity and the means to kill Mr. Murphy. Defendant’s motive was needing more money to buy drugs and services from the prostitute. Officer Rhodes attempted to track down Defendant’s alibi, “Adrian Jackson,” but could not locate her. Furthermore, even if Adrian could have confirmed that she was with Defendant on the evening of August 10, 2006, Defendant, by his own admission, told police that he was in and out of the motel room several times that night. Defendant could provide no explanation of why he left Adrian to go back to the motel at 1:30 a.m.

Defendant’s assertion that he had plenty of money for his activities on the evening of August 10 and morning of August 11 is unreasonable. During the interview, Defendant claimed expenses adding up to $107 which left him with less than $60 to buy several items, including drugs, “everything [the prostitute] wanted,” and the services provided by the prostitute. Defendant realized midway through the interview that he did not have adequate funds accounted for to pay for his activities, so he suddenly | isclaimed that he remembered borrowing money from Mr. Murphy when he returned to the motel room at 1:80 a.m.

The most damaging piece of circumstantial evidence leading to the inference that Defendant murdered Mr. Murphy was the fact that Defendant’s DNA was found on the smaller piece of the 2x4 board which also containing Mr. Murphy’s DNA. Defendant shared the motel room with Mr. Murphy for several days and would have known where to find the 2x4 board. Ms. Cole, the motel clerk, testified that the broken 2x4 board appeared to have come from a stack of construction materials located just outside Defendant’s and Mr. Murphy’s motel room.

Defendant contends that the DNA was somehow transferred from his bed to the broken piece of 2x4; however, the broken piece of 2x4 containing his DNA was found on the floor between the beds, not on Defendant’s bed. We conclude that all hypotheses of innocence set forth by Defendant during his trial were reasonably rejected by the jury.

Accordingly, this assignment is without merit.

Assignment of Error Number Two (verbatim): The Trial Court erred in denying Mr. Moore’s motion to suppress his statement.

In his second assignment of error, Defendant contends that the trial judge erred in denying his motion to suppress his statement to police. Specifically, Defendant complains that, while he was in custody and being interviewed, police failed to honor his request for an attorney, took his shoes and pants and told him he was being questioned about an aggravated battery when the crime was considered by police to be an attempted murder.

liflThe prophylactic safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), apply only to custodial interrogation. To determine whether someone is in custody, the court must first make an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint of freedom to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). Second, the court must evaluate how a reasonable person in the position of the interviewee would have gauged the breadth of his freedom of action. Stansbury v. California, supra; State v. Blank, supra.

In order for the State to introduce a defendant’s statement into the record, it must demonstrate that the statement was freely and voluntarily made and not the product of fear, duress, intimidation, menace, threats, inducements or promises. State v. Holmes, 06-2988 (La.12/2/08), 5 So.3d 42, cert. denied, — U.S. -, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). When a person has been arrested or detained, the police must advise him of his Miranda rights, including the reason for his arrest or detention. La. C. Cr. P. art. 218.1. The State is not required to inform a defendant that he is an attempted murder suspect for his execution of a waiver of rights to be considered knowing and voluntary. Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988); State v. Holmes, supra. Miranda warnings alone sufficiently apprise the defendant of his Sixth lenAmendment right to counsel and of the consequences of abandoning that right; no additional or refined warnings are needed in this context. Patterson v. Illinois, supra; State v. Holmes, supra.

A trial judge’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless the evidence fails to support the trial judge’s determination. State v. Holmes, supra. When deciding whether a statement is free and voluntary, a court should consider the totality of the circumstances under which it is made. Id.

The determination of whether the accused actually invoked his right to counsel is an objective inquiry. Davis v. United States., 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); State v. Cooper, 36,830 (La.App.2d Cir.3/5/03), 839 So.2d 995, unit denied, 03-0999 (La.10/10/03), 855 So.2d 330. Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Davis v. United States., supra; State v. Cooper, supra. If a defendant makes a reference to an attorney that is ambiguous or equivocal in that a reasonable, police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, cessation of questioning is not required. Davis v. United, States, supra; State v. Cooper, supra. A suspect must “unambiguously request” counsel “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney” in order to cease custodial questioning. Davis v. United States, supra; State v. Cooper, supra.

_[¿jln the case sub judice, we find that the evidence supports the trial judge’s determination that Defendant’s statement was freely and voluntarily given. The evidence adduced at the hearing demonstrated that Defendant was not in custody at the time he gave his statement. Defendant voluntarily rode with a patrol officer to the police station for questioning, was never placed in handcuffs, was told on several occasions that he was not under arrest, answered the questions he wanted to and refused to answer the questions he did not want to answer during the interview.

An objective assessment of the circumstances surrounding Defendant’s police interview indicates that he was not under formal arrest, nor was his freedom restrained to the degree associated with a formal arrest. Stansbury v. California, supra; State v. Blank, supra. Defendant was fully informed of his Miranda rights and signed a waiver of those rights before he was interviewed. The transcript of his interview reveals that his statement was not the product of fear, duress, intimidation, menace, threats, inducements or promises. Officers asked Defendant if they could have his pants and shoes for testing and Defendant agreed, voluntarily gave the items to officers and was provided with alternative clothing to wear.

Furthermore, although Defendant complains that he was only told by police that he was being interviewed about an aggravated battery, officers were not required to tell Defendant that he was suspected of attempted murder for his waiver of Miranda rights to be considered knowing and voluntary. Patterson v. Illinois, supra; State v. Holmes, supra. Additionally, given the circumstances, a reasonable person in the position of | ^Defendant would not have believed he was under arrest. Stansbury v. California, supra; State v. Blank, supra.

Further, Defendant failed to unequivocally invoke his right to counsel during the interview. When questioned about his activities with a prostitute on the evening of August 10 and the morning of August 11, Defendant told officers that he was not going to incriminate himself. When further pressed about how much he paid the prostitute, Defendant replied that he may need a lawyer because he did not want to discuss what he did with the prostitute. When Officer Rhodes asked Defendant to clarify whether or not he wanted to stop the interview and speak with an attorney, however, Defendant responded that he did not need a lawyer because he had not done anything.

Defendant’s initial request for an attorney was not unambiguous or unequivocal. Defendant was simply making the point to officers that he did not want to talk about what he did with the prostitute. Moreover, Defendant withdrew the request almost immediately so that he could continue the interview in an attempt to exculpate himself. Accordingly, we find that Defendant’s statement was properly admitted into evidence by the trial judge. State v. Cooper, supra.

This assignment is without merit.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Theodore Roosevelt Moore, is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Tasha L. LISTER, Appellant.
    No. 46,306-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

_[jOn February 4, 2008, defendant, Tasha Lister, was involved in a fight with the victim, Jessica Williams. Defendant turned from the fight and got a handgun from Ronald Gix, who was watching the fight, and shot the victim in the neck. Defendant was indicted for second degree murder, a violation of La. R.S. 14:30.1. On September 14, 2009, defendant pled guilty to manslaughter, a violation of La. R.S. 14:31. On September 1, 2010, she was sentenced to serve 28 years at hard labor. Defendant now appeals. Her only assignment of error is that her sentence is excessive.

For the following reasons, we affirm.

Facts and Procedural Background

“No law shall subject any person ... to cruel, excessive, or unusual punishment.” La. Const. Art. 1, § 20.

This crime occurred in Monroe, Louisiana. At the time of this shooting, defendant was 27 years old and the victim was 20 years old. Both had been involved with drugs and alcohol on the night of the shooting. On September 14, 2009, defendant appeared before the court to plead guilty to the crime of manslaughter. The trial court administered the guilty plea colloquy. During the colloquy, defendant affirmatively indicated that she understood her rights. She acknowledged that her rights would be forfeited if she pled guilty, and she did not have any questions regarding her guilty plea. Following the colloquy, the court established a factual basis for the record.

Defendant was born on June 13, 1980. She has four children who now live with their great-grandmother (defendant’s grandmother). This is ^defendant’s first felony conviction. Defendant stated that she, James Coward and Justin Wright “bought some drugs ... some pills, [had] already been on the powder [and] smoked a stick of wet” the night before the shooting.

The judge then had James Coward take the stand. Coward testified that Wright, who was the victim’s boyfriend, began to “egg up a fight” by “pushing ... one [woman] against the other.” According to Coward, defendant confronted the victim. Defendant was armed with a “stick” (later identified as a pool cue), and the victim was in a truck, attempting to leave. An argument ensued and defendant shattered the pool cue against the truck. The victim grabbed half of the shattered cue. Defendant then retrieved a gun from a bystander, Robert Gix, and shot the 20-year-old victim, who died in the hospital shortly thereafter.

After various delays, defendant was sentenced on September 1, 2010. The record suggests there were multiple hearings held before her final sentencing. Defendant presented evidence of spiritual improvement and drug rehabilitation while incarcerated. The court noted that defendant had no prior convictions and was the mother of four children. The court also observed that the victim, Ms. Williams, had children.

After weighing the aggravating factors against the mitigating factors, the court sentenced defendant to 28 years imprisonment at hard labor. When sentencing defendant, the court explained that he did not want to ^deprecate the seriousness of the offense by giving defendant a minor sentence.

Defense counsel reminded the court that, during a previous hearing, the court had implied that defendant would receive a sentence of 25 years.

The court responded that:
There’s nothing changed. There’s no external factors. It’s just me and I decided that — I told you I was thinking about 25 years; I do recall that and I decided no matter what Ms. Lister did— well, whatever she did since she was convicted, it’s not enough. It doesn’t significantly nudge me off. If anything, my attitude has changed in the past several months with regard to counterproductive, anti-social, sociopathic, stupid, self-destructive behavior and that’s what she engaged in all her adult life as far as I could see. She finally killed somebody else. You don’t have to like it and I understand you don’t like it, but that’s my ruling today.

Defense counsel objected orally, stating, “we take a exception to the court’s ruling that it was senseless in that it was clear from the record that it was as close to self-defense as you could get without it actually being self-defense with the evidence of the victim having the pool cue and attacking Ms. Lister.”

Discussion

A sentence violates Article 1, § 20 of the Louisiana Constitution if it is grossly out of proportion to the seriousness of the offense, or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sen tence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of Injustice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864. The trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, a sentence should not be set aside as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Thompson, 25,583 (La.App.2d Cir.01/19/94), 631 So.2d 555.

Defendant was charged with second degree murder. The penalty for second degree murder is a mandatory sentence of life without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B). Defendant pled guilty to manslaughter. The maximum penalty for manslaughter is 40 years imprisonment at hard labor. La. R.S. 14:31(B). Defendant, therefore, benefitted significantly by pleading guilty to the lesser charge. A substantial advantage obtained by means of a plea bargain is a legitimate consideration in imposing a sentence. State v. Entwistle, 30,261 (La.App.2d Cir.01/21/98), 706 So.2d 1036.

The facts in this case show that defendant was the aggressor. She took a pool cue from her house and used it as a weapon against an unarmed victim. When the victim attempted to protect herself, defendant grabbed a gun and shot her.

Although defendant has not been convicted of another felony, she has a history of violent behavior. She has previously been charged with aggravated assault, aggravated assault with a gun, aggravated assault with a |fiknife, and simple battery. While the record is silent regarding the disposition of those charges, the trial court was authorized to consider the evidence of uncharged, charged, or nolle prossed offenses. State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40.

Contemplating the sentence, the judge considered mitigating factors as well, noting that defendant presented evidence of drug rehabilitation and spiritual improvement. Ultimately, the court imposed a sentence that was closer to the mean than the maximum. There was no abuse of the court’s sentencing discretion in this case. The 28-year hard labor sentence does not shock the sense of justice.

Conclusion

Defendant’s sentence is AFFIRMED.

      . Gix pled guilty to being a convicted felon in possession of a handgun and was sentenced to 15 years at hard labor.


text:
    STATE of Louisiana, Appellee v. Jason Ray DAVIS, Appellant.
    No. 46,267-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.
    Rehearing Denied June 16, 2011.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Geary Stephen Aycock, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and PEATROSS, JJ.
   BROWN, Chief Judge.

11 Defendant’s, Jason Ray Davis’s, only assignment of error is that the evidence presented was insufficient to support the jury’s verdict of second degree murder. He claims that the killing occurred in self-defense, and he argues that the record reveals a reasonable doubt concerning his guilt. We affirm.

Facts

The victim, 66-year-old Joe Lee Jones, was married to Elaine Jones for 48 years and was the father of four children and the grandfather of seven children on June 29, 2009, the date of his death. Jones worked for James Construction Company as a supervisor of bridge construction. He did not believe in or carry personal credit cards. He carried substantial cash on his person, in amounts ranging from $300 to $1,000. Jones also kept a wooden box containing cash in his truck. Jones and his wife were traveling to Virginia to visit two of his children and some of their grandchildren that week, so he had withdrawn additional money from their joint account for their trip.

At 6:00 a.m. on June 30, 2009, the Oua-chita Parish Sheriffs Office was notified that a white four door GMC truck with a trailer attached was blocking a wash bay at Clean Gene’s Car Wash on La. Hwy. 139 in Swartz, Louisiana. After learning that the owner of the truck was Joe Lee Jones, officers contacted Mrs. Jones, who found out that her husband had not gone to work as he usually did. Her calls to his cell phone went unanswered. Mrs. Jones drove to the car wash, but the officers, having discovered what ^appeared to be blood in her husband’s truck, would not let her near the vehicle.

Next to Clean Gene’s is Dave’s Chevron. Both businesses had surveillance cameras and had recorded activities from the previous evening. The surveillance tapes and officers’ investigation revealed that the victim, Joe Lee Jones, arrived at Dave’s Chevron on June 29, 2009, at approximately 8:26 p.m. Jones spoke with two acquaintances inside the store and bought a bag of Fritos. Defendant arrived a few minutes later. He entered the store twice to get Jones to leave with him, appearing to be pushy and in a hurry.

At approximately 8:36 p.m. the victim and defendant left Dave’s Chevron in the victim’s truck, traveling down the Swartz-Fairbanks Road. Approximately 30 minutes later, defendant returned alone, driving the victim’s truck. He parked Jones’s truck in one of the wash bays at Clean Gene’s, then washed his arms, legs, and body. Defendant also searched through the truck with a flashlight before locking the vehicle. Defendant then walked to his own truck which was parked at Dave’s Chevron and drove off in the same direction he had gone with the victim less than an hour previously.

The victim’s body was found in a ravine running beside a gravel road just off the Swartz-Fairbanks Road, approximately eight miles from Dave’s Chevron. Defendant’s family lived just off the Swartz-Fairbanks Road, between the gas station and the crime scene. Jones’s wallet, money box, keys and cell phone were never recovered. The victim’s cell phone was 13used after his death to call defendant’s girlfriend and another party. Defendant was identified from the video recordings. When arrested by the officers, defendant claimed that the victim made an inappropriate remark or movement so defendant struck him several times and knocked him down. Defendant claimed to have left the victim at the car wash.

Sergeant Daryl Giddens said that Jones’s body was found approximately eight miles from the Chevron station and car wash down Swartz-Fairbanks Road. Officers searched Jones’s truck and were unable to locate his keys or wallet. They were also unable to find the money boxes that Jones kept in his truck. A khaki baseball cap with a dark colored brim was found with the victim’s body. The shirt defendant was wearing in the videotape recordings was recovered from the floorboard of Jones’s pickup truck. A tool found on the driver’s side floorboard was later identified as an ice scraper. A filet knife was found by the victim’s body.

Cassandra Hernandez with the Northeast Louisiana Crime Lab testified that the DNA on most of the items presented to her, a filet knife, scraper tool, blood from a baseball cap and blood from a t-shirt, were consistent with and matched the DNA of the victim. Dr. Frank Peretti, forensic pathologist, testified as to the numerous injuries sustained by Jones, which included stabbing wounds, cutting wounds and blunt force injuries. Dr. Peretti noted the severity of the victim’s injuries, which included a broken left jaw, cluster wounds to the head, a pierced liver and cut throat. Dr. Peretti also observed that a number of these injuries were inflicted while the victim was outside of the truck.

14After he left the car wash, defendant went to his parents’ house on Swartz-Fairbanks Road. According to defendant, he did not tell his parents what had happened — he did not even go into the house. The next day, he had dinner with his parents and brother and again, did not mention what had happened the previous night.

On the night of the victim’s death, defendant told his girlfriend, LaKenya Moore, that he had gone to a job site with Jones, which is why he could not pick her up from work. Defendant told Ms. Moore that he had stabbed a man at the “Hurry Back” convenience store on Louisville Avenue because he had caught the man going through his truck in the parking lot. Ms. Moore suggested that defendant go to the police and tell them what had happened because to her, it sounded like self-defense. Defendant told Ms. Moore that he went back to the scene and moved the body. At trial, however, he denied telling Ms. Moore that he had moved the body and testified that he did not move Jones’s body. However, Dr. Peretti testified that the victim had lain on his back after his death for several hours before being moved to his stomach.

At trial, defendant related that the victim pulled a knife (the murder weapon) on him and tried to force defendant to perform oral sex. In self-defense, defendant beat and stabbed the -victim to death. This was the first time that defendant raised the issue of self-defense.

On July 28, 2009, defendant, Jason Ray Davis, was charged by grand jury indictment with second degree murder in violation of La. R.S. 14:80.1. On June 28, 2010, after a jury trial, defendant was found guilty as charged [ 5by a vote of eleven to one. On August 23, 2010, defendant filed a motion for a post-verdict judgment of acquittal which was denied. On August 24, 2010, defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. He was also ordered to pay $12,000 in restitution to the victim’s family. This appeal ensued. We affirm.

Discussion

Louisiana Revised Statute 14:30.1(A) provides in pertinent part that second degree murder is the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm; or (2) when the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, second degree robbery, [or] simple robbery, ... even though he has no intent to kill or to inflict great bodily harm.

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 appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. RA reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

A homicide is justifiable when committed in self-defense by one who reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and the killing is necessary to save himself from that danger. La. R.S. 14:20(A)(1). A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw. La. R.S. 14:21.

When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense or in the defense of others. State v. Matthews, 464 So.2d 298 (La.1985); State v. Palmer, 45,627 (La.App.2d Cir.01/26/11), 57 So.3d 1099.

At trial, defendant took the stand in his defense and admitted that he killed Joe Lee Jones by stabbing him with a knife. Dr. Peretti testified that the victim was first stabbed in the abdomen, and that his liver was pierced. The victim’s throat was cut, he suffered multiple stab wounds on both sides of his head, and he was stabbed through his left collarbone. Dr. Peretti also ^testified that the victim’s left jaw was broken, and he was severely beaten. According to the forensic pathologist, the victim sustained cluster wounds on his head, indicating his inability to struggle or defend himself. When arrested the next day, defendant had no wounds except for two small scratches. From this evidence, the jury could have found that defendant had the specific intent to kill or inflict great bodily harm upon Joe Lee Jones. Therefore, the only question remaining for the jury to decide was whether the evidence sufficiently negated defendant’s claim of self-defense. The jury determined that it did. In viewing the evidence in a light most favorable to the state, the jury could have found that defendant did not act in self-defense. In addition to evidence indicating the severity of the attack upon Jones and the lack of injuries to defendant, the evidence established that at the time of the incident, the victim was a slim, frail 66-year-old man with a heart condition, while defendant was a 6'2", 210 lb. 22-year-old man. There is ample evidence to support the jury’s conclusion.

Blood was found inside and outside of the victim’s truck, smeared on the rear fender and spattered on the driver’s side door jamb. Video surveillance cameras recorded defendant with Jones before the murder, and the encounter was corroborated by eyewitnesses at the scene. According to them, defendant appeared nervous, while Jones seemed relaxed. The recordings show defendant returning to the car wash in the victim’s truck to wash himself off. Defendant tried to hide evidence in a dumpster, and he did not report the crime to the police. Prior to his arrest, he had two different versions of the incident. Defendant admitted at trial that both |saccounts were lies. According to Dr. Peretti, the lividity in Jones’s body showed that it was moved a few hours after the murder. Ms. Moore and Ms. Johnson testified that defendant left their apartment more than once the night of the murder. Ms. Moore testified that defendant told her he moved the body. He took multiple showers that night, presumably after moving said body.

Jones was known to carry large amounts of cash. He had a particularly large amount of cash in preparation for a trip to Virginia. Defendant has a history of theft, having previously been convicted of simple robbery and theft. Although Jones’s body was found, his wallet and money box were never recovered. Defendant admitted that he took Jones’s keys and phone.

Multiple witnesses said that Jones was a gentleman. Regarding his character, witnesses observed that Jones was neither violent nor known to carry a large knife. The murder weapon was not similar to the other knives in the Jones’s household. No one had previously seen the knife in his truck or at his workplace.

In his testimony, defendant could not explain how a 66-year-old man with a heart condition could pull a 6'2", 210 lb. man across his lap and out the door of the truck. Defendant could not account for the blood on the driver’s side door jamb, and his story did not make reference to the blood on the rear fender. As noted above, defendant had only two minor scratches when the police found him, and he did not explain his periodic absences from the apartment the night of the murder.

| nDefendant’s self-serving testimony was uncorroborated and contrary to the direct evidence presented by the state. The jury was given the opportunity to weigh this testimony against the state’s evidence, and this court will accord great deference to the jury’s credibility determination.

Conclusion

Defendant’s conviction is AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.


author: DREW, J.

text:
    Charles P. SMITH, Plaintiff-Appellant v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 46,268-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.
    Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche (APLC), Shreveport, LA, by Brian D. Landry, for Appellant.
    Fred H. Sutherland, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

11 Charles P. Smith, a tenured teacher, appeals the district court’s affirmation of his dismissal by the Caddo Parish School Board (CPSB), following a tenure hearing conducted under La. R.S. 17:443.

The issue in this appeal is whether the CPSB violated Smith’s right in refusing to grant a continuance of his scheduled tenure hearing.

The hearing was conducted without Smith’s presence on October 8, 2007. Smith’s counsel was present at all times during the proceedings.

After a full judicial hearing, the trial court affirmed the CPSB ruling.

This appeal followed. We now affirm.

Reasons for Judgment

After hearing testimony, receiving evidence and reviewing the record, the trial court found that under the circumstances created by Smith, there was no violation of his procedural and substantive due process rights. The trial court dismissed Smith’s suit, affirming his termination. We adopt in toto the trial court’s Reasons for Judgment, attached hereto as an appendix.

Of crucial importance, we note that Smith’s counsel:

• was present during the entirety of the CPSB hearing;
• stipulated that CPSB had complied with La. R.S. 17:443;
• cross-examined no witnesses;
• declined the opportunity to present witnesses on Smith’s behalf;
1declined to get the continuance by her client going on unpaid leave;
• approved and consented to the release of all witnesses;
• had an opportunity to examine evidence and interpose objections;
• made no contemporaneous objections;
• did not request to hold open the record for her client’s testimony; and
• did not request that the record be reopened for her client’s testimony.

The trial court concluded that the CPSB was entirely reasonable in:

• finding Smith not to be in good faith in seeking the continuance;
• concluding that good grounds for a continuance did not exist;
• denying Smith’s request for a continuance; and
• neither holding open nor reopening the record.

Ruling that all formalities were met and no insufficiency issues shown, the trial court affirmed the decision of the CPSB.

Arguments of Charles P. Smith

Smith asks this court to reverse the judgment below for these reasons:

• Dr. Robinson treated him for headaches and dizziness in 2001;
• he had other head and ear medical problems, including his complaints just prior to the tenure hearing;
| s* the school board erred as a matter of law in conducting a tenure hearing without the tenured teacher being present;
• our constitution defends continued employment for tenured teachers;
• the La. Teachers’ Tenure Act protects the job security of teachers and should be liberally construed in favor of tenured teachers;
• tenured teachers are entitled to strict substantive and procedural protections before they can be removed from their jobs, including a school board hearing and judicial review of a school board’s action;
• La. R.S. 17:443(A) grants teachers the right to appear before the board at such a hearing, along with witnesses and a lawyer; and
• judicial review is limited to a determination of the school board’s compliance with procedural requirements during the proceedings and whether the board’s findings'are supported by substantial evidence.

Smith cites Richard v. Lafayette Parish School Board, 2008-73 (La.App. 3d Cir.5/21/08), 984 So.2d 218, where a terminated teacher was reinstated because the charging letter failed to include a list of witnesses, a mandatory requirement. Note our emphasis.

He further cites Leban v. Orleans Parish School Board, 07-0571 (La.App. 4th Cir.11/21/07), 972 So.2d 376, in which a tenured teacher was discharged for willful neglect of duty and immorality involving sexual harassment which occurred seven years prior to the hearing. The court found that the trial was fundamentally unfair because the delay, the loss of evidence, and the faulty investigation all combined to seriously impede the defendant’s ability to defend himself. Note our emphasis.

These cases are factually and legally inapplicable to this dispute.

Smith contends the school board violated his right to appear with witnesses, who should have been heard by the board. He maintains he ^presented an impartial witness at the judicial hearing along with medical evidence of his inability to appear at the tenure hearing. He also objects to the CPSB not leaving the record open for him to present a defense later.

Response by the Caddo Parish School Board

The CPSB responds that:

• neither the school board nor the district court erred, since the school board complied with all requirements of the tenure law;
• Smith abused the process by refusing to attend the tenure hearing;
• Smith had a court hearing, at which he could have had an opportunity to present evidence and witnesses of his choosing;
• Smith was attempting to manipulate the tenure process in order to continue receiving financial benefits while not working;
• he chose to present no evidence of a legitimate medical problem;
• Dr. Robinson admitted writing the excuse at the patient’s request;
• at that time, the physician saw no evidence of nausea or dizziness;
• no medical reason precluded Smith’s attendance at the hearing;
• Smith’s counsel agreed that the CPSB complied with the tenure law;
• the CPSB did not abuse its discretion in refusing a continuance;
• the record provides substantial evidence upon which to justify the school board’s decision to dismiss Smith;
• Smith was less than candid with Dr. Robinson about his work status;
• the trial court’s judgment is entitled to great deference;
• Smith’s counsel was present for the tenure hearing and made no request to hold the hearing open for any additional testimony;
|fi* Smith’s counsel did not utilize the opportunity to cross-examine witnesses;
• Smith’s counsel presented no evidence;
• no witness was excused without counsel’s consent; and
• Smith’s counsel had an opportunity to object to any evidentiary filings.

Our Analysis

If there is a smoking gun here, it is that Smith’s scrambling for a continuance was predicated upon totally different reasons, in the few days before the scheduled hearing. First he contacted attorney Reggie Abrams on a Thursday, requesting a continuance because (1) he needed to go through the grievance process, and (2) his wife was sick. This didn’t work.

The next day, he told Dr. Robinson of his recent symptoms, though he had no ill effects when with the physician. Nonetheless, he asked for and got a medical excuse for one work day, which was the following Monday, the scheduled date of the hearing. Strangely, he was not working at the time, having been suspended with pay, pending the tenure hearing. Thus, there was no reason for an excuse from work.

Our appreciation of the evidence is that Smith voluntarily refused to appear at the tenure hearing and deliberately declined to question witnesses or present any evidence. His strategy backfired. There is no showing of prejudice. All statutory requirements were meticulously followed. The findings of the CPSB and the trial court are eminently reasonable.

| ^Accordingly, we affirm in all respects, with costs assessed to Smith.

DECREE

At the cost of appellant, Charles P. Smith, the judgment is AFFIRMED.

|, APPENDIX

chari.es p. smith

NUMBER: 520,574-B

VERSUS

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH SCHOOL BOARD

CADDO PARISH, LOUISIANA

REASONS FOR JUDGMENT -

In accordance wilh La. R. S. 17:443B, a hearing and full judicial review of action taken by Caddo Parish School Board (CPSB) against tenured teacher, Charles Smith, was held May 11,2010. The Court heard testimony from Jackie Lansdale, Sharon Walden (formerly Sharon Smith), Charles Smith, Jan Holiday and, by agreement, received both the deposition testimony of Dr. James Robinson and Affidavit of Reginald Abrams. In addition, the formal charges and transcribed copy of the tenure hearing was received in evidence. After thorough review of the entire record, applicable law, written arguments of counsel and for reasons which follow, the Court concludes that under the specific and particular, circumstances created by Charles Smith, there was no violation of his procedural and substantive due process rights; his claims are dismissed and the October 8, 2007 action of CPSB is affirmed.

The Court summarizes and makes the following findings of relevant facts:

1) On May 30, 2007, OI lie Tyler, then Superintendent of the Caddo Parish School Board, issued charges against Mooretown Elementary tenured inclusion teacher Charles Smith, including allegations of (a) various acts of incompetency;

(b) willful neglect of duty, dishonesty and "non professional conduct seriously prejudicial to the school system” (including forgery of documentation logs); and

(c) willful neglect of duty, insubordination and “unprofessional conduct seriously

SCANNED 070820.10 00 0053

explosiveness, threats, having to be escorted off campus-more than once, filing a false report and, perhaps the most shocking allegation, “inappropriate and significant use of the school board owned computer to access sexually obscene or pornographic web sites and to download and store obscene and pornographic images on the computer”) in violation of Caddo Parish School Board policies.

2) On June 5, 2007, CPSB approved a resolution calling for a tenure hearing for Mr. Smith concerning the allegations set forth by Ms. Tyler, and on June 6, 2007, Mr. Smith was provided notice of the resolution and charges, all in accordance with law.

3) Shannon Hicks, an attorney at law, represented Mr. Smith at all relevant times during the process.

4) A teacher tenure hearing was set for June 17, 2007; however, at the request of Ms. Hicks (who understandably needed time to prepare), the hearing was rescheduled for August 21,2007.

5) At the request of Fred Sutherland, counsel for CPSB, the hearing of August 21 was rescheduled for October 8,2007, a date agreed upon by both parties and both lawyers.

6) It was understood by both Charles Smith and CPSB and both Ms. Hicks and Mr. Sutherland that “there would be no further continuances and the matter would proceed as scheduled on October 8,2007.

7) On Thursday, October 4,2007, four days before the Monday, October 8 agreed-upon hearing date, Ms. Hicks contacted Mr. Abrams, general counsel for CPSB, requesting a continuance on the following grounds: (A) “Mr. Smith needs to go through the grievance process because he had a grievance that was pending; and (B) because Mr. Smith’s wife had undergone some type of surgery or nasal surgery, or ENT and that Mr. Smith needed to be with his wife”. (See Transcript page 17 and Abrams Affidavit.) On the same date, Mr. Abrams relayed the continuance request to CPSB. On Friday October 5, Mr. Abrams was advised by CPSB that the request was denied, and he contacted Ms. Hicks and so advised her. The two lawyers agreed the hearing would go forward on October 8.

_k

-2-

SCANNED G7032OJ.G 000054

8) On Friday, October 5,2007, Mr. Smith presented to the office of Dr. James R. Robinson, a medical doctor board certified in Otolaryngology, with “complaints of recently occurring dizziness, headaches and weakness”. With regard to that October 5 doctor/patient event the Court finds the trial deposition testimony of Dr. Robinson particularly important:

Q. And what docs your note for October the 5U| say?

A. Under chief complaint 1 wrote: I’ve had dizziness, sinus headaches and stuffiness in the right car, weak spells, sleepiness, then 1 indicated, it wasn’t really bothering him bad at all now. The onset was two or three days previously, indicated that he may have had more of a problem the day before the visit but he was having no post nasal drainage. He did complain of an intermittent sore throat.

17:14-24

A. 1 remember that visit because it was difficult for me to put it, his complaints together with, with my physical findings. His complaint was somewhat unusual in that he said that 1 have had dizziness and sinus headaches and a sensation of stuffiness in the right ear, weak spells and sleepiness, but then he said it wasn’t really bothering him very much at all which is why I wrote that and included that phrase in my note. And I wondered at the time why he was there to see me about a problem that didn’t really seem to be bothering him at all.

38: 15-25 39: 1

_L

-3-

SCANNED 0788202G 000855

On Friday, October 5, Dr. Robinson was not advised by Mr. Smith that he had an upcoming hearing scheduled for 4:30 p.m. on Monday, October 8 nor was Dr. Robinson advised that Mr. Smith was on paid leave due to school board charges filed against him in May and June of 2007. (See Robinson deposition testimony, generally pages 20-22.) At Mr. Smith’s request, Dr. Robinson provided him with a note dated October 5, 2007 stating, “may return to work October 9,2007'’. With respect to the necessity of a note, the Court finds the following question/answer trial deposition testimony important:

Q. Based on the note that you gave him, did you feei that there was really any medical need for this gentleman to be off until October the 9⅛?

A. I believe that 1 was accommodating his request for a note like the one 1 wrote.

21:16-21

Q. Doctor, it is your opinion that the physical condition and mental condition of Mr. Smith when you saw him on October the 5⅛, 2005 would not have warranted an excuse from work because of that condition through Tuesday, October the 9⅛.

A. I didn’t gather any information from my history or physical examination that would make me perceive he was unable to work but, of course, I’m riot sure what kind of environment he had to experience and in that situation 1 will always accommodate my patient when I can.

22:13-24

9) Apparently, at some point subsequent to the October 5 visit or at some point on Monday October 8, 2007, Mr, Smith apparently contacted Dr. Robinson’s office and an unsigned note was generated by that office stating as follows:

“Charles Smith has been under my care from 10/8/07 to 10/8/07...Pt has been under Dr. Robinson’s care for dizziness and headaches. May return October 9, 2007"

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Exhibit 4 Robinson deposition

As to that note, Dr. Robinson expressed bewilderment as evidenced by the following testimony:

A. That’s correct. I don’t understand why this other note that we found that’s written on this form was necessary since he had a note that I gave him on October the 5"' saying that he couldn’t go back to work on the 9th. We have two notes dated different times that say essentially the same thing.

47' 16-25

1 just am confijsed and don’t understand why a note that’s dated or that’s categorized as Robinson No. 4 was necessary since he already had a note dated October the 5⅛ saying that he could go back to work October the 9a. I have two notes with different dates that say essentially the same thing. 1 have no idea why they are.

48:21-25 49:1-3

10) On Monday morning, October 8, 2007, Ms. Hicks contacted Mr. Abrams stating that Mr. Smith had a “severe headache and allergies and could not attend thc hcaring". Ms. Hicks indicated she would get a doctor’s excuse to Mr. Sutherland that day “around 2:00 p.m.”

11) On Monday, October 8,2007 at about 4:00 p.m., Mr. Abrams received the notes from Dr. Robinson. Based on the particular circumstances (the request of Thursday October 4 on non-medical grounds for a continuance plus the two somewhat unusual eleventh hour notes of Dr. Robinson) Mr. Abrams concluded that Mr. Smith was abusing the process and recommended to CPSB (1) that the hearing proceed as scheduled; or (2) that Mr. Smith be on leave without pay pending a new hearing date. Ms. Hicks advised Mr. Abrams that Mr. Smith wouid not agree to either choice.

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12) Apparently accepting Mr. Abrams’ recommendation, CPSB denied Mr. Smith’s request for continuance and the hearing commenced at 4:42 p.m. with Ms. Hicks present and participating until the hearing was concluded at 10:07 p.m. by the rendering of verdicts on the 34 charges.

13) Of particular importance concerning the hearing are the following:

(A) Mr. Smith, through Ms, Hicks, could have opted to go on unpaid leave and obtain a continuance;

(B) Although Ms. Hicks requested a continuance, which was denied, she was present and represented Mr. Smith throughout the night;

(C) Ms. Hicks'stipulated that CPSB had completely complied with all requirements of R.S. 17:443 for bringing the hearing, specifically notice of the charges, evidence to be presented, and all other statutory mandates.

(D) Although Ms. Hicks, for whatever reason, chose not to cross examine witnesses, she had the full and complete opportunity to do so and, further, she had the opportunity to present witnesses on Mr. Smith’s behalf and declined to do so. (See Transcript pages 58, 105, 119, 129, 141, 156, 177, 194 and 213 as to her'choice not to cross examine any witness and page 215 as to her choice not to present any witness.)

(E) No witness was released without the approval and consent of Ms. Hicks nor was any evidence introduced, including the incriminating and graphic computer images, without Ms. Hicks having the opportunity to examine the evidence and pose objections to it. (See, for example, Transcript 120:5-16.)

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(14) Significantly, Ms. Hicks did not contemporaneously-nor in any post verdict(s) motion-request that the record be held open-or reopened-for the testimony of Mr. Smith; Ms. Hicks thereby waived any right she may have had to complain (or for Mr. Landry to later complain) that R.S. 17:443A was violated, particularly the “right to appear” and “shall be heard” provisions. (See Transcript page 215 as to the lack of any request that the record be held open.)

At the conclusion of the trial the Court requested that counsel brief three issues: (1) Whether CPSB abused its discretion in denying the continuance? (2) Whether CPSB abused its discretion in not leaving the record open to allow Mr. Smith to testify at a later time? (3) Whether the Court has any option other than to affirm or reverse the decision of CPSB? In other words, in strictly adhering to R.S. 17:443A, can the Court order a remand to CPSB for the sole purpose of Mr. Smith providing testimony (or affirmatively waiving his right to testify)?

As to the third issue of this Court’s options, Brian Landry, in his May 13, 2013 post trial letter brief, has written:

As to the court’s second question concerning options that it may have in disposing of this case, we do not mean to challenge the court’s jurisdiction or powers in any manner, but statutory interpretation leads us to conclude that under La.R.S. 17:443(I3), the court only has two options. The language of the statute is clear and not ambiguous in any way. Just as in the earlier part of the statute, the Legislature chose to use the mandatory, rather than permissive form, when it stated, "the court shall have jurisdiction to affirm or reverse the action of the school board...” No other option exists.

This Court agrees with Mr. Landry that it has only two options-to affirm or

reverse CPSB. There is no legal basis or authority for this Court to remand for

taking of any testimony-even the teacher’s statement.

As to the issue of whether CPSB abused its discretion in denying Mr. Smith’s request for continuance, the Court concludes that it was entirely reasonable for Mr. Abrams to reach the inferences which he did and to make recommendations to his client, CPSB, accordingly. It was also within the discretion and certainly within reason for CPSB to conclude that the continuance request was not made in good faith, that actual good grounds did not exist for granting the request or that the two notes from Dr. Robinson were pretcxtual in nature. The apparent findings in that regard made by CPSB on Monday, October 8, 2005, at about 4:00 p.m. were consistent with the subsequent deposition testimony of Dr. Robinson, taken March 18, 2009, moie fully described on pages 3-5 of this opinion. Therefore, this Court concludes that CPSB was well within its discretion to deny the continuance request based on the history and particular circumstances of this case.

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The other issue, actually raised by the Court aL the conclusion of the evidence regarding the notion of holding the record open for the testimony of Mr, Smith, becomes an issue only if the Court has concluded — as it has-that CPSB 'properly denied Smith’s continuance request. This Court finds that there is’no obligation for CPSB to have held the record open particularly in light of the fact that (1) Ms. Hicks was present throughout the hearing, had the opportunity to cross examine witnesses and object to evidence; and (2) Ms. Hicks did not request that the record be held open for any additional testimony.

Having concluded that CPSB complied with all statutory formalities based on the facts and circumstances of this case and there being no issues presented with regard to the sufficiency of evidence, the Court concludes that the decision of CPSB should be affirmed in all respects.

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The bottom line is that the evidence presented at October 8, 2007 tenure hearing was overwhelming, and in light of the extreme severity of the charges, Mr. Smith-unless incapacitated and hospitalized or dead-should have been present.' In the Court’s opinion, he specifically chose not to be present; the CPSB was correct to proceed with the hearing; his lawyer chose not to cross examine witnesses or to present any witnesses; and in light of the evidence, CPSB was correct in its verdicts. The action of CPSB is affirmed and Mr. Smith’s claim is dismissed at his costs.

Counsel shall submit a formal judgment in accordance with La. Disl. Cl. R. 9.5.

Signed this 7th day of July, 2010, in Shreveport, Caddo Parish, Louisiana.

SCOTT J. CRJCHTON DISTRICT JUDGE

DISTRIBUTION:

Brian D. Landry, Counsel for Charles Smith Fred H. Sutherland, Counsel for CPSB

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      . In short, the board’s refusal to grant a continuance was apparently based upon its conclusion that Smith's alleged adverse medical condition was a ruse, proffered merely to drag out the proceedings, enabling him to continue collecting his pay.

      . This strategy was certainly a gamble. It effectively waived any subsequent objections or complaints relative to any alleged violations of LA. R.S. 17:443(A). Counsel knew her client had received notice of the charges and evidence to be presented.

      . Had Smith prevailed at a later CPSB hearing, he would have gotten his back pay.

      . Neither during nor after the hearings.

      . His ex-wife testified at the judicial hearing that Smith’s 2003 surgery did not solve his health problems and that he periodically had dizziness and nausea, especially if he had sinus problems or a head cold. She alleged that the week before the tenure hearing, Smith had a head cold, for which she drove him to the doctor, since he was unable to drive. She further testified that on the evening before the tenure hearing, Smith's physical condition worsened, so she delivered the doctor’s excuse note to his counsel. When the CPSB requested more information, she secured the second note from Dr. Robinson’s office. It was not signed by the physician.

      .We note with much interest that Smith did testify at the judicial hearing.

      . Smith had been on paid leave for an extended time period during the pending tenure proceedings.

      . Smith requested a slip saying he could return to work on October 9, 2007, even though he was actually on paid leave, pending the decision of the CPSB.

      . The tenure hearing was scheduled for, and conducted upon Monday, October 8, 2007. The doctor's excuse was signed on Friday, October 5, 2007. Its issuance was predicated on Smith's subjective complaints. It released him to go back to work on Tuesday, October 9, 2007.


text:
    STATE of Louisiana, Appellee v. Leon WILLIAMS, Appellant.
    No. 46,301-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.
    Rehearing Denied Aug. 5, 2011.
    Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, John W. Montgomery, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   DREW, J.

h Leon Williams was convicted of distributing cocaine, La. R.S. 40:967(A). He was sentenced to 20 years at hard labor, the first two years without benefits. The trial court denied an oral motion for reconsideration.

He appeals on the basis of only two issues:

• the improper closing and rebuttal arguments of the prosecutor; and
• the excessive sentence meted out by the court.

We affirm in all respects.

FACTS

The state’s main three witnesses were Lieutenants Marvin Garrett and Dan Weaver of the Minden Police Department, and Cody Cain Manuel.

Both officers testified that because Manuel owed fines on several traffic tickets, he offered to provide information in exchange for help with the citations. He thought his parole could be violated for not taking care of the tickets. The officers set him up in a drug deal with the defendant.

On the date of the sting, Manuel met with the officers, was searched for money and drugs, then fitted with an audio device and a video camera attached to a shirt button. The officers provided $50 for the purchase, drove him to a location near his home, and remained nearby, monitoring the audio.

Manuel telephoned the defendant, whose street name was “The Colonel,” advising that he was ready to buy. When the defendant arrived at Manuel’s house, he behaved nervously. After a short time, he picked up Manuel’s $50 from a table and began to leave, telling him to look behind the television. Manuel did so, and located crack cocaine in a cigarette box.

| ¡After the defendant left, Manuel waited a few minutes, then began walking to meet with the officers. The defendant drove by and asked where he was going. Manuel responded that he was going to his mother’s house. The defendant gave him a ride, during which Manuel pretended to have already smoked the crack. Their conversation was recorded by the audio equipment, revealing that defendant asked about the drug’s quality.

When Manuel reconnected with the officers, the recording devices were removed, and the cocaine was booked into evidence. The tapes of the sale and of the ride were of poor quality, were played for the jury, and were discussed at length by the state’s witnesses.

In closing argument, the prosecutor made several statements which defendant now claims denied him a fair trial. The defendant made no contemporaneous objections on this issue at trial.

Though still improper, the prosecutor’s last three comments of the 10 that are bulleted below were made in direct response to defense counsel’s forceful and scathing closing argument. Counsel attacked the | ?,professionalism of the police officers involved in the case. By implication, some of these comments could be interpreted to question the propriety and rectitude of the prosecution’s handling of the- case.

In his closing argument and rebuttal, the prosecutor made these statements, inter alia:

• I have an advantage over you because. I’ve lived with this case for a pretty good while and I had — I’ve had the opportunity to know exactly what’s going. on. I’ve already told you that.
• I was satisfied when I got this case from law enforcement. I was satisfied when I decided that we had the evidence to proceed. I was satisfied that Leon Williams had distributed cocaine in the parish on that day. I’m still satisfied. I have shown you everything that I know.
• [v]ery often, most often, in a case like this, when we try them, and God knows we try way too many of them. I’m sad to tell you that we have way too many of these to try. This case is just like the other cases that we have tried over and over and over again.
• If you had been the police you would have handled it differently, that’s what the defenses always are.
• [w]hen we reach a certain point in our investigation ... we look at it and say, that’s enough, then that’s enough. We’re going to quit then. And I promise you that defense lawyers are going to come in and say we didn’t do enough or we did something wrong. But every time, no matter when we get a point to where law enforcement people and the District Attorney say that’s enough on this case, we got this one, go the next one, and God knows there’s plenty of them out there to go to.
L* [w]e try a lot of these cases. I don’t think I’ve tried one anywhere the guilt is more clearly proven beyond a reasonable doubt and I made that decision a pretty good while ago.
• [w]hen they get to that point, I’ve already told you, we shut it down. There’s no need in us going out there and beating on a dead horse. It’s a cut and dried case and we quit.
• I think you’ve looked at me, I’m not going to be a party to something that’s not right and correct.
• We’ve tried I don’t know how many cases like this. That’s sufficient, beyond a reasonable doubt, to show that this man distributed that cocaine. This — we got a bunch more like this. It’s not your job to hold me accountable. That’s my job.
• It is really not even your decision to decide what happens, that already has been decided.

The defendant was found guilty.

DISCUSSION

The Prosecutor’s Closing Argument

The defendant argues that the prosecutor’s closing argument and rebuttal deprived him of a fair trial as guaranteed him by the Fourteenth Amendment of the United States Constitution and Article I, § 2 of the Louisiana Constitution.

La. C. Cr. P. art. 774 is instructive here.

Defendant further argues that since a jury must make its own assessment of the credibility of witnesses, it is inappropriate for the state to | ¿assure the jury of the credibility of a government witness. He is correct in this assertion.

The general rule is that it is improper for an attorney to vouch for or assert his or her personal opinion of the credibility of a witness when doing so implies that the prosecutor has additional knowledge or information about the case which has not been disclosed to the jury. State v. Smith, 554 So.2d 676 (La.1989), overruled on other grounds.

The defendant also correctly argues that a prosecutor may not resort to personal experience or turn the argument into a plebiscite on crime. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, cert, denied. He also argues that it is reversible error for the prosecutor to express his belief in the guilt of the accused, or the credibility of a key witness, where doing so implies that he has additional knowledge or information about the case not disclosed to the jury. State v. Harrison, 367 So.2d 1 (La.1979).

The state responds that without a timely objection, the trial court is afforded no opportunity to redress the impropriety. The defendant is thus precluded from complaining of any alleged irregularity at trial. See State v. Herrod, 412 So.2d 564 (La. 1982).

Statutes relative to this appeal are clear.

6In State v. Wafer, 31,078 (La.App.2d Cir.9/23/98), 719 So.2d 156, writ denied, 99-1114 (La.10/1/99), 747 So.2d 1137, the defendant assigned as error the impropriety of the state’s closing argument, after having objected at trial to only one of the statements. Relying upon State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651, and La. C. Cr. P. art. 841, this court held he had waived any error, except as to the one comment to which he had objected.

This court further held in Wafer, supra, at 164-165, that:

• comments on the credibility of witnesses are proper and within the scope of closing argument, if based upon the evidence;
• both state and defendant are permitted to draw their own conclusions as to what the evidence establishes, and both may press upon the jury any view arising out of the evidence;
• the trial court has wide discretion in controlling closing arguments;
• a court should not reverse on grounds of improper closing argument unless it is thoroughly convinced the remark influenced the jury and contributed to its verdict; and
17* in making this decision, credit should be given to the jury’s good sense and fairmindedness.

With no contemporaneous objection, this assignment of error must fall. Perhaps not objecting during argument was part of counsel’s trial strategy, knowing that the judge’s instructions were soon to follow.

In any event, we cannot discern from this record that the prosecutor’s argument improperly influenced the jury. Evidence of guilt here, though substantially circumstantial, is overwhelming.

Perhaps the most damaging evidence came from the defendant himself. This exchange occurred between Manuel and Williams:

Manuel — “Don’t be acting like you’re paranoid.”
Williams — “You ain’t in that type of business. When you get in that business, you’ll know.”

Later, when giving Manuel a ride, Williams asked this question, about 25 minutes after the sale: “You done smoked all that s* *t up already?”

This verdict is justified by this record. At most, this is harmless error.

The Sentence

The defendant argues that this 20-year sentence violates La. Const. Art. I, § 20, which prohibits the subjection of any person to cruel, excessive, or unusual punishment. He argues that this transaction involved a single $50 sale of crack cocaine, and the sentence is unnecessarily harsh.

The state responds that the sentence:
• is appropriate and within the guidelines set forth for this crime;
• was a result of a thorough presentence investigation;
|s* was amply justified by the trial court, pursuant to the PSI; and
• was a midrange sentence, less than the maximum exposure of 30 years.

Our law on the appellate review of sentences is well settled.

The trial court’s comments at sentencing reflect that it studied the PSI closely and thoroughly considered the sentencing guidelines in La. C. Cr. P. art. 894.1. The PSI recommended a substantial hard labor sentence, noting that the defendant:

• had an extensive criminal background which included a felony of burglary of an inhabited dwelling and numerous misdemeanors;
• was a single parent with custody of a six-year-old son; and
• had pending felony drug charges.

We discern no abuse of discretion in the imposition of a midrange sentence within the guidelines of the statute. The sentence imposed is not disproportionate to the crime committed and does not shock the conscience.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

WILLIAMS and PEATROSS, JJ., would not consider.

      . Consider these excerpted comments of defense counsel:
      "Your job as jurors is to hold them accountable for what they do and to hold them to the level of professionalism and integrity that we expect them to have. I hadn’t seen it. You know I heard them say well we don’t care if he’s on parole we’ll do it anyway. You know you’re not supposed to do that. Well, yeah, you know, we do it. We’re the police, we do it. We’re going to keep doing it until somebody tells us we can’t do it and then we're going to do it a little more after that because we’re the police. We can do it. They should be held accountable for their professionalism. They’re bound by the same rules that we’re all bound by. I have rules I have to follow as being an attorney. If I don't follow those rules guess what I’m, going to be a truck driver tomorrow, which some days that doesn’t sound bad. But your job is to hold them to that level of professionalism we expect from them and they have not demonstrated one bit of that here in front of you for the past week.
      “They want to throw out the rules, do whatever they want to do and they expect you to just rubber stamp it. That’s okay, wink. All right. Good job. That’s not how it's supposed to work. It's specifically designed to protect the rights of the individual, make no mistake each one of you are individuals. If they do it to him they’ll do it to you in a heartbeat. That is what our system is designed to protect us from and that’s what we've taken an oath to keep them from doing. And you’ve got the opportunity here to do that today. Do the right things, hold them accountable to their — just the right way of doing things. And this ain’t it. Not even close.”

      . These inappropriate comments are mitigated somewhat by this last sentence, which communicated to the jury that they knew everything that the prosecutor knew.

      . Art. 774. Argument; scope
      The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      The argument shall not appeal to prejudice.

        The state’s rebuttal shall be confined to answering the argument of the defendant.

      . La. R.S. 40:967(A):
      A. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
      (2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.
      La. R.S. 40:967(B)(4)(b):
      Distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 ... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars. La. C. Cr. P. art. 841:
      A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

      C. The necessity for and specificity of evi-dentiary objections are governed by the Louisiana Code of Evidence.

      . Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Edwards, 45,-314 (La.App.2d Cir.6/23/10), 42 So.3d 449; State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733. In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, supra; State v. Colgin, 43,416 (La.App.2d Cir.8/13/08), 989 So.2d 876, writ denied, 08-2304 (La.5/15/09), 8 So.3d 581.
      The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for exces-siveness if the record supports the sentence imposed. State v. Colgin, supra; State v. Shaw, 37,168 (La.App.2d Cir.6/25/03), 850 So.2d 868. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Colgin, supra.