author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Terrance M. WILLIAMS.
    No. 10-KA-947.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Elizabeth Curren, Trial Counsel, Michael Escudier, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Terrance M. Williams.
    Terrence Williams, In Proper Person, Angola, LA, Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12In his second appeal, defendant/appellant challenges his conviction for armed robbery. For the following reasons, we affirm defendant’s conviction and sentence.

Procedural History

On August 12, 2005, the Jefferson Parish District Attorney filed a bill of information charging Terrance M. Williams with one count of armed robbery, in violation of La. R.S. 14:64, and one count of felon in possession of a firearm, in violation of La. R.S. 14:95.1. The State subsequently dismissed the charge of felon in possession of a firearm.

On July 21, 2008, trial commenced on the armed robbery charge. On July 24, 2008, the twelve-person jury found defendant guilty as charged. Defendant filed a motion for new trial on August 20, 2008 alleging that the verdict was contrary to the law and evidence and the ends of justice would be served by | ..¡granting a new trial since defendant was shackled for the entirety of his trial. On August 21, 2008, without ruling on defendant’s motion for new trial, the trial judge sentenced defendant to imprisonment at hard labor for 49 years without benefit of parole, probation, or suspension of sentence. Defendant filed a motion for appeal, which was granted.

In defendant’s first appeal, this Court recognized that the record did not reflect a ruling on defendant’s motion for new trial, which is patent error that requires remand. State v. Williams, 09-82, pp. 2-3 (La.App. 5 Cir. 12/29/09), 30 So.3d 975, 976. Accordingly, this Court pretermitted discussion of the merits of defendant’s appeal, vacated defendant’s sentence, and remanded the matter for a ruling on defendant’s motion for new trial. This Court also reserved to defendant his right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion. Williams, 09-82 at 3-5, 30 So.3d at 976-77.

On March 16, 2010, defendant filed a pro se motion for new trial. On March 25, 2010, after a hearing, the trial judge denied defendant’s counseled and pro se motions for new trial. That day, defendant waived sentencing delays and the trial judge sentenced him to imprisonment at hard labor for 49 years without benefit of parole, probation, or suspension of sentence. On September 21, 2010, defendant filed a motion for reinstatement of appeal rights that was granted on September 29, 2010. This timely appeal follows.

Facts

On July 29, 2005, at approximately 5:45 a.m., Assistant Manager Jennifer Veazey arrived at New Orleans Hamburger and Seafood Company at 6920 Veterans Boulevard to open the restaurant for business. After Ms. Veazey parked her car and walked toward the restaurant, she was approached by an Airican-jAmerican4 male with a gun in his hand. He was wearing dark clothing, a hat, and gloves, and had something covering his face. The man told Ms. Veazey to unlock the doors, she complied, and they went inside the restaurant. As they entered the restaurant, Ms. Veazey silently triggered the restaurant’s security alarm using the panic button on a fob on her keychain.

Next, the armed man instructed Ms. Veazey to go into the business’ office and open the safe. After she opened the safe, the man handed her a black bag, into which Ms. Veazey put some of the money from the safe. The man then directed Ms. Veazey to take a seat in a chair in the office. The man restrained her by taping her to the chair with duct tape that he was carrying with him. Finally, the man took the keys to Ms. Veazey’s car and left. Although Ms. Veazey could not fully free herself from her restraints, she eventually struggled to access her cell phone and dialed 911 to alert the Jefferson Parish Sheriffs Office to the robbery and her situation.

Deputy Stacie Poche Gurviche Taranto (hereinafter “Poche”) of the Jefferson Parish Sheriffs Office (JPSO) was the first responding officer. As Deputy Poche approached the New Orleans Hamburger and Seafood Company, she saw an African-American man walking from the front door to the only vehicle in the parking lot. He was wearing dark clothes, a dark hat, dark sunglasses, and tan gloves. Deputy Poche activated her lights and sirens then followed the vehicle onto Veterans Boulevard. When the stolen vehicle reached Downs Boulevard, the main entrance to Lafreniere Park, the fleeing driver turned right.

The absconding driver was traveling at a high rate of speed so he did not make the turn into the park and collided with the concrete median. The driver of the stolen vehicle stopped momentarily, put the vehicle into reverse, and backed into Deputy Poche’s police vehicle.

|5Next, the fleeing driver threw the car into gear, accelerated, turned right onto Madewood, and again stopped in the middle of the street. When Deputy Poche saw defendant’s reverse lights come on, she attempted to avoid a second collision but the fleeing driver backed into the deputy’s vehicle a second time.

Next, the escaping driver traveled up Madewood and turned right onto Oak Grove, which is a dead-end street. Again, the fleeing driver backed up, and again, rammed Deputy Poche’s vehicle.

At this point, the fleeing driver traveled onto David Drive, where he ran a red light and collided with a second police unit, which was driven by Deputy David Chaplain on his way to assist Deputy Poche. In this collision, the stolen vehicle struck the front of Deputy Chaplain’s car, nearly detaching the front bumper from the vehicle. The impact of the collision turned Deputy Chaplain’s car 180 degrees.

Afterward, the fleeing driver, who was traveling up to 90 miles per hour, hit gravel and rocks in a construction area on David Drive, which caused the stolen vehicle to fishtail and strike the concrete lane divider on David Drive. After this impact, the stolen vehicle became airborne, flipped several times, and, finally, collided with a tree. The armed robbery suspect immediately jumped out of the vehicle’s passenger-side window and ran between some houses on David Drive.

Deputy Chaplain chased the fleeing suspect, who hurdled several fences and ignored the deputy’s instruction to stop. When Deputy Chaplain caught up to the subject, Deputy Chaplain attempted unsuccessfully to subdue him using pepper spray.

Within a few moments, other officers arrived and, together, the officers attempted to handcuff the man. However, the suspect kicked, struck, and punched several of the officers to avoid being handcuffed. At that point, several officers ^deployed their tasers, which had no effect on the subject. Finally, five deputies physically restrained the subject so that another deputy could handcuff him. A short while later, Detective Craig Pond brought the victim, Ms. Veazey, to the apprehension location, where she positively identified defendant as the man that robbed her at gunpoint.

When defendant was apprehended near the backyard of 2004 David Drive, defendant was wearing a blue t-shirt around his neck. That t-shirt had holes cut for eyes like a mask. Defendant was also wearing jeans underneath his sweatpants. At that time, Deputy Stanley Brown removed a partial roll of duct tape, quarter wrappers, and $22.25 worth of quarters from the pocket of defendant’s pants. Detective Kevin Balser subsequently took defendant to the hospital for medical treatment, which is standard procedure if a subject is exposed to pepper spray.

After defendant was secured for transport, Deputy Brown searched the area around the site where defendant was apprehended. In the backyard area, Deputy Brown recovered a banded stack of one-dollar bills, totaling $50.00, on the ground next to a black bag. The black bag contained U.S. currency, two smaller bank bags, a pair of tan work gloves, and a pair of black, plastic-framed sunglasses. The currency that was loose in the black bag consisted of $245.00 in one-dollar bills, $20.50 in quarters, and $120.00 in rolls of quarters.

Further, the blue Whitney bag that was inside of the black bag contained $2.00 in one-dollar bills, $20.00 in five-dollar bills, $1,970.00 in ten-dollar bills, one quarter and 23 poker receipts. The yellow Pontchartrain State bank bag inside of the black bag contained U.S. currency consisting of $720.00 in twenty-dollar bills, $330.00 in ten-dollar bills, $550.00 in five-dollar bills, and $80.00 in one-dollar bills.

|7Next, Deputy Brown searched the stolen vehicle that defendant had been driving and recovered a loaded Smith and Wesson .9 mm pistol from between the driver’s seat and the door of the vehicle. Deputy Brown also recovered a black cap, a quarter-roll wrapper, and loose change from inside the stolen vehicle that defendant was driving. At trial, the owner of the vehicle stated that neither the gun nor the currency were her property.

Defendant testified on his own behalf at trial. Defendant admitted that he had previously been convicted of first degree robbery and simple escape.

Defendant testified that he was an amateur boxer and he was jogging as part of his training on the morning in question. Defendant explained that, while he was jogging, he noticed a police chase, so he altered his usual jogging route. He was surprised when he was knocked to the ground by officers, handcuffed, and interrogated.

Defendant did identify blue jean shorts, a belt, and a pair of shoes from evidence as the clothes that he wore on the morning in question, but denied that the sweatpants were his. Defendant claimed that officers forcibly placed the sweatpants on him. He denied any involvement with the robbery of New Orleans Hamburger and Seafood or Ms. Veazey. After hearing all of the testimony and reviewing the evidence, the twelve-person jury found defendant guilty as charged.

Analysis

On appeal, defendant raises the same issue in his counseled and pro se assignments of error: the trial court committed reversible error by requiring defendant to remain seated, shackled, and handcuffed throughout trial in the presence of the jury because such an extreme display of security robbed appellant of the presumption of innocence and the right to a fair trial.

|sThe State responds that defense counsel only objected to defendant being shackled and, therefore, defendant is precluded from raising on appeal the issue of him being handcuffed. It further responds that the trial judge was correct in shackling defendant based on the circumstances surrounding defendant’s arrest, defendant’s aggression during a pre-trial hearing, and his prior simple escape conviction. The State further asserts that the defendant cannot demonstrate prejudice because thé trial judge was careful to safeguard defendant’s constitutional rights even though he was shackled.

As the State correctly notes, defense counsel only objected to defendant being shackled; she did not object to him being handcuffed. Because a new basis for an objection may not be raised for the first time on appeal, our review will be limited to the issue of shackling. State v. Hidalgo, 95-319, p. 8 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188, 1194-95.

Ordinarily, a defendant before the Court should not be shackled, handcuffed, or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. State v. Addison, 08-461, p. 23 (La.App. 5 Cir. 2/10/99), 8 So.3d 707, 721 (citing State v. Wilkerson, 403 So.2d 652, 659 (La.1981)). Exceptional circumstances, however, may require the trial court, within its discretion, to restrain a defendant for reasons of courtroom security or order or where the defendant’s past conduct reasonably justifies apprehension that he may attempt to escape. Id. In order for an appellate court to find reversible error, the record must show an abuse of the trial court’s discretion with respect to shackling that resulted in clear prejudice to the accused. Id., 08^61 at 23, 8 So.3d at 721-22.

On February 28, 2008, at the suppression hearing, the trial judge heard testimony from the victim and several officers regarding the armed robbery and the | nensuing chase and capture of defendant. The trial judge heard that defendant fled the robbery location in the victim’s vehicle. Further, while fleeing police at a speed of 90 miles per hour in a stolen vehicle, defendant struck one police unit three times, ran a red light, then struck a second police unit. Defendant only changed his method of escape from driving to running after he struck a concrete barrier in the stolen vehicle, which caused the vehicle to become airborne, flip several times, then collide with a tree.

The trial judge also heard a number of deputies testify that they attempted to subdue defendant with tasers and pepper spray to no avail. Lastly, the trial judge heard that defendant vigorously fought at least five male and female police officers, who had trouble subduing him enough to finally handcuff him. Deputy Brown of the JPSO testified that defendant’s struggle was “one of the most serious resisting arrests I’ve ever seen.”

At a lengthy pre-trial hearing on March 19, 2008, the trial judge discussed numerous matters with the prosecutor and defense counsel. At this hearing, the prosecutor reminded the trial judge that defendant forcibly escaped from custody while he was being housed outside of Jefferson Parish subsequent to Hurricane Katrina. He escaped to Tennessee where he remained for a period of time longer than one year.

Further, during this hearing, defendant asked to address the court, which the trial judge informed defendant was defense counsel’s job. When the trial judge began speaking, defendant interrupted him. During this exchange, defendant told the trial judge, “Please, just hold on for a second while I rap on, Your Honor.”

Further, during the next exchange, on at least four occasions, defendant interrupted the trial judge. In response, the trial judge stated:

I’m trying to keep the atmosphere in here as light as I can because I don’t want things to escalate.
ImYou have challenged the system dramatically with the circumstances of your arrest as they were testified to by the arresting officers. As such, I’ve got real live security concerns with trying your case, okay.

Defendant continued to argue and interrupt, to which the trial judge replied,

Listen to me. I’m trying not to let you get yourself in deeper as far as the security that I’m going to require during the trial.
Okay, I’m going to have you shackled, you’re going to be sitting, you’ll be dressed in civilian clothes. I’m going to have you shackled and you’re going to sit at defense table, but you’ll be handcuffed and shackled, okay.
I’m trying not to also have you gagged, okay ... I’m trying. But, I’m telling you you’re pushing me and I’m trying to get you to stop.
I typically don’t shackle people if I can help it. It’s a sheriff decision, but I believe that people shouldn’t be shackled if I can help it, okay. I’m telling you you’ve already got me passed [sic] that.
I’m going to have you handcuffed, I typically don’t do that. I’m asking for it because I’m concerned from a security standpoint.
Now, the last step, I’m going to have you in here unless you just get so out of hand that I can’t do it and I’ve never, I’ve never, ever had that kind of trouble with anybody so I don’t anticipate it.
But, I’m telling you the next step is for me to have you gagged and I don’t want to do that.

At that hearing, defense counsel objected to the shackling of defendant.

In State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976), defendant challenged, on post-conviction, the fact that he was handcuffed and shackled during his second trial. The Louisiana Supreme Court found that the trial court did not abuse its discretion since its decision was based, in part, on the accused’s past escape record.

In State v. Colvin, 452 So.2d 1214 (La. App. 2 Cir.1984), writ denied, 457 So.2d 1199 (La.1984), defendant complained that prejudicial error occurred when his motion to have leg irons, handcuffs, and transport belt removed during trial was In denied. A deputy testified that Colvin had been restrained because of prior misbehavior in court and during transportation.

Our brethren on the Second Circuit found that the trial court was justified in refusing to allow removal of defendant’s restraints considering that defendant had attempted to escape twice and had made aggressive statements toward the judge in court at an earlier time and had to be forcibly removed from the courtroom. The Second Circuit noted that the restraints were handled in the least obtrusive manner possible, and the trial judge instructed the jury not to be prejudiced by the fact that defendant was shackled and handcuffed during trial. Id., 452 So.2d at 1219-20.

In the instant case, we find that the trial judge did not abuse his discretion by shackling defendant. Here, testimony at pre-trial hearings and during trial revealed that defendant had little regard for the safety of the public, police officers, and himself during his high-speed flight from officers.

First, defendant presented extreme resistance to arrest through flight and fight. During his initial flight from arrest, he collided with at least two police cars while driving a stolen vehicle at high rates of speed.

Once his flight was stopped, he continued to fight. It took at least five officers working together to handcuff defendant at the time of arrest due to defendant’s size and strength. Further, neither tasers nor pepper spray were effective in subduing defendant.

Moreover, the trial judge specifically stated that he was concerned that defendant might lose his temper during trial and hurt his defense attorney. Taking into account all of the foregoing as well as defendant’s status as an amateur boxer, his aggressive and insistent manner in speaking to the trial judge at several pretrial hearings, and his prior conviction for simple escape, the record clearly supports the 112trial judge’s grave concern for the safety of the jury, the attorneys, the witnesses, and even the defendant, in his courtroom during trial.

Additionally, the trial judge took careful precautions throughout the four day trial to ensure that the jury did not see defendant in shackles. There is nothing in the record to show that the jury saw the restraints. Thus, defendant has not demonstrated that any prejudice resulted from his legs being shackled. State v. Washington, 430 So.2d 641 (La.1983). In light of the foregoing, we find no error in the trial judge’s decision to shackle the defendant.

Finally, defendant requests an error patent review, which is our routine procedure pursuant to La.C.Cr.P. art. 920. Our review reveals no errors patent that require corrective action.

AFFIRMED

      . Defendant was also tried in a bench trial on six misdemeanor charges that arose out of the high-speed chase and subsequent capture of defendant immediately following the armed robbery. None of those convictions are the subject of this appeal.

      . In his first appeal, defendant raised the same issue that he raises on appeal herein; specifically, that it was reversible error to require defendant to remain seated, shackled, and handcuffed through trial in the presence of the jury.

      . According to Deputy Brown, the firearm contained 13 bullets in the magazine and one bullet in the chamber.


source: Caselaw Access Project

author: ROBERTA. CHAISSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Elmo N. DURONSLET.
    No. 11-KA-486.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Michael D. Smith, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

12This appeal arises from a series of crimes committed against Hispanic males on the west bank of Jefferson Parish. For the reasons that follow, we affirm defendant’s convictions and sentences and remand the matter for correction of the commitment/minute entry.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Elmo Duronslet, with two counts of armed robbery in violation of LSA-R.S. 14:64 (counts one and three), one count of possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1 (count two), two counts of aggravated battery in violation of LSA-R.S. 14:34 (counts four and seven), and two counts of attempted armed robbery in violation of LSA-R.S. 14:27:64 (counts five and six). At the arraignment, defendant pled not guilty.

The matter proceeded to trial before a twelve person jury which found defendant guilty as charged on all seven counts. On December 13, 2010, the trial judge sentenced defendant as follows: on count one, 50 years at hard labor without |3benefit of parole, probation, or suspension of sentence; on count two, 10 years at hard labor without benefit of parole, probation, or suspension of sentence and a $1,000.00 fine; on count three, 50 years at hard labor without benefit of parole, probation, or suspension of sentence; on count four, 10 years at hard labor; on count five, 40 years at hard labor without benefit of parole, probation, or suspension of sentence; on count six, 40 years at hard labor without benefit of parole, probation, or suspension of sentence; and on count seven, 10 years at hard labor. Defendant now appeals.

FACTS

Around 9:45 p.m. on July 2, 2009, Lucas Mendoza, a soccer coach, was returning home from practice to his apartment in Gretna, Louisiana. After parking his vehicle, he talked to a few people in the parking lot and then proceeded to his apartment. As he walked down the hallway to his apartment, Mr. Mendoza heard someone call him, so he turned around. Upon turning his head, he felt something hit his chest and heard a person address him in English. Mr. Mendoza turned around and saw a black gun in his face. In addition to the person holding the gun, there were two other individuals behind him, kicking and pushing him, trying to get him to kneel down. The perpetrators demanded his wallet and cell phone. Mr. Mendoza began slowly backing up in the direction of the parking lot in an effort to draw the assailants out into view. Upon reaching the parking lot, the gunman’s two accomplices proceeded to take the wallets from the people in the parking lot, while the gunman took Mr. Mendoza’s wallet and cell phone. Mr. Mendoza then |4approached the gunman and asked for his identification back, and when he did so, the gunman shot at him, missed, and fled. The police were called, and an incident report was filled out.

A few days later, at approximately 10:00 p.m. on July 5, 2009, a similar incident occurred at another apartment complex in Gretna. Armando Medina-Martinez was in the parking lot of his apartment complex, and as he was proceeding inside to his second-floor apartment, an individual in a hooded sweater approached him for a cigarette. Mr. Medina-Martinez gave the person two cigarettes and then continued on to his apartment. As he opened the door to the stairwell, he was struck in the back of his head and fell to the ground. He turned to see who had hit him and saw the man who had asked him for a cigarette. This individual struck him again in his forehead with the handle of a black gun. Struggling to ascend the stairs to get somebody’s attention, Mr. Medina-Martinez began wrestling with the gunman who was trying to take his wallet. When he made it to the top of the stairs, Mr. Medina-Martinez was unable to reach his door; and at this moment, he heard a gunshot and realized he had been shot in his left leg. He then managed to knock on his door. His daughter opened the door, and the gunman fled. The police responded to the scene, and Mr. Medina-Martinez was transported to the hospital.

Approximately eight hours later, at approximately 6:10 a.m. on July 6, 2009, Roberto Ruiz and Fredis Padilla, roommates and co-workers, were leaving their west bank apartment for work when a stranger told Mr. Ruiz hello. Mr. Ruiz and Mr. Padilla continued on their way to the parking lot where they got into Mr. Ruiz’s vehicle and waited for the vehicle to warm up. While waiting, Mr. Ruiz, | fiwho was in the driver’s seat, noticed that the stranger who had told him hello was approaching the vehicle. As this individual neared, he took out a black gun, pointed it at Mr. Ruiz, and told him to exit the vehicle. Mr. Ruiz rolled down his window and the gunman demanded his wallet. Mr. Ruiz handed him his wallet, but it was attached to a chain. The gunman ripped the wallet from the chain and then ordered Mr. Ruiz to tell Mr. Padilla to hand over his wallet as well. Mr. Padilla took out his wallet and tried to hand it to the gunman, but it fell to the floor. When Mr. Padilla went to pick it up, the gunman told him not to and demanded he exit the vehicle. Mr. Padilla was too nervous to exit the vehicle, so the gunman ordered Mr. Ruiz to exit the vehicle. When Mr. Ruiz complied, the gunman backed up a few steps, continuing to point the gun at him. The gunman glanced away, looking to see if anybody was around; at this instant, Mr. Ruiz grabbed the gun. As Mr. Ruiz struggled to wrest the gun away, the gunman shot Mr. Ruiz three times in his leg, sending him to the ground where he lay motionless, playing dead. Moments later, after the gunman fled, Mr. Padilla called 9-1-1. After the police arrived, Mr. Ruiz was transported to the hospital.

As a result of police investigation into these incidents, defendant was developed as a suspect. Sergeant John Carroll of the Jefferson Parish Sheriffs Office compiled a photographic lineup which he showed to the victims. Mr. Mendoza, Mr. Ruiz, and Mr. Padilla all positively identified defendant as the perpetrator in the photographic lineup; however, Mr. Medina-Martinez was unable to make an identification of the perpetrator.

Defendant testified in his own behalf at trial. He denied committing these crimes or having any knowledge of the robberies.

JgUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him. He specifically contends that the State failed to prove his identity as the perpetrator beyond a reasonable doubt.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. Further, positive identification by only one witness is sufficient to support a conviction. State v. Williams, 08-272 (La. App 5 Cir. 12/16/08), 8 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09), 19 So.3d 470.

A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir 4/15/08), 985 So.2d 234, 240.

In the instant case, defendant does not argue that the State failed to establish any of the essential statutory elements of his convictions, but rather contends that |7the evidence was insufficient to convict because the State failed to negate any reasonable probability of misidentification. He specifically contends that the jury should have realized that a reasonable doubt existed as to the identification of the perpetrator because the initial descriptions given by the victims were inconsistent with defendant’s physical appearance. Defendant points out that the victims did not initially mention scars on the perpetrator’s face, nor did the police reports reflect that he had scars. To further support his argument that defendant was misidentified, defendant notes the variances in the individual victim’s descriptions of the perpetrator, as well as the fact that no gun or other evidence was found during the search of defendant’s car or residence which linked him to any of the crimes. In making his insufficiency argument, defendant specifically focuses on the descriptions and identification testimony given by Mr. Mendoza, Mr. Ruiz, and Mr. Medina-Martinez.

With regard to Mr. Mendoza, defendant claims that his identification of the suspect was unreliable because, at the time of the robbery, he described the gunman as having scratches as opposed to scars. In challenging Mr. Mendoza’s testimony, defendant further points out that this robbery was not consistent with the other robberies because there were three perpetrators, and they i’obbed Mr. Mendoza as well as several other men in the parking lot.

At trial, Mr. Mendoza testified that on July 2, 2009, as he walked to his apartment, he was stopped by three men, one of whom pointed a gun in his face. After these assailants demanded his wallet and cell phone, Mr. Mendoza slowly backed up in the direction of the parking lot to draw the perpetrators out into view. Upon reaching the parking lot, the gunman’s two accomplices took the wallets from the people in the parking lot, while the gunman took Mr. Mendoza’s wallet and cell phone. According to Mr. Mendoza, the gunman had a black t-shirt [Rcovering his face at the time of the incident. However, when they were wrestling, the shirt fell, and Mr. Mendoza was clearly able to see the perpetrator’s face. Mr. Mendoza recalled that the gunman had three scratches on his face and a goatee. At trial, Mr. Mendoza stated that the gunman was only a few inches away from his face, that he was able to observe him at close range for about five minutes, and that he would never forget that face. Mr. Mendoza further recalled that a detective showed him a photographic lineup, and he positively identified defendant as the perpetrator. Mr. Mendoza verified his identification with his signature on the back of the photograph, which was introduced into evidence at trial. Moreover, Mr. Mendoza testified that he was “a hundred percent” certain that defendant was the person who robbed him. On cross-examination, Mr. Mendoza confirmed that on the night of the incident, he told the police that the gunman had scratches on his face. He further testified that he knew the difference between a scar and a scratch. He claimed that when the man had the gun on him, he thought the facial marks were scratches, but now realized they were actually scars.

With regard to Mr. Ruiz, defendant contends there was also a possibility of mis-identification, pointing out that Mr. Ruiz did not initially tell the police that the gunman had a scar. Defendant also notes that Mr. Ruiz’s testimony that he appeared thinner in court than at the time of the robbery contradicted testimony presented at trial that defendant gained weight since his arrest.

At trial, Mr. Ruiz testified that on the morning of July 6, 2009, he and Mr. Padilla were in his ear getting ready to leave for work when a black man with a scar on his face approached the car, pointed a gun at Mr. Ruiz, and demanded their wallets. Mr. Ruiz stated that defendant had a shirt pulled up trying to cover his face; however, he could still see his face as the gunman was very close. Mr. Ruiz identified defendant from the photographic lineup, placing his signature on the |9back of the photograph, which was then introduced into evidence at trial. He also identified defendant in court as his assailant, although he stated that defendant appeared thinner than at the time of the robbery. On cross-examination, the jury heard his testimony that he spoke to police several times after the incident; however, at no time did he tell them that the perpetrator had a scar on his face. Further, the jury heard testimony from defendant, defendant’s mother, and defendant’s sister that defendant had actually gained weight since the time of his arrest.

With regard to this particular incident on July 6, 2009, the jury also heard testimony from Fredis Padilla who was in the car with Mr. Ruiz at the time of the robbery. Mr. Padilla testified that an individual approached Roberto Ruiz’s car, and as he did so, he covered his face with a shirt. He then pointed the gun at Mr. Ruiz and took his wallet. Mr. Padilla stayed in the car while his friend exited, and at that point, Mr. Padilla heard gunshots. Mr. Padilla positively identified defendant as the perpetrator in a photographic lineup. He verified his identification with his signature on the back of the photograph, which was introduced into evidence at trial. In addition, Mr. Padilla positively identified defendant in court as the gunman and testified that he was “a hundred percent” certain of his identification because of the scar on the assailant’s face.

On cross-examination, defense counsel questioned this witness about his identification of defendant and tried to cast doubt on the reliability of his identification by pointing out Mr. Padilla’s taped statement to police. Specifically, in the taped statement, the detective asked Mr. Padilla “today on this day, I came to your house to show you a photograph of 6 men who are the same. Do you recognize anyone in this photo?” Mr. Padilla responded: “I agree, all consider that is number 8, in the first line.” However, on re-direct examination, Mr. Padilla |inmaintained that no one told him who to pick out in the photographic lineup and that he signed his name to the back of photograph number three because that was the individual who had hurt Roberto.

Lastly, to support his theory of misiden-tification, defendant points to Mr. Medina-Martinez’s inability to identify the perpetrator from the photographic lineup. He also points out that Mr. Medina-Martinez did not indicate in his initial description to the police that the gunman had a scar.

At trial, Mr. Medina-Martinez testified that on July 5, 2009, as he was going to his apartment, an individual in a hooded sweater approached and asked him for a cigarette. After giving this person two cigarettes, Mr. Medina-Martinez proceeded to his apartment, and as he opened the door, he was struck in the back of the head by the man who had asked for the cigarette. Mr. Medina-Martinez described the perpetrator as a black male with a black gun. Although the perpetrator wore a hood around his face, the victim was able to see that he had something on the right side of his face, like a burn or a scar. Mr. Medina-Martinez admitted at trial that he was unable to make a positive identification of the perpetrator; however, he maintained that he had a scar on his face.

In the present case, the jury heard the testimony presented at trial, including any inconsistencies in the testimony regarding the scars on defendant’s face, his facial hair, and his weight. The jury also heard the differences between the initial descriptions given by the victims in relation to defendant’s actual physical appearance. The jury heard all the discrepancies in the evidence presented and obviously gave more credibility to the evidence which pointed to defendant as the perpetrator. It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices made by the fact finder. State v. Williams, 02-64511 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 502, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

In the instant case, Mr. Mendoza positively identified defendant in a photographic lineup as the perpetrator and testified at trial that he was one hundred percent certain that defendant was the perpetrator. With regard to Mr. Ruiz and Mr. Padilla, they likewise identified defendant in a photographic lineup as the gunman and additionally identified defendant in open court as the perpetrator. They, too, maintained that they were certain of the perpetrator’s identity.

With regard to Mr. Medina-Martinez, there was no positive identification of the perpetrator; however, he testified at trial that the gunman had a scar on his face. Further, the jury was presented with the ballistics evidence of Meredith Acosta, an expert in firearms examination and comparison. She testified that she was one hundred percent certain that the cartridge case found at the scene of the shooting of Mr. Medina-Martinez was fired from the same weapon which discharged the cartridge cases found at the scene of the shooting of Mr. Ruiz, where defendant was identified by both Mr. Ruiz and Mr. Padilla as the gunman in that shooting. Moreover, the modus operandi of the attempted armed robbery of Mr. Medina-Martinez matched the modus operandi of the other crimes. In particular, the three incidents occurred within days of one another and took place in or around the parking lot of the victims’ residences, which are all located on the west bank of Jefferson Parish near defendant’s former or current residences. Further, the victims were all Hispanic males who were robbed, or were attempted to be robbed, of their wallets at gunpoint. Lastly, all the victims described their assailant as having a scar on his face.

112Based on the foregoing discussion and viewing the evidence in a light most favorable to the prosecution, we find that the State sufficiently negated any reasonable probability of misidentification, and a rational trier of fact could have found, beyond a reasonable doubt, that defendant was the perpetrator of the charged offenses. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals one error that requires correction.

We note that the commitment/minute entry is inconsistent with the transcript in that it does not reflect that defendant was fined $1,000 on count two. To ensure an accurate record, we remand and direct the district court to correct the commitment/minute entry to bring it into conformity with the sentencing transcript. We further instruct the clerk of court to transmit the amended commitment/minute entry to the officer in charge of the institution to which the defendant has been sentenced as well as to Louisiana Department of Public Safety and Corrections General Counsel. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

For the reasons set forth herein, we affirm defendant’s convictions and sentences and remand the matter to the district court for correction of the commitment/minute entry.

CONVICTIONS AND SENTENCES AFFIRMED, REMANDED WITH INSTRUCTIONS.

      . The sentences on counts one and two were imposed concurrently with one another, but consecutively to all other counts.

      . The sentences on counts three, four, and five were imposed concurrently with one another, but consecutively to all other counts.

      . The sentences on counts six and seven were imposed concurrently with one another, but consecutively to all other counts.

      . Subsequent to original sentencing, the State filed a multiple offender bill of information alleging defendant to be a second felony offender; however, the multiple offender proceedings are not part of the instant appeal.

      . For the crime committed against Lucas Mendoza, defendant was charged with and convicted of armed robbery (count one).

        . For the crimes committed against Armando Medina-Martinez, defendant was charged with and convicted of attempted armed robbery (count six) and aggravated battery (count seven).

      . For the crimes committed against Roberto Ruiz, defendant was charged with and convicted of armed robbery (count three) and aggravated battery (count four). With regard to the acts against Fredis Padilla, defendant was charged with and convicted of armed robbery (count five).

      . The Louisiana Supreme Court has long sanctioned the use of other crimes evidence to show modus operandi as it bears on the question of identity when the prior crime is so distinctively similar to the one charged, espe-dally in terms of time, place, and manner of commission, that one may reasonably infer that the same person is the perpetrator in both instances. State v. Hills, 99-1750 (La.5/16/00), 761 So.2d 516, 521.


text:
    STATE of Louisiana v. Zelda WELCH.
    Nos. 11-KA-487, 11-KA-488, 11-KA-489.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Appellate Counsel, Megan L. Gorman, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, The State of Louisiana.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Appellant, Zelda Welch.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

li>On appeal, defendant challenges her guilty pleas as infirm on the basis that the trial judge failed to adequately advise her of her rights before accepting her pleas. For the following reasons, we affirm defendant’s convictions.

Facts and Procedural History

In this case, Zelda Welch, hereinafter referred to as defendant, pled guilty to three separate and distinct bills of information without proceeding to trial. As such, the minimal facts presented were gleaned from the record whenever possible.

On or about July 31, 2008, Zelda Welch misappropriated over $500.00 in U.S. currency from Marian Giordina without her consent. On or about April 15, 2009, without authorization and with the intent to defraud, defendant possessed an access device belonging to Lori Parigi, which was valued at greater than $500.00. Further, on or about May 15, 2009, defendant misappropriated U.S. currency valued at over $500.00 from Lori Parigi. These offenses occurred in Jefferson Parish, Louisiana.

On August 18, 2009, the Jefferson Parish District Attorney filed a three-count bill of information in district court case number 09-4402, charging Zelda |3Welch with two counts of theft of U.S. currency over $500.00, in violation of La. R.S. 14:67 (counts one and two) and one count of access device fraud, in violation of La. R.S. 14:70.4 (count three). On September 8, 2009, defendant pled not guilty to these charges.

In a separate incident, on or about March 14, 2010, Jefferson Parish Sheriffs Deputy Kevin McGuffie stopped Zelda Welch for improper lane usage in a vehicle that had been reported as stolen. When Deputy McGuffie exited his vehicle to speak to defendant, he noticed an eleven-month-old baby sitting unrestrained in the front seat of the vehicle. When questioned by Deputy McGuffie, defendant offered a fake name and refused to present any identification. Meanwhile, as Deputy McGuffie was trying to determine her identity, she fled in the stolen vehicle at a high rate of speed, driving through numerous parking lots and neighborhoods as the police officers pursued her. Finally, after colliding with a police vehicle and an innocent bystander’s vehicle, she surrendered to deputies.

With respect to that incident, on May 10, 2010, the Jefferson Parish District Attorney filed a bill of information in district court case number 10-2434 charging the same defendant with aggravated flight from an officer, in violation of La. R.S. 14:108.1(C). At her arraignment the following day, defendant pled not guilty.

Next, between September 7, 2010 and September 10, 2010, defendant twice transferred an access device belonging to another without authorization and with the intent to defraud, and obtained goods and services. In one instance, she obtained goods valued at over $700.00 and, in the second instance, she obtained goods valued at over $2,000.00.

In another separate incident, on October 8, 2010, Deputy Jeffrey Reynolds of the Jefferson Parish .Sheriffs Office (“JPSO”) observed a red Honda Element |4that had been reported stolen near the intersection of Manhattan and Gretna Boulevards. When he attempted to stop that vehicle, the driver led him and other JPSO and Gretna Police officers on a high speed chase through dense traffic. The chase ended when the driver of the stolen vehicle collided with another vehicle near the intersection of Westbank Expressway and Urbandale Drive.

When Deputy Reynolds apprehended the driver of the stolen vehicle, he determined that defendant herein had been driving the stolen vehicle with two children in the vehicle. On that day, defendant fled from officers at a high rate of speed in a vehicle that she knew or should have known was stolen, resisted arrest, and caused more than $1,000.00 damage to the stolen vehicle.

Further, on or about October 18, 2010, defendant again transferred an access device issued to another person without authorization and with intent to defraud, and obtained goods and services valued at over $500.00. This incident also occurred in Jefferson Parish.

With respect to these incidents, the Jefferson Parish District Attorney on December 15, 2010 filed a seven-count bill of information in district court case number 10-6088 charging defendant as follows: count one: aggravated flight from an officer in violation of La. R.S. 14:108.1(C); count two: resisting a police officer by violence or threats of violence in violation of La. R.S. 14:108.2; count three: simple criminal damage to property with damages amounting to over $1,000.00 in violation of La. R.S. 14:56; count four: possession of stolen property valued at over $10,000.00 in violation of La. R.S. 14:69; count five: access device fraud valued at over $700.00 in violation of La. R.S. 14:70.4; count six: access device fraud valued at over $2,000.00 in violation of La. R.S. 14:70.4; and count seven: ^access device fraud valued at over $500.00 in violation of La. R.S. 14:70.4. At her arraignment the following day, defendant pled not guilty to these charges.

Thereafter, at a hearing on January 20, 2011, defendant withdrew her former pleas of not guilty and tendered pleas of guilty as charged on each count in all three bills of information. She was sentenced as follows.

In district court case number 09-4402, defendant pled guilty to two counts of theft of U.S. currency over $500.00, in violation of La. R.S. 14:67 (counts one and two) and one count of access device fraud, in violation of La. R.S. 14:70.4. The trial judge sentenced defendant to ten years imprisonment with the Department of Corrections on each count, to run concurrently. On February 15, 2011, defendant filed a written motion for appeal, which was granted on March 1, 2011. That appeal was docketed by this Court as ll-KA-487.

In district court case number 10-2434, defendant pled guilty to aggravated flight from an officer, in violation of La. R.S. 14:108.1(C). The trial judge sentenced defendant to two years imprisonment with the Department of Corrections, to run concurrently the sentences imposed for convictions in district court case number 09-4402. On March 1, 2011, the trial judge granted defendant’s motion for appeal, which was docketed with this Court as ll-KA-488.

Finally, in the seven-count bill of information filed in district court case number

10-6088, the trial judge sentenced defendant after accepting her guilty pleas to the Department of Corrections as follows:

• count one, aggravated flight: two years;
• count two, resisting a police officer by force: three years;
• count three, simple criminal damage to property: two years;
|fi* count four, possession of stolen property over $10,000.00: ten years;
• count five, access device fraud over $700.00: five years;
• count six, access device fraud over $1500.00: ten years;
• count seven, access device fraud over $500.00: five years.

These sentences were ordered to run concurrently with each other and with the sentences in district court case numbers 09-4402 and 10-2434. Defendant filed a motion for appeal on February 9, 2011, which was granted on February 16, 2011. This matter was docketed by this Court as 11-KA-489.

Also, at the hearing on January 20, 2011, the State filed a multiple offender bill of information in district court case number 09^4402, alleging that defendant was a third felony offender. That same date, defendant stipulated to the allegations in the multiple offender bill of information. The trial judge then vacated her underlying sentence on count one in 09-4402 (theft over $500.00) and sentenced defendant to 18 years imprisonment with the Department of Corrections, without benefit of probation or suspension of sentence. The trial judge ordered defendant’s enhanced sentence to run concurrently with those imposed in her “other cases.”

On May 25, 2011, appellant’s counsel filed a “Motion to Consolidate Appeals for Briefing Purposes,” which was granted by this Court on May 26, 2011. This appeal follows.

Discussion

In her only assignment of error, defendant argues that her eleven felony guilty pleas should be set aside as invalid. First, she argues that the trial court did not comply with Boykin because, with regard to her felony guilty pleas, he advised her only of her right to be tried by a judge or a jury. Defendant explains [ 7that the judge discussed many rights with respect to her misdemeanor guilty pleas, which are not before this Court, but failed to advise that those rights also applied to her felony guilty pleas.

Second, although defendant admits that she signed each waiver of constitutional rights form, she contends that her guilty pleas are infirm because she did not initial any of the individual rights on each form agreeing that she understood the rights she was waiving in each case and for each charge. She also asserts that her level of education was not ascertained by the trial court to determine if she was even capable of reading or understanding the forms she had signed or the rights she was waiving.

The State responds that the record demonstrates that the trial court complied with La.C.Cr.P. art. 556.1 and conducted a proper Boykin colloquy. Further, the record reflects that defendant was fully informed of and understood her rights before waiving those rights so defendant’s guilty pleas are constitutionally valid. The State concludes that defendant’s guilty pleas and sentences should be affirmed.

If a defendant pleads guilty, the defendant normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn through an appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain and that bargain is not kept. Id. Even if | defendant has not filed a motion to withdraw his guilty plea, the defendant is not prohibited from challenging a constitutionally infirm guilty plea either by means of appeal or post-conviction relief. State v. Shelton, 09-713, p. 7 (La.App. 5 Cir. 3/9/10), 39 So.3d 601, 604, writ denied, 10-0839 (La.11/5/10), 50 So.3d 812. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

A guilty plea is not valid unless the defendant voluntarily and intelligently relinquishes known rights. Before accepting a guilty plea, the trial court must make an “independent determination of whether the defendant’s plea is made knowingly and intelligently through a colloquy wherein the defendant is questioned about his decision and the constitutional rights he is waiving.” State v. Nelson, 10-760, p. 4 (La.App. 5 Cir. 3/29/11), 63 So.3d 280, 282 (quotation omitted).

“While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” State v. Halsell, 403 So.2d 688, 690 (La.1981); State v. Gardette, 00-38 (La.App. 5 Cir. 5/17/00), 760 So.2d 1262, 1264-65. In State v. Halsell, 403 So.2d 688, 692-93 (La.1981), the Louisiana Supreme Court recognized that a trial judge has a right to rely upon an attorney’s representation that he has informed a defendant of his rights.

Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered to be free and voluntary unless, at the very least, the defendant was advised of constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. Nelson, 10-760 at 5, 63 So.3d at 282. There also must be an express and knowing waiver of those | grights. Id. The waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. Id. The Louisiana Supreme Court has consistently stated that the knowing and intelligent nature of a defendant’s waiver of rights “depends upon the circumstances of each case.” Id. (quoting State v. Filer, 00-0073 (La.6/30/00), 762 So.2d 1080 (per curiam)).

La.C.Cr.P. art. 556.1 provides the following:

A. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
B. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
C. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.
D.In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo contendere.
lipE. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

Violations of La.C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Gilliam, 01-748 (La.App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-512 (La.11/1/02), 828 So.2d 562. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Id.

First, defendant argues that, although she was advised of her Boykin rights with respect misdemeanor guilty pleas, the trial judge did not specify that those rights also applied to her felony guilty pleas.

Here, the record reflects that defendant was born on November 5, 1968, which means that she was 42 years old at the time she entered her guilty pleas. Defendant was represented by counsel during her guilty plea colloquy. Defendant executed three separate waiver of constitutional rights forms, which were signed by defendant, her counsel, and the judge. The forms set forth the charges, her possible sentencing exposure, and the sentences that she would actually receive if her guilty pleas were accepted by the trial judge. The forms also stated the constitutional rights that she was waiving. During the guilty plea colloquy, both defendant and her attorney acknowledged their signatures on the forms.

Further, defendant’s counsel advised the trial court that he had gone over the forms with defendant, discussed discovery with her, and reviewed her predicate convictions. Counsel advised the trial court that he believed they had “completed all aspects of her cases and that she understands the rights she’s waiving....”

| uFurther, the trial judge spoke directly with defendant. The judge advised defendant of the nature of the offenses to which she was pleading guilty, the sentencing ranges that she faced for the offenses, and the actual sentences that would be imposed if her pleas were accepted. Defendant stated that she understood the judge’s statements. The judge advised defendant that she was waiving her right to a trial by judge or jury as to her felony charges and waiving her right to trial by judge alone as to her misdemeanor charges. Again, defendant indicated that she understood.

The trial judge later informed defendant that she was waiving her right to confrontation, her right against self-incrimination, and her right to appeal any verdict that might be returned against her at trial. When the judge asked defendant if she understood her rights, she indicated that she did. The judge asked if there was anything about what he had just read to her that she did not understand, and she responded, “No, sir.” The record indicates that defendant and her attorney did not make any objections to the guilty pleas, nor did defendant ask the judge any questions or inform the judge that she did not understand the consequences of her guilty pleas.

Defendant indicated that she was satisfied with the way that her attorney and the trial court handled her case. She said that she had not been forced, threatened, or coerced in any way to enter her pleas of guilty. She indicated that she understood that a felony guilty plea could be used to enhance a penalty in the event of a future felony conviction. Defendant acknowledged that she understood all of the possible legal consequences of pleading guilty that were explained to her and that she wanted to plead guilty. The trial judge accepted defendant’s pleas as being knowingly, intelligently, freely, and voluntarily made by defendant.

11⅞After review of the entire record, we find that the trial judge’s advisal, her attorney’s attestation, and the three well-executed waiver of rights forms, which specifically set forth the constitutional rights that she was waiving, constitute an affirmative showing that defendant was adequately advised of her rights with respect to her felony guilty pleas.

In her next argument, defendant contends that her guilty pleas are infirm because she did not place her initials next to any of the rights listed on the form. We find no merit in this argument. “There has never been a requirement that a defendant initial each line in a plea form.” State v. Woods, 09-399, p. 16 (La. App. 5 Cir. 3/9/10), 38 So.3d 391, 405, writ denied, 10-0784 (La.10/29/10), 48 So.3d 1096. See also, State v. Nelson, 10-760, p. 4 (La.App. 5 Cir. 3/29/11), 63 So.3d 280, 283-284 (even though the well-executed waiver of constitutional rights form did not contain the defendant’s initials, the plea colloquy and waiver form constituted a sufficient affirmative showing on the record that the defendant was advised of her rights, that she understood them, and that she made a knowing and intelligent waiver of them). In conclusion, we find no merit in defendant’s assignment of error.

Errors patent

As is our routine practice, we have reviewed each record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). We have found the following errors that require correction.

11KA487

The January 20, 2011 commitment for the multiple offender adjudication suggests that defendant “pled guilty” to being a second felony offender. However, |13the transcript reflects that defendant admitted to “being a triple offender under the ... law.”

11KA489

The date on the commitment is January 24, 2011. However, the transcript reflects that defendant’s guilty plea hearing and sentencing occurred on January 20, 2011. The commitment also fails to include the grades of the offenses for counts three, five, six, and seven, and the value reflected in the commitment for count four is inaccurate.

Generally, where there is an inconsistency between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter to the trial court for correction of the hard labor commitment in case numbers 09-4402 and 10-6088 to accurately reflect the transcript of the proceedings. Further, we instruct the trial court to direct the Twenty-Fourth Judicial District Clerk of Court to transmit the original of the corrected minute entry to the officer in charge of the institution to which defendant has been sentenced. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

AFFIRMED; REMANDED

      . On January 20, 2011, the State amended the bill of information as to count three to specify that the amount of access device fraud was greater than $500.00.

      . One of the children was the same infant that was present in the vehicle during the prior high-speed chase.

      . Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452, p. 7 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109 n. 3, writ denied, 07-0152 (La.9/28/07), 964 So.2d 351.

      . See Vance, 06-452 at 7, 947 So.2d at 109 n. 3.

      . See error patent discussion.

      . See error patent discussion.

      . See Vance, 06-452 at 7, 947 So.2d at 109 n. 3.

      . See error patent discussion.

      . See Vance, 06-452 at 7, 947 So.2d at 109 n. 3.

        .See error patent discussion.

      . Defendant does not challenge the validity of her stipulation to the multiple bill. As such, the validity of the stipulation is not addressed herein.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Terrance NAPOLEAN.
    No. 11-KA-530.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      Paul J. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Sehlosser, Shannon K. Swain, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|20n March 27, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Terrance Napolean, with possession of MDMA, in violation of LSA-R.S. 40:966(C) (count one), possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967(A) (count two), and possession of marijuana, second offense, in violation of LSA-R.S. 40:966(C) (count three). Thereafter, on October 7, 2009, the State amended the bill of information to charge defendant with possession with intent to distribute MDMA as to count one, and possession with intent to distribute marijuana as to count three, in violation of LSA-R.S. 40:966(A). Defendant pled not guilty to all charges.

After a hearing on January 30, 2008, defendant was found incompetent to stand trial. However, at a subsequent hearing, defendant was deemed competent. On October 20, 2009, the matter proceeded to trial before a twelve-person jury. | ⅞After considering the evidence presented, the jury found defendant guilty as charged on all counts.

On December 2, 2009, the trial court sentenced defendant to seven years on counts one and two, and five years on count three. The sentences were ordered to be served in the Department of Corrections and concurrently with each other. On the same day, the State filed a bill of information pursuant to the provisions of LSA-R.S. 15:529.1 seeking to have defendant adjudicated a third felony offender. According to the minute entry contained in the record, the trial court found defendant to be a third felony offender on February 24, 2010, and thereafter vacated defendant’s original sentence on count two and sentenced defendant to twenty-five years at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On March 13, 2006, Deputy Nicholas Cottone of the Jefferson Parish Sheriffs Office responded to a call at Rock-N-Roll Auto located on the Westbank Expressway in Marrero. The call was in reference to the theft of a red, T-Top Camaro. Upon arrival, Deputy Cottone spoke to an employee of the used car sales lot, and pursuant to that conversation then spoke to defendant. Defendant, who appeared visibly nervous, informed the officer that he had taken the vehicle, but claimed that he was given permission to drive the vehicle from a salesman who was no longer there.

According to the officer, defendant became angry and agitated and attempted to leave the building. Although defendant at first refused to give the officer his name and date of birth, he eventually gave the officer that information. 14Peputy Cottone then ran a name check on the NCIC computer and learned that there was an outstanding warrant for defendant’s arrest on a traffic matter.

Deputy Cottone placed defendant under arrest, handcuffed him, advised him of his rights, and began performing a search incidental to the arrest. As the officer was conducting the search, defendant resisted and exclaimed “[y]ou planted that on me.” Defendant pulled away and attempted to flee. A struggle ensued, but with the help of a car salesman, Deputy Cottone was eventually able to subdue defendant. During the struggle, Deputy Cottone noticed defendant’s hand inside the waistband of his pants trying to hold onto the top of a brown paper bag.

After backup units arrived, the brown bag was removed from defendant’s pants, and in addition, approximately $1,200.00 cash was seized from his person. The brown bag contained four plastic bags of off-white rock-like material, nine plastic bags of green vegetable matter, and seven and a half round orange pills. These substances tested positive for cocaine, marijuana, and MDMA.

Lieutenant Daniel Jewell, Jr. testified as an expert in value, usage, and packaging of narcotics. He explained that he generally looked at three factors in determining whether narcotics were possessed for personal use or with the intent to distribute. Specifically, he considered the value of the drug, the quantity of the drug, and the packaging of the drug. Applying these factors to the circumstances of this case, Lieutenant Jewell opined that the narcotics were possessed with the intent to distribute as opposed to being possessed for personal use.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant argues that the trial court abused its discretion in failing to admonish the jury to disregard the improper testimony which was elicited by the State as to the ultimate issue of guilt or innocence regarding whether defendant had the intent to distribute. Specifically, defendant complains that | ¡¡Lieutenant Jewell improperly testified that the amount and packaging of the narcotics in this case were consistent with the intent to distribute.

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. LSA-C.E. art. 704. When a witness makes an irrelevant remark that might prejudice the defendant, LSA-C.Cr.P. art. 771 gives the trial court the option to either admonish the jury or, if an admonition does not appear to be sufficient, to declare a mistrial. State v. Johnson, 10-209 (La.App. 5 Cir. 10/12/10), 52 So.3d 110, 124, writ denied, 10-2546 (La.4/1/11), 60 So.3d 1248.

Defendant argues that the trial court erred in failing to admonish the jury to disregard Lieutenant Jewell’s testimony regarding whether defendant had the intent to distribute as it was an opinion on the ultimate issue of guilt. At trial, when Lieutenant Jewell was first asked if it was his opinion that defendant possessed MDMA, cocaine, and marijuana with intent to distribute, defendant made no objection. When Lieutenant Jewell was later questioned on whether the drugs “in this case” were consistent with someone possessing MDMA, cocaine, and marijuana with intent to distribute, defendant lodged an objection before the question was answered. However, the question was rephrased and defendant did not object or request an admonition to the rephrased question. Finally, on redirect, the State again asked if the facts of the instant case would be consistent with possession with intent to distribute. Defendant objected and the question was rephrased in a nature very similar to the original question. Yet, defendant did not object or request an admonition.

| (¡As the State asserts, in State v. Mayeaux, 570 So.2d 185, 189 (La.App. 5 Cir. 1990), writ denied, 575 So.2d 386 (La.1991), this Court held that because the defendant did not request an admonition to the jury at trial, the lack of an admonishing instruction did not constitute error. In the present case, defendant at no time requested an admonition, and therefore, the trial court’s failure to admonish the jury does not constitute error.

Moreover, even if deemed improper, we find that the trial court’s instructions before deliberations were sufficient to offset any influence caused by the improper testimony. In this case, the trial court instructed the jury that they were the ultimate fact finders responsible for determining guilt or innocence. It further informed the jury that the State was required to prove all of the elements of the crime beyond a reasonable doubt, and the jury was obligated to determine the existence of fact from the evidence presented at trial. Finally, the trial court instructed the jury that it may give weight to expert opinion as it sees fit, and that an expert’s opinion testimony can be disregarded. See State v. Johnson, 52 So.3d at 127, where this Court concluded, under similar circumstances, that the trial judge’s instructions to the jury before deliberations were sufficient to counteract any influence by the improper testimony.

Based on the foregoing discussion, we find that the trial court did not abuse its discretion in failing to admonish the jury to disregard the complained of testimony of Lieutenant Jewell. Accordingly, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error on appeal, defendant contends that the trial court erred in allowing the State to introduce impermissible other crimes evidence. Defendant specifically complains about the testimony that there was an outstanding warrant for his arrest on an unrelated matter. Defendant urges that the 17evidence was only necessary to prove a valid search incidental to arrest, which was decided at the motion to suppress; thus, the relevance of the information ceased to exist at trial.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La.1973); State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165. However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. Evidence of other crimes, wrongs, or acts may be introduced when it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceeding. State v. Anderson, 09-934 (La.App. 5 Cir. 3/23/10), 38 So.3d 953, 960, writ denied, 10-908 (La.App. 5 Cir. 11/12/10), 49 So.3d 887.

In State v. Taylor, 01-1638 (La.1/14/03), 838 So.2d 729, 741-42, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the Louisiana Supreme Court discussed the admissibility of other crimes evidence categorized as res gestae:

Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and | ¿police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

In the present case, the evidence regarding the outstanding traffic attachment was part of the continuous chain of events leading up to the arrest and the incident search. Without this information to explain the entire story, the State could not accurately present its case, and the narrative momentum and cohesiveness would have been lost. Thus, it was necessary for the State to present the events leading up to defendant’s arrest, including the fact that defendant was arrested based on an outstanding traffic attachment, in order for the jury to undei-stand the completeness of the story, and in particular, why defendant was searched.

Accordingly, based on the foregoing discussion, we find that trial court did not abuse its discretion in admitting the evidence regarding the outstanding attachment because it was admissible as integral act evidence, or res gestae. This assigned error is likewise without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the sentences imposed by the trial court were illegally lenient. With regard to count one, possession with intent to distribute MDMA, the trial court sentenced defendant to seven years in the Department of |9Corrections. The penalty provision for that offense, LSA-R.S. 40:966(B)(2), provides for a sentence of imprisonment at hard labor “for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence, and pay a fíne of not more than fifty thousand dollars.” Thus, the trial court failed to impose the restriction of benefits and also failed to impose a fine.

With regard to count three, possession with intent to distribute marijuana, the trial court sentenced defendant to five years in the Department of Corrections. The penalty provision for that offense, LSA-R.S. 40:966(B)(3), provides for a sentence of imprisonment at hard labor “for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.” On this count, the trial court failed to impose the mandatory fine.

Generally, when a trial judge fails to mention the restriction of benefits, such conditions are deemed to exist by operation of law under LSA-R.S. 15:301.1. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 801. However, in this case, the trial court’s failure to impose the statutory restrictions is not cured by LSA-R.S. 15:301.1 because the portion of the sentence to be served without benefits is left to the discretion of the trial court. For that reason, we remand the case for resen-tencing with instructions to the trial court to impose defendant’s sentence in accordance with the provisions of LSA-R.S. 40:966(B)(2) only as it relates to the restriction of benefits. State v. Tapps, 02-547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1004, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789; State v. Brown, 04-1194 (La.App. 5 Cir. 4/26/05), 902 So.2d 542, 550, writ denied, 05-1637 (La.2/3/06), 922 So.2d 1173.

hnThe trial judge also failed to impose fines on counts one and three. In State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, 688, writs denied, 10-2758 (La.4/25/11), 62 So.3d 89 and 10-2752 (La.5/20/11), 63 So.3d 974, this Court declined to exercise its authority to correct an illegal sentence involving failure of the trial court to impose a mandatory fine, reasoning that the State did not object to the trial court’s failure to impose the fine, and that the defendant was indigent. Likewise, in the instant case, the State did not object to the trial court’s failure to impose the fines. Additionally, defendant is represented by the Louisiana Appellate Project on appeal and appears to be indigent. State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10) 40 So.3d 219, 224, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725. We therefore decline to correct the illegally lenient sentences with regard to the trial court’s failure to impose the fines on counts one and three.

A review of the record further reveals that the trial court failed to advise defendant of the prescriptive period for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. While the commitment reflects that the trial court advised defendant of the prescriptive period, the transcript does not so reflect. In accordance with the procedure now routinely employed by this Court, we advise defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See State v. Stokes, 10-171 (La.App. 5 Cir. 10/12/10), 50 So.3d 884, 893, and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

[ HAccordingly, for the reasons set forth herein, we remand the matter with instructions for resentencing on count one. In all other respects, we affirm defendant’s convictions and sentences.

AFFIRMED; REMANDED FOR RE-SENTENCING ON COUNT ONE

      . Defendant is identified as "Terrance Napo-lean” throughout most of the district court record and on the appeal caption. However, he identifies himself and was multiple billed as "Terrance Napoleon.”

      . It is noted that the multiple offender proceedings are not part of the instant appeal.

      . Any sentencing errors with regard to count two will not be addressed in this opinion because the original sentence on that count was vacated and defendant was sentenced as a multiple offender, and the multiple offender proceedings are not part of the instant appeal.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Mario A. FUNES.
    No. 11-KA-595.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintifi/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ¡^Defendant, Mario Funes, appeals his convictions on three counts of second degree murder. On appeal, he argues that the trial court erred in denying his motion to quash the indictment on the basis that LSA-C.Cr.P. art. 782(A) is unconstitutional for allowing a non-unanimous jury verdict. For the following reasons, we affirm defendant’s convictions.

FACTS AND PROCEDURAL HISTORY

On Thursday, October 30, 2008, at approximately 2:00 p.m., five Hispanic males, later identified as defendant and his co-defendants, entered Gomez’s Bar in Mar-rero, Louisiana, with the intent to rob the bar, which was known to have large amount of cash on hand. A gunfight ensued, during which four victims were killed and defendant was injured. The robbers were apprehended a short time later as they tried to leave the scene.

|sOn February 26, 2009, a Jefferson Parish grand jury indicted defendant and his co-defendants on four counts of second degree murder, all in violation of LSA-R.S. 14:30.1. On March 6, 2009, defendant pled not guilty to the charges.

Defendant filed various omnibus motions, which included motions to suppress statements, identification and evidence, as well as a motion for discovery, for a bill of particulars, and for a preliminary examination. After hearings, the trial court denied defendant’s motion to suppress the identification and defendant’s motion to suppress the evidence. On January 12, 2010, defendant filed a motion to sever that was granted.

Defendant also filed a motion to quash Count II of the indictment, which was granted. At a hearing on March 22, 2010, defense counsel adopted co-defendant Ri-gaberto Funes’ previous motion to quash the bill of indictment that included an argument requesting that LSA-C.Cr.P. art. 782(A) be declared unconstitutional for allowing a non-unanimous jury verdict. This adopted second motion to quash was denied on that date.

After a three-day trial in September of 2010, a unanimous twelve-person jury found defendant guilty on Counts I, III, and IV. Defendant was thereafter sen-fenced to life imprisonment on each count, without the benefit of parole, probation, or suspension of sentence, receiving credit for time served. The sentences were ordered to run consecutively. This timely appeal followed.

| ¿ASSIGNMENT OF ERROR — Constitutionality of LSA-C.Cr.P. art. 782(A)

In his only assignment of error, defendant challenges the constitutionality of LSA-C.Cr.P. art. 782(A), which allows for a non-unanimous jury verdict. In particular, he argues that that article violates the Sixth and Fourteenth Amendments of the United States Constitution. Defendant recognizes that the United States Supreme Court in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), held that the Constitution does not compel unanimity for verdicts in state criminal cases, but questions the vitality of Apodaca after the decision in McDonald v. City of Chicago, -U.S.-, 130 S.Ct. 3020, 3035, 177 L.Ed.2d 894 (2010).

The State asserts that this claim has no merit, arguing that Louisiana courts have long rejected the claim that a non-unanimous jury verdict is unconstitutional, citing State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738; State v. Jones, 381 So.2d 416 (La.1980); and State v. Simmons, 414 So.2d 705 (La.1982). Additionally, the State points out that the McDonald court footnoted Apodaca as an exception to the general rule requiring unanimous jury verdicts in state criminal trials, stating the following:

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials.

McDonald, supra, 130 S.Ct. 3020, 3035, fn. 14 (citations omitted).

The State further notes that this assignment of error is moot because the jury verdict was unanimous. The State’s position on this point has merit.

| Jn State v. Jacobs, 07-887, pp. 3-4 (La. App. 5 Cir. 5/24/11), 67 So.3d 535, 545-46, defendant was convicted of two counts of second degree murder under LSA-R.S. 14:30.1 by a unanimous twelve-person jury verdict. This Court found that the defendant did not have standing to challenge the constitutionality of LSA-C.Cr.P. art. 782(A) because he was convicted by a unanimous jury verdict on both counts. Jacobs, 07-887 at 82, 67 So.3d at 535 (citing Burch v. Louisiana, 441 U.S. 130, 132 n. 4, 99 S.Ct. 1623, 1624, 60 L.Ed.2d 96 (1979)). Likewise, defendant in this case was convicted by unanimous verdicts on each count. Thus, defendant lacks standing to challenge the constitutionality of LSA-C.Cr.P. art. 782(A). Defendant’s assignment of error is accordingly denied as moot.

Further, even if defendant had standing to challenge this statute, the United States Supreme Court has long held that non-unanimous juries do not violate a defendant’s Sixth Amendment right to trial by jury, made applicable to the states by the Fourteenth Amendment. State v. Thomas, 10-220, p. 11 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, 685, writs denied 10-2758 (La.4/25/11), 62 So.3d 89, 10-2752 (La.5/20/11), 63 So.3d 974 (citing Apodaca, supra; and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)). In State v. Belgard, 410 So.2d 720, 726 (La.1982), the Louisiana Supreme Court followed the United States Supreme Court’s jurisprudence, explaining that “ ‘[tjhis court has consistently held C.Cr.P. art. 782 does not violate the Sixth or Fourteenth Amendments to the United States Constitution.’ ” Thomas, 10-220 at 12, 54 So.3d at 685.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 6175 (La. App. 5 Cir.1990). A review of the record shows no errors patent requiring correction.

CONCLUSION

For the above reasons, we find no merit to defendant’s assignment of error on appeal. Accordingly, defendant’s convictions are affirmed.

AFFIRMED

      . Co-defendants were Jose Cornejo-Garcia, Renil D. Escobar-Rivera, Rigaberto Funes, and Pedro A. Navarrete-Duran.

      . The bill of information alleged that the victims were Wallace and Beauford Gomez, Wayne Hebert, and Jeffrey Carmadelle.

      . The transcript reflects that the trial court denied defendant’s motions to suppress statements and identification; however, the transcript also reflects that defendant did not give a statement and the trial court denied only his motion to suppress identification. It does not appear that the trial court ruled on defendant's motions to suppress the statements, for a preliminary examination, and for a bill of particulars. However, it is well settled that a defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon. State v. Thomas, 08-1171, p. 5 (La.App. 5 Cir. 4/28/09), 13 So.3d 595, 599.

      . The basis of that motion to quash was facts suggesting that one victim, Beauford Gomez, was killed by a bullet fired by another victim, Wallace Gomez.

      . LSA-C.Cr.P. art. 782(A) provides, in pertinent part, that ”[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” This article is a counterpart to LSA-Const. art. 1, § 17(A), which provides: "A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.”