source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eddy DOMINGUEZ.
    No. 14-KA-1.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2014.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jerome G. Smith, III, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Eddy Dominguez, Cottonport, Louisiana, Appellant/In Proper Person.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges STEPHEN J. WINDHORST, HANS J. LILJEBERG and ELLEN SHIRER KOVACH, Pro Tempore.
   STEPHEN J. WINDHORST, Judge.

| ^Defendant, Eddy Dominguez, was indicted on one count of second degree murder, a violation of La. R.S. 14:30.1, and one count of simple burglary, a violation of La. R.S. 14:62. After a jury trial, defendant was convicted of the lesser crime of manslaughter on count one. He was found not guilty on count two. Defendant was sentenced to forty years at hard labor without the benefits of probation or suspension of sentence. This appeal followed.

FACTS

On the evening of May 19, 2009, the Gretna Police Department received a call in reference to shots being fired. When they arrived on the scene, a witness said that she had seen two Hispanic males fleeing the area. The victim, Jonathan Flowers, was found on the canal bank. The forensic pathologist who performed the autopsy of Mr. Flowers stated that he died of a gunshot wound that traveled though the left lung, aorta and right lung. The victim also had lacerations to his face that were consistent with being hit in the face by a pistol. The pathologist agreed that the wounds to the victim’s face could have also been caused by punches or kicks. A toxicology screen revealed the presence of marijuana. The victim had bags of marijuana and crack cocaine on his person.

[¿During the afternoon of May 19, 2009, defendant and his cousin, Bryan Rosales, were with Opal and Shelby Lukes at the Lukes’ house, on Claire Avenue in Gretna, Louisiana. Defendant and Rosales frequently spent time with the Lukes sisters. This group smoked marijuana on an almost daily basis. Both defendant and Rosales are Hispanic.

Around 11:00 P.M. that evening, when their supply of marijuana ran out, defendant and Rosales walked to the “Mary Poppins” area, near the house and across a canal, to buy more drugs. After defendant and Rosales crossed over the canal, a stranger, later identified as the victim, approached and told them he had marijuana to sell. The stranger then left, after saying that he was going to talk to his “people.” Rosales got nervous and left the area before the stranger came back.

Later, they were approached by the same individual, who asked them if they had any money. Defendant stayed to talk, and Rosales walked away. Rosales testified that he heard sounds of “wrestling” or “tussling,” and then he heard “some shots.” He then saw defendant and the other man wrestling and he ran back to help defendant by trying to “kick the guy off.” Rosales ran up the canal bank, slipping along the way and becoming covered in mud. Rosales returned to the Lukes’ house. He stated that when he returned to Claire Avenue that night, he told Opal Lukes that a man had tried to rob defendant. Rosales changed his clothes and walked with Shelby Lukes to a nearby “Brothers” store to pick up some food. While walking, they were stopped by police officers who asked them if they had seen anything suspicious in the neighborhood, to which Rosales replied that he had not. After Rosales picked up the food, they returned to the house on Claire, where | ^defendant and Opal were waiting for them. When Rosales first saw defendant, he appeared to be “a little anxious.”

At trial, Rosales testified that he had seen defendant with a gun earlier on the date of the crime. Rosales never saw the victim with a gun, although the victim acted as if he wanted defendant and Rosales to think that he had a gun. However, the victim never pointed a gun at him or at defendant when Rosales was present. Rosales further stated that he heard a total of two or three gunshots. Rosales testified that he and defendant never discussed what had happened that night.

Shelby Lukes testified at trial that earlier on the day of the shooting, defendant showed her a gun and told her that he had stolen it from Lonzell Silas’ car. She further testified that when defendant and Rosales left to get marijuana, defendant said that he wanted to rob someone but she did not take him seriously. Shelby Lukes also testified that when Rosales returned to the house, he stated that defendant had shot someone. When defendant returned to the house, it appeared that he had been running and there was blood on this shirt. She asked him what happened and he stated that someone had tried to rob him. Defendant removed his bloody shirt and threw it in the trash can.

Opal Lukes testified that earlier on that day, she had seen defendant with a gun. She remembered that defendant and Rosales went to buy marijuana in the “Mary Poppins” area across the canal. When defendant and Rosales returned, she saw a drop of blood on defendant’s face. Defendant stated that someone tried to rob him.

Defendant, Rosales, and the Lukes sisters spent the night in a nearby motel. The next morning Shelby Lukes was contacted by the Gretna Police, and then brought to the Homicide Bureau, where she gave a statement to the police. At trial Shelby admitted that on the night of the murder, she was taking Xanax for which |fishe did not have a prescription. At the time of trial, Shelby Lukes was imprisoned for possession of heroin.

Opal Lukes and a friend gave defendant and Rosales a ride “across the river.” When Opal returned, she was stopped by the police and brought to the station. She gave a statement to police at that time.

Rosales testified that when he and defendant left Opal, they were picked up by the police. They were driven to a police station, and separated. Rosales stated that he did not realize why he had been arrested, until Shelby was brought into the room to speak with him. He later realized that the victim must have been shot during his fight with defendant. At trial, Rosales admitted that he agreed to testify as a part of a plea agreement with the state.

DISCUSSION

In his first pro se assignment of error, defendant alleges that the State failed to prove his conviction “beyond a reasonable shadow of a doubt.” He further argues that his conviction was obtained with the use of unreliable evidence. Because this assignment relates to the sufficiency of the evidence presented, we address it before all other assigned errors as per State v. Hearold, 603 So.2d 731, 734 (La.1992).

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, supra.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found the State proved the essential elements of the crime beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184. A reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact-finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417, 418. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, 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 making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La.1/30/09), 999 So.2d 745.

In this case, defendant was charged with second degree murder but was convicted of the responsive verdict of manslaughter. La. R.S. 14:31 provides for two separate elemental definitions of manslaughter: specific intent manslaughter and felony/misdemeanor manslaughter. Under La. R.S. 14:31 A(2)(a), manslaughter is “a homicide committed, without any intent to cause death or great bodily harm” under circumstances “when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.”

The testimony presented at trial established that on the day of May 19, 2009, defendant had been seen carrying a weapon by three witnesses: Shelby Lukes, Opal Lukes, and Bryan Rosales. Shelby Lukes further testified that defendant said that he had stolen the gun from Lonzell Silas’ car. Before defendant and Rosales left to purchase drugs that evening, defendant indicated to Shelby Lukes that he wanted to rob somebody. Rosales testified that he and defendant went to purchase marijuana from the area known as “Mary Poppins.” Rosales and defendant crossed the canal to get to Mary Poppins. After they crossed over, a stranger, later identified as the victim, walked up to them and told them that he had marijuana to sell. Rosales and defendant left the area but were approached by the same individual later that night. Rosales testified that he never saw the victim with a fygun, although it appeared that he wanted defendant and Rosales to think that he had a gun. The victim never pointed a gun at him, nor did he see the victim point a gun at defendant. Rosales testified that he had walked away while defendant and the individual fought. Rosales said that he ran back to help defendant by trying to “kick the guy off him.” After Rosales left defendant and the victim, he heard a total of two or three gunshots. He did not recall seeing anyone else on the canal bank that night. Rosales and defendant never discussed what had happened. Thus, Rosales’ testimony established that defendant had been armed previously on the date of the victim’s murder and that defendant fought with the victim immediately prior to the shooting. The shooting took place within the context of a sale of narcotics, and evidence established that narcotics were found in close proximity to the victim’s body.

Testimony by Shelby Lukes established that defendant returned to the house on Claire Avenue with blood on his clothing after attempting to purchase narcotics. When Rosales returned, he said, “Eddy shot him.” When defendant returned to the house, it appeared that he had been running and there was blood on his shirt. Defendant threw his shirt in the trash can. When Shelby Lukes asked defendant what had happened, he said that someone had tried to rob him. Opal Lukes testified that when she first saw defendant after he had returned, he had blood on his face.

There was further testimony that while police were canvassing the area shortly after the shooting occurred, a witness reported seeing a couple of Hispanic males fleeing from the canal bank. The following day, Detective Ashton Gibbs set up undercover surveillance and ultimately found Rosales and defendant, two Hispanic males, who got into a car in a Burger King parking lot. Soon after the car left the Burger King parking lot, one of the Hispanic males lay down in the back|10seat so that he could not be seen while the car was traveling on the roadway. Police followed Rosales and defendant into New Orleans where they exited the car and began to travel on foot. Defendant later tried to escape apprehension when approached for questioning by police.

We find that the State met its burden of offering sufficient evidence to support defendant’s conviction beyond a reasonable doubt for felony/misdemeanor manslaughter under the definition and elements provided by La. R.S. 14:31 A(2)(a).

As a second part to this assignment, defendant asks “Was the conviction in this case obtained with the use of unreliable Testimony?” Defendant attacks the credibility of Bryan Rosales, as well as Opal and Shelby Lukes regarding their testimony in his case. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. Nevertheless, defendant’s arguments are without merit.

Defendant attacks the veracity of Shelby Lukes, who was admittedly on drugs the night that the shooting took place. This Court has previously held that when the issue of a witness’ drug use is brought before the jury by a defendant, it is within the jury’s discretion to believe or not believe the evidence presented to discredit that witness. The jury’s conclusion regarding the credibility of the witnesses is dependent upon its in-court observation, and when faced with a conflict in testimony, the jury is free to accept or reject, in whole or in part, the testimony of any witness. State v. Alexander, 12-836 (La.App. 5 Cir. 5/23/13), 119 So.3d 698, writ denied, 13-1981 (La.3/21/14), 135 So.3d 614.

Defendant questions the contradictions between Opal Lukes’ and Shelby Lukes’ testimony regarding the amount of blood on defendant when he returned [^from attempting to purchase drugs. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writs denied, 03-2745 (La.2/13/04), 867 So.2d 688 and 08-1951 (La.1/30/09), 999 So.2d 750.

Finally, defendant challenges the credibility of Bryan Rosales, who admitted on the record to having a plea deal with the State. Again, in this instance, the revelation to the jury that Rosales had entered into a plea bargain in exchange for his testimony does go to his credibility. However, the jury was clearly aware that Rosales agreed to testify against defendant in return for a plea agreement and, apparently finding his testimony to be believable, gave it the credibility they believed it deserved. See State v. Foreman, 08-0902 (La.App. 4 Cir. 4/29/09), 10 So.3d 1238. There is nothing in the record to show that the jury abused its discretion in its assessment of credibility, or made factual findings which were manifestly erroneous.

The evidence presented at trial supports the jury’s verdict. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of manslaughter beyond a reasonable doubt. We find defendant’s first pro se assignment of error to be meritless.

In his first counseled assignment of error, defendant argues that the trial court erred in denying his Batson challenge in light of the State’s pattern of strikes during voir dire. Defendant does not allege a pattern of prejudice against a specific race or suspect class by the State, but claims “a pattern of discrimination against minorities.”

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination on the basis of race in the exercise of peremptory | ^challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson decision is codified in La.C.Cr.P. art. 795C, which provides that no peremptory challenge made by the State or the defendant shall be based solely upon the race of the juror. State v. Massey, 11-357 (La.App. 5 Cir. 3/27/12), 91 So.3d 453, 467, writ denied, 12-0991 (La.9/21/12), 98 So.3d 332. Article 795C further provides that if an objection is made that the State or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Massey, 91 So.3d at 467.

In Batson, the United States Supreme Court established a three-step analysis to be applied when addressing a claim that peremptory challenges of prospective jurors were based on race. Massey, 91 So.3d at 467 (citation omitted). Under Batson and its progeny, the defendant challenging the peremptory strike must first establish a prima facie case of purposeful discrimination. Id. 91 So.3d at 467-68. Second, if a prima facie showing is made, the burden shifts to the State to articulate a neutral explanation for the challenge. Id. 91 So.3d at 468. Third, the trial court then must determine if the defendant has carried the ultimate burden of proving purposeful discrimination. Id.

In the first step, to establish a prima facie case, the defendant must show: (1) the prosecutor’s challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the potential juror because he or she is a member of that cognizable group. Massey, supra. This initial three-prong showing by the defendant gives rise to “the necessary inference of | ^purposeful discrimination” by the prosecutor. “The inference is ‘necessary* because if such an inference cannot be drawn from the evidence presented by the defendant, he is unable to make a prima facie case of purposeful discrimination and his Batson challenge expires at the threshold.” If the trial court determines the defendant failed to establish the threshold requirement of a prima facie case, then the analysis is at an end and the burden never shifts to the prosecutor to articulate neutral reasons. Id.

Considering the first jury panel called, the record is clear that the trial court did not find that defendant had established a prima facie case of purposeful discrimination by the State. With respect to the requirement that the challenges were directed at a cognizable group, the record contains no identification of or reference to the race or ethnicity of the stricken jurors against whose peremptory dismissals the Batson challenges were made by defense counsel.

Assuming, however, that defendant had established that the prosecutor’s challenges were directed at members of a cognizable group, the record definitely reflects that the State’s challenges in question were all peremptory and therefore the second prong was met.

However, considering the third requirement of showing purposeful discrimination, the transcript reveals that when making his Batson challenge defendant failed to specifically identify any jurors or state the cognizable group to which each stricken juror belonged as the basis to his challenge. Nor did he allege how the State was discriminatory, except a general allegation of “a pattern of discrimination against minorities.” Such identification and specificity is necessary so that a juror-by-juror assessment can be made to determine whether the voir dire examination and the stricken juror’s responses support a race neutral basis for exercise of a peremptory challenge, or the existence of purposeful discrimination. | uTo the extent that any review could be made by this court, there was nothing obvious in the record of the voir dire colloquy that might have raised a reasonable inference of exclusion based on race. The State exercised five peremptory challenges. One challenge was against a juror who told the court that a medical condition would make it “absolutely impossible” for him to serve, in addition to medication he was taking that made it difficult for him to pay attention. A second juror stated that he had previously served on at least four criminal juries, including one for a capital case, where the defendant had been found not guilty. A third juror was a social worker, a profession that might make her more sympathetic to the defendant. Thus, the trial court did not err in its conclusion that defendant did not establish a prima facie case of purposeful discrimination as to the jurors in the first panel.

With regard to the second jury panel, the record shows that defendant’s Batson challenge to other jurors was not made until after all jurors and alternates had been chosen and sworn in and those not chosen from the jury panel were discharged. A Batson challenge made at that point in the proceedings is untimely. “In order to preserve the complaint that the prosecutor’s use of a peremptory exception was based on race, the defense must make an objection before the entire jury panel is sworn.” State v. Williams, 524 So.2d 746 (La.1988). The ruling, and thus the prerequisite Batson objection, must be made at a time when the trial court 11fican correct any misuse of peremptory challenges. Id.; See also State v. Lamark, 584 So.2d 686 (La.App. 1st Cir.1991). Although jurisprudence has indicated that Batson objections should at least be made “at some time before the completion of the jury panel,” in order to fulfill the purpose of that principle, a defendant must make a Batson objection contemporaneously with the State’s exercise of the allegedly racially biased peremptory challenges, or at the least, reasonably soon enough thereafter that the stricken jurors have not been dismissed from service. An objection made even before the entire jury panel is sworn and completed is untimely if the prospective jury has been chosen, individually sworn and dispensed to return at a subsequent date, and those against whom the State has allegedly misused its peremptory challenges have been dismissed completely. State v. Aubrey, 609 So.2d 1183 (La.App. 3 Cir.1992).

An objection raised untimely, as in the present case, does not allow the trial court the opportunity to correct any misuse of peremptory challenges. A timely objection would allow a trial court to rule on a Batson objection in time for the trial court to correct the error by reinstating the improperly challenged jurors. State v. Aubrey, supra. Additionally, “[a]n obvious advantage of a prompt ruling on Batson objections is that memories are fresh and a better record can be made of such relevant factors as the race and the demeanor of the jurors, the neutral reasons for challenging the jurors[.]” State v. Williams, supra, at 746 n. 4.

By failing to timely assert his Batson claim, and in the absence of a contemporaneous objection, defendant waived his alleged claims of discrimination. State v. Potter, 591 So.2d 1166 (La.1991). Considering the foregoing, we find no merit to this assignment of error.

In his second counseled assignment of error, defendant contends that the trial court erred in not excusing Juror Kay Evans for cause. Specifically, defendant |1fiargues that Juror Evans “was not qualified to serve in this case” because “she was biased for the State.”

La.C.Cr.P. art. 797 provides grounds upon which a juror may be challenged for cause:

(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

Louisiana courts have held that a true test of a juror’s qualification to serve is his or her ability to judge impartially based on evidence adduced at trial, as gleaned from totality of responses given at voir dire. State v. Fairley, 25,951 (La.App. 2 Cir. 5/4/94), 645 So.2d 213, writ denied, 94-1940 (La.11/11/94), 645 So.2d 1152, writ denied 94-2909 (La.3/24/95), 651 So.2d 287. The trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the entire voir dire reveals an abuse of discretion. State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280.

In this case, the voir dire transcript shows the following pertaining to Juror Kay Evans. Ms. Evans indicated that she was not married, had no children, and worked for the State of Louisiana Department of Children and Family Services. When the State asked Ms. Evans if she could read someone’s mind to determine specific intent, she responded “no” then clarified it was something the State has to prove by using information gathered from other people. When asked what percent | ^constituted a “preponderance” of evidence, she was unsure but responded “A lot.” Ms. Evans indicated that she previously testified as a witness in a trial and that the experience was “nerve-racking.” She had friends and colleagues in law enforcement because of her work at the Department of Children and Family Services. Ms. Evans said that she was an investigator for eight years in the field, and it was one of the reasons she had to testify. She stated that she would be able to weigh a police officer’s testimony the same as any other witness and decide whether or not she believed his testimony. Ms. Evans indicated that she knew Detective Richard Russ as a friend from high school, and from when she was an investigator. It had been two years since she worked with Detective Russ. She stated that she would not automatically vote guilty in a case where Detective Russ testified just because she was familiar with him. She would be able to judge his testimony the same as she would for any other witness. Ms. Evans stated that she did not think it would be awkward if she voted not guilty and “ran into Detective Russ” after the trial. Despite the fact that she had been acquainted with Detective Russ, she thought that she could still be fair and impartial.

Next, when the State asked the panel whether anyone had a close friend or family member “who has been affected by the epidemic of drugs and drug use in this country,” Ms. Evans replied that she had a brother who was murdered in 1990 while purchasing drugs in New Orleans. She said that she did not think the experience made it impossible for her to serve as a juror in the case. Specifically, Ms. Evans indicated that she would not automatically favor the State if drug use or drug dealing were referenced in the case but that she would require proof.

Defense counsel asked Ms. Evans some clarifying questions about her previous answers. She said that her brother was with someone trying to buy marijuana when he was killed, and they tried to drive away without paying for the h «drugs. Counsel then asked if she could be fair if the facts in the instant case mirrored those of what happened to her brother. Ms. Evans replied that it would be difficult but that she did not think that she would be unfair. She confirmed that she had been friends with Detective Russ since high school and that they had previously worked on the same side of a case. Because of their past history and relationship, she believed that Detective Russ was “honest, credible and believable.” Ms. Evans explained, however, that if Detective Russ took the stand and was later contradicted by conflicting testimony, she would “take everything into consideration” and would not automatically believe Detective Russ because of who he is. However, she did admit that she would probably believe Detective Russ over defendant if defendant took the stand and relayed a different version of the events.

Later in the voir dire, Ms. Evans said that she would not have a problem serving on a jury where the allegation is that the crime occurred when the defendant was seventeen years old. She also did not have a problem with the fact that sometimes persons who are just as guilty, or even more guilty than a defendant, will make a plea deal. Ms. Evans did not recall hearing about this crime or the name of the victim in this case.

Defense counsel challenged Ms. Evans for cause, arguing that she had a personal relationship with one of the lead detectives in the case. The State disagreed, asserting that Ms. Evans had indicated she could listen to Detective Russ and decide whether or not she believed he was telling the truth. Defense counsel then argued to the court that Ms. Evans’ answers in voir dire indicated that “There’s no chance of her voting not guilty, Judge, because she just said she thinks this guy [Detective Russ] is — she thinks the world of this guy. So I don’t — I’m not on a level playing field.” Ultimately, Ms. Evans was called to the bench where, l)3out of the hearing of the venire, Ms. Evans was questioned as to whether she would automatically believe Detective Russ instead of other witnesses, to which she replied that she would not, and whether she could be fair and impartial, to which she replied that she would.

After the trial court denied defendant’s challenge for cause, defense counsel used a peremptory challenge to excuse Ms. Evans.

Defense counsel’s challenge for cause of Ms. Evans fell under two arguments: 1) A bias against defendant because of the murder of her brother during a drug deal; and 2) Her prior friendship and working relationship with Detective Russ, which presumably would automatically lead Ms. Evans to And Detective Russ’ testimony more credible.

Defendant asserts that in spite of her answers that she could be fair and impartial in considering the potential testimony of Detective Russ, Ms. Evans’ prior friendship and professional relationship with him should have served as a basis to excuse her for cause. Although personal connections to and relationships with law enforcement personnel do not, by themselves, disqualify prospective jurors for cause, such associations and relationships are subject to careful scrutiny. State v. Alexander, 620 So.2d 1166 (La.1993). The question is whether the prospective juror could assess the credibility of each witness independently of his relationship with law enforcement. State v. Carlos, 618 So.2d 933 (La.App. 1st Cir.1993), writ denied, 623 So.2d 1305 (La.1993). If bias or prejudice may be reasonably attributed to the relationship or association, the juror should be excused for cause. Alexander, supra.

In this case, the entirety of the voir dire transcript on this issue shows that Ms. Evans stated that she would be able to weigh a police officer’s testimony the same as any other witness and decide whether or not she believed his testimony. LoShe stated that she would not automatically vote guilty in a case where Detective Russ testified just because she was familiar with him. She would be able to judge his testimony the same as she would for any other witness. Despite the fact that she was acquainted with Detective Russ, Ms. Evans thought that she could still be fair and impartial. When questioned by the trial judge, Ms. Evans stated that she would not automatically give one side greater weight and that she could follow the law as directed. We find that, based on Ms. Evans’ responses, she could be fair and impartial with respect to Detective Russ’ testimony.

With respect to her brother’s murder, defense counsel asked Ms. Evans if she could be fair if the facts in the instant case mirrored those of what happened to her brother. Ms. Evans replied that it would be difficult but that she did not think that she would be unfair. Under similar circumstances, the Louisiana Supreme Court has found that a trial court did not err in refusing to strike a juror for cause. See State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). Taking into account the entire voir dire of Ms. Evans’ that she could be fair even if the facts of the case were similar to those of her brother’s murder, we find that the trial court did not abuse its discretion in refusing to excuse Ms. Evans for cause.

In his second pro se assignment of error, defendant argues that his forty-year sentence, which is the maximum sentence for manslaughter, is excessive.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and j s>T background of the offender, and the sentences imposed for similar crimes by other courts. State v. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 12-0556 (La.6/1/12), 90 So.3d 437.

Here, the record shows that defendant had armed himself earlier in the day and talked about committing a robbery. Defendant later that evening fought with and shot an unarmed man several times, after which he disposed of his clothing and planned on fleeing the state.

At the time of sentencing, the court considered several factors. The court indicated that it was disturbed by the fact that defendant had a firearm prior to the incident and indicated that he wanted to “go rob somebody.” The court surmised that defendant went to the “Mary ■ Poppins” area with the intent to “rip somebody off’ and that is why defendant brought the gun. It appears that defendant drew the victim “away from his comfort zone” and then attacked him. The judge found it significant that while defendant and Rosales said that they were walking away from the victim, defendant wound up behind the victim, which bolstered defendant’s previous statement that he intended to rob someone. The court stated that, based upon the evidence, defendant was guilty of second degree murder. It also took into account La.C.Cr.P. art. 894.1 sentencing guidelines, and enumerated several that it found applicable to the particular case.

Louisiana courts have found that the fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration, where the defendant has been convicted of the lesser offense of manslaughter. See State v. Roussel, 424 So.2d 226, 231-32 (La.1982), overruled on other grounds by State v. Jackson, 480 So.2d 263, 268 (La.1985); State v. Wooden, 572 So.2d 1156, 1161 (La.App. 1 Cir.1990). Furthermore, the maximum penalty has been upheld by this court in similar circumstances where the | ^defendant was charged with second degree murder and convicted of manslaughter. See State v. Hyman, 09-409 (La.App. 5 Cir. 2/9/10), 33 So.3d 271, writ denied, 10-0548 (La.10/1/10), 45 So.3d 1094; State v. Batiste, 06-869 (La.App. 5 Cir. 4/11/07), 958 So.2d 24; State v. Jones, 05-735 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, 1118-19, writ denied, 07-0151 (La.10/26/07), 966 So.2d 567.

We find that the manslaughter sentence imposed was not excessive and that the trial court did not abuse its discretion in imposing the maximum sentence when considered in light of the crime committed.

Defendant also contends that the trial court erred in denying his motion for reconsideration of sentence. In his motion, defendant had argued that his sentence was excessive under the facts and circumstances of the case. On appeal, defendant argues that his sentence is constitutionally excessive and that the court should have considered a downward departure under State v. Dorthey, 623 So.2d 1276 (La.1993). Since we find that the maximum imposed sentence is not excessive, we also find that, based on the reasons provided by the trial court during sentencing, the trial court did not abuse its discretion in denying defendant’s motion to reconsider sentence. Finally, we note that Dorthey, which allows a court to deviate from a mandatory minimum sentence in certain limited instances, is inapplicable to this case.

In his final argument of his second pro se assignment of error, defendant contends that he received ineffective assistance of trial counsel. Specifically, defendant asserts that counsel should have hired an expert to explore the impact that drug use had on Shelby Lukes’ testimony and to expose “the impossibility of Shelby Lukes testimony.” Defendant also claims that “[c]ounsel should have hired an investigator for this case, the prosecution theory of this case does not ‘Comport’ with Justice and Fundamental Fairness.”

1 gjThe Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient, and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La-C.Cr.P. arts. 924-930.8. Taylor, supra. In this case, we conclude that the record is sufficient to allow a review of defendant’s ineffective assistance claims on appeal.

With respect to defendant’s first claim pertaining to Shelby Lukes, the record demonstrates that defense counsel thoroughly explored the issue of Lukes’ drug use on cross-examination. Defense counsel established that Lukes was a recovering drug addict. Defense counsel questioned Lukes specifically on how her l^use of drugs may have affected her memory of the night in question and established that she had used Xanax and marijuana. Lukes admitted on cross-examination that because of her use of Xanax on that night she “forgot a lot of things.” The jury also heard Lukes admit on redirect examination that the amount of Xa-nax she was using resulted in her remembering only “bits and pieces” of the events that occurred that night. Because defendant’s trial counsel made the full extent of Lukes’ drug use known to the jury for their consideration, his performance was not deficient under the first prong of Strickland, supra.

Defendant also makes a general claim that “[c]ounsel should have hired an investigator for this case.” However, it is not enough for an accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. State v. Brogan, 453 So.2d 325 (La.App. 3 Cir.), writ denied, 457 So.2d 1200 (La.1984). Because defendant’s argument here lacks specificity on how he was prejudiced by his defense counsel’s performance, defendant has not met his burden of satisfying the first prong under Strickland, supra.

Finally, to the extent that defendant argues under the heading of ineffectiveness of counsel that “the prosecution theory of this case does not ‘Comport’ with Justice and Fundamental Fairness,” we have found that the evidence presented by the State at trial was sufficient for a conviction. Defendant’s claims of ineffective assistance of counsel are without merit.

ERROR PATENT DISCUSSION

We have reviewed the record for errors patent according to the mandates of La. 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) and find the following which merit attention.

|2fiThe trial court erred in imposing defendant’s sentence with a restriction of benefit of probation or suspension of sentence. Defendant was convicted of manslaughter, a violation of La. R.S. 14:31. The relevant sentencing provision of that statute provides, “Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, a court of appeal should correct the sentence on its own authority under La.C.Cr.P. art. 882. State v. Sanders, 04-0017 (La.5/14/04), 876 So.2d 42 (per curiam). Accordingly, we amend the sentence to remove the restriction of benefits. We remand this matter for the district court to make the entries in the commitment reflecting this change and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See La.C.Cr.P. art. 892B(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Second, although the commitment reflects that defendant was given a proper notice of the time period for seeking post-conviction relief as required by La.C.Cr.P. art. 930.8, the transcript does not. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030.

hr,CONCLUSION

For the above discussed reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED AND REMANDED FOR CORRECTION OF COMMITMENT.

      . Bryan Rosales testified that he purchased drugs from the "Poppins” area either every day or every other day from different individuals. He also stated that he had been robbed on previous occasions while attempting to purchase drugs.

      . The jury verdict form does not specify under which theory of manslaughter the jury found defendant guilty.

      . Evidence of flight, concealment, and attempt to avoid apprehension is relevant and admissible to prove consciousness of guilt from which the trier of fact may infer guilt. State v. Wilkerson, 403 So.2d 652, 659 (La.1981).

      . In State v. Tucker, 591 So.2d 1208 (La.App. 2 Cir.1991), writ denied, 594 So.2d 1317 (La.1992), the second circuit found that under similar circumstances a racially neutral reason for a peremptory strike existed.

      . In State v. Dabney, 91-2051, 633 So.2d 1369 (La.App. 4 Cir. 3/15/94), writ denied, 94-0974 (La.9/2/94), 643 So.2d 139, the fourth circuit upheld as race-neutral reason using peremptory challenges on jurors based upon how he or she rendered a verdict as a juror in a previous trial.

      .In State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), the Louisiana Supreme Court found that a prosecutor’s concern that a prospective juror's occupation might result in him being more compassionate to a defendant was a sufficient race-neutral reason for a peremptory challenge.


author: ROBERTA. CHAISSON, Judge.

text:
    STATE of Louisiana v. Robert J. BYCHURCH, JR.
    No. 14-KA-178.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jeffrey Hufft, Marko Marjanovic, Assistant District Attorneys, Gretna, LA, for Plain-tiffAppellee.
    Margaret S. Sollars, Attorney At Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

12Defendant, Robert Bychurch, Jr., appeals his convictions and sentences for simple burglary and illegal possession of stolen things. For the reasons that follow, we affirm his convictions and sentences; however, we remand the matter for correction of an error patent noted herein.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information charging defendant with simple burglary, in violation of LSA-R.S. 14:62 (count one), and illegal possession of stolen things valued at greater than $1,500.00, in violation of LSA-R.S. 14:69 (count two). Defendant pled not guilty and thereafter proceeded |sto trial before a six-person jury. After considering the evidence presented, the jury, on October 22, 2013, found defendant guilty as charged on both counts.

On October 31, 2013, the trial court sentenced defendant to ten years on count one and five years on count two, to run concurrently. The State thereafter filed a bill of information pursuant to LSA-R.S. 15:529.1, alleging defendant to be a second felony offender as to the simple burglary conviction (count one). After being advised of his rights, defendant admitted to the allegations in the multiple offender bill. The trial court then vacated defendant’s original sentence on count one and imposed an enhanced sentence of fourteen years in the Department of Corrections without benefit of probation or suspension of sentence, to run concurrently with any other sentence being served.

Defendant now appeals, challenging the sufficiency of the evidence used to convict him of simple burglary.

FACTS

This case involves the burglary of a storage unit at A1 Lock ’n Leave It located on the west bank of Jefferson Parish. At the time of the offense, the victim, Robby Tingle, Sr., and defendant both leased units from this facility. Mr. Tingle’s storage unit number was F-12, and defendant’s storage unit number was F-ll. According to Jane Buchert, the manager of the storage facility, these two units were “right next to each other.”

In December of 2012, sometime between Christmas and New Year’s, Mr. Tingle went to his storage unit to retrieve an item and immediately noticed that the lock on the unit door was not his. Mr. Tingle proceeded to the office at the storage facility, advised an employee of the situation, and requested that the lock on his unit be cut. After the lock was cut, Mr. Tingle raised the door on his storage unit and saw that the unit had been burglarized. He noticed that numerous items had |4been taken, including an all-terrain vehicle (ATV) owned by his son, Robby Tingle, Jr., a motorcycle, a pressure washer, a generator, a torch kit, and some hand tools.

The police were called, and Deputy Jeffrey Jobin of the Jefferson Parish Sheriffs Office responded to the scene. The officer made a report of the incident and entered the ATV and the motorcycle into the NCIC database. At this time, Mr. Tingle was also shown the video from the security cameras located near his storage unit. In the video, Mr. Tingle observed a truck pull up to his storage unit. He then saw a person exit the truck, walk directly to his unit, and open the lock without any bolt cutters. That individual then pulled the ramps out of the back of the trailer attached to the truck and rolled the ATV into the trailer. Next, the individual took a motorcycle, a table saw, and other items from Mr. Tingle’s storage unit and loaded the items into the trailer. At trial, Mr. Tingle testified that he did not recognize the truck or trailer as belonging to anyone that he knew, nor did he give anyone permission to enter his storage unit and remove items.

About a month after the initial report of the incident, Deputy Jobin assisted on a traffic stop of an ATV being driven by defendant. Deputy Jobin recognized the Suzuki ATV as similar to one that had recently been reported stolen. When Deputy Jobin asked defendant about his ownership of the vehicle, defendant claimed that he had owned it for several months and bought it from an individual in Marre-ro for $1,500.00. Defendant and the female passenger on the ATV, Meredith Jones, were given the opportunity to produce documents for the ATV. Although defendant had the key to the vehicle, he was unable to provide the officer | swith the registration, bill of sale, or title for the vehicle. In addition, defendant was unable to show the officer the location of the VIN number.

Deputy Jobin confirmed, by looking at his previous report, that a similar ATV had, in fact, been reported as stolen. Detective Todd Giacona of the burglary and theft division of the Jefferson Parish Sheriff’s Office was called to the scene of the stop to investigate and to interview defendant. In addition, the officer contacted the owner of the ATV, Robby Tingle, Jr., and asked him to come to the scene of the traffic stop. Once he arrived, Mr. Tingle, Jr., presented pictures on his phone, which showed additions he had made to the ATV. In addition to these special features, Mr. Tingle, Jr., recognized the ATV as his because of the missing tail light, the missing radiator reservoir, and the black grab bar that he had broken and had welded back together. Mr. Tingle, Jr., also showed the officers the location of the VIN number, at which time the officers observed that the spot looked like it had been “freshly grounded with a grinder, and it had spray paint.” Feeling confident that Mr. Tingle, Jr., was the owner of the ATV, the officers returned the vehicle to him.

The officers then took defendant and his girlfriend, Ms. Jones, to the detective bureau. In addition, Detective Giacona asked Michael Laurent, the person who initially called the police about defendant riding the ATV, to meet him at the detective bureau. Michael Laurent told the police that he believed the ATV may have been stolen because defendant had previously contacted him to see if he was interested in purchasing an ATV and a generator.

IfiAt the detective bureau, after being advised of his rights, defendant signed a waiver of rights form and gave the officers a statement. In his statement, defendant admitted that he owned a “gold F150 crew cab four door” truck with custom wheels and also owned a white trailer that had a fender missing. Defendant claimed that he bought the ATV from an individual named Michael Trahan, who was staying “with a girl named Claudia.” According to defendant, Michael Trahan took him to a shed at Claudia’s house to get the items. Defendant gave Mr. Trahan $1,500.00, and in return, got an ATV, a generator, an acetylene tank, a helmet, goggles, and gloves.

In addition to giving a statement, defendant signed a consent form giving the officers permission to search his residence. During the subsequent search, the officers recovered a helmet and goggles, which Mr. Tingle, Jr., later identified as those he kept with the ATV. The officers also searched defendant’s garage and recovered a generator, a table saw, a torch set, a pressure washer, and other items that belonged to Mr. Tingle, Sr. According to Detective Giacona, Ms. Jones claimed that she was able to provide receipts for the recovered items; however, none matched the property that was the subject of the theft. Also, while executing the search warrant, the officers observed a white trailer with a missing fender on the driver’s side in defendant’s driveway that matched the trailer observed in the surveillance video from the storage unit.

Several other witnesses testified at trial. Alfred Ravy testified that while he was doing some work for Claudia Crabtree, he overheard defendant tell Ms. Crabtree that he had a motorcycle that he wanted to sell. Mr. Rav/s son wanted a bike, so he told defendant that he was interested in buying it. When Mr. Ravy finished working at Ms. Crabtree’s house, he went to defendant’s house, at which |7time defendant pulled the bike out of a big white trailer. Mr. Ravy bought the bike for $400.00 and claimed that defendant gave him a bill of sale for the bike. However, Mr. Ravy was unable to provide the police with any papers on the bike when his son, while riding the bike, was subsequently stopped by police. Mr. Ravy identified defendant in a photographic lineup as the individual who sold him the bike.

Claudia Crabtree testified and basically confirmed Mr. Rav^s testimony. According to Ms. Crabtree, defendant told her that he had a motorcycle for sale, but she was not interested in buying it. Further, Mr. Ravy was present at her house when the discussion about selling the motorcycle occurred; however, Ms. Crabtree denied having any knowledge as to whether the actual sale took place later that day. During her testimony, Ms. Crabtree denied knowing anyone by the name of Michael Trahan and further denied that anyone by that name stayed at her house in December of 2012. She claimed, during cross-examination, that she tried to help locate Michael Trahan and referred defense counsel to someone named Scott who might be able to help him.

Michael Laurent testified that defendant approached him sometime in December and asked him if he wanted to buy an ATV. According to Mr. Laurent, defendant told him that he had gotten the bike from a storage unit. Further, in his trial testimony, Mr. Laurent claimed that right before defendant showed up with the bike, defendant told Mr. Laurent, “I know where they got motorbikes, three wheelers and four wheelers at.” Defendant then asked Mr. Laurent if he wanted to make a “lick,” which means to “go steal something.” Mr. Laurent admitted, during his trial testimony, that he had not previously provided this information about | ¡/‘making a lick.” Mr. Laurent testified that he did not buy the bike because he thought it might possibly be stolen.

During his testimony, Mr. Laurent acknowledged that at some point during the month of December, the hitch on defendant’s truck was placed on Mr. Laurent’s truck, and the hitch was not removed from Mr. Laurent’s truck until sometime in January.

Defendant’s girlfriend, Meredith Jones, testified for the defense. She claimed that on December 28, 2012, at about 8:59 a.m., which was the date and time reflected on the surveillance video, she and defendant were at home sleeping. She further testified that defendant had purchased the ATV for $1,500.00 and that she and defendant had the owner’s manual and a bill of sale for the ATV. She further pointed out the differences between defendant’s truck and the truck in the surveillance video including the different rims and front grills. She also claimed that the truck in the photograph from the surveillance was missing a sticker on the front windshield and a toolbox. According to Ms. Jones, defendant did not have a hitch on his truck on December 23, 2012, because Mr. Laurent had it on his truck from the beginning of December until the end of January. In addition, Ms. Jones testified that defendant had numerous tools in their shed because he performed many types of work including renovations, plumbing, electrical, and flooring. She claimed to have receipts for all of the items purchased, including the pressure washer.

Robert Guesnon, an investigator, also testified for the defense. According to Mr. Guesnon, he was hired by defense counsel to try to locate someone named Michael Trahan, the person from whom defendant allegedly purchased the ATV. Through the course of his investigation, he discovered that “legally a Michael Trahan does not exist on paper.” However, he claimed that he “was able to locate a |9sub;ject who was identified as Michael Trahan.” Mr. Gues-non obtained a photograph of the person who was identified as Michael Trahan and identified this person as Scott Marcell.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, defendant challenges the sufficiency of the evidence used to convict him of simple burglary. Defendant contends that the conviction was based solely on circumstantial evidence, and not all hypothesis of reasonable, innocent activity for the burglary was eliminated. To support his argument, defendant points to the differences between defendant’s truck and trailer and the truck and trailer shown in the surveillance video. Defendant also points out that at the time of the offense, Mr. Laurent had defendant’s trailer hitch on his truck, that some of the stolen items were not found in defendant’s possession, that Ms. Jones had receipts for some items in the garage, that Ms. Jones and defendant were asleep at home during the burglary, and that all of the items taken could not have fit into defendant’s trailer. Further, defendant contends that it was never excluded that Ms. Crabtree, Mr. Laurent, and Scott Marcell conspired to set up defendant.

The constitutional standard for testing the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Micelotti, 07-808 (La.App. 5 Cir. 4/15/08), 984 So.2d 847, 851, writ denied, 08-950 (La.12/12/08), 997 So.2d 559. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Naquin, 10-474 (La.App. 5 Cir. 2/15/11), 61 So.3d 67, 71.

|inWhen circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Naquin, 61 So.3d at 71.

In the present case, defendant was convicted of simple burglary. That offense is defined in LSA-R.S. 14:62 as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein ...” Specific intent is required for a conviction for simple burglary, and it may be inferred from the circumstances and actions of the accused. State v. Austin, 12-629 (La.App. 5 Cir. 3/13/13), 113 So.3d 306, 312, writ denied, 13-0673 (La.10/25/13), 124 So.3d 1092. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1).

Therefore, to convict the defendant, the State was required to prove beyond a reasonable doubt that defendant entered the structure without authorization and had the specific intent to commit a felony or theft therein. State v. Naquin, 61 So.3d at 72.

|nIn the present case, Mr. Tingle testified that when he went to his storage unit to retrieve an item, he immediately-noticed that the lock on the unit was not his. Mr. Tingle had the lock removed and, upon opening the door, saw that numerous items had been taken, including an ATV, a motorcycle, a pressure washer, a generator, a torch kit, and some hand tools. Surveillance cameras around the storage unit showed a truck and a white enclosed trailer pull up to Mr. Tingle’s unit. The person driving the truck got out and immediately lowered the ramps from his trailer. The perpetrator rolled the ATV into the trailer and then loaded numerous other items into the trailer, including a motorcycle. At trial, Mr. Tingle testified this person must have known that his unit contained a motorcycle and an ATV, both of which would need a ramp to load them into the trailer. Mr. Tingle further testified that he did not give anyone permission to enter his storage unit or remove any items. Defendant was subsequently found in possession of the missing ATV and several other items taken from Mr. Tingle’s storage unit.

Moreover, when the police officers went to search defendant’s house pursuant to his consent, they observed a white trailer in his yard that matched the white trailer shown in the video from the storage unit. In particular, both defendant’s trailer and the trailer seen in the video were missing a fender on the driver’s side. Also, stickers on the trailer shown in the video matched the stickers defendant had on his trailer. Further, defendant’s truck, an F-150, matched the truck shown on the video from the surveillance unit. Defendant’s truck showed custom made rims, deflectors, shades, and tinted windows. The truck in the video had the same aftermarket additions.

In contrast to this testimony, the jury heard Ms. Jones’ testimony that defendant’s truck and trailer did not match the truck and trailer shown in the surveillance video, that Mr. Laurent had defendant’s hitch on his truck from early | ^December until the end of January, that defendant’s trailer could not have fit all the items, and that defendant was at home with her the morning of the offense. In addition, the jury was presented with defendant’s claim that he legally purchased the items from an individual named Michael Trahan, and that the individual identified as Michael Trahan was actually Scott Marcell.

After hearing all of the evidence presented, the jury obviously chose to accept the testimony of the State’s witnesses. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Naquin, 61 So.3d at 73. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Austin, 113 So.3d at 312. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

After viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found, beyond a reasonable doubt, that the evidence was sufficient to support defendant’s conviction for simple burglary. Accordingly, we find the arguments raised by defendant in this assigned error to be 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 387 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record in this case reveals an error in the “State of Louisiana Uniform Commitment Order.” The Uniform Commitment Order reflects the date of the offense was January 20, 2013; |1showever, the date of the offense was actually December 23, 2012. To ensure accuracy in the record, we remand this case for correction of the Uniform Commitment Order to reflect the correct date of the offense. We direct the trial court to make the appropriate entry on the Uniform Commitment Order reflecting this change and direct the Clerk of Court to transmit the corrected commitment to the officer in charge of the institution to which defendant has been sentenced and to the Department of Correction’s Legal Department. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846; State v. Lyons, 13-564 (La.App. 5 Cir. 1/31/14), 134 So.3d 36, 41.

For the reasons set forth herein, we affirm defendant’s convictions and sentences. The matter is remanded for correction of an error patent as noted herein.

CONVICTIONS AND SENTENCES AFFIRMED; COMMITMENT REMANDED FOR CORRECTION.

      . At trial, Mr. Tingle testified that the keys for both the ATV and the motorcycle were kept in the storage unit with the vehicles.

      . Mr. Tingle, Jr., testified that he bought the ATV from an individual in Texas for $2,500.00.

      . At the scene of the stop, Ms. Jones gave a statement that defendant "had gotten the bike somewhere around Christmas, and he said he got it from some guy.”

      .At trial, Detective Giacona testified that the police could not locate anyone matching Michael Trahan’s description or name.

      . Mr. Laurent testified that he knows defendant because defendant’s aunt works for him and lives in one of his rental properties.

      . LSA-R.S. 14:67(A) defines theft as "the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”


author: FAIR, J.,

text:
    1984 CHEVY CAMARO and $265.00 U.S. Currency, Appellants v. LAWRENCE COUNTY SHERIFF’S DEPARTMENT, Appellee.
    No. 2013-CP-00121-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.

      Eric De’Juan Jones, appellant, pro se.
    Morris Sweatt Sr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On May 18, 2002, Eric Jones was arrested for possession of 6.2 grams of cocaine. On May 31, 2002, the Lawrence County Sheriffs Department (the County) gave him formal notice of its intention to forfeit his 1984 Chevy Camaro and $265 in cash seized at the time of his arrest. Jones timely filed a petition contesting the forfeiture with the court. However, he failed to serve a copy of the petition on the County as required by the applicable forfeiture statute. See Miss.Code Ann. § 41-29-176(5) (Rev. 2013).

¶ 2. Thereafter, and for the ensuing ten years, Jones filed various motions pursuing a trial on his contest of the forfeiture of his property. He is finally before this Court claiming denial of his due process rights after the circuit court’s dismissal of his petition without a hearing and without presentation of any evidence justifying a forfeiture on the part of the County. We reverse and remand for further proceedings.

THE COURSE OF PROCEEDINGS

¶ 3. Shortly after the filing of Jones’s petition, the court set the case for trial. Witness subpoenas were issued, some at Jones’s request. Several were for County officials, and the others were for law enforcement officers. The scheduled trial was postponed, and on May 21, 2003, the court entered an order staying the forfeiture proceeding pending the disposition of Jones’s indictment. Shortly thereafter, on June 25, 2003, Jones pled guilty to possession of a controlled substance and was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections, with ten years suspended and five years of post-release supervision (PRS).

¶ 4. There is scant evidence in the record regarding the County’s pursuit of the action after 2003. For reasons unknown, no forfeiture proceeding occurred after Jones’s guilty plea; the stay order remained in effect from its entry on May 21, 2003, until the court dismissed Jones’s petition on December 20, 2012.

¶ 5. In June 2004, Jones filed a motion for a preliminary injunction and temporary restraining order, restating his interest in the seized property. The record is silent as to how the motion was handled. In its brief, the' County claims that it was unaware that Jones had contested the forfeiture and, as a result, had filed a “declaration of forfeiture” in 2002. There is no such declaration in the record. The Cama-ro was reportedly sold for $350 at auction in 2006, though the sale is asserted only in argument, and again there is no evidence in the record of such a sale.

¶ 6. In 2009, Jones attempted to appeal the matter to the Mississippi Supreme Court, but the appeal was dismissed for “lack of an appealable judgment,” since no hearing had been held, nor judgment entered.

¶7. On April 14, 2011, Jones filed a motion in Lawrence County requesting his case be set on the trial calendar. Jones further stated he was entitled to a speedy trial. The court set the case for December 5, 2011. The hearing did not take place, although the reason it was not held is unclear from the record.

¶ 8. On March 18, 2012, Jones wrote a letter to the Fifteenth Circuit Court District, restating his request for a hearing on his forfeiture proceeding as well as transportation to the hearing. On May 7, 2012, the court notified Jones that the case had been set for May by order but because notice of that setting had not been mailed to Jones, it was being reset for December 2012. The court further informed Jones that he had a right to retain counsel, but that the court had no obligation to transport him to his civil proceeding.

¶ 9. On December 10, 2012, the case was called in open court. Jones was not present. Consequently, the County moved to dismiss Jones’s contest of the forfeiture based on his failure to appear. The court granted the motion and dismissed the case with prejudice. The transcript of proceedings shows the County offered to present testimony of two witnesses, who were present in court, and other evidence, if required. The court stated that a trial with presentation of evidence was not necessary because Jones faded to appear and that an order in the nature of a default judgment was appropriate.

¶ 10. Jones appeals pro se and raises several issues. We reduce them to the following: (1) whether Jones was denied due process by a nine-year delay of the forfeiture hearing, and (2) whether Jones was denied due process through the court’s subsequent dismissal of his petition without a hearing. Finding that the circuit court erred, we reverse and remand to the circuit court for proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 11. “The appropriate standard of review in forfeiture cases is the familiar substantial evidences/clearly erroneous test.” Galloway v. City of New Albany, 735 So.2d 407, 410 (¶ 15) (Miss.1999) (citation omitted). We “will not disturb a circuit court’s findings unless it has applied an erroneous legal standard to decide the question of fact.” Id. We review questions of law de novo.

DISCUSSION

1. Speedy Trial

¶ 12. Jones argues that his right to a speedy trial was violated by a nine-year delay. Pursuant to Mississippi Code Annotated section 41-29-177(1) (Rev. 2013):

Except as otherwise provided in Section 41-29-176, Mississippi Code of 1972, when any property, other than a controlled substance, raw material or paraphernalia, is seized under the Uniform Controlled Substances Law, proceedings under this section shall be instituted within thirty (30) days from the date of seizure or the subject property shall be immediately returned to the party from whom seized.

¶ 13. The County timely noticed Jones of its intention for forfeiture after Jones was arrested. And Jones timely filed his petition to contest the forfeiture. However, the court stayed the proceeding in 2003 pending disposition of Jones’s criminal charges — and under that stay no hearing took place until 2012. “[I]t is not unusual for civil forfeiture actions to be continued until after the underlying criminal proceedings are concluded. Nevertheless, a continued forfeiture action must be timely concluded, and an unreasonable delay will constitute a denial of due process.” One 1970 Mercury Cougar v. Tunica Cnty., 936 So.2d 988, 992 (¶ 15) (Miss.Ct.App.2006) (internal citations omitted).

¶ 14. “Both the United States and Mississippi Constitutions guarantee a defendant’s right to a speedy trial which, according to the United States Supreme Court, applies in civil forfeiture proceedings.” One 1970 Mercury Cougar v. Tunica Cnty., 115 So.3d 792, 795-96 (¶ 18) (Miss.2013) (internal citations omitted). When a defendant claims he was denied the right to a speedy trial, we analyze the claim using the following four factors announced in Barker v. Wingo: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors should be weighed according to the facts of the case, and no one factor is outcome-determinative. Thomas v. State, 48 So.3d 460, 475 (¶ 42) (Miss.2010) (citing Price v. State, 898 So.2d 641, 647 (V11) (Miss.2005)). Further, other circumstances may be considered in the balancing process in addition to the Barker factors. Id. (citing Jefferson v. State, 818 So.2d 1099, 1106 (¶11) (Miss. 2002)).

¶ 15. Here, the length of delay is substantial. The court stayed the civil proceeding until after Jones’s criminal proceeding. Jones entered a guilty plea in June 2003. There is no explanation in the record as to why no hearing was held until December 2012, nine years and six months later. The record shows Jones actively pursued his right to contest the forfeiture proceeding as soon as his criminal proceedings ended. He asserted his right to a speedy trial in April 2011. Jones also states he has been prejudiced by the delay, although he provides no support for this claim.

¶ 16. At a new trial, the parties may present a record that would allow analysis by this Court under the Barker standards. The County will have an opportunity to explain its idleness regarding the proceeding and its basis for disposing of the property before the 2012 hearing. Jones will also be afforded the opportunity to explain what prejudice he suffered from the delay.

2. Dismissal of Jones’s Petition

¶ 17. Jones further claims that, having denied him a speedy trial, the court thereafter violated his due process rights when it dismissed his petition with prejudice without a hearing. Specifically, Jones asserts that the County’s failure to establish the validity of the forfeiture at the hearing constituted an unlawful taking of his property.

¶ 18. The Fourteenth Amendment to the U.S. Constitution and Article Three, Section Fourteen of the Mississippi Constitution prohibit deprivation of property without due process of law. See U.S. Const, amend. XIV; Miss. Const, art. 3, § 14. In Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002), the United States Supreme Court addressed due process requirements in forfeiture cases when a citizen’s property is seized by the government.

The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without “due process of law.” From these “cryptic and abstract words,” we have determined that individuals whose property interests are at stake are entitled to “notice and an opportunity to be heard.”

Id. at 167, 122 S.Ct. 694 (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993)). The record shows that Jones was afforded minimum due process. The court notified Jones of the hearing and provided him the opportunity for a hearing. He failed to take any action and provided no evidence by way of an affidavit or other means for consideration by the court from the time of his receipt of notice in May until the case was called up on the December trial setting date.

¶ 19. Problematic, however, is the court’s summary dismissal of Jones’s petition for failure to attend court and prosecute. “Where, as in the case sub judiee, an owner of property files a verified answer denying that property is subject to forfeiture, the burden is on the State to prove to the contrary.” 1994 Mercury Cougar v. Tishomingo Cnty., 970 So.2d 744, 748 (¶ 10) (Miss.Ct.App.2007) (quotation omitted). The County claims on appeal that, because it did not receive a copy of Jones’s contest, it did not have the burden of proving the forfeiture was lawful. We are not persuaded by this argument. Even if Jones failed to serve the County with a copy of his petition, the record shows the County was notified that Jones had filed his petition with court. The County further participated in the contest by issuing witness subpoenas to individuals involved in the forfeiture. We find the involvement in the contest prohibits the County from making such a claim on appeal.

¶ 20. There is no evidence in the record indicating the County took any action to ensure a prompt hearing in accordance with the statute. But nine years later, on the day of the hearing, the County announced it was prepared to proceed with presentation of evidence, including witnesses involved in the seizure of the vehicle, the money, and the drugs. Rather than present that evidence, the County moved to dismiss the case based on Jones’s absence. The court granted the motion. Thereafter, the court issued an order dismissing Jones’s petition with prejudice for failure to prosecute.

¶ 21. The judge erred in classifying Jones as the plaintiff in this action and therefore improperly dismissed Jones’s petition with prejudice for failure to prosecute. The County provided Jones its notice of intent to pursue an administrative forfeiture unless Jones objected within thirty days. Jones filed his objection within that time. Therefore, the County has been “put to its proof’ and must show by a preponderance of the evidence that Jones’s property should be forfeited, assuming that the consideration of the Barker factors does not require dismissal of the County’s claim for the vehicle and the money. See Miss.Code. Ann. § 41-29-179(2) (Rev. 2018). And, if the court does hold a forfeiture hearing, it should employ the four-element proportionality test adopted by the Mississippi Supreme Court in One (1) Charter Arms, Bulldog 44 Special v. State ex rel. Moore, 721 So.2d 620, 624-625 (¶ 19) (Miss.1998):

(1) The nexus between the offense and the property and the extent of the property’s role in the offense;
(2) The role and culpability of the owner;
(3) The possibility of separating the offending property from the remainder; and
(4) Whether, after a review of all relevant facts, the forfeiture divests the owner of property which has a value that is grossly disproportionate to the crime or grossly disproportionate to the culpability of the owner.

For the foregoing reasons, we reverse the circuit court’s decision, and remand for proceedings consistent with this opinion.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS AND JAMES, JJ., CONCUR.

MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: BARNES, J.,

text:
    Earnest SYKES a/k/a Ernest Sykes, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00267-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.
    Earnest Sykes, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Earnest Sykes, appearing pro se, appeals the Clay County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In April 1993, Sykes pleaded guilty in the Clay County Circuit Court to the sale of crack cocaine. At the plea hearing, Sykes admitted to three prior convictions in Clay County for burglary when he was nineteen years old. Certified copies of the indictments and sentencing orders were entered into evidence to prove Sykes was a habitual offender. In exchange for Sykes’s guilty plea, the prosecution retired three other sale-of-a-controlled-substance charges pending against Sykes. The trial court sentenced Sykes to thirty years in the custody of the Mississippi Department of Corrections as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007).

¶ 3. In November 2012, Sykes filed his current PCR motion, arguing the United States Supreme Court’s decision of Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), is an intervening decision that excepts his PCR motion from the three-year time-bar. Specifically, Sykes argues that under Bull-coming, the State is required to produce testimony from the person who certified the documents used to prove his prior convictions for habitual-offender status. Since this testimony was not provided, Sykes claims his rights under the Federal Constitution’s Sixth Amendment Confrontation Clause were violated and his sentence should be vacated. The trial court disagreed, ruling that Bullcoming was not an intervening decision, nor was it applicable on the merits. Sykes’s PCR motion was dismissed as time-barred. Sykes timely appealed.

STANDARD OF REVIEW

¶ 4. “In reviewing the trial court’s dismissal of a motion for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Whatley v. State, 123 So.3d 461, 466 (¶ 6) (Miss.Ct.App.2013) (citing Williams v. State, 872 So.2d 711, 712 (¶2) (Miss.Ct.App.2004)). “Questions of law are reviewed de novo.” Id.

ANALYSIS

¶ 5. Mississippi Code Annotated section 99-39-5(2) (Supp.2014) provides that a PCR motion must be filed within three years after the judgment of conviction following a guilty plea. Section 99-39 — 5(2)(a)(i) states an exception to the time-bar is an intervening decision by the United States Supreme Court. Sykes’s PCR motion was filed approximately nineteen years after he pleaded guilty.

¶ 6. The trial court rejected Sykes’s argument that the United States Supreme Court decision in Bullcoming was an intervening decision that would be an exception to the three-year time-bar for PCR motions. Bullcoming, relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), held that the defendant had a right to confront the analyst who certified his blood-alcohol-analysis report, because the report was testimonial under the Confrontation Clause. Bullcoming, 131 S.Ct. at 2713. Sykes argued that under Bullcoming, in order to admit certified copies of his previous convictions to prove his habitual-offender status, the State was required to call the person who compiled those records to testify as to their authenticity. Since it did not, Sykes claimed his sentence and status as a habitual offender should be vacated.

¶ 7. However, Bullcoming did not address self-authenticating records of a defendant’s prior convictions, as we have here, but a certified blood-alcohol laboratory report made by an analyst, used to prove a fact at a criminal trial. This blood-alcohol report would be testimonial in nature for purposes of the Confrontation Clause. Id. at 2717. Here, the certified documents used to prove Sykes’s prior convictions were not testimonial, and thus Bullcoming does not apply.

¶ 8. The trial court aptly cited as instructive this Court’s decision in Frazier v. State, 907 So.2d 985 (Miss.Ct.App.2005). Frazier held that the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), did not apply to self-authenticating documents such as certified public records under Mississippi Rule of Evidence 902(4). Frazier, 907 So.2d at 998 (¶ 43). Specifically, the Frazier court noted that the custodian of the records who compiled the defendant’s certified “pen-packs” of prior convictions was not testifying against him. Id. at 997 (¶ 42). “No one from the State ... testified that Frazier was a habitual offender”; the custodian only “swore that the documents were true and correct copies.” Id. Therefore, the defendant “did not need to confront any one witness against him.... ” Id. at 998 (¶ 43).

¶ 9. In this case, the trial court noted that while Frazier applied Crawford, Bull-coming would not change Frazier’s outcome. We agree. Since the trial court’s opinion, we have expressly held Bullcom-ing is not applicable to certified pen-packs for prior convictions in Small v. State, 141 So.3d 61, 68-69 (¶¶ 22-25) (Miss.Ct.App. 2014), and Vanwey v. State, 147 So.3d 367, 370 (¶¶ 10-11) (Miss.Ct.App.2014). Accordingly, Bullcoming is not an intervening decision that would except Sykes from the time-bar; nor is it applicable to this case. Therefore, the circuit court did not err in dismissing Sykes’s PCR motion.

¶10. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . In his PCR motion, Sykes claims that he has not previously filed any PCR motions in state or federal court for his current sentence and conviction. However, he has. In April 1996, Sykes filed a PCR motion challenging his guilty plea, which the trial court found was barred as a successive motion. Sykes v. State, 757 So.2d 997, 998 (¶ 1) (Miss.2000). Sykes appealed, and this Court held the motion was not a successive filing, but time-barred. Id. (citing Sykes v. State, No. 97-CA-00196-COA (Miss.Ct.App. Mar. 9, 1999)). On writ of cer-tiorari, the Mississippi Supreme Court held that the action was timely and remanded for consideration on the merits. Id. at 1001 (¶ 15). On remand, the trial court denied the motion, and the supreme court affirmed. See Sykes v. State, 919 So.2d 1064, 1065 (¶ 2) (Miss.Ct.App.2005). In August 2003, Sykes filed yet another PCR motion, which the trial court dismissed for lack of jurisdiction due to Sykes's failure to request permission to file it with the supreme court. Id. at (¶ 3). This Court affirmed the trial court's dismissal, finding Sykes’s motion was procedurally barred as a successive writ, time-barred, and the court lacked jurisdiction. Id. at 1066-67 (¶¶ 8, 11-12).

      . Crawford held the Confrontation Clause bars admissibility of out-of-court testimony by an unavailable witness in a criminal trial to prove the truth of the matter asserted unless the defendant had a prior opportunity to cross-examine the witness about the statement. Crawford, 541 U.S. at 59, 124 S.Ct. 1354.

      . "Pen packs are the records maintained on inmates sentenced to the custody of the Department of Corrections.” Jasper v. State, 858 So.2d 149, 152 (¶ 11) (Miss.Ct.App.2003).