author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Deivon K. TRIM.
    No. 12-KA-115.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jody Fortunato, Scott Schlegal, Assistant District Attorneys, Gretna, LA, for Plain-tiffAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|2On January 26, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Deivon K. Trim, with attempted second degree murder of Conway Dennis in violation of LSA-R.S. 14:27:30.1. Subsequently, on August 24, 2010, a superseding bill of information was filed charging Trim with attempted first degree murder of Conway Dennis, (who was a witness to the murder of Frankie Williams on October 18, 2008), a violation of LSA-R.S. 14:27:30. After the trial court denied defendant’s motion in limine, allowing the State to introduce evidence that he and Dussett were suspects in the murder of Frankie Williams, defendant went to trial and was found guilty as charged. Pursuant to a multiple offender adjudication, defendant was sentenced as a second felony offender to 40 years with the Department of Corrections giving him credit for time served. This appeal followed.

The following facts were adduced at trial. On October 18, 2008, Frankie Williams was murdered at a playground in the 3100 block of Helena Street, in | aKenner, Louisiana. There were no eyewitnesses to the murder; however, Conway Dennis, the victim in this case, told police that he had observed defendant and Dussett near the scene of the murder minutes before. Based on the information provided by Dennis, defendant and Dussett were developed as suspects in the murder of Williams. At the time of trial, the murder investigation of Williams was still open.

Approximately one month later, on November 20, 2008, Officer Brad Boyd, a patrol officer with the Kenner Police Department, was dispatched to the 200 block of Clemson Drive in Kenner, Louisiana in response to calls indicating that shots were fired. Detective Jeff Adams of the Kenner Police Department was also dispatched to the scene as the lead detective. Eleven 9 mm shell casings were found scattered along the street and sidewalk as if someone were running and shooting a weapon. Officer Boyd spoke with a resident who had observed two black males in dark clothing, both chasing and firing at another individual who was running further ahead.

The victim in this case, Conway Dennis, (the person who was fired at on November 20, 2008), subsequently contacted headquarters and advised that he wanted to speak to a detective. Detective Adams met with Dennis, who gave a recorded statement to Adams in his police unit. Dennis named defendant and Dussett as the perpetrators who shot at him, and an arrest warrant was obtained.

Defendant subsequently turned himself in to the police on November 25, 2008, and gave a statement denying any involvement or knowledge in reference to the Williams murder or the attempted murder of Dennis. Defendant admitted that he knew Dussett, and declared that they were together three days before. LHowever, Dussett gave a statement after his arrest on the following day claiming the last time he was with defendant was a week before.

In this appeal, defendant Trim alleges that the admission of evidence concerning Frankie Williams’ murder violated the defendants’ right to a fair trial. He further alleges that the evidence was insufficient to support this conviction.

In his second allegation of error, defendant argues that the State failed to prove beyond a reasonable doubt that he shot at the victim, or was involved in the murder of Williams. The State responds that the evidence was sufficient to convict defendant of attempted first degree murder.

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. State v. Hearold, 603 So.2d 731, 734 (La.1992).

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). Under this standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. 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. Id.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: [ ¿assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id. (citation omitted).

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. 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). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to convict. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549. Further, it is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence absent impingement on the fundamental due process of law. Bailey, supra.

Defendant was convicted of the attempted first degree murder of Conway Dennis. According to LSA-R.S. 14:30(A)(9)(a), first degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm upon a victim who was a witness to a crime or was a member of the immediate family of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the victim’s | ^testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced. LSA-R.S. 14:30(B)(3) defines a “witness” as “any person who has testified or is expected to testify for the prosecution, or who, by reason of having relevant information, is subject to call or likely to be called as a witness for the prosecution, whether or not any action or proceeding has yet commenced.”

The crime of attempted murder, whether first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Girod, 94-853, pp. 5-6 (La.App. 5 Cir. 3/15/95), 653 So.2d 664, 668. Specific intent is “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). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. Girod, supra.

Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Knight, 09-359, p. 14 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 317, writ denied, 10-2444 (La.10/21/11), 73 So.3d 376. “The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.” State v. Gonzalez, 07-449, p. 9 (La.App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-0228 (La.9/19/08), 992 So.2d 949. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. Id.

17At trial the State presented evidence regarding the murder of Frankie Williams to establish that defendant’s intent and motive to kill Dennis was to prevent him from testifying about the murder. The State and defense offered a joint stipulation that Williams’ death was classified as a homicide due to a gunshot wound to the back of the head. Dennis testified that shortly before the murder he observed defendant and Dussett walking toward the playground where Williams was shot. Dennis further stated that Williams, his cousin, indicated that he had obtained a gun from Louis Cox to rob Antonio Robinson aka “Big Tony,” who was Dussett’s cousin, which presented a motive for the murder. Dennis, the victim, also identified defendant and Dussett in a surveillance video taken approximately 15 minutes before the murder. Dennis testified that although he was nervous, he spoke with police at Williams’ mother’s home a few days after the murder. Defendant and Dussett were developed as suspects in the Williams murder based on Dennis’ initial statement to police. However, no formal charges were ever filed.

The following evidence was presented by the State in an effort to establish that defendant, along with Dussett, actually attempted to kill Dennis. Detective Adams testified that in his statement, Dennis asserted that he believed defendant and Dus-sett were “after him” because they were persons of interest in the Williams murder. Dennis testified that, subsequent to the murder of Williams, defendant and Dus-sett both shot at him with firearms and that 11 shell casings from a 9 mm firearm were recovered from the scene. Dennis further declared that the only people who would want to kill him were the people affiliated with William’s murder, and after Williams was murdered, he knew they were going to try to kill him.

|8We find sufficient evidence to establish that Dennis was subject to being called as a witness in a future proceeding by reason of having relevant information regarding the murder of Frankie Williams, and that defendant fired at him with the specific intent to kill him to prevent him from ever testifying.

Notably, defendant does not allege that the specific elements of the crime were not proven; rather he contends that the victim’s testimony should have been discredited.

In an effort to discredit Dennis, the defense offered the testimony of Phillip Dussett, Sr., the co-defendant’s father. Dussett, Sr. testified that he was friends with Conway Dennis, Sr., the victim’s father. Dussett, Sr. further testified that Dennis, Sr. came to his home and apprised him of the situation between their sons, and put him in touch with Dennis. Dus-sett, Sr. testified that he and his son spoke with Dennis on the phone using three-way calling. Dussett, Sr. claimed that Dennis attempted to extort money in exchange for dropping the attempted murder charges; however, Dussett, Sr. refused and did not have access to that kind of money. Dus-sett, Sr. further testified that Dennis said: “[Y]ou may not have nothing [sic] to do with this, but I know you’re capable of it because we used to hang together.”

Dennis confirmed in his testimony that he spoke with the Dussetts; however, he denied ever asking for money and explained that Dussett, Sr. offered him money not to testify. Moreover, he identified defendant and Dussett as the shooters shortly after the shooting took place, explaining that he knew them from the neighborhood. The eleven shell casings found at the scene and the 911 calls, which indicated that two people were running and shooting at a third individual who was farther ahead of them, also corroborate Dennis’ version of events. |3Interestingly, defendants’ statements about when they last saw each other contradicted one another, calling their credibility into question.

It was within the jury’s purview to believe Dennis’ version of events. Accordingly, we find that in the light most favorable to the State there was sufficient evidence to convict defendant of the attempted first degree murder of Conway Dennis.

In his first allegation of error, the defendant contends that the admission of evidence concerning Frankie Williams’ murder violated the defendant’s right to a fair trial. Defendant argues that evidence indicating that he was a suspect in the murder of Frankie Williams was inadmissible for two reasons. First, he argues that the State violated discovery rules and his right to a fair trial when it untimely disclosed information regarding the Williams’ murder. Next, he argues that this evidence was inadmissible as other crimes evidence.

In addressing the issue regarding discovery violations, defendant maintains that he did not receive any information regarding his involvement in the Williams murder until June 15, 2011, less than two months before trial. He contends that due to the State’s untimely submission of discovery with respect to the Williams murder, he misconstrued the strength of the State’s case against him. He argues that once apprised of that information, he was left with minimal time to prepare a defense; therefore, he was “gravely prejudiced.”

The State responds that defendant had notice of his suspected involvement in the Williams murder long before trial. It avers that the trial court remedied any alleged discovery violations by granting a continuance and excluding certain evidence provided to the defense on June 15, 2011.

| inLSA-C.Cr.P. art. 718(2) requires the State, on the defendant’s motion, to produce documents and tangible objects within its possession, custody or control that are intended for use by the State as evidence at trial. LSA-C.Cr.P. art. 719 gives the defendant the right, upon motion, to inspect and copy, photograph, or otherwise reproduce the results of scientific tests or experiments made in connection with his case that are within the State’s knowledge, possession, custody and control, and are intended for use at trial. The State is under a continuing obligation to promptly disclose additional evidence that may be discovered or that it decides to use as evidence at trial. LSA-C.Cr.P. art. 729.3.

When a party to a criminal proceeding fails to comply with the provisions of the discovery articles, “the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.” LSA-C.Cr.P. art. 729.5(A); State v. Donnaud, 04-624 (La.App. 5 Cir. 2/15/05), 896 So.2d 1151, 1158.

The State’s failure to comply with discovery procedures does not automatically require reversal. The appellate court must examine the circumstances of the case to determine whether the defendant was prejudiced by the State’s non-compliance, and whether such prejudice caused the trier of fact to reach the wrong conclusion. State v. Sweeney, 443 So.2d 522, 527 (La.1983); State v. Donnaud, supra.

In State v. Smith, 99-1020 (La.App. 5 Cir. 2/29/00), 757 So.2d 74, 77-78, writs denied, 00-1017 (La.3/30/01), 788 So.2d 439, 01-0854 (La.11/21/01), 802 So.2d 631, this court commented:

| nThe discovery articles are intended to eliminate unwarranted prejudice which could arise from surprise testimony and evidence, to permit the defense to answer the State’s case, and to allow the defendant to properly assess the strength of the State’s evidence in preparing a defense. When the defendant is lulled into a misapprehension of the strength of the State’s case through the prosecution’s failure to disclose timely or fully, and the defendant suffers prejudice when the undisclosed evidence is used against him, basic unfairness results which constitutes reversible error. However, a conviction will not be reversed on the basis of a discovery violation unless prejudice is shown by the trial court’s adverse ruling.

(citations omitted).

In the instant case, defendant filed a pre-trial motion for discovery on February 3, 2009, seeking “any initial police reports relating to the offense for which defendant was charged.” He also requested that the State observe its continuing duty to disclose information should it discover or decide to use additional evidence that is or may be subject to discovery or inspection. On August 24, 2010, the State filed a superseding bill of information charging defendant and Dussett with attempted first degree murder of Dennis. The bill of information indicates that Dennis was a witness to the murder of Frankie Williams.

Prior to trial, defendant filed a motion and supplemental motion in limine to prohibit the State from introducing evidence that he was a suspect in the murder of Williams, a crime for which he was never charged. Defendant expressed a particular issue with a supplemental investigative report that was received on June 15, 2011. He argued that this evidence should be excluded because the State violated discovery rules in providing untimely disclosure of the information, leaving him no time to investigate or prepare a defense; the evidence of this other crime required notice and hearing, pursuant to LSA-C.E. 404(B); the evidence had no probative value to the instant crime, and it was highly prejudicial.

The trial court granted Trim’s motion in limine and excluded the State from introducing any reports provided after June 9, 2011. However, it deferred its 112ruling on whether evidence that Trim and Dussett were suspects in the Williams murder could be admitted. It noted it did not believe its decision would hinge on the timing of the information, rather the probative and prejudicial value of the evidence.

Subsequently, the trial court denied Trim’s motion in limine, finding that evidence showing that he was a potential suspect in the Frankie Williams murder should not be excluded from trial. The court found that the defense had ample notice that Dennis was a witness to the murder of Frankie Williams and defendants were suspects in that crime. In particular, it noted that the superseding bill of information filed on August 24, 2010, gave notice of Dennis’ status as a witness to a crime, and the police report dated December 19, 2008, “which the defense had for quite some time,” described defendants as suspects. In addition, the trial court granted defendant a continuance for over one month additional time to prepare for trial.

With respect to defendant’s contention that the State violated discovery rules, we find that there was no error in the trial court’s ruling. First, there is no duty on the part of the State to disclose information which it does not possess. Thus, the exclusion of evidence is not an available sanction when the State has promptly informed the defendant of the receipt of additional evidence, even where the new matter is uncovered at an inopportune time for the defense. State v. Williams, 448 So.2d 659, 664 (La.1984). Here, the State immediately provided the supplemental investigative report at issue. The report was dated June 15, 2011, and the State turned it over to the defense on June 15, 2011, as a courtesy to the defense so that they would be aware of all of the possible testimony from the detectives and most of the other reports were duplicate copies of discovery the State had previously provided to the defense. The supplemental report further | ^detailed information already provided rather than provided new information, and the State made the reports available when they were received. Moreover, the trial court excluded the admission of the report.

Next, it does not appear that defendant was surprised by the contents of the report, as the trial court noted he was well aware in advance of the scheduled trial date that Dennis, the victim, was a witness to the murder of Frankie Williams, and that he was a suspect in that murder. In fact, defendant conceded that he had previously received a report dated December 19, 2008, and that report reflected that he was a suspect in the Williams murder.

In addition, the trial court granted Trim a continuance, allowing him additional time to prepare for trial, which is an appropriate remedial measure for a discovery violation. LSA-C.Cr.P. art. 729.5. See State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612, 617, where the Louisiana Supreme Court found that under LSA-C.Cr.P. art. 729.5, the article which details the arsenal of sanctions available for discovery violations, no particular remedy is mandated. Moreover, it appears that defense counsel effectively cross-examined witnesses as to the late disclosures and the fact that defendant was not the only suspect in the murder; and the effects of a discovery violation may be remedied by effective cross-examination. State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/6/05), 917 So.2d 471, 485-486, writ denied, 05-2469 (La.4/28/06), 927 So.2d 283.

Accordingly, assuming the State did in fact violate discovery rules, defendant was not prejudiced by any such violation as he had advanced notice, the late reports were not admitted, he received additional time to prepare, and effectively cross-examined the witnesses.

Defendant also contests the admission of a surveillance video that showed he was present at the murder scene approximately 15 minutes before, arguing that it 114was discovered only 6 weeks before trial. However, at trial, the State submitted the videotape and Dennis identified defendant and Dussett on the tape. Defendant made no objections to the introduction of that videotape at trial. Accordingly, this issue was waived. See LSA-C.Cr.P. art. 841(A).

With respect to the argument that the trial court erred in admitting other crimes evidence concerning defendant’s involvement in the murder of Williams, he challenges both the admissibility of the testimonial evidence of the Williams murder and the videotape placing him at the scene of the murder shortly before it occurred. He argues that this evidence was based on hearsay and innuendo, it was not tested against the clear and convincing standard set forth in Prieur, and the State introduced it only to portray him as a person of criminal character.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. See State v. Hatcher, 372 So.2d 1024, 1036 (La.1979) (Tate, J., concurring on rehearing).

11sLa. C.E. art. 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Other circuits have found that “the prohibition against other crimes evidence pertains to other crimes by the defendant, not other crimes by someone else.” State v. Grant, 41,745, pp. 16-17 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, 836, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629, (citing State v. Buffington, 97-2423 (La.App. 4 Cir. 2/17/99), 731 So.2d 340). Rulings on the admissibility of evidence will not be disturbed, absent an abuse of discretion. State v. Olivieri, 03-563, p. 19 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 218.

Here the trial court denied defendant’s motion in limine finding that he was given ample notice that he was a suspect in the Williams murder. The trial court also stated that it would “allow the defendants to make the appropriate objections as to admissibility, relevance, hearsay, et cet-era.” At trial, the State presented evidence that defendant and Dussett were suspects in the Williams murder and that defendant was observed walking towards Williams and the playground where he was murdered. However there were no eyewitnesses to the crime. The State never presented evidence which indicated that defendant or Dussett actually committed the murder of Williams. Likewise, it presented evidence that Lewis Cox and Antonio Robinson were also suspects in the open investigation and that no one was |ir,ever charged with the murder, making it plausible that Louis Cox or Antonio Robinson murdered Williams and defendant and Dussett attempted to kill Dennis to prevent him from testifying as to that information. Evidence that defendant was a suspect in the Williams murder does not constitute other crimes evidence of defendant, as the State did not, and was not, attempting to prove that he actually murdered Williams.

Additionally, this evidence was highly relevant and probative, because the State had to show that defendant was observed at the scene and was somehow connected to the Williams murder in order to prove that his attempt to kill Dennis was to prevent him from testifying about his knowledge of the murder in the future. Likewise, the prejudicial effect was minimal when considering the State presented evidence that defendant was never charged and that there were other suspects in the murder. We find that the trial court did not err in admitting the evidence that defendant was a suspect in the Williams murder.

We find defendant’s allegation of error to be without merit.

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); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which merit corrective action.

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

AFFIRMED

      . Defendant Trim was charged and tried along with his co-defendant, Phillip G. Dus-sett, Jr. However, this appeal relates to Trim only.

      . Dussett was also charged as a co-defendant.

      . Dussett was also found guilty.

      . Conway Dennis and Frankie Williams were cousins.

      . Dussett, Sr. also admitted to being convicted of aggravated battery in 1984, which also could have affected his credibility considering that Dennis did not have a criminal record.

      . It is noted that defense counsel did not make any hearsay objections to the testimony at trial.

      . Dennis also observed Louis Cox, among others, with defendant and Dussett on the day of the murder.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Clifton DRUMMER.
    No. 2011-KA-1729.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Anderson Council, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET).
   EDWIN A. LOMBARD, Judge.

I,The State of Louisiana appeals the trial court judgment granting the defendant’s motion to quash. After a review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

STATEMENT OF THE CASE

On July 13, 2005, the defendant/appellee, Clifton Drummer, was arrested at 2525 Lafitte Avenue, New Orleans, Louisiana. He was charged with having committed a theft between $100 and $500. The New Orleans Police Department Gist Sheet, as prepared by police at the time of his arrest, reflects the defendant’s address as 4323 S. Derbigny Street, New Orleans, Louisiana. However, the defendant’s home address as listed in the arrest register and the district attorney’s screen form is 2525 N. Derbigny Street, New Orleans, Louisiana.

On August 5, 2005, the State officially charged the defendant with theft of goods between $300 and $500 by bill of information. On that same date, a $20,000 capias was issued for the defendant and the defendant posted a surety bond of $5,000. The defendant was released from custody the following day on August 6, 2006. That bond is missing from the trial court record.

|2The matter was originally set for arraignment on August 23, 2005, but did not occur because the court was closed that day. The court reset the arraignment for September 7, 2005, but because of Hurricane Katrina and its effect on the city, no proceedings were set again until May 16, 2006. A status hearing was to be held that day, but the defendant did not appear.

The court set arraignment for June 8, 2006, but again, the defendant did not appear. On July 27, 2006, when the defendant failed to appear, the State moved that his bond, originally posted following his arrest in July 2005, be forfeited. The court granted the forfeiture request and issued an alias capias in the amount of $25,000. The matter was then continued without date.

On April 19, 2011, the defendant appeared in court following his arrest on the capias. On April 29, 2011, the defendant appeared with counsel and the trial court reduced his bond to $10,000. The address entered on the new bond was 4328 S. Derbigny Street, New Orleans, Louisiana, the same address found on the NOPD Gist Sheet generated at the time of the arrest in 2005.

On May 10, 2011, the defendant filed a motion to quash on the grounds that the time for bringing him to trial had expired. At a hearing held on May 24, 2011, the trial court granted the defendant’s motion.

STATEMENT OF THE FACTS

The underlying facts of this case are not pertinent to the appeal. The issues are purely procedural in nature.

STANDARD OF REVIEW

Trial court rulings on motions to quash on grounds of prescription are reviewed under an abuse-of-discretion standard. State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475.

JjjDISCUSSION

The State’s sole assignment of error is that the trial court abused its discretion in granting the defendant’s motion to quash. The State cites La.Code Crim. Proc. art. 536, which states:

A motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court. It shall specify distinctly the grounds on which it is based. The court shall hear no objection based on- grounds not stated in the motion.

In response, the defendant posits that his motion to quash does state the grounds upon which it is based in accordance with La.Code Crim. Proc. art. 532(7), citing that the State failed to bring the matter to trial within the statutory two-year period mandated by La.Code Crim. Proc. art. 578 A(2)

The State concedes that more than two years have elapsed since the defendant was charged by bill of information, but argues that it has pursued the prosecution of this case with due diligence by “sending notice to the defendant at the address he provided to the State when he arrested.” As such, the State contends that when the defendant failed to appear in June and July of 2006, prescription was interrupted under La.Code Crim. Proc. art. 579, which, in pertinent part provides:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant, at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
* * :|:
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.

|4When a defendant moves to quash the charge against him due to a violation of time limits pursuant to article 578, the State bears the burden of showing that an interruption under article 579 occurred. See State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284; see also State v. Paul, 2011-1347 (La. 4 Cir.App. 10/3/12), - So.3d - (“the State is under heavy burden to show cause for delay”) (citation omitted). That burden ordinarily “requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.” State v. Romar, 07-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725; citing State v. Bobo, 03-2362, p. 5 (La.4/30/04), 872 So.2d 1052, 1055-56.

In the instant case, a review of the record indicates that the State has offered no evidence that an interruption or suspension of time limitation has occurred. The State has not provided any evidence that would tend to establish that the reason why the defendant was never served is because he intentionally absented himself from this jurisdiction. On the contrary, the evidence presented at the hearing, including the defendant’s drivers’ license from the period in question bearing the 4323 S. Derbigny address, the NOPD Gist Sheet and elsewhere in the report displaying the same, tend to establish that the defendant gave the correct address at the time of his arrest. If the State conducted its prosecution with due diligence, it appears that the State would have discovered the discrepancy and attempted to resolve the issue six years ago. Instead, the record simply contains the single attempt at service at the 2525 N. Derbigny St. address, an address the State has not shown the defendant supplied.

|BConclusion

For the above and foregoing reasons, we affirm the trial court’s ruling granting the defendant’s motion to quash.

AFFIRMED

      . "Except as otherwise provided in this chapter, no trial shall be commenced nor any bail obligation be enforceable: (2) In other felony cases, after two years from the date of institution of the prosecution.”


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Don M. HAYES.
    No. 2011-KA-1232.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 Defendant, Don Hayes, appeals his conviction of possession with the intent to distribute heroin. For the reasons that follow, we affirm his conviction and sentence.

PROCEDURAL BACKGROUND

Defendant was charged with, and pled not guilty to, one count of possession with the intent to distribute heroin, a violation of La. R.S. 40:966(A)(1). The trial court denied defendant’s motion to suppress and the matter proceeded to a jury trial from February 14-16, 2011. The jury found defendant guilty as charged. Defendant then filed motions for new trial and for post-judgment verdict of acquittal. Both motions were denied on May 20, 2011, at which time the court sentenced defendant to serve four years at hard labor, with credit for time served.

FACTUAL BACKGROUND

On the afternoon of March 16, 2010, New Orleans Police Officer David Aranda, a member of the 1st District Task Force, was patrolling an area known for narcotics and drug trafficking. While driving on N. Villere St., a one-way street, Officer Aran-da noticed a vehicle travelling the wrong way. He turned his vehicle around to follow the vehicle, activating his sirens and lights. The vehicle pulled 12over and Officer Aranda approached the vehicle which was being driven by defendant. Officer Aranda advised defendant of his traffic violations. When Officer Aranda requested defendant’s driver’s license, insurance and vehicle registration, defendant advised that his license was suspended. Officer Aranda then arrested defendant, advised him of his Miranda rights and conducted a search incident to defendant’s arrest. In doing so, Officer Aranda retrieved a plastic bag from defendant’s right rear pocket containing a brown powdery substance and $1,545.00 in cash. A field test confirmed that the substance in the plastic bag was heroin and at trial, a criminologist for the New Orleans Police Department confirmed that the substance was heroin and it weighed 15.6 grams.

ERRORS PATENT

Our review of the record reveals no patent errors.

ASSIGNMENT OF ERROR NO. 1

Defendant’s first assignment of error is that the trial court failed to advise him of his right to appointed counsel when, during the course of trial, he discharged his counsel and chose to represent himself. In this regard, defendant maintains that this failure prevented him from making a knowing and intelligent waiver of counsel. Defendant also submits that, on this basis, the trial court should have granted his motion for new trial.

Under the Sixth Amendment of the U.S. Constitution, an accused in a criminal trial has the right to the assistance of counsel. This amendment has been interpreted to “impl[y] a right of self-representation.” State v. Bell, 09-0199, p. 13 (La.11/30/10), 53 So.3d 437, 445, citing, Faretta v. California, 422 U.S. 806, 822, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). To that end, a defendant may elect to represent himself if the choice is “knowingly and intelligently made” and the | ..¡assertion of the right is “clear and unequivocal.” State v. Campbell, 06-0286, p. 63 (La.5/21/08), 983 So.2d 810, 851. There is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). The propriety of granting a defendant the right to represent himself should not be judged by what happens in the subsequent course of the representation; it is the record made in recognizing that right that is determinative. State v. Hodges, 98-0513 (La.App. 4 Cir. 11/17/99), 749 So.2d 732, 736, citing, State v. Dupre, 500 So.2d 873 (La.App. 1 Cir.1986).

In State v. Santos, our Supreme Court held that, when a defendant makes an unequivocal request to represent himself, the judge need determine only whether the accused is competent to waive counsel and “voluntarily exercising his informed free will.” State v. Santos, 99-1897, p. 3 (La.9/15/00), 770 So.2d 319, 321 (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). What is a “knowing and voluntary waiver” was discussed by the Louisiana Supreme Court in State v. Carter, 10-0614, p. 25 (La.1/24/12) 26, 84 So.3d 499, 520:

“[ t]he determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see also State v. Strain, 585 So.2d 540, 542 (La.1991)(trial courts should inquire into the accused’s age, education, and mental condition in deciding, on a totality of the circumstances, whether accused understands significance of waiver). Further, a defendant must be made aware of the dangers and disadvantages of self-representation so that the record demonstrates that “ ‘he knows what he is doing and his choice is made with his eyes open.’” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). A defendant, in other words, must know the consequences of his action. City of Monroe v. Wyrick, 393 So.2d 1273, 1275 (La.1981). The assertion of the right must also be clear and unequivocal. See Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; see also State v. Hegwood, 345 So.2d 1179, 1181-82 (La.1977).

The record in this matter reflects that the trial court appointed counsel to represent defendant at his arraignment on March 24, 2010. John Fuller was then retained by defendant and enrolled as his counsel on March 31, 2010. Mr. Fuller (or his associate) appeared in court for defendant on numerous occasions in 2010: March 31, May 7, June 3, August 16, August 31, September 1, October 14, October 20 and December 7, and again on February 14, 2011. The trial began on February 16, 2011 and, shortly after the State’s first witness, Officer Aranda, testified, defendant invoked his right to self-representation. He advised the court that he no longer trusted his retained counsel.

At that time, the trial judge inquired into defendant’s educational background, to which defendant indicated that he was 36 years old, had a year of college and had “studied [his] case.” The trial judge advised defendant against self-representation, stating that “it is almost always unwise and may be detrimental.” She further advised him that he would receive no special treatment, would be required to follow the rules of criminal procedure and that the “State ... [was] represented by experienced and professional attorneys who [would] not go easy on [him] just because [he is] not a lawyer.” She also indicated that defendant would not have “any extra time for preparation” or “staff” or “investigators.” To each of these ad-visements, defendant responded that he understood and he repeatedly stated that he wanted to represent himself.

lfiThe trial judge likewise inquired as to whether defendant had given thought to the arrest and defendant responded that he “sleep[s] with this case.” She confirmed that defendant can read and write, has no problems with sight or hearing and has never treated for any mental issues.

Defendant acknowledged that he understood the charges against him, the penalty and the fact that the State was alleging that he was a “multiple bill” which could result in his imprisonment for life. The trial judge, again, repeatedly advised defendant against self-representation and asked whether he was “positive” that this is what he wanted and defendant responded in the affirmative.

The trial judge then appointed Jay Daniels, an associate of John Fuller, to act as “stand-by” counsel and to assist defendant during the trial, if needed. Mr. Daniels objected to this appointment, on the basis that he had been brought into the case by Mr. Fuller and based upon defendant’s expressed distrust of Mr. Fuller, he did not believe he could be effective in assisting defendant.

Based on the record, we find that the trial court, in its discretion, properly allowed defendant to represent himself. Based upon defendant’s .extensive experience with the criminal justice system, coupled with the trial court’s questioning of defendant, we find that defendant was well aware of the “dangers and disadvantages of self-representation,” which defendant both acknowledged and understood. We therefore conclude that defendant’s waiver of his right to counsel was both “knowing and voluntary” and “clear and unequivocal.” We further conclude that defendant chose to represent himself knowing the “consequences of his actions.”

. We recognize that, during the colloquy in which defendant chose to represent himself, he made comments suggesting that he wanted to retain new | acounsel. For example, he stated, “I know the Court not gonna give me time to hire another attorney.” Similarly, when the trial court recommended that he continue with his retained counsel, “if that’s the only choice I have is John Fuller, your Honor, I would like to represent myself.” However, we find these comments to be inconsequential in light of the record as a whole.

The trial court’s function is to determine “whether the defendant understands the significance of the waiver under the totality of the circumstances.” Hodges, supra, 749 So.2d at 736, citing, State v. Strain, 585 So.2d 540 (La.1991). Among the factors considered by the Hodges court was the defendant’s prior criminal history and the court noted that it “reveal[ed] that he is quite familiar with the criminal justice system.” Id. at 738. Like the defendant in Hodges, here, defendant has a significant criminal history — three prior convictions, all of which had elements of possession of illegal drugs (and one of which was a possession with intent to distribute). As such, this is not defendant’s first encounter with the criminal justice system.

The Louisiana Fifth Circuit, in State v. Norman, 99-600, pp. 6-7 (La.App. 5 Cir. 2/16/00), 756 So.2d 525, 529, observed that, while a reviewing court should consider whether the record provides a basis for concluding that a defendant was aware of the dangers and disadvantages of self-representation, prior extensive experience with the judicial process and the criminal justice system, such as experience obtained through prior felony convictions, may indicate such awareness on the defendant’s part. See also, State v. Poche, 2005-1042, pp. 12-13 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, 1234, wherein the court found that “[bjased on |.7[defendant’s] prior extensive experience with the criminal justice system, we find that defendant was aware of the dangers and disadvantages of self-representation.”

Likewise, we find our jurisprudence interpreting La.C.Cr.P. art. 515, which deals with substitution of counsel for court-appointed counsel, to be instructive and to provide guidance in the instant matter. In State v. Lee, the Louisiana Supreme Court noted:

This court has ... consistently interpreted this right (the right to assistance of counsel) as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. The right of defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. Once the day of trial arrives, the question of substitution of counsel rests largely within the discretion of the trial judge.

364 So.2d 1024, 1028 (La.1978). (Citations omitted).

Similarly, in State v. McClintock, 535 So.2d 1231 (La.App. 3 Cir.1988), the defendant sought to dismiss his attorney and represent himself after voir dire was conducted. The Third Circuit found no violation of the right to counsel when the trial court refused to dismiss the defendant’s attorney and have new counsel appointed when the defendant expressed general dissatisfaction with his attorney. Importantly, the McClintock court reiterated that the “right to counsel of choice must be exercised at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings,” also noting that “[alb-sent a justifiable basis, there is no constitutional right to make a new choice of counsel on the very date 18trial is to begin, with the attendant necessity of a continuance and its disrupting complications.” Id. at 1233. (Citations omitted). See also, State v. Bonit, 05-0795, p. 10 (La.App. 1 Cir. 2/10/06), 928 So.2d 638, 639, (“[t]he trial court correctly denied the motion to hire private counsel. The day of trial was too late of a stage for the defendant to assert his right to hire private counsel. Granting of the motion would have obstructed the orderly procedure of the trial court.”)

In the instant matter, defendant was represented by counsel on ten occasions prior to trial, the last of which was 2 days prior to the commencement of trial. At no time during any of these occasions did defendant raise any issues concerning his representation by Mr. Fuller (or his associate). Defendant waited until after voir dire, opening statements and the questioning of the State’s main witness to challenge his representation. Obviously, defendant was displeased with the manner in which the trial was proceeding and was seeking simply to delay the trial when he discharged his attorney. We find that defendant did not exercise his right to the counsel of his choice at a reasonable time, in a reasonable manner, or at an appropriate stage.

Defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

We now turn to defendant’s second assignment of error, namely, that the trial court erred in granting two of the State’s challenges for cause. One of the prospective jurors expressed distrust of police officers, while the other indicated an inability to convict base on the testimony of one police officer. Defendant, however, maintains that both were sufficiently rehabilitated to serve on the jury. Defendant argues that the State’s use of these peremptory challenges effectively allowed the State more challenges than those to which it was entitled.

| cRa. C. Cr. P. art. 797 sets forth several grounds for challenges for cause, including that a prospective “juror is not impartial, whatever the cause of his partiality ...” La. C. Cr. P. art. 797(2). It is the party seeking to exclude a juror for cause who has the burden of demonstrating, through questioning, that the juror lacks impartiality. State v. Taylor, 99-1311, p. 13 (La.1/17/01), 781 So.2d 1205, 1218.

We note that a challenge for cause is not warranted when a prospective juror has voiced an opinion seemingly prejudicial, but after further inquiry, the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence. State v. Kang, 02-2812, p. 5 (La.10/21/03), 859 So.2d 649, 653. However, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. Id.

As we recently reiterated, “[a] trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion ... Only where it appears, upon review of the voir dire examination as a whole, that the trial court’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the defendant, will an appellate court reverse that ruling.” State v. Kirk, 2011-1218, p. 10 (La.App. 4 Cir. 8/8/12), 98 So.3d 934 (Citations omitted).

Hortense Coston, one of the jurors for which the trial court granted the State’s challenge for cause, initially responded that she would need “[m]ore than just the word of the cops” and could need “other witnesses other than the cops, the 1 ipNew Orleans Police Department” in considering the type of evidence needed in a “drug case.” She then indicated that “you can’t trust them [the police].” She repeated her distrust of the police and indicated that she would not be able to be fair and impartial when testimony was exclusively from police officers, going so far as to say that, even if she “already know[s] in [her] mind that they lie.” Defense counsel attempted to rehabilitate her, and when asked whether she could follow the law and “vote guilty,” she indicated that “maybe I’ll say yes that I could.” However, she later indicated that she could not trust the police.

The other juror excused for cause was Carols Williams who advised that he would have “a problem” if the testimony against defendant came from one police officer, alone, and that he would need more than the testimonial evidence to convict. At the request of both parties, Mr. Williams was questioned in the trial court’s chambers and he again stated that he “[couldn’t] be any clearer” that if the evidence was based on one witness, it would be “hard for [him] to convict.” However, on further questioning by the trial court, Mr. Williams stated that he would not have a problem if the only evidence was testimonial. However, Mr. Williams indicated that he would “absolutely” hold a police officer to a “higher standard” than any other witness.

Based on the foregoing, we do not find any abuse in the trial court’s discretion in granting the State’s peremptory challenges to either of these prospective jurors. Both Ms. Coston’s and Mr. Williams’ responses, as a whole, reflect a lack of impartiality as is contemplated by La. C. Cr. P. art. 797. Defendant’s assignment of error has no merit.

^CONCLUSION

Based on the foregoing, we affirm defendant’s conviction and sentence.

AFFIRMED

      . See also, State v. Gipson, 514 So.2d 646 (La.App. 2 Cir.1987).

      . La.C.Cr.P. art. 515 provides as follows: “Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court. The court may assign other counsel in substitution of counsel previously assigned or specially assigned to assist the defendant at the arraignment.”