author: DREW, J. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Jeremy Jermaine BROOKS, Appellant.
    No. 47,394-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2012.

      Louisiana Appellate Project by Beth Smith Fontenot, James E. Beal, Jones-boro, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, Dale G. Cox, Jr., Susan Morelock Owen, George Winston II, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

|, Jeremy Jermaine Brooks was convicted of second degree murder, La. R.S. 14:30.1. His motion for new trial was denied. In due course, he was sentenced to life imprisonment at hard labor without benefits.

He appeals. We affirm the conviction but remand for resentencing.

FACTS

In April of 2009, when this defendant was 17 years of age, a senseless gunfight occurred between rival gangs of young men at the Canaan Village Apartments in Shreveport. Earlier that day, angry words had been exchanged between the defendant and Terrance Holden. When Holden tried to start a fistfight with him, the defendant showed him a gun and declined.

About 30 minutes later, the defendant, along with his brother, Josh Brooks, and friend, Paul Jones (“P.J.”), were sitting outside one of the apartment buildings, when Holden, accompanied by a crowd of people, walked down the hill to start another fight with the defendant.

Josh retrieved an assault rifle from an apartment and fired into the ground. The defendant took the rifle away from Josh and started firing at Holden and his followers. P.J. began firing a handgun at the fleeing crowd.

Terrell Savore, a 15-year-old innocent bystander, tried to escape, but suffered a fatal gunshot wound, falling in a parking lot at the top of the hill.

No bullets or fragments were found in the victim’s body, and no guns were ever recovered. Shell casings, slugs, and bullet jackets were found in various places at the apartment complex.

| ?,The defendant was originally charged with first degree murder, but the indictment was reduced to second degree murder, the crime of conviction.

On July 21, 2011, four days before trial, the state filed a supplemental discovery response advising that Dr. Long Jin, the prosector, had rendered an oral opinion that Terrell had probably died as a result of a gunshot from a handgun, not an assault rifle. This supplemental discovery response was file stamped by the clerk’s office on that same date, but not scanned onto the clerk’s website until July 26, 2011, the day after the jury was selected.

On Tuesday morning, July 26, prior to any testimony, the state advised that the coroner, Dr. Thoma, and the prosecutor, Dr. Jin, would be on vacation until the evening of Thursday, July 28. The state had intended to call Dr. Jin, but instead of doing so, and not to delay the trial, the state offered the autopsy report in lieu of testimony. Defense counsel objected. The autopsy report was not admitted, but the death certificate was.

Defense counsel was not aware of Dr. Jin’s opinion until she received a hard copy of the state’s notice, four days after the verdict.

TRIAL TESTIMONY

Don Ashley, Caddo District Attorney’s investigator, testified that:

• Shreveport gang activity included the Crips, who were located in Cedar Grove, calling themselves the 19s; and the Bottoms Boys, whose territory was centered around the 1100 block of Fannin Street;

• he participated in the investigation of the homicide of Terrell Savore;

Is* Shreveport Police Department Detective Lowell Bowen asked him to question a witness, Jamil Johnson;

• he recovered surveillance videos from Canaan Village Apartments;

• 24 hours of footage was redacted to a 30-minute segment on a disk;

• he and others interviewed more than 30 witnesses to the shooting;

• these apartments contain territory disputed by the two gangs; and

• the police were able to recover the shell casings from the weapons used in the shooting, although the actual weapons were never found.

Jamil Johnson testified that:

• he was 12 years old on the date of the shooting, and at the time of trial, he was 14;

• he lived at Canaan Village with his mother and siblings;

• Josh, P.J., and the defendant hung out around the “C” buildings;

• he was in building C2 when the shooting occurred;

• before the shootings, two groups of people were arguing at the scene;

• someone from the group opposing the defendant said, “Ain’t no guns got to be involved, why can’t we just fight and get this over with”;

• Josh then said, “If we lose somebody going to die”;

• Josh went into an apartment belonging to a person named Alexis;

• when Josh came out of the apartment, he had on a camouflage jacket and carried an assault rifle into which he inserted a clip;

• Josh and the defendant wrestled over the rifle, during which a shot or two discharged into the ground;

• the defendant ended up with the rifle;

• the defendant fired multiple shots toward the parking lot at the top of the hill;

14* the crowd ran away from the defendant, who was shooting at them;

• Paul Jones shot a semiautomatic handgun many times toward the parking lot, which was on the top of the hill, near the “B” buildings;

• shots were also fired from the “B” units down toward the “C” units;

• after the shooting, he saw the defendant and Josh run upstairs;

• he saw Paul run downstairs into an apartment belonging to Alexis;

• the defendant soon left Mel’s apartment, without the rifle;

• Josh, Paul, and the defendant soon left the area on a trail that runs from Dowl-ing to March, and he did not see them again that day;

• at the parking lot, he saw James Thomas, a/k/a Nunu, move Terrell away from gasoline flowing from a truck through the lot;

• Ashley came to interview him the day after the shooting;

• he told Ashley what he saw and watched the videos with him;

• he identified various people in the videos;

• the group on the hill included his cousins, and his cousins’ friend;

• the group down the hill included the defendant, P.J., Josh, and Demetrius, a/k/a Meechie, plus others he couldn’t remember; and

• Quarshay Robinson was the person shooting from the top of the hill.

Jamil Johnson’s sister, Precious Johnson, testified that:

• she was 15 years old at the time of the trial;

• she was standing in front of building B3 when the shooting occurred;

• the defendant had a “chopper,” which she described as a long gun;

• P.J. had a small gun; and

• the defendant and P.J. were shooting “everywhere.”

Sherrelle Savore, Terrell’s twin sister, testified that:

15» earlier on April 13, 2009, she and Terrell and others went to the recreation center to fill out job applications;

• as they were leaving the recreation center, the defendant accused their cousin Ladarius of trying to fight with his little brother;

• later that day, their group was joined by Terrance Holden;

• their group later exchanged angry words with Josh, P.J., and the defendant, at which point Josh said, “If I lose, I’m shooting”;

• P.J. had a handgun, and Josh said he was going to get a gun;

• Josh went and got a “chopper,” lost control of it, and the weapon shot into the ground, at which point the defendant grabbed the gun;

• the defendant began shooting up the hill;

• she ran away, then her sister told her Terrell had been shot;

• she returned to the parking lot and saw her dying brother;

• she heard shots fired from the top and the bottom of the hill; and

• Quarshay Robinson began shooting down the hill after Josh and the defendant repeatedly shot up the hill toward them.

Another one of the victim’s sisters, Kimberly Savore, testified that:

• that day she heard her boyfriend, Terrance Holden, arguing loudly;

• she heard the defendant say, “He ain’t fixing to take no ass whooping, that they fixing to go play pistol play”;

• When Josh got the rifle, the two brothers began fighting over it;

• the gun discharged, then the defendant wrested control from Josh;

• the defendant started shooting at her and her group, so they ran away;

• she saw that P. J. had a handgun; and

• she later returned and saw her injured brother in the parking lot.

Terrance Holden testified that:

• he was serving seven years for home invasion at the time of trial;

|f* he was at the apartments that day visiting his girlfriend, Kimberly Savore;

• earlier that day, he had an argument with the defendant;

• the defendant wouldn’t fight him but did show a pistol, and then left;

• he and the defendant had another confrontation later that day at the Canaan Village Apartments, where he saw P.J. with an assault rifle;

• the first shot was by P.J., and it went into the ground;

• someone unknown to him fired back toward the bottom of the hill;

• there was then gunfire from up and down the hill; and

• Terrell was shot while trying to escape.

Javarrea Cockerm, a/k/a Nuk, testified that:

• he had previously lived at Canaan Village Apartments but was not living there on the day of the shooting, April 13, 2009;

• Josh had the assault rifle first, then the defendant took it from him;

• P.J. had a handgun;

• the defendant and P.J. were firing up the hill;

• a large group of people, including himself and Terrell, ran up the hill to a parking lot, to get away from the shooting;

• he saw Terrell on the ground in the parking lot;

• Robinson returned fire with a .25-caliber handgun from the parking lot;

• Robinson fired only after the assault rifle fired;

• he and his friends were members of the Bottoms Boys; and

• Josh, P.J., and the defendant were Cooper Road gang members.

Ladarius Anderson, a/k/a Peanut, testified that:

• he and Terrell were cousins;

• he saw Josh with the rifle, then saw the defendant get it; and

W P.J. and the defendant began firing up the hill.

Alexis Barber testified that:

• she lived in Canaan Village in a “B” unit at the top of the hill;

• she saw the argument going on down the hill;

• she could not hear what was being said, but they were yelling;

• Josh ran to get a rifle, then shots began being fired up and down the hill;

• Terrell was running away when the bullet struck him; and

• she corroborated testimony from other witnesses about the firearms being utilized and in what directions the participants were shooting.

Andrea Mitchell testified that:

• she lived in one of the “C” buildings at the time of the shooting;

• after the shooting stopped, she heard a knock at her door;

• Meechie and the defendant were standing there, at which time Meechie entered and hid a big gun in her apartment;

• she knew Meechie because he was a friend of her boyfriend, Mel; and

• the defendant stood outside as Meechie hid the rifle.

Sedrikea Ragster, Nuk’s sister, testified that:

• she went to the recreation center that day, along with Nuk, her cousin Sher-relle (the victim’s twin sister), and Peanut (Ladarius Anderson);

• they all went to apply for summer jobs;

• she saw Josh having words with Peanut;

• they left and went to her aunt’s house, where they again ran into Josh;

• there was supposed to be a fight there, but it never happened;

• later that day, she saw the two groups arguing down the hill;

• she heard Josh say that if he lost, he would shoot;

|R* she saw Josh get a rifle, then saw the defendant take it from Josh;

• the defendant and P.J. started firing up the hill; and

• many little children were there, running everywhere.

James Thomas testified that:

• he was living in a “B” unit at Canaan Village Apartments on April 13, 2009;

• he confirmed the testimony of the other witnesses -with regard to the shooting and who was shooting which weapon;

• Terrell was with him at the bottom of the hill when the shooting started, and they both ran up the hill at the same time;

• when he reached the office of the apartment complex, he noticed Terrell was no longer with him, so he turned around to look for him and saw him lying in the parking lot next to a white truck; and

• Terrell was bleeding and asking for help.

Skylar VanZandt of the Shreveport Police Department testified that:

• he got to the crime scene about 6:00 p.m. on the date of the shooting;

• there were two crime scenes, one in the parking lot at the top of the hill, and another at the bottom of the hill near building C2;

• he found 12 spent rifle casings and 21 9 mm pistol casings at C2;

• the police found six .25-caliber casings in the parking lot on top of the hill,

• they later found six more spent pistol casings between Cl and C2;

• another rifle casing was found off the sidewalk in front of C2;

• he made a video of the scene with placards placed at the various locations where evidence was found; and

• the trial diagrams accurately reflected the location of the evidence.

Richard Beighley, firearms section supervisor with the North Louisiana Crime Lab, was qualified as an expert and identified the three Rtypes of firearms involved in this case, even though he never received the firearms.

The defense’s only witness was Lewis Taylor, who lived in building C2 at the bottom of the hill in April of 2009. He testified that he knew who P.J. was, but he did not know the defendant or Josh. He did not see the shooting, as he was in the breezeway of his apartment smoking marijuana when he heard the initial shots, which came from the top of the hill.

VERDICT AND POST-VERDICT PROCEEDINGS

The jury returned a 10-2 verdict of guilty of second degree murder. Motions for new trial and for post-verdict judgment of acquittal were denied.

The motion for new trial was based on newly discovered material evidence which, notwithstanding the exercise of due diligence, was not discovered prior to trial, and that the verdict would have been different had the information been known during trial.

The post-verdict motions were denied, and the defendant timely appealed, urging three issues: (1) insufficiency of the evidence; (2) the evidence supported a manslaughter verdict, instead of second degree murder; and (3) the trial court’s error in not granting a new trial.

DISCUSSION

Sufficiency of the evidence

The defendant argues that:

[ in* the defendant did not want to fight with Holden, the person who was provoking the fight;

• when he showed the handgun, he did not point it at Terrance, and no evidence showed the defendant using a handgun;

• in fact, he fought with his brother over the assault rifle;

• the testimony showed that he did not fire the rifle until he was fired upon;

• when the shots were fired from up the hill, he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm; and

• the state did not prove that he was not acting in self-defense.

The state responds that:

• the defendant was tried for second degree murder, requiring proof that he had the specific intent to kill or inflict great bodily harm;

• the state has the burden of proof that he did not act in self-defense;

• self-defense is a fact question for the jury;

• the evidence was undisputed that Holden wanted to fistfight with the defendant, but was not armed;

• P.J. had a handgun, and Josh had ready access to an AK-47;

• when Josh fired the weapon into the ground, the defendant grabbed it as all the unarmed people ran up the hill away from the gunfire;

• there was no reason for the defendant to fire upon those who fled;

• the hostilities could have ended there;

• Josh, P.J., and the defendant created the excitement, confusion, and fear when they introduced an assault rifle into the equation;

• a single gunman fired shots down the hill in the defendant’s direction, but not until Josh had fired the assault rifle;

• though there was conflicting evidence, a review of the evidence in the light most favorable to the state must conclude that the .25-caliber handgun was fired after the defendant began firing;

In*the trial court properly charged the jury as to justifiable homicide, self-defense, and the aggressor doctrine;

• the defendant started the argument with Holden earlier in the day at another location, for no apparent reason;

• the defendant could have walked away when Holden came walking down the hill, but he chose to escalate the conflict; and

• the jury reasonably rejected that the shooting was in self-defense.

Our laws on the elements of second degree murder and appellate review of sufficiency considerations are well settled.

I^The evidence presented at trial overwhelmingly supports the state’s case, including the rejection of the defendant’s claims of self-defense. All elements of second degree murder were proven beyond a reasonable doubt.

Evidence supports a finding of manslaughter

We pretermit discussion of this issue, because overwhelming evidence supports the conviction for second degree murder, mooting this assignment.

Denial of motion for new trial based on new evidence

A chronology of events here is crucial: July 25, 2009 — First degree murder indictment is filed;

September 30, 2009 — Autopsy report and photos are provided to the defense;

January 25, 2010 — The state produced the crime lab report;

11sJuly 21, 2011 — The state sends notice, file stamped by the clerk on this date, advising of the prosecutor’s opinion as to probable cause of death;

July 21, 22 and 23, 2011 — Defense counsel checks the clerk’s website for filings;

July 25, 2011 — Defense counsel again checks the clerk’s website on the morning of the first day of trial;

July 25, 2011 — Bill amended to second degree murder and jury is selected;

July 26, 2011 — Clerk scans discovery onto its website;

July 26, 2011 — State announces the two physicians will not be available;

July 28, 2011 — Jury finds defendant guilty as charged (10-2); and

August 1, 2011 — Defense counsel receives a hard copy of the July 21, 2011, filing.

Defendant argues that the jury should have been advised of Dr. Jin’s opinion, and this knowledge could have changed the outcome of the case, as it would have been a more difficult decision for the jury to convict the defendant as a principal to the killing.

La. C. Cr. P. art. 851(3) requires that the trial court must grant a new trial when new and material evidence is discovered after trial if the evidence was not discoverable before or during trial, and the evidence would probably have changed the verdict or judgment of guilty.

Defendant argues that his right to a trial by jury requires that a jury, not the judge, decide whether he acted as a principal in this case. He claims 114the evidence proves that he was reacting to the circumstances he found himself in rather than aiding and abetting Paul Jones in killing Terrell.

The state notes that the public defender’s secretary, who did not testify, was not sure when the supplemental discovery response was received, nor when it was placed in defense counsel’s box.

The trial court ruled that who actually fired the fatal shot was irrelevant, because there was ample evidence to convict the defendant as a principal. The state also points out that the trial court had instructed the jury on the law of principals, including an instruction that the accused need not have feed the fatal shot to be convicted, but can be guilty as a principal.

The state further takes the position that:

• the jury was told that “we can’t prove which bullet killed him”;

• there was much evidence that the defendant was guilty as a principal;

• transferred intent imposes guilt on both P.J. and the defendant;

• even if the defendant did not intend to kill Terrell, his conduct aided and abetted Jones in doing so by laying down cover fire;

• defendant never argued that Jones was the actual killer;

• defendant knew no bullet had been removed from the victim’s body, no weapons had been found, and that P.J. had fired more than twice the number of shots in the victim’s direction than had the defendant;

• the defendant also had access to autopsy photos that showed a small entry wound inconsistent with assault rifle ammunition;

• Defendant had as much access to Dr. Jin as did the state;

• defendant’s strategy was that of self-defense and manslaughter; and

• the evidence, even if considered to be newly discovered, would not have changed the verdict.

| La. C. Cr. P. art. 851 states in pertinent part as follows:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

In State v. Coleman, 2005-1617 (La.6/29/07), 959 So.2d 465, the supreme court stated a defendant seeking a new trial based on newly discovered evidence must establish four elements: (1) that new evidence was discovered after trial; (2) the new evidence is material; (3) the failure to discover the evidence was not due to a lack of diligence on the part of the defense; and (4) had the evidence been introduced, the verdict or judgment of guilty probably would have been changed. When a defendant alleges newly discovered evidence after trial, the ruling on a new trial motion rests within the sound discretion of the trial judge.

Suppression by the prosecution of evidence favorable to an accused upon his request for such evidence violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Barker, 628 So.2d 168 (La.App. 2d Cir.1993), writ denied, 635 So.2d 236 (La.1994).

|1(iThe term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence.

In State v. Black, 34,688 (La.App.2d Cir.5/9/01), 786 So.2d 289, writ denied, 2001-1781 (La.5/10/02), 815 So.2d 831, the court stated that under Brady, the state must disclose all evidence material to guilt or punishment and favorable to the defendant. The state’s duty of disclosure under Brady applies irrespective of the nature of the discovery request and even when a request has not been made. Evidence is material for Brady purposes if there is a reasonable probability, sufficient to undermine confidence in the outcome, that disclosure of the evidence would have produced a different result. The question to be answered is whether the undisclosed evidence would have created a reasonable doubt that would not otherwise exist, with reasonable doubt being determined in the context of the entire record. Failure to comply with discovery merits mistrial only when the state’s conduct substantially affects a defendant’s right to prepare a defense, or when it rises to the level of a legal defect. The trial court may offset the effect of late disclosure of information to the defendant by calling a recess or granting a continuance and the propriety of the remedy for late disclosure of information depends on the circumstances of each case.

|17We do not find error in the trial court’s denial of defendant’s motion for new trial. All applicable law was explained to the jury, and the evidence was abundant and convincing that the defendant took part in the shooting which resulted in the death. Whether Dr. Jin’s testimony would have had an impact on the jury is highly questionable, and certainly not probable.

In a perfect world, the prosecutor would have immediately advised opposing counsel as to Dr. Jin’s opinion, either orally, by fax transmission, by text, by email, by a runner, or in open court. Also, in a perfect world, public defenders would have a file-stamp process to indicate the date and time of the receipt of all documents.

The world is far from perfect, however, and unhurried hindsight provides amazing clarity, as contrasted with the pressure and time constraints of lawyers making final preparations for a jury trial. This factual situation is not ideal, but falls far short of reversible error.

Dr. Jin was available for interviews for months before trial. His opinion as to the probable origin of the fatal bullet was there for the asking. In any event, we agree with the trial court’s decision that timely knowledge of this information would not have altered the verdict.

Because of the defendant’s age at the time of the murder, we remand for resen-tencing, in light of recent jurisprudence forbidding mandatory life sentences, with no possibility of parole, for offenders under the age of 18 at the time of the crime.

|18DECREE

The conviction is AFFIRMED. The sentence is VACATED, and the case is REMANDED for resentencing.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

[ 11 concur in the majority ruling. The issue of the defense’s lack of knowledge of Dr. Jin’s opinion about the murder weapon is problematic. A closer examination of the two gunmen’s alleged roles as principals in concert nevertheless allows me to affirm the conviction.

The law of principals, as set forth in La. R.S. 14:24 states that:

All persons concerning in the commission of a crime, whether present or absent, and wither they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The defendant’s mere presence at the scene is not enough to “concern” an individual in the crime. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, cert denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Schwander, 345 So.2d 1173 (La.1977). Nor can a jury’s inference that an accused aided and abetted in a crime be founded upon mere speculation based upon guilt by association. State v. Schwander, supra. Only those persons who knowingly participate in the planning or execution of the crime are principals. State v. Pierre, 631 So.2d 427 (La.1994). A principal may be connected only to those crimes for which he had the requisite mental intent. Acting in concert, each person becomes responsible not only for his own acts, but for the acts of the other. State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223. Under the law of principals, a person may be convicted of an offense even if he has not personally fired the fatal shot. State v. Hampton, supra.

In this case, the testimony established that Brooks and P.J. were members of the same street gang. P.J. was known to have carried an assault | ¿rifle on occasion. Eyewitness testimony established that on the day of the crime, prior to any shooting, the defendant, his brother and P.J. argued with the opposing group of individuals. An eyewitness indicated that it was after this first argument that Brooks, his brother and P.J. indicated that they would not tolerate getting beat up and that they were “fixing to go play pistol play.” Other eyewitnesses claim these statements were made after a second argument. Nevertheless, the opposing group came down the hill intending to fight the defendant, his brother and P.J. Further argument ensued between the groups which an eyewitness described as including “arguing, fighting, passing words.” Thereafter according to one eyewitness, Brooks obtained an assault rifle from his brother and began shooting directly at the crowd. P.J. followed suit with a handgun. One witness indicated that the two men ran toward the crowd as they shot. It was during these events that the victim was killed.

These facts exclude any reasonable possibility that this riotous confrontation involved two shooters acting independently and not in concert. The defendant’s and PJ.’s actions were sufficiently proven to be in concert, each procuring and aiding the other in their collective assault. That concerted effort allowed the jury to find them both principals in the commission of the crime. Such finding, which is not based upon any determination of which man’s gun inflicted the fatal harm, allows the conviction’s affirmance.

      . All witnesses agreed that Paul Jones, not the defendant, was the person firing the pistol from the bottom of the hill, toward the fleeing crowd at the top of the hill.

      . Shell casings found at the bottom of the hill were from an assault rifle and a 9 mm pistol. Six .25-caliber shell casings were found at the top of the hill.

      . Their names were Javis; Ladarius, a/k/a Peanut; Javarrea, a/k/a Nuk; and Tim.

      . Beighley was able to microscopically compare the marks left by the discharging of those weapons and determine that there were a total of three guns involved: a .30-caliber rifle, a 9mm handgun, and a .25-caliber automatic Colt pistol.

      . No other witness testified that the first shots came from the top of the hill.

      . La. R.S. 14:20(A)(1). Justifiable homicide.
      A homicide is justifiable under La. R.S. 14:20 when committed in self-defense by one who reasonably believes that he is in imminent danger of losing life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
      La. R.S. 14:21. Aggressor.
      A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
      When self-defense is raised as an issue by a defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Garner, 39,731 (La.App.2d Cir.9/8/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant's bad character. State v. Spivey, 38,243 (La.App.2d Cir.5/12/04), 874 So.2d 352. Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982); State v. Spivey, supra.

      . In 2009, La. R.S. 14:30.1, Second degree murder, stated, in pertinent part:
      A. Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm.
      The standard for review in cases that raise sufficiency of the evidence is found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jaclcson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
      An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La. 1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607.

      .The original bill of indictment was filed exactly two years before the commencement of trial for the amended charge of second degree murder.

      . The autopsy report revealed that the pathologist did not find any bullet or bullet fragments in the body of the victim. The small entry wound is clearly visible.

      . The report reflected that 40 shell casings were delivered for analysis: 27 of the shells were 9 mm and 13 were from an assault rifle. No guns were submitted for comparison, and the response indicated that the police never found any weapons.

      . We could not find in the record the actual date on which the prosecutor conducted his pretrial interview with Dr. Jin, the point at which the state learned of prosecutor's opinion that death was probably caused by a pistol shot.

      . There are actually three components of a true Brady claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the state, either wilfully or inadvertently; and, (3) prejudice must have ensued. State v. Garrick, 2003-0137 (La.4/14/04), 870 So.2d 990. A discovery violation involving the state’s failure to disclose exculpatory evidence does not require reversal as a matter of the due process clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Id.

      . The disputed document was scanned and available by the second day of trial.

      . See Miller v. Alabama, -U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); State v. Simmons, 2011-1810 (La.10/12/12), 99 So.3d 28; and State v. Graham, 2011-2260 (La.10/12/12) 99 So.3d 28.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Landford Anthony PAYNE, Appellant.
    No. 47,481-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2012.

      Carey J. Ellis, III, for Appellant.
    Landford Anthony Payne, Pro Se.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Michael J. Fontenot, Fred R. McGaha, Madeleine Slaughter-Young, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

|, The defendant, Landford Payne, was charged by amended bill of information with two counts of armed robbery with a firearm, violations of LSA-R.S. 14:64 and 14:64.3, two counts of attempted second degree murder, violations of LSA-R.S. 14:30.1 and 14:27, and two counts of possession of a firearm by a convicted felon, violations of LSA-R.S. 14:95.1. The charges involved two separate shooting incidents in June and July 2010. After a jury trial, the defendant was found guilty of attempted second degree murder and possession of a firearm by a convicted felon, but was acquitted of armed robbery for the June 2010 shooting. He was found guilty of attempted second degree murder, attempted armed robbery and possession of a firearm by a convicted felon, for the July 2010 shooting.

After a hearing, the defendant was adjudicated a second-felony offender. For the offenses committed in June 2010, the trial court sentenced defendant to serve 50 years without benefit of parole, probation, or suspension of sentence for attempted second degree murder and 20 years without benefit for possession of a firearm by a convicted felon, with these sentences to run concurrently. Regarding the offenses of July 2010, the trial court sentenced defendant to serve 50 years without benefit of parole, probation, or suspension of sentence for attempted second degree murder, 20 years without benefit for possession of a firearm by a convicted felon and 20 years without benefit for attempted armed robbery, with an additional 5 years for use of a firearm. These sentences were ordered to run concurrently with each other, but consecutively to the concurrent sentences imposed for the June 2010 offenses. The defendant now appeals. For the |2following reasons, we affirm each of defendant’s convictions and the sentences imposed for the attempted second degree murder offenses; we vacate the sentences for attempted armed robbery, possession of a firearm by a convicted felon and the imposition of jail time for failure to pay restitution and fines. We remand for resentencing.

FACTS

The first incident involving the defendant occurred on June 15, 2010. According to the testimony of Jason Weeks, he was sitting on the porch of a house on Short Washington Street in Monroe, waiting for a friend to return when a vehicle stopped in front of the house. The defendant exited the vehicle and approached Weeks demanding drugs or money. When Weeks refused, defendant pointed a handgun at him and again demanded money. Weeks gave defendant some of his money, but refused the demand for more. The defendant, who was standing three feet away, then fired multiple shots at Weeks. After being shot, Weeks ran out of the house to a nearby convenience store, where he collapsed on the floor. Police responded to the scene and Weeks was taken to the hospital for treatment of gunshot wounds to his chest, arm and back. While he was recovering in the hospital, Weeks saw defendant’s photograph on a news report about his arrest for a shooting that occurred near the location where Weeks had been shot. Weeks recognized the defendant as the person who had shot him and contacted the police with this information.

Regarding the second shooting incident, the trial testimony showed that on July 1, 2010, Jerry Lee Greer was with a group of friends at a house |aon Adams Street in Monroe. At approximately 5:45 p.m., the defendant rode up to the residence on a bicycle and called to Greer, who had previously met defendant. They were standing near the side of the house when the defendant pulled a gun and demanded Greer’s money. The defendant said, “I’ve got to have it,” asked if Greer was willing to die and then said, “I’m going to ask you one more time.” Before Greer could react, the defendant shot him one time. After the victim fell to the ground, defendant went through his pockets and then rode away on his bicycle. Another neighbor heard the gunshot, saw defendant holding a black handgun and telephoned the police while following the defendant as he fled the scene. The witness kept the defendant in sight and was able to direct officers to the defendant’s location. When the defendant was arrested, he was in possession of a handgun and was carrying $5.00 on his person. The detective working the case took statements from three individuals who actually saw defendant fire the gun. There were seven others who heard the shot or saw the defendant with a gun in his hand prior to the shooting. The handgun in defendant’s possession when he was arrested was determined to be the weapon that fired the cartridge casings found at the scenes of both shootings.

With regard to each shooting incident, the defendant was charged with armed robbery with a firearm, attempted second degree murder and possession of a firearm by a convicted felon, for a total of six counts. The jury acquitted defendant of the armed robbery of Weeks, but found him guilty of two counts of attempted second degree murder, the attempted 14armed robbery of Greer and two counts of possession of a firearm by a convicted felon. After a hearing, the trial court adjudicated the defendant a second-felony offender. As for the offenses committed on June 15, 2010, the trial court sentenced defendant to serve 50 years without benefit for attempted second degree murder and 20 years without benefit for possession of a firearm by a convicted felon, with these sentences to run concurrently. Regarding the offenses of July 1, 2010, the trial court sentenced defendant to serve 50 years without benefit for attempted second degree murder, 20 years without benefit for possession of a firearm by a convicted felon and 20 years without benefit for attempted armed robbery, with an additional 5 years for use of a firearm. These' sentences were ordered to run concurrently with each other, but consecutively to the concurrent sentences imposed for the June 2010 offenses. Additionally, the defendant was ordered to pay a fine of $1,000 for each count of possession of a firearm by a convicted felon, and $500 in restitution to the victim of the attempted armed robbery, or in default thereof, serve an additional 180 days. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing excessive sentences. Defendant argues that less harsh sentences would accomplish the goals of punishment and rehabilitation. Because we have noted error patent regarding the sentences for the convictions of possession of a firearm by a convicted felon and attempted armed robbery, we shall consider this assignment only with respect to the sentences imposed for attempted second degree murder.

|fiAn appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276,(La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:30.1(B). Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than 10 years nor more than 99 years, without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:64. Whoever is found guilty of possession of a firearm by a convicted felon shall be imprisoned at hard labor for not less than 10 years nor more than 20 years, without benefit of parole, probation or suspension of sentence and be fined not less than $1,000. LSA-R.S. 14:95.1(13).

LSA-R.S. 14:27 provides, in pertinent part:

(l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.
(3) In all other eases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

Any person who is convicted of a second felony, for which a first conviction would be punishable by imprisonment for a term less than his natural life, shall be sentenced to imprisonment for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. LSA-R.S. 15:529.1(A). Because defendant |7is a second-felony offender, the sentencing range for attempted second degree murder was 25 to 100 years at hard labor without benefit of parole, probation or suspension of sentence.

Prior to imposing sentencing, the trial court reviewed a presentence investigation (PSI) report, which listed defendant’s three prior felony convictions for illegal possession of stolen things, aggravated assault on a peace officer and armed robbery. At the time of sentencing, the defendant also had a pending simple battery charge. In considering the guidelines of Article 894.1, the court found that there was an undue risk the defendant would commit another crime during a period of suspended sentence and probation, that the defendant was in need of correctional treatment that could be provided most effectively by his commitment to an institution and that a lesser sentence would deprecate the seriousness of his offenses.

Regarding the defendant’s social history, the court noted his educational and work background, but found no mitigating factors present in this case. The court stated that defendant’s commission of these offenses only six months after his release from prison was “particularly troubling.”

The record demonstrates that the trial court took cognizance of the sentencing guidelines and tailored the sentences imposed for the attempted second degree murder offenses to this specific defendant. Based upon the facts of this case, where the defendant shot unarmed individuals without provocation, and in light of defendant’s violent criminal history, the trial court did not abuse its discretion in imposing these consecutive 50-year sentences, which are not grossly disproportionate to the seriousness of the | Roffenses committed. Thus, we cannot say the sentences imposed for the convictions of attempted second degree murder are constitutionally excessive. The assignment of error lacks merit.

Pro se Assignment of Error: Right to Confrontation

The defendant contends the state violated his Sixth Amendment right to be confronted by the witnesses against him. Defendant argues that his right to confront witnesses was denied when he was not allowed an opportunity to question Melvin Newton at trial and the custodian of records at the multiple offender hearing.

The Confrontation Clause of the Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The United States Supreme Court has held that out-of-court testimonial statements by a witness are not admissible under the Confrontation Clause, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford, supra. The Confrontation Clause applies to witnesses, those who “bear testimony,” against the accused. Testimony is a solemn declaration made for the purpose of proving some fact. An accuser who makes a formal statement to government officers bears testimony. Crawford, supra.

The defendant argues in his brief that he should have been afforded an opportunity to confront Newton, because his statements were mentioned at trial. Defendant’s argument is not supported by Crawford, supra, in |3which the declarant’s recorded statement was admitted into evidence against Crawford at trial. Here, in contrast, the police detective who investigated Greer’s shooting mentioned Newton’s statement at trial only to indicate how defendant was apprehended during the investigation. Thus, unlike the situation in Crawford, Newton’s recorded statement was not admitted into evidence against the defendant at trial and so did not involve his right to confront witnesses. Defendant’s argument lacks merit.

The defendant also contends the trial court erred in admitting the penitentiary packet (“pen pack”) during his habitual offender hearing without allowing him an opportunity to cross-examine the custodian of records. Defendant argues that he was denied his right to confront a witness against him because the custodian’s affidavit was a testimonial statement made to prove some fact.

LSA-R.S. 15:529.1(F) provides that certain documents “shall be prima facie evidence of the imprisonment and of the discharge” of the person charged as a multiple offender. These documents include the certificates of the chief officer of any state prison or penitentiary, or of the clerk of the court of conviction, containing the name of the person imprisoned, the photograph and the fingerprints of the person as they appear in his records, a statement of the court of conviction, the date and time of sentence, the length of time imprisoned and the date of discharge. State v. Hunt, 573 So.2d 585 (La.App. 2d Cir.1991).

In support of his position, the defendant cites Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321, 129 S.Ct. 2527, 2538, 174 L.Ed.2d 314 (2009), in which the court held that laboratory analysts’ affidavits reporting the results of forensic testing were testimonial statements, such that the analysts were “witnesses” for the purposes of the Sixth Amendment. However, unlike the affidavits at issue in Melendez-Diaz, supra, the custodian’s affidavit in this case did not assess evidence to be used against the defendant, but merely certified that the documents provided were accurate copies of the original records of the Department of Public Safety and Corrections regarding the defendant. Pursuant to Section 529.1(F), the “pen pack” was admissible and the trial court did not err in determining that the custodian of records was not required to testify. Thus, the assignment of error lacks merit.

Pro se Assignment of Error: Ineffective Assistance of Appellate Counsel

The defendant contends his appellate attorney was ineffective. Defendant argues that he was deprived of a meaningful appeal by his attorney’s failure to present valid claims for appellate review.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under LSA-C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, ie., a trial |12whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

In this case, the defendant alleges in his pro se brief that his appellate attorney’s performance was deficient because counsel presented only a “frivolous” excessive sentence claim, despite having access to the record for an extended period of time. Defendant contends that based upon this record, his appellate counsel should have raised ineffective assistance of trial counsel as error. However, defendant’s assertions are not supported by the record.

Although the defendant mentions various issues he believes were omitted or overlooked by his trial attorney, there is no showing that his counsel’s performance was deficient. The evidence presented at trial against the defendant was strong, considering that both victims positively identified defendant as the person who demanded their money while armed with a handgun and who shot them at close range. In addition, defendant was arrested with a handgun that was determined to have fired the shell casings found at the scene of each shooting. The trial transcript demonstrates that defendant’s attorney thoroughly cross-examined each of the state’s witnesses and was able to highlight for the jury the | ^inconsistencies in their testimony. Based on the defense attorney’s performance during the trial, after which the jury acquitted defendant of the armed robbery of Weeks and found him guilty of the lesser offense of attempted armed robbery of Greer, the record does not show a lack of trial preparation. Despite defendant’s assertion that his trial attorney should have located the owner of the house where Weeks was shot, there is no explanation as to how that information would have negated the evidence that defendant was the shooter.

Based upon this record, defendant has not shown that his appellate counsel was ineffective in failing to assign as error the ineffective assistance of trial counsel. Nor has defendant shown that his appellate attorney should have presented the claim that he was denied the right to confront the witnesses against him. As we previously stated, that claim lacks merit. Thus, defendant has failed to demonstrate that but for counsel’s failure to raise these claims, there is a reasonable probability that this appeal would have resulted in the reversal of his convictions. Consequently, defendant has not satisfied his burden of proving that he was denied effective assistance of counsel on appeal. The assignment of error lacks merit.

Error Patent

Defendant’s final assignment is a request for this Court to review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. LSA-C.Cr.P. art. 920; State v. Jefferson, 47,009 (La.App.2d Cir.8/7/12), 91 So.3d 1007.

A sentence imposed under LSA-R.S. 14:95.1 may be enhanced under 114the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. State v. Baker, 2006-2175 (La.10/16/07), 970 So.2d 948; State v. Brooks, 43,613 (La.App.2d Cir.10/29/08), 997 So.2d 688, writ denied, 2008-2973 (La.12/18/09), 23 So.3d 930.

In this case, the record shows that in April 2000, defendant was convicted of armed robbery and aggravated assault of a police officer in Orleans Parish. After defendant’s arrest for the present crimes, the state used the convictions in 2000 to meet one of the elements of the offense of possession of a firearm by a convicted felon. After trial, the state filed the “Motion For Sentencing Defendant As A Habitual Offender” listing the same prior convictions for armed robbery and aggravated assault of a police officer as the predicate offense. The case number listed is the same in both the bill of information and the state’s motion.

Because the convictions are the same, the defendant’s sentences for possession of a firearm by a convicted felon may not be enhanced based on LSA-R.S. 15:529.1. Accordingly, the defendant’s sentences for possession of a firearm by a convicted felon shall be vacated and the matter remanded to the trial court for resentencing pursuant to LSA-R.S. 14:95.1.

In reviewing the record for error patent, we note that the 20-year sentence imposed for defendant’s conviction of attempted armed robbery is illegally lenient. For a second felony offender, the sentencing range for attempted armed robbery is 24.75 years to 99 years. Although neither the Instate nor the defendant raised this issue in either the district court or on appeal, this Court may notice illegally lenient sentences on error patent review. LSA-C.Cr.P. art. 882; State v. Smith, 44,011 (La.App.2d Cir.4/8/09), 7 So.3d 855; State v. Zeigler, 40,673 (La.App.2d Cir.1/25/06), 920 So.2d 949. Accordingly, we vacate the sentence for attempted armed robbery and remand for resentenc-ing in compliance with the habitual offender statute.

We also note that defendant’s sentences for each count of possession of a firearm by a convicted felon and for attempted armed robbery include jail time in default of payment of fines and restitution. An indigent defendant cannot be subjected to default jail time in lieu of the payment of a fine, costs, or restitution. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Fortune, 46,522 (La.App.2d Cir.9/21/11), 72 So.3d 1000; State v. Davenport, 43,101 (La.App.2d Cir.3/19/08), 978 So.2d 1189, writ denied, 2008-1211 (La.1/30/09), 999 So.2d 748; State v. Tillman, 43,569 (La.App.2d Cir.10/22/08), 997 So.2d 144, writ denied, 2008-2836 (La.9/25/09), 18 So.3d 85; State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242.

A defendant’s claim of indigence may be discerned from the record. Davenport, supra; Tillman, supra. Where a defendant is represented by the Indigent Defender’s Office, a court-appointed attorney, and the Louisiana Appellate Project, the court may conclude that the defendant is indigent. See Fortune, supra; Davenport, supra; Tillman, supra; Kerrigan, supra. The record shows that defendant is indigent, so that he cannot be sentenced [1fito serve jail time because he is unable to pay a fine. Therefore, we vacate that portion of the defendant’s sentences imposing additional jail time for the failure to pay fines and restitution.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and the sentences imposed for the attempted second degree murder offenses. The imposition of jail time in lieu of paying fines and restitution is vacated; defendant’s sentences for possession of a firearm by a convicted felon and attempted armed robbery are vacated and this matter is remanded to the trial court for resentencing consistent with this opinion.

CONVICTIONS AFFIRMED; SENTENCES FOR ATTEMPTED SECOND DEGREE MURDER AFFIRMED; SENTENCES FOR POSSESSION OF FIREARM BY A CONVICTED FELON AND ATTEMPTED ARMED ROBBERY VACATED; IMPRISONMENT IN LIEU OF PAYMENT OF FINES VACATED; REMANDED FOR RESENTENCING.


text:
    Bryan LEWIS, Kyle Lewis, and David Lewis, Plaintiffs-Appellants, v. Harry K. TOWNSEND and Louise C. Townsend, Defendants-Appellees.
    No. 47,536-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2012.

      Margaret E. Richie, for Appellants.
    Robert A. Jahnke, Shreveport, LA, for Appellees.
    Before WILLIAMS, STEWART and HARRISON (Pro Tempore), JJ.
   WILLIAMS, J.

| plaintiffs, Bryan Lewis, Kyle Lewis and David Lewis, appeal a district court’s ruling sustaining exceptions of improper venue and lack of subject matter jurisdiction in favor of defendants, Harry K. Townsend and Louise C. Townsend. For the following reasons, we affirm.

FACTS

In 1990, John and Julie Lewis filed a lawsuit against defendant, Harry Knox Townsend, and his mother, Louise C. Townsend. The lawsuit was filed in the U.S. District Court for the Western District of Louisiana, on behalf of plaintiffs’ minor children, Bryan Lewis, Kyle Lewis and David Lewis.

On July 7, 1992, the parties entered into a settlement agreement, pursuant to which a trust was established “for the protection and benefit of the minor plaintiffs.” Under the terms of the agreement, the trust was subject to the usufruct of Louise C. Townsend, and plaintiffs were not entitled to any funds in the corpus of the trust, or to any income produced by the corpus until the termination of the usufruct. However, Mrs. Townsend was prohibited from invading the corpus of the crust except “for sums necessary for Mrs. Townsend’s maintenance, care and support under circumstances in which she has no other funds available to her, and for [Harry K. Townsendj’s medical care ... under circumstances in which neither Mrs. Townsend nor [Harry K. Townsend] ha[s] any other funds available for such purpose.”

Further, the trust agreement provided, in pertinent part:

I ⅞* * *
[6g]. Any party hereto shall have the right to file in the U.S. District Court for the Western District of Louisiana, Shreveport Division, a proceeding contesting and seeking to prevent a distribution of the Corpus, or asserting such other remedy or remedies as may be appropriate with respect to a completed distribution from the Corpus[.] Each party hereto consents to the jurisdiction of the U.S. District Court for the Western District of Louisiana, Shreveport, Division, to hear and determine any matter in dispute as aforesaid with respect to a requested or completed withdrawal, and each party ayrees that he or she will not contest either the jurisdiction or the venue of said court in such proceeding[.]
11. This Agreement cannot be terminated, revoked, or modified, in whole or in part, except upon the written consent signed by all parties. The parties agree that this Agreement shall be governed, interpreted and enforced under the laws of the State of Louisiana; and, if any party shall institute suit in connec tion with this Agreement, the sole proper venue for such suit shall be the U.S. District Court for the Western District of Louisiana, Shreveport, Division.

(Emphasis added).

On August 15, 2011, Louise Townsend submitted a request to Regions Bank, seeking to withdraw $17,000 from the corpus of the trust. She asserted that the sums were necessary for her maintenance, care and support and that she was “in financial need as a result of the depletion of [her] personal assets and ha[s] nowhere else to turn for funds[J”

On October 6, 2011, plaintiffs filed a petition in the First Judicial District Court, Parish of Caddo, seeking to (1) modify the forum-selection clause set forth in the trust agreement; and (2) prevent Mrs. Townsend’s withdrawal from the corpus. In response, defendants filed “Exceptions of | ¡(Venue and Jurisdiction.” The district court sustained the exceptions, stating:

There obviously was jurisdiction when the original case was filed that resulted in the Consent Agreement. I would much rather the federal judge decide that he doesn’t have jurisdiction than me to decide for the federal judge that he doesn’t have jurisdiction, and he may find jurisdiction. But it is clear that’s what the Agreement said.

Plaintiffs now appeal.

DISCUSSION

Plaintiffs do not dispute the language of the forum selection provisions set forth in the trust agreement. Rather, plaintiffs contend the enforcement of the forum selection clause would be unreasonable because it would deprive them of their day in court. According to plaintiffs, the federal court does not have subject matter jurisdiction over this case because diversity of citizenship does not exist herein, and the amount in controversy is $17,000, and not the $75,000 required under the federal rules.

Parties to a contract may agree in advance to submit to the jurisdiction of a given court. Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998), citing National Equipment Rental v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). When parties reduce their contracts to writing, and when the terms of the writing exhibit no uncertainty or ambiguity as to the nature, the object, and the extent of the agreement, it is presumed that the writing expresses the true and complete undertakings of the parties. Lejano, supra, citing Standard Oil Co. of La. v. Futral, 204 La. 215, 15 So.2d 65 (1943).

Forum selection clauses are legal and binding, and one seeking to set aside such a provision bears a heavy burden of proof. Barrett Auto Brokers v. Dealer Services Corp., 45,667 (La.App.2d Cir.9/22/10), 48 So.3d 322, writ denied, 2010-2381 (La.12/10/10), 51 So.3d 734; Pitts, Inc. v. Ark-La Resources, L.P., 30,837 (La.App.2d Cir.8/19/98), 717 So.2d 268. Such clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy of the forum where the suit is brought. Id.

In Luffey ex rel. Fredericksburg Properties of Texas, LP v. Fredericksburg Properties of Texas, LP, 37,591 (La.App.2d Cir. 12/10/03), 862 So.2d 403, the parties entered into two partnership agreements. Both documents contained “Law Governing” clauses which provided that the agreements would be governed by the laws of the state of Texas and that Travis County, Texas, was the appropriate jurisdiction and venue for any litigation arising out of the partnership agreement. The plaintiff filed a lawsuit in Lincoln Parish, Louisiana, and the defendants filed an exception of lack of subject matter jurisdiction. The defendants argued that the Louisiana court did not have jurisdiction over the matter pursuant to the “Law Governing” clause contained in the partnership agreement.

This Court noted the distinction between “jurisdiction” and “venue,” stating:

[Bjoth parties, in their briefs, use the terms “subject matter jurisdiction” and “venue” interchangeably in | ¡-.making their arguments. In so doing, both parties have missed the very critical legal distinction between those two legal concepts. This case is not about which court has or does not have subject matter jurisdiction over this action, but, rather, the relevant inquiry is whether the forum in which the action was filed was a court of proper venue and, necessarily, whether the objection to improper venue was properly and timely raised.
[T]he partnership agreements contain both a choice of law component and a forum selection clause. The defendants would have us interpret and apply the forum selection clause as an issue of subject matter jurisdiction. True, the defendants’ exceptions are styled as exceptions of lack of subject matter jurisdiction. Substantively, however, the exceptions are actually exceptions of venue in which the defendants argue that the suit should have been brought in Travis County, Texas, as provided in the forum selection clause. It is well[-]settled that an exception is to be treated as what it actually is, rather than what it is titled.

Id. at 406-07 (internal citations omitted) (Emphasis in original). We concluded that the exception of lack of subject matter jurisdiction was an improper procedural vehicle by which to assert the enforcement of the forum selection clause. We further concluded that the defendants could have urged the forum selection clause via an exception of improper venue; however, the defendants had waived the exception to venue by failing to file it prior to filing the answer.

In the instant case, plaintiffs filed the lawsuit to “Modify Trust Agreement and to Prohibit Distribution of Corpus.” In response, defendants styled the exceptions as “Exceptions of Venue and Jurisdiction.” As this Court noted in Luffey, supra, the issue presented is not whether the First Judicial District Court, Caddo Parish, or the United States District Court for the Western District of Louisiana has subject matter jurisdiction over this faction. The relevant question is whether the First Judicial District Court, Caddo Parish, is a court of proper venue.

Venue is a question of law. Therefore, the appellate court must conduct a de novo review of the record. Barrett Auto Brokers, supra; Town of Homer v. United Heathcare of La., Inc., 41,512 (La.App.2d Cir.1/31/07), 948 So.2d 1163.

As stated above, plaintiffs do not dispute that the federal district court is the proper venue pursuant to the terms of the trust agreement. Rather, plaintiffs argue that the forum selection clause is invalid because the federal district court lacks subject matter jurisdiction. However, it is not within our purview to determine whether or not the federal court has subject matter jurisdiction. That issue can, and should, only be decided by the federal court.

Plaintiffs also contend the forum selection clause violates public policy and is unreasonable and unjust. Plaintiffs contend that defendants can easily prevent plaintiffs from ever modifying the agreement simply by destroying diversity of citizenship and by keeping the amount in controversy below $75,000. Plaintiffs urge that should defendants do so, state courts would decline to hear the matter on the basis of the forum selection clause and no federal court would exercise subject matter jurisdiction.

Again, we note that the issue of whether the federal court lacks subject matter jurisdiction over this case is not for this Court to decide. We need only determine whether plaintiffs have proven that the forum selection |7provisions set forth in the trust agreement are unenforceable.

We also note that plaintiffs have neither alleged nor proven that the agreement itself is invalid. Indeed, the terms of the trust agreement were bargained for and negotiated by John and Julie Lewis, on behalf of their minor children. The Lew-ises were represented by counsel during these negotiations. The parties have submitted to the terms of the trust agreement from the time it was signed (in 1992), until now.

After thoroughly reviewing this record, we find that plaintiffs have failed to make a clear showing that the enforcement of the forum selection clause would be unreasonable or unjust. The only argument advanced by plaintiffs is that the federal district court lacks subject matter jurisdiction. Therefore, we find that plaintiffs have failed to meet their heavy burden of proving that the forum selection provision of the agreement is invalid and unenforceable. Consequently, the district court did not err in sustaining defendants’ declinato-ry exception of improper venue.

CONCLUSION

For the reasons set forth herein, the district court’s ruling sustaining defendants’ declinatory exception of improper venue is hereby affirmed. Costs of this appeal are assessed to plaintiffs, Bryan Lewis, Kyle Lewis and David Lewis.

AFFIRMED.

      . At the time the agreement was executed, the corpus of the trust exceeded $275,000.


text:
    STATE of Louisiana, Appellee v. Corek HALL, Appellant.
    No. 47,564-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2012.

      George L. Higgins, III, Pineville, LA, for Appellant.
    Richard C. Nevils, District Attorney, Steven D. Crews, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

| defendant, Corek Hall, was charged by bill of information with possession with intent to distribute a Schedule III controlled dangerous substance (“CDS”), a violation of LSA-R.S. 40:968; possession of a legend drug, a violation of LSA-R.S. 40:971(B)(l)(h); and possession with intent to distribute a Schedule V CDS, a violation of LSA-R.S. 40:97o. The defendant was convicted as charged and sentenced to serve eight years in prison at hard labor for the possession with intent to distribute a Schedule III CDS (Lortab) conviction, three years at hard labor for the possession of a legend drug (Soma) conviction and three years at hard labor for the possession with intent to distribute a Schedule V CDS (Codeine) conviction. The trial court ordered the sentences to run concurrently. For the following reasons, we affirm.

FACTS

On November 18, 2009, by amended bill of information, the defendant was charged with possession with intent to distribute a Schedule III CDS (Lortab), possession of a legend drug (Soma) and possession with intent to distribute a Schedule V CDS (Codeine). Subsequently, the defendant filed a motion to suppress, alleging that “the items seized were the result of an illegal search and a violation of the Defendant’s constitutional right[.]” Following a hearing the trial court denied the motion. Subsequently, the defendant waived his right to a jury trial, opting for a bench trial instead. Additionally, in lieu of conducting a trial, the state |2and the defendant agreed to stipulate to the facts adduced in the hearing on the motion to suppress. The transcript of the hearing on the motion and evidence of the drugs and money seized were submitted to the trial court.

The record reveals that Officer Craig Vines, of the Winn Parish Sheriffs Department, testified as the state’s first witness at the hearing on the motion to suppress. Officer Vines testified as follows: on February 16, 2009, the police department received several complaints about drug activity taking place in the parking lot of the Economy Inn in Winnfield, Louisiana; Officer Vines, Officer Charles Hayes and the chief of police of the Winnfield City Police Department conducted a stakeout of the motel; the motel complex consisted of three separate buildings; when the officers arrived at the motel, he and Officer Hayes waited between two of the buildings, while the chief waited in a different area; he and Officer Hayes observed the defendant walk between two of the motel’s buildings; the defendant looked around and then approached an abandoned bathtub; the defendant placed some unknown items under the bathtub; the defendant looked around again and then walked away from the buildings; the chief of police, who had been watching the defendant’s motel room for approximately 30 minutes, saw the defendant enter a motel room; Officer Vines and Officer Hayes continued to watch the bathtub and no one approached it; the officers went to the bathtub and searched under it; the officers discovered 82 pills, packaged together in a plastic bag, and a bottle of cough syrup containing Codeine; the two officers conferred with the Ischief of police; all three police officers then knocked on the defendant’s motel room door, advised him of his Miranda rights and placed him under arrest; the officers entered the defendant’s motel room and observed another clear plastic bag of pills in plain view on top of a dresser; these pills on the dresser were tested and were determined to be Lortab; a search of the defendant’s person resulted in the discovery of “several thousand” dollars in his jacket; the officers also searched another jacket on the floor of the motel room and found “several thousand” dollars; the total amount of cash seized was $7,163; the confiscated items were turned over to Lieutenant Charles Curry, who sent them to the crime lab for analysis.

On cross-examination, Officer Vines admitted that it was dark outside and he did not see what the defendant placed under the bathtub. Officer Vines stated that in addition to the drugs, they found empty soft drink cans and bottles under the bathtub. Officer Vines admitted that the officers did not take any photographs of either the bathtub or the area under it. In explaining their actions, he further testified that he and Officer Hayes waited approximately 30 minutes after the defendant left before walking up to the bathtub and no one else was seen approaching the bathtub. Officer Vines clarified that the chief of police was the only person who saw the defendant enter the motel room.

Officer Hayes first testified on cross-examination. He corroborated Officer Vines’ testimony that he and Officer Vines were at the Economy Inn on February 16, 2009, watching for drug activity. Officer Hayes testified as Rfollows: he and Officer Vines waited between two buildings; they saw the defendant walk from around one of the buildings and over to the bathtub; the defendant then “squatted down” and placed a “package of some sort” under the bathtub; the defendant then walked back in the direction from which he had come; he did not see what the defendant placed under the bathtub; after the defendant left, he and Officer Vines called the chief of police, who informed them that the defendant had walked into Room 37 of the motel. Contrary to Officer Vines’ testimony that the officers waited 30 minutes before approaching the bathtub, Officer Hayes stated that he and Officer Vines walked over to the bathtub to check to see what was under it as soon as the defendant left the area. He stated that after finding the drugs, he, Officer Vines and the chief of police went to the defendant’s room, and he placed the defendant in handcuff's. He also testified that he patted the defendant down and found “something like” $1,163 in his jacket pocket. Additionally, he stated that the chief of police searched the other jacket and found a larger amount of money. Officer Hayes testified that he did not participate in the search of the room because he was with the defendant.

On direct examination, Officer Hayes clarified his previous testimony. He testified that he and Officer Vines initially went over to the bathtub to see what was underneath, and then waited “a while” to see if someone was going to retrieve the items from under the tub. He stated that he and Officer Vines waited a little while; however, they did not wait 30 minutes before approaching the bathtub.

Following Officer Hayes’ testimony, the trial court denied the motion [ 5to suppress, stating:

The question in this particular case is whether or not the seizure was illegal. The defendant was seen, apparently, placing something under a bathtub. When the officers went to the scene, they found drugs under the bathtub where something had apparently been placed and although it’s true that they didn’t — could not and did not actually see whether Mr. Hall placed those things there, it was not illegal for them to secure possession of those drugs. It also would have given them probable cause to arrest Mr. Hall. Mr. Hall’s whereabouts were determined by the Chief of Police. They went to ... where Mr. Hall was in the motel and at that time they placed him under arrest. After being placed under arrest, you are subject to a search. Okay? [Yjou’re also subject to being arrested for anything that may also be in plain view at the time. Some of the drugs were in plain view on the dresser. [A]lso, after someone is arrested on a drug offense, that would have given them reason to believe that there may have been other drugs in the thing. In addition, they had to do an inventory search. [T]he seizure of the drugs under these circumstances was not illegal.

On April 19, 2010, the assistant district attorney informed the trial court, in open court, that the defendant desired to waive his right to a jury trial and had opted for a bench trial. The following exchange then took place:

Defense Counsel: [I] think we [have] another idea and — and I’d like to review it first. I’d — I’d like to order a copy of the Motion to Suppress that we had on this matter. After I review it and perhaps after Mr. Crews reviews it, perhaps we could stipulate that that’s the testimony—
Trial Court: Okay.
Defense Counsel: — and introduce the motion. I — I think you recall that at ■ the motel—
Trial Court: Yes. That’s right.
| ^Defense Counsel: —and we — we litigated that pretty thoroughly that day.
Trial Court: Okay.

The trial court stated that it had no objection to the stipulation, and then addressed the defendant and his counsel as follows:

Trial Court: [M]r. Hall, you have a right to a jury trial in front of a jury of your peers. However, you also have a right to have the matter tried in front of me if that is your desire and, uh, once you make that determination, that’s what it is. You can’t turn around and go back. Okay?
Defendant: Yes, Sir.
Trial Court: So, you’ve talked it over with Mr. Higgins?
Defense Counsel: No. I haven’t. [I] haven’t talked it over, but that is ... my recommendation strongly.
Trial Court: All right. Do you want to rely on Mr. Higgins’ recommendation, Mr. Hall?
Defendant: Yes, Sir.
Trial Court: Okay. So you waive your right to a jury trial[?]
Defendant: Yes, Sir[.]

On September 7, 2010, a hearing was held, wherein the parties agreed to a joint stipulation. The following exchange took place:

Prosecutor: [Wje’ve agreed to try this matter based on joint stipulations in agreement as to evidence, and what we will do is make a joint offering in docket 41653 the testimony taken at the Motion to Suppress hearing on |7February 3, 2010, and we’ll deal right now with docket 41653. That’ll be a joint offering. In further connection with ... 41653 Your Honor, state number one will be the report of Officer [C]raig Vines in this case, and then state number two will be [82] pills that were taken as identified in the report from underneath the wash tub or something!.] State number three are various pills taken from inside the room occupied by Corek Hall and we’ll also stipulate for the record in the report Craig Vines refers to Corek Hall, the defendant seated here, and also another name he went by, name of Pennywell. Both of those people are one and the same[.]
Defense Counsel: Yeah. We will stipulate to that.

The parties also stipulated to State’s Exhibits Four, Five and Six (the bottle of Codeine, the crime lab certificate for the pills and the crime lab certificate for the Codeine). Further, the parties stipulated to State’s Exhibit Seven, the cash recovered from the defendant. Following the joint stipulations, defense counsel requested, and was granted, 45 days “to gather some information” to submit on behalf of his client.

On November 10, 2010, a hearing was held to determine the defendant’s guilt or innocence based on the evidence already submitted. However, defense counsel was not present at the hearing, therefore, no determination was made. On December 9, 2010, another hearing was conducted; however, the trial court stated that it needed additional time to rule. The defendant and his attorney were present for the hearing, but no mention was made of the additional information to be submitted by the | sdefense.

On July 14, 2011, a hearing was conducted, without the presence of the defendant, and the trial court stated that it had prepared a ruling regarding the defendant’s guilt or innocence. However, the hearing was continued due to the defendant’s absence. At that time, defense counsel asked whether he was still allowed to “present some more stuff’ to the court prior to the determination of guilt. Defense counsel stated that he would present additional information “in writing within ten days.” The trial court denied defense counsel’s request, stating that the court had “already made a decision.”

On August 18, 2011, another hearing was held and the trial court found the defendant guilty as charged of all three counts based on the evidence adduced at the hearing on the motion to suppress. The court ordered the state to provide it with a presentence investigation report.

On November 16, 2011, the defendant filed a motion for new trial, alleging that the verdict was contrary to the law and evidence. The defendant conceded that he had stipulated to the testimony adduced at the motion to suppress; however, he argued that he had not relinquished his right to testify and/or to present evidence on his behalf. The trial court denied the defendant’s motion for new trial, reasoning that the stipulations were made with the understanding that there would be no testimony by the defendant.

| .¡Thereafter, the defendant sought supervisory review of the trial court’s denial of the motion for new trial. On December 22, 2011, this court denied the writ “on the showing made,” stating that the issue presented in the writ application could be raised in an appeal.

On January 26, 2012, a sentencing hearing was conducted. After reviewing the factors set forth in LSA-C.Cr.P. art. 894.1, and noting the defendant’s prior criminal history, the trial court sentenced the defendant to serve eight years at hard labor for the possession with intent to distribute Lortab conviction, three years at hard labor for the possession of Soma conviction, and three years at hard labor for the possession with intent to distribute Codeine conviction. The trial court ordered the sentences to run concurrently.' The defendant filed a motion to reconsider his sentences on February 1, 2012. The trial court denied the motion.

The defendant appeals.

DISCUSSION

The defendant contends the trial court erred in denying his motion for new trial. He concedes that the parties stipulated to the evidence adduced at the hearing on his motion to suppress. However, the defendant maintains that he reserved his right to present evidence and to testify prior to a verdict being rendered.

The state argues that the defendant was given “more than ample time” to submit evidence, including testimony, but failed to do so. The state noted that on September 7, 2010, the trial court gave the defendant 45 days to submit additional evidence following the state and defense stipulations. | inThe defendant failed to submit such evidence at any time before the hearing on July 14, 2011, when the trial court announced that it had already prepared a ruling. The state maintains that there is no indication in the record that the defendant was ever denied his right to testify, and the defendant accepted the judicial proceedings by acquiescing in them.

LSA-C.Cr.P. art. 851 provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilt;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The decision on a motion for a new trial rests within the sound discretion of the trial judge. The trial court’s ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Cox, 2010-2072 (La.11/19/10), 48 So.3d 275; State v. Horne, 28,327 (La.App.2d Cir.8/21/96), 679 So.2d 953, writ denied, 96-2345 (La.2/21/97), 688 So.2d 521.

Criminal trials conducted wholly or partially based on stipulations, although rare, are not unheard of in Louisiana. In State v. Owens, 501 So.2d 968 (La.App. 2d Cir.), writ denied, 507 So.2d 224 (La.1987), the defendant was tried by a jury on charges of aggravated rape and aggravated burglary; however, the jury failed to reach a verdict and a mistrial was declared. When the case was called for retrial, the defendant waived his right to a jury trial and agreed that the case would be decided by the trial judge based upon the record of the first trial. After reviewing the record of the first trial, the trial judge found the defendant guilty of forcible rape, a lesser included offense. On appeal, the defendant argued that the trial by stipulation was tantamount to an involuntary guilty plea and denied him the constitutional rights afforded by a trial on the merits. This Court rejected the defendant’s argument, finding that the defendant had been advised of his right to a jury trial and had waived that right. This Court noted that the defendant had understood that the determination of his guilt would be based on the transcript of the previous trial. Additionally, this Court noted that the defendant’s constitutional rights were adequately protected at the first trial and his waiver of his right to a new trial did not amount to an involuntary guilty plea. Furthermore, this Court specifically rejected the defendant’s argument that a trial by stipulation, in and of itself, was unauthorized by L¡¡law. Id.

In State v. Harris, 470 So.2d 601 (La.App. 1st Cir.), writ denied, 477 So.2d 1123 (La.1985), the defendant was charged with simple burglary of an inhabited dwelling. He stipulated to the testimony adduced at his preliminary hearing for trial purposes and was found guilty as charged. On appeal, the defendant argued that the trial court erred in finding him guilty on the basis of the stipulation. He also argued that the stipulation was “in actuality” a guilty plea, entitling him to the constitutional protections set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The appellate court found that stipulating to the testimony from the preliminary hearing did not constitute an admission of guilt; thus, the defendant had never pleaded guilty. The court noted that the defendant was convicted based upon testimony introduced by stipulation and concluded, “We find this testimony sufficient to convict the defendant as charged.” Id. at 603.

A defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); State v. Dauzart, 99-3471 (La.10/30/00), 769 So.2d 1206. While there is no justification for a rule that denies an |isaccused the opportunity to offer his own testimony, the accused’s right to testify is not unqualified and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. Id. Among those numerous state procedural and evidentiary rules which control the presentation of evidence and which do not offend the defendant’s right to testify are rules governing the orderly conduct of trial. Id. Louisiana limits testimony to the evidence-taking stage of trial. LSA-C.Cr.P. art. 765(5); State v. Dauzart, supra.

In State v. Hampton, 2000-0522 (La.3/22/02), 818 So.2d 720, on reh’g, (La.6/7/02), citing Passos-Paternina v. United States, 12 F.Supp.2d 231 (D.P.R.1998), the Louisiana Supreme Court set forth the following guidelines to be utilized by the courts in determining whether a criminal defendant’s right to testify has been violated or waived by his silence during trial:

(1) absent extraordinary circumstances that should alert the trial court to a conflict between attorney and client, the court should not inquire into a criminal defendant’s right to testify. The court should assume, that a criminal defendant, by not ‘attempting to take the stand,’ has knowingly and voluntarily waived his right;
(2) the court must consider whether the petitioner has waived his right to testify.... [The defendant can only] rebut that presumption ... by showing that his attorney caused him to forego his right to testify [ (a) by alleging specific facts, including an affidavit by the defendant’s trial counsel] from which the court could reasonably find that trial counsel ‘told [the defendant] that he was legally forbidden to testify or in some similar way compelled him to remain silent ... ’ [(b) by demonstrating from the record] that those ‘specific factual allegations would be credible[.]’

Id. at 729-30.

114In the instant case, we have reviewed this record in its entirety and we find that the defendant’s right to present evidence in his defense was not violated. In lieu of a trial, both the defense and state agreed to stipulate to the evidence adduced at the hearing on the motion to suppress. Before accepting the stipulation, the trial court advised the defendant that he was entitled to either a jury or bench trial. The defendant unequivocally waived his right to a jury trial and the parties agreed that the case would be decided by the trial judge based on the facts and evidence adduced during the hearing on the motion to suppress. Defense counsel requested and was granted 45 days to submit additional evidence for the court’s review but failed to do so. Subsequently, other hearings were held, during which the defendant failed to submit any additional evidence. Only after the trial court stated that it was prepared to hand down a verdict did defense counsel request an opportunity to present additional information “in writing within ten days.” Accordingly, we find that the trial court did not abuse its discretion in denying the defendant’s request to present additional evidence.

Further, based on this record, we find that the defendant was not denied the right to testify. Multiple hearings were conducted and at no time did either the defendant or his counsel indicate that the defendant wanted to testify. The comments made by defense counsel during the proceedings indicate that all parties, including the defendant, understood that the trial court would make a determination of the defendant’s guilt or innocence based on the testimony and other evidence submitted during the suppression hearing. As stated above, the record reveals that defense counsel was | ^provided with additional time to present evidence to the trial court on the defendant’s behalf, and at no time did defense counsel mention that the defendant wanted to testify. In fact, defense counsel stated that the additional information he sought to submit was “in writing.”

Additionally, the defendant was not denied his right to testify based on the factors set forth in State v. Hampton, supra. There were no “extraordinary circumstances” that should have alerted the trial court that the defendant and his trial attorney had a conflict. Therefore the trial court was not obligated to inquire into the defendant’s decision not to testify. Furthermore, the defendant has failed to provide any proof, specifically in the form of an affidavit from his trial attorney, that his trial attorney told him that he was “legally forbidden to testify or in some similar way compelled him to remain silent.” Id. at 729. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, we hereby affirm the defendant’s convictions and sentences.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED.

      . In a separate matter, Docket No. 41,752, the defendant was charged with possession with intent to distribute Lortab, possession of Soma and speeding. Those charges were handled in a similar fashion as the instant matter; however, the defendant appealed this matter separately.

      . At the time of the defendant’s arrest, Officer Vines was employed by the Winnfield City Police Department.

      . The chief of police did not testify at the hearing.

      . Other hearings were conducted on March 3 and April 25, 2011. The trial judge was ill at that time. Therefore, the Judge Pro Tempore elected not to make a determination of guilt, agreeing with the parties that the original judge should be the one to determine Hall's guilt.

      . Subsequently, the defendant applied for post-conviction relief, arguing that his trial defense counsel had induced him to waive his right to trial. The defendant argued that his trial counsel had informed him that he (defense counsel) and the trial judge had reached a "bargain” whereby, if the defendant was found guilty of a lesser included offense to the charge of aggravated rape, he would be sentenced to no more than seven years in prison. The trial court denied the application for post-conviction relief. This Court granted the defendant’s writ application, finding that defense counsel had misrepresented to the defendant the consequences of the waiver of a jury trial; therefore, the waiver was not made knowingly and intelligently. See, State v. Owens, 596 So.2d 829 (La.App. 2d Cir.), writ denied, 600 So.2d 678 (La.1992).