author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Barry D. McCRAY, Appellant.
    Nos. 44,142-KA, 44,143-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    James Edward Paxton, District Attorney, Kenneth Anderson Brister, Laurie Reis Brister, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   BROWN, Chief Judge.

_jjA jury convicted, defendant, Barry McCray, of second degree murder and aggravated kidnapping. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension, for each count, to be served consecutively with one another. Defendant has appealed. We affirm.

Facts

On April 21, 2005, Shonda Proctor McCray was found dead in her home. She had severe bruising around her face and upper body. Earlier that evening, the victim, her husband (Barry McCray), and the victim’s then nine-year-old daughter were at home. The child testified that they were watching television when her mother answered the telephone and then gave the following account of the sequence of events. Defendant got mad because he thought she was talking to a man and began throwing objects to the floor and tearing up the house. Defendant fired a shot from a gun. Defendant was using foul language as he talked to her mother. While all of this was occurring, her mother, who was blind, did nothing. Defendant began hitting her mother in the face and head. Defendant knocked her mother to the floor where he continued to hit, kick, and choke her. Defendant stepped on her mother and kicked her in the stomach. Defendant kept telling her mother to get up, but she did not. The only thing her mother said was to call 9-1-1, but the child couldn’t because defendant pulled the phone cord out of the wall.

Defendant then went into the kitchen and returned with a pot of water which he poured on her mother’s face. Her mother was not armed with a |2knife or gun; in fact, she wasn’t fighting back. The child testified that she ran to her room after the fight, and defendant “walked in and touched [her] in between [her] legs.” Defendant then told the child to get in her mother’s blue car, and they drove away from the house. He didn’t tell her where they were going but drove to the store where Greg Jones worked where defendant tried to sell his wedding ring. The child testified:

Greg Jones told him to get on with that ring. To leave.
... And then I said, hello Mr. Greg Jones.
... That was a little hello for help.

After Jones refused to take the ring, defendant got back in the car, and they drove off. Defendant accidentally drove into a ditch. Defendant told her to help him get the car out of the ditch, but she refused.

Deputy Leroy Threats with the East Carroll Parish Sheriffs Department was the first to arrive on the scene of the traffic accident. Defendant was sitting in the driver’s side seat, and a little girl was sitting on the passenger side. Deputy Threats asked defendant if everybody was all right, what occurred, and basically what had happened. Deputy Threats related that defendant stated he was trying to turn around when he landed in the ditch. Deputy Threats observed that defendant acted “jittery” and “very nervous.” Deputy Threats testified that he asked defendant about the child’s mother. He stated that she was gone to some type of church function with friends. After further conversation, Deputy Threats asked defendant to step out of the vehicle. The deputy detected a slight odor of alcohol on defendant’s breath and asked defendant whether he had been drinking. | ¡¡Defendant said he had had a beer or so. Deputy Threats had his flashlight and observed what he thought was blood on defendant’s pants leg and down by his shoes. So he asked defendant whether it was blood. Defendant stated that he had been cleaning fish earlier that day. Defendant stated that he had picked his stepdaughter up from school because his wife was at church.

Sheneta Proctor, Shonda’s sister-in-law, and the child’s -aunt, was called to the scene and was permitted to take the little girl home with her. Defendant was placed under arrest for suspicion of DWI at that time.

The shift supervisor, Deputy Glen Threats, arrived on the scene and spoke with Sheneta Proctor. Deputy Glen Threats testified, “I was informed by the aunt that she had been trying to contact her sister and that she felt that something wasn’t right. Sheneta asked him to go to her sister’s home to check on her.

Deputy Glen Threats got a key from Sheneta. As he opened the door to Shon-da’s home, the first thing he observed was that the house looked “trashed,” like there had been an altercation or something in the residence. As he looked further into the home, he saw a woman’s body lying on the floor. Deputy Glen Threats found the victim lying on the floor of her home without clothing and with swelling to her face and around her eyes. He then checked for a pulse but didn’t feel one and requested that an ambulance be dispatched to the home. A torn nightgown was found in the residence.

Gregory Jones testified that he was standing on Gould Street when a car pulled up, a guy got out and tried to sell him a ring. Jones told the man |4he didn’t deal in that kind of stuff. As the man was backing out, the little girl, who he knew to be Shonda’s daughter, said, “hey, Mr. Greg.” Because he thought this was suspicious, Jones then flagged down a police officer and informed him of the incident.

Sheneta Proctor testified to her sister-in-law Shonda’s medical conditions at the time of her death. According to Sheneta, Shonda had high blood pressure and diabetes which caused her blindness in May of 2002.

Defendant and Shonda met through a mutual friend, Angela Hamilton. Defendant was incarcerated and they talked over the phone for approximately eight months before Shonda’s death. When defendant was released from prison, Sheneta drove Shonda to pick him up and then dropped them both off back at Shonda’s house. Six or seven days later, Shonda called Sheneta at work to tell her that she and defendant were getting married, and two days later, Shonda was dead.

Sheneta described defendant as inquisitive and possessive. In describing defendant’s relationship with Shonda, Sheneta testified that she and Shonda talked daily, two and three times a day. They talked constantly. During the time that Shonda and defendant were together, he answered the phone and would listen in on their conversations. The family all had keys to the house because of Shonda’s medical condition. She also told a nephew who had been staying with her to help out to leave. After defendant was released from prison, Shonda went through approximately $1,500 in less than a week. According to Sheneta, this was very uncharacteristic behavior.

IfiOnce Shonda’s body was discovered, Trooper Neal Harwell of the Louisiana State Police was called out to the scene to aid in the investigation. The body had already been taken to the hospital, as had the child, so Harwell went there first and examined the body and then spoke to the child, who told Trooper Harwell what happened. Harwell then went to the victim’s home and found it to be in “disarray” and showing signs of a fight. Trooper Harwell went to the Riverbend Detention Center to speak to Barry McCray. After advising him of his rights, the officer questioned defendant, who stated that although they had an altercation and he had hit his wife once, she was alive when he left with the child. When asked more specific questions, defendant asked for a lawyer, and the interview was over.

Dr. Stephen Hayne conducted the autopsy for the state and was admitted as an expert in forensic pathology. Dr. Hayne noted that there were multiple injuries to the victim’s face, “including what are called raccoon eyes or preauricular hema-tomas, bruises also abrasions or scraping of the skin located over the forehead and to the far side of the right eye.” He also noted an abrasion or scrape located over her chin and small abrasions over the bridge of her nose. There were also contusions on the left arm and shoulder of the victim, a cut on her upper left chest, and abrasions over the upper right abdominal wall and the front of her right forearm, left wrist and left forearm. Regarding the injuries, Dr. Hayne described them as extensive and consistent with a punch or a kick.

Dr. Hayne noted that the victim sustained considerable soft tissue damage. There was obvious puffiness or swelling of the tissue indicative of |6bleeding underneath the skin surface producing the large contusions. Enough force was used to tear blood vessels and allow bleeding to occur. Finally, Dr. Hayne was questioned as to the brain injuries that could have resulted from the types of blows described. According to Dr. Hayne, various brain functions would have begun to shut down in the victim as a result of brain swelling and the bleeding into the subdural space. Dr. Hayne identified the immediate cause of death as a closed-head injury that was a product of blunt force trauma or injury caused by blows to the head.

On cross-examination, defense counsel first questioned Dr. Hayne’s credentials as an expert. He then asked Dr. Hayne whether he considered the victim’s extensive medical history in coming to his conclusions about her death. Dr. Hayne responded that the victim was diabetic and obese and had significant cardiovascular disease.

On redirect, Dr. Hayne restated his conclusions that a person like the victim would be more susceptible to dying or suffering greater impairment from these types of injuries. He emphasized, however, that in this case, death was a product of trauma; it was not a product of disease.

Joanie Wilson from the Louisiana State Police Crime Lab testified that two blood stains from a torn nightgown found in Shonda Proctor’s home, two stains from a baseball cap also found at the home, and two stains from defendant’s jeans taken from him on the night of his arrest were examined for blood and DNA. The blood on the nightgown was determined to be a mixture of two people’s, one of the stains on the jeans was found to belong to a male and the other to a female, and the blood on the cap was |Tfound to be that of the victim. Defendant could not be excluded as a donor of the blood samples found on the jeans and the nightgown, but 99% of the population could be excluded as donors. Defense counsel also attempted to question Wilson regarding a gunshot residue kit sent to the crime lab, but she was unable to testify to anything regarding the kit as that was not her department.

The state recalled Trooper Neal Harwell to testify regarding a gun found at the victim’s home. Over objection by defense counsel (and denial of a motion for mistrial filed by defendant), Trooper Harwell testified that during his interview defendant never stated that the victim fired a gun, nor was there any evidence obtained in the course of his investigation that the victim fired a gun.

At that point, defense counsel filed a motion for a judgment of acquittal as to the aggravated kidnapping charge. After the motion was denied and the state rested, defendant testified as to the events of that night against the recommendation of counsel.

According to defendant, the day that Shonda Proctor died was a typical one. After picking up the child from school, defendant and Shonda had sex. A few hours later, the child knocked on their door and told her mother she had a phone call. After the call, Shonda became argumentative. The call had been from a woman who worked at Jong’s who Shonda suspected defendant of wanting to have sex with.

Defendant got dressed and went to the living room to watch television. Shonda came out of the bedroom naked and confronted him, Rarmed with a .22 pistol she got from the kitchen. Shonda fired the gun, at which time the child came running out of her room. Defendant and Shonda were “shuffling” over the gun, and he hit her three times. As Shonda fell forward, he leaned back on the couch, grabbed the gun, and threw it.

When the child saw him hit Shonda, she went back into her room. He then called for the child, told her they were leaving, and they rode around for 40 minutes or so. Because he was unfamiliar with Lake Providence, he usually took Shonda’s nephew or daughter with him. They rode around for a while, then as they were headed back home, he ended up in the ditch.

Two cars came by and as he waited for one of the drivers to come back and help, a police officer drove up. The officer asked him to take a sobriety test, and since it had been a while since he’d had a drink, he agreed. When the officer told defendant he was under arrest for DWI, defendant told them to call Shonda’s sister-in-law, Sheneta Proctor, to come “get the kid.”

According to defendant, he did not learn that Shonda was dead until the next day when two detectives took him to a room to be interviewed. They told him Shonda was dead. Then they said the little girl had given her statement, and they wanted to hear his side. He started crying, he couldn’t believe she was dead. He knew she had medical problems, but there was nothing wrong with her “for her to be dead” when he left the house.

Defendant denied all knowledge of Greg Jones and stated that he didn’t try to run or hide when Shonda came at him with a gun because: (1) he didn’t know she had the gun; (2) she was “up onto” him by that time; (3) |9she was blind; and, (4) she weighed 280 lbs. He thinks he “handled that pretty good.” When he saw she was “destined to shoot the gun,” he hit her.

According to defendant, when he left the house, Shonda was walking around, “talking crazy,” and cursing.

The final witness for the defense was Dr. Rodrigo Galvez, an expert in forensic pathology. Dr. Galvez reviewed the autopsy report and examined the photographs. Dr. Galvez stated that although Shonda Proctor had received some blows, he could not say that they were the cause of death. He opined that she could have had a stroke.

The jury returned a unanimous verdict of guilty as charged to both second degree murder and aggravated kidnapping. The defendant was sentenced on May 8, 2008, to life imprisonment at hard labor without benefit of probation, parole, or suspension for each conviction, and the trial court ordered that his sentences be served consecutively. During sentencing, the trial court justified making the sentences consecutive considering defendant’s long criminal history, total lack of remorse of either crime, total denial of responsibility for either crime, and “the fact that he chose to kidnap the child and use her for whatever advantage that he could find after knowing that there was no way for his wife to recover.”

Defendant now appeals.

Discussion

Sufficiency of the Evidence

In reviewing the sufficiency of the evidence to support a conviction, the reviewing court must determine if the evidence, viewed in the light most | infavorable to the prosecution, was sufficient to convince a rational trier of fact that all of the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). 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; thus, a reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Second Degree Murder

Second degree murder as applicable to the present case is defined in La. R.S. 14:30.1(A)(1) as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.

The evidence presented at trial shows that defendant struck the victim multiple times with his fists; the victim is now deceased; defendant after striking the victim, left the scene in the victim’s car with the victim’s nine-year-old daughter. The disputed facts are whether the multiple blows to the victim’s head by defendant caused her death and whether defendant acted in self-defense. The testimony presented by the state shows that the victim was blind, obese, diabetic, and suffered from cardiovascular disease. The victim’s daughter testified that defendant, with no provocation from the victim, beat the victim about the head and torso, kicked and choked the victim, and poured water on her face, leaving her on the floor struggling to breathe. Defendant testified that the victim threatened him with a gun and In that he struck her to get away and that she was physically okay when he left the home. Defendant’s medical expert testified that because of her many medical problems, the victim was exceptionally susceptible to aneurysms and other brain-bleeding problems; however, he could not come to a conclusion regarding the cause of death. The state’s medical examiner testified that the victim died of a closed-head injury resulting from being struck multiple times in the head. The photographs placed into evidence showed that the victim suffered excessive head injuries.

Viewing the evidence in the light most favorable to the prosecution, it is clear from the nature and extent of the injuries sustained by the victim that the state convincingly showed the requisite intent and that the multiple blows to the head caused the victim’s death.

The remaining question is whether the state bore its burden of proving that the murder was not committed in self-defense. According to La. R.S. 14:20(A)(1), a homicide is deemed justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 (La.05/20/03), 846 So.2d 753; State v. Gamer, 39,731 (La.App. 2d Cir.09/08/05), 913 So.2d 874, writ denied, 05-2567 (La.05/26/06), 930 So.2d 19.

The testimony of the victim’s child, the extent of the battering and the testimony of the possessive and controlling behavior of defendant toward h2the victim refutes his claim of self-defense. The only evidence presented of self-defense was the testimony of defendant. Not surprisingly, defendant’s testimony was entirely different from that of the victim’s daughter, whose testimony was consistent with the physical evidence. The trier of fact must determine the credibility of each witness and, if rational, that judgment must be accepted by a reviewing court. In this case, the jury obviously found defendant’s claim of self-defense incredible.

Defendant also argues that because the state did not test the victim’s hands for gunshot residue, the state failed to disprove self-defense. Even if the victim had fired the gun as claimed by defendant, it would not change the overpowering evidence of guilt. The victim was blind and would have been easily disarmed by defendant. Defendant, in a rage, beat the victim, kicked her, and poured water on her face as she laid on the floor. Any danger defendant faced had long dissipated.

This assignment of error is therefore without merit.

Sufficiency of Evidence, Aggravated Kidnapping

Aggravated kidnapping is defined in La. R.S. 14:44 as:

[t]he doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person. (Emphasis added).

| lain determining whether an aggravated kidnapping offense occurred, the crucial question is whether the defendant sought to gain an advantage or immunity, or any thing of present or prospective value by playing upon the victim’s fear and hope of eventual release. Sexual gratification is something of value. State v. Shipp, 30,562 (La.App. 2d Cir.04/08/98), 712 So.2d 230, writ denied, 98-1199 (La.09/25/98), 724 So.2d 775; State v. Overby, 30,589 (La.App. 2d Cir.04/08/98), 714 So.2d 28.

Defendant contends that there was no forcible seizing of the child and that the state failed to prove that defendant sought to receive anything of apparent present or prospective value from the victim to secure her release.

The nine-year-old child witnessed defendant beat her mother unconscious and believed her mother was dead. The child fled to her room and defendant followed. Defendant touched the child between her legs and took her outside to the car and fled the scene in the car, taking her with him. Clearly, a nine-year-old child under these circumstances felt intimidated by and forced to go with defendant. A rational juror easily would have found the element of a forcible seizing and carrying of the child away.

Defendant’s intentions with the child were thwarted by the accident and arrival of the sheriffs deputy. The child was an eyewitness to murder. Just before the child was taken away, she was sexually molested by defendant. A reasonable juror could have found from these circumstances that defendant was using the child to obtain an advantage or immunity by eliminating the only witness to a murder as well as obtaining sexual gratification.

| uDenial of Mistrial/Fifth Amendment Violation

The defense argues that defendant’s Fifth Amendment right to silence was violated when the assistant district attorney asked during his case in chief the question, “Did [defendant] ever tell you that Shonda fired a gun?” and Trooper Neal Harwell responded, “No.”

The problem at issue arose following an aggressive cross-examination by defense counsel of Detective Neal Harwell concerning the failure to test for gunshot residue on the hands of the victim. On redirect, the state established that the victim’s child told the officer that defendant had fired the gun prior to the physical altercation with Shonda Proctor. On recross, defense counsel pursued the fact that if “tests had been conducted, that would be definitive to determine whether Mr. McCray was firing the gun or Miss Proctor was firing the gun, isn’t that correct?”

Thereafter, Joanie Wilson, the DNA supervisor at the Louisiana State Police Crime Lab, was called by the state to testify. Defense counsel questioned her repeatedly about a gunshot residue kit which she explained would have been handled by a different section of the crime lab.

Prior to resting, the state re-called Trooper Neal Harwell a second time and the following occurred:

[District Attorney]: ... And further, did Barry ever tell you that Shonda fired a gun?
A: No.
[District Attorney]: Did you have any evidence to indicate in the course of your investigation that Shonda fired a gun?
A: No.

115After the state rested, defendant testified, against his attorney’s advice. Defendant testified that the victim pulled a gun on him while he was seated on the couch watching television and that she fired the gun at him once and attempted to fire it twice more, but that it jammed. On cross-examination, the state inquired of the circumstances surrounding the gun several more times but never asked defendant why he did not tell law enforcement officers about the victim threatening him with a firearm.

The Fifth Amendment to the United States Constitution provides (in pertinent part): “No person shall ... be compelled in any criminal case to be a witness against himself....”

In Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S.Ct. 2240, 2244-45, 49 L.Ed.2d 91 (1976), the United States Supreme Court considered the issue of prosecutorial questioning regarding a defendant’s invocation of his right to silence. The Court held:

Silence in the wake of [Miranda ] warnings may be nothing more than the ar-restee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested ... Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

The Court went on to hold that “the use for impeachment purposes of petitioner’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.”

11,In this case, after appropriate Miranda warnings, defendant voluntarily stated that he had an altercation with and hit his wife once. He further stated that she was alive when he left with the child. Only when asked more specific questions did defendant ask for a lawyer. These statements actually made before the request for a lawyer were admissible into evidence. However, defendant did exercise his Miranda rights and for the assistant district attorney to ask what defendant did not say borders on a violation of Doyle’s proscriptions.

This court considered the issue of the standard of review of an alleged Doyle violation on appeal in State v. Lee, 88,114 (La.App. 2d Cir.03/03/04), 868 So.2d 256, 264-65, writ denied, 04-1128 (La.10/08/04), 883 So.2d 1027, adopting the U.S. Supreme Court’s language from Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Under the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment purposes a defendant’s post-Miranda silence. Doyle thus does not bear the hallmarks of a prophylactic rule.
Instead, we think Doyle error fits into the category of constitutional violations which we have characterized as “ ‘trial error.’ ” Trial error “oecur[s] during the presentation of the case to the jury,” and is amenable to harmless-error analysis because it “may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].”

When first questioned by Trooper Har-well, defendant waived his right to silence and gave a statement to the investigating officer and in that statement there was no ambiguity in his failure to mention the gun and self-defense. When asked more specific questions he requested an attorney. Defense counsel strongly cross-examined officers and argued to the jury [17that the investigation was poorly conducted and not thorough because the officers failed to conduct a gunshot residue test -and to adequately investigate who had fired the gun. In State v. Bell, 446 So.2d 1191 (La.1984), the court held that a defendant may not tell the jury that the state’s case is the result of an improper investigation without allowing the state to try to show the jury that the investigation was indeed thorough, or at least sufficiently thorough as to include inquiries of the defendant in order to get leads which might verify, or dispute, defendant’s noninvolvement. Id. at 1194.

Even if the prosecutor’s questioning on redirect of the investigating officer was improper, the question remains whether, under the harmless-error test, defendant is entitled to relief. Considering all the circumstances surrounding the question and the overwhelming evidence that defendant committed the crime of second degree murder of Shonda Proctor, the error, if any, was clearly harmless. We find that even if Shonda fired the gun, the evidence would still have allowed for no other verdict other than defendant’s guilt.

This assignment is therefore without merit.

Evidence of Other Crimes

According to defendant, the testimony by victim’s child about defendant touching her between her legs was inadmissible other crimes evidence without the state having provided notice to the defense and without the trial court having considered the prejudicial effect of such testimony.

In State v. Kimble, 407 So.2d 693 (La. 1981), the supreme court held that a witness can testify regarding a continuous chain of events. Further, the statement is admissible as part of the res gestae as an integral part of the act or transaction that is the subject of the proceeding. State v. George, 37,492 (La.App. 2d Cir.9/24/03), 855 So.2d 861.

Evidence of integral acts, or res gestae, is admissible under La. C.E. art. 404(B)(1) without requiring the state to give Prieur notice or the trial court conducting a Prieur hearing. State v. Boyd, 359 So.2d 931 (La.1978); State v. Mando-sia, 36,827 (La.App. 2d Cir.4/09/03), 842 So.2d 1252.

The “res gestae ” doctrine includes testimony of witnesses regarding what they heard or observed before, during, or after the commission of the crime, including utterances or declarations, if a continuous chain of events is evident under the circumstances. State v. Lowery, 33,905 (La.App. 2d Cir.2/28/01), 781 So.2d 713, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978 (internal citations omitted) (emphasis added). “The test of integral act evidence is not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inference, whatever they may be, necessary to reach an honest verdict.” State v. Gad-dis, 35,661 (La.App. 2d Cir.3/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.5/15/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487. (Emphasis in original).

State v. Grant, 41,745 (La.App. 2d Cir.04/04/07), 954 So.2d 823, 834, writ denied, 07-1193 (La.12/07/07), 969 So.2d 629.

The child testified that after defendant finished beating her mother and she had fled to her bedroom, defendant followed her there, “touched [her] between [her] legs” and then made her leave the house with him in her mother’s car. The child’s statements regarding defendant’s actions in her |19bedroom give a complete picture of the events surrounding the victim’s death and the child’s kidnapping.

Limitation on Cross-Examination

Defendant argues that the trial court’s refusal to allow defense counsel to question Dr. Hayne about the amount of money he makes as a result of performing approximately 1,500 autopsies a year was prejudicial to his client. Defendant claims that the number of autopsies performed exceed the national standards and that the fact that Dr. Hayne earned over $800,000 a year doing so would have caused the jury “to consider whether the ‘expert’ was really a hired gun who bent his professional ethics for profit.”

In State v. Tauzin, 38,436 (La.App. 2d Cir.08/18/04), 880 So.2d 157, writ denied, 04-2809 (La.06/24/05), 904 So.2d 717, this court considered a similar question to that raised here. This court stated:

Relevancy and admissibility calls are properly within the discretion of the trial judge, whose determination in these areas should not be overturned absent a clear abuse of discretion.

Id. at 163-164.

In the present case, the trial judge determined that defense counsel’s attempts to question Dr. Hayne regarding determinations by the Mississippi Supreme Court as to his credibility and questions regarding his annual income were irrelevant and inadmissible in the present proceeding. We may disagree; however, the ruling is clearly harmless error. The defense was permitted to question the witness regarding his procedures and determinations. The defense expert agreed to the thoroughness of Dr. Hayne’s autopsy procedures; however, the defense expert was not sure that 120he agreed with Dr. Hayne’s conclusions about the cause of death.

This assignment is therefore without merit.

Conclusion

For the foregoing reasons, defendant’s second degree murder and aggravated kidnapping convictions are affirmed.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Johnell Marie THOMPSON, Appellant.
    No. 44,176-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Bertha Hillman, Thibodaux, for Appellant.
    Paul J. Carmouche, District Attorney, Sarah S. Midboe, William Jacob Edwards, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

liThe defendant, Johnell Marie Thompson, appeals her conviction for armed robbery, arguing that the trial court erred in denying her motion to exclude inculpatory evidence which had not been disclosed to her prior to trial. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On March 25, 2007, the victim of this offense, Tony Boutwell, got off work at 2:00 a.m. He worked as a bartender at the Flashback Casino. Mr. Boutwell went home to his small travel trailer, watched television, and fell asleep on the couch. Around 5:00 a.m., he was awakened by the telephone ringing and a simultaneous beating on his door. Ignoring the phone call, Mr. Boutwell went to the door and found the defendant standing there. The victim knew the defendant because she was the sister of Michelle Williams, a woman with whom Mr. Boutwell had an intimate relationship. The defendant was crying and told Mr. Boutwell that Ms. Williams had been shot and was in the defendant’s car outside. She asked to use the victim’s telephone to call for police and an ambulance. Actually, Ms. Williams was not in the car and had not been injured.

As Mr. Boutwell turned to retrieve his telephone, the defendant followed him into the residence. Mr. Boutwell decided to go outside to look in the car and began putting on his pants. The defendant followed Mr. Boutwell further into the residence and tried to grab the victim’s wallet. Mr. Boutwell noticed that a large man he had never seen before had entered the trailer. The man was wearing a jacket with a Caddo Parish emblem on |2it. He was later identified as Gregory Bledsoe. The defendant and Bledsoe pushed Mr. Bout-well down on the bed and jumped on top of him, pinning him down. The defendant got Mr. Boutwell’s wallet and pocketknife out of his pants. The defendant and Bled-soe demanded that Mr. Boutwell open a safe that was located beside the bed. When Mr. Boutwell refused, the defendant stabbed him with the pocket knife, cutting his arm.

Mr. Boutwell told his assailants that he could not remember the combination to the safe and needed to get it from a closet. In fact, Mr. Boutwell had a gun in the closet and attempted to retrieve it. Bledsoe saw the gun and picked it up before Mr. Bout-well could get to it. Bledsoe held the gun on Mr. Boutwell and demanded that he open the safe. At that point, Mr. Boutwell told his assailants that the safe was open.

Mr. Boutwell said that the defendant and Bledsoe took $100 from his wallet and $500 from the safe. Mr. Boutwell prevailed upon the pair to take the money and leave the wallet with his identification behind. Bledsoe also took the victim’s gun. During the incident, Mr. Boutwell stated that the defendant urged Bledsoe to kill him three times. The defendant and Bled-soe then left the scene.

Mr. Boutwell went to a neighbor’s residence and called the police. Officer Shawn Hurd responded to the call at 5:50 a.m. on March 25, 2007. He called the fire department and personnel were sent to treat Mr. Boutwell’s wounds. Officer Hurd drove Mr. Boutwell to the hospital. On the way, Mr. Boutwell directed Officer Hurd to the FEMA trailer park at the Louisiana State Fairgrounds where Michelle Williams was living.

| aAt the hospital, Mr. Boutwell was shown a photo lineup, but was not able to identify the picture of the defendant. It was later learned that the photo used in that lineup was old and the defendant’s appearance had changed. A new photo lineup was assembled, using a recent photograph of the defendant. Mr. Boutwell was readily able to identify the defendant in that photo lineup and stated that the defendant was the person who stabbed him.

Detective Paul Robinson went to Ms. Williams’ residence later that morning. She told him that she and her family came to Shreveport from New Orleans after Hurricane Katrina. She had been in a relationship with the victim for about two years. She said that her sister, the defendant, had been with her to Mr. Boutwell’s trailer a few times. Ms. Williams had spent the night at the victim’s trailer several times and knew that there was a safe in the room. Mr. Boutwell frequently gave money to Ms. Williams.

According to Ms. Williams, the defendant picked her up several hours before this offense and then picked up Bledsoe. The trio drove around smoking crack cocaine. An argument ensued when Ms. Williams thought that someone had taken her drugs. When the need for additional money to buy drugs arose, the defendant suggested that Ms. Williams get some money from Mr. Boutwell. Bledsoe then suggested that they rob the victim.

After arguing about the plot to rob the victim, Ms. Williams asked to be let out of the car. The defendant was driving and let Ms. Williams out. Ms. Williams walked to a truck stop in Greenwood, Louisiana. She tried to call numerous people, including Mr. Boutwell, to get a ride home. She |4eventually got a ride, arriving at her residence around 7:30 a.m. Later that morning, Detective Robinson came to the residence and told her about the robbery and stabbing of Mr. Boutwell. He asked about the location of the defendant. Detective Robinson took Ms. Williams to the hospital to see Mr. Boutwell. Later that day, Ms. Williams was shown the initial photo lineup and informed police that the picture of the defendant was old. Ms. Williams went with Detective Robinson to find the defendant. When the defendant passed them in her car, she was pulled over and arrested. The defendant became very excited and spontaneously stated that she was not the one who had stabbed the man. The person she claimed stabbed the victim was a man she knew only as “Black,” who was later identified as Bledsoe.

The defendant directed police to a house where Bledsoe was apprehended, still wearing the jacket with the Caddo Parish emblem on it. Detective Robinson described the jacket as one that would be worn by a Caddo Parish maintenance worker. The owner of the house where Bledsoe was found gave consent to search and the victim’s gun was found in a clothes hamper.

After her arrest, the defendant was advised of her Miranda rights and gave a taped statement to the police. The defendant was originally charged with armed robbery with a firearm. She was tried by jury for armed robbery and convicted as charged. A motion for new trial and a motion for post verdict judgment of acquittal were denied by the trial court. The defendant was sentenced to serve 12 years at hard labor without benefit of parole, probation, or suspension of sentence.

IsThe defendant appealed, claiming that the trial court erred in denying her motion to exclude inculpatory evidence which had not been disclosed to her prior to trial.

DISCOVERY

In this matter, defense counsel filed a discovery motion and motion for production of documents on April 2, 2007. At the trial of this case, before voir dire was complete, defense counsel informed the trial court that she had just become aware that there were additional police reports that had not been provided to her previously. The defense counsel stated that a police report by Detective Robinson had missing pages. A supplemental report was supplied to defense counsel in court that morning which showed that, after Mr. Boutwell’s initial failure to identify the defendant in a photo lineup, a second photo lineup was assembled and shown to him from which he made a positive identification of the defendant as his attacker. The report also showed that Mr. Boutwell identified the gun seized in connection with the case and the jacket worn by Bledsoe at the time of his arrest. Defense counsel made a motion in limine to prohibit the prosecution from introducing evidence of the second photo lineup, the gun, and the jacket.

The state contended that the Sunday before the trial began, one of the prosecution attorneys handling the matter spoke with defense counsel regarding the missing pages from the police report. According to the prosecution, the defense attorney requested another copy of the report along with the supplemental police report. The prosecution also claimed that the 1 r,second photo lineup was discussed. The prosecution stated that defense counsel did not ask for the second photo lineup and the prosecution thought that defense counsel had a copy. The defense counsel denied the conversation regarding the second photo lineup.

The prosecution argued that the defendant’s identity was not an issue in this case, that the supplemental police report did not change any of the witnesses, and that a police report is not discoverable even though the prosecution maintains an “open file” discovery policy. The prosecution urged that the defense counsel could have interviewed the witnesses and learned about the second photo lineup. The prosecution admitted that it did not file a supplemental discovery response regarding the disputed documents. The prosecution said that it received the reports later and left them at the front reception desk to tender to defense counsel.

The trial court deferred ruling on the motion until later in the trial; eventually the motion in limine was denied. The defense objected to the ruling. On appeal, the defendant argues that the identification in the second photo lineup was compelling evidence. She maintained that the jurors were likely to give great weight to the identification of the victim in a photo lineup and the defendant was prejudiced because her counsel had previously been given a police report that stated that the victim could not identify the defendant in the initial photo lineup. Defense counsel also contends that it was not informed that the weapon used in the robbery and the jacket worn by Bledsoe had been found.

17Legal Principies

La. C. Cr. P. art. 718 sets forth the duty of the prosecution to respond to motions for discovery by the defendant and provides:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.

La. C. Cr. P. art. 729.3 sets forth the continuing duty to supplement discovery responses. That statute provides:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

La. C. Cr. P. art. 729.5(A) outlines the sanctions applicable for failure to permit discovery. The article states:

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing Linto evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to meet the state’s case, and to allow a proper assessment of the strength of its evidence in preparing a defense. La. C. Cr. P. arts. 716-729; State v. Allen, 94-2262 (La.11/13/95), 663 So.2d 686.

The failure of the state to comply with discovery rules does not bring automatic reversal; rather, prejudice must be shown. State v. Harris, 2000-3459 (La.2/26/02), 812 So.2d 612. A trial court has discretion to choose an appropriate remedy for a discovery violation. See State v. Bourque, 96-0842 (La.7/1/97), 699 So.2d 1, cert. denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). When the defendant is lulled into a misapprehension of the strength of the state’s case through the prosecutor’s failure to disclose timely or fully and the defendant suffers prejudice when the undisclosed evidence is used against him, basic unfairness results which constitutes reversible error. State v. Allen, supra.

Discussion

The trial court in this matter felt that there had been a breakdown in communication between the state and the defense; however, it found no discovery violation and no prejudice to the defendant. The defense was | ^informed of and given a copy of the supplemental police report during voir dire. There was ample time to review the report; no request for a continuance was made by defense counsel.

Defense counsel was able to cross-examine Detective Robinson with regard to both photo lineups as well as the investigation of this offense. The defendant’s counsel also had an opportunity to question the victim regarding his identification of the defendant as his assailant. It is particularly important to note that the victim knew the defendant when she arrived at his door on the night of the offense. The identity of the defendant as the perpetrator of the offense was not at issue in this matter. There is no showing of prejudice regarding the second photo lineup. See State v. Smith, 99-1020 (La.App. 5th Cir.2/29/00), 757 So.2d 74, writs denied, 2000-1017 (La.3/30/01), 788 So.2d 439, 2001-0854 (La.11/21/01), 802 So.2d 631.

The defendant has failed to show any prejudice from the victim’s identification of his gun which was taken during the robbery or by references to the jacket worn by Bledsoe while he aided the defendant in the commission of this offense and when he was arrested.

The trial court in this matter did not abuse its discretion in denying the motion in limine on the basis of the lack of a showing of a discovery violation and a lack of prejudice to the defendant. Aceordingly, we affirm the trial court’s ruling and the defendant’s conviction and sentence.

1 ^CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Johnell Marie Thompson, for armed robbery.

AFFIRMED.

      . While the rales of discovery do not require production of a copy of a police report, once "open file” discovery is permitted, the prosecutor should supplement discovery with any supplemented police reports. Testimonial evidence regarding the gun and jacket is not discoverable under the discovery rules, although these items would be. See La. C. Cr. P. art. 718 and 723.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. James Edward HANSON, III, Appellant.
    Nos. 44,223-KA, 44,224-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    J. Schuyler Marvin, District Attorney, Joseph Gregorio, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

11Defendant, James Edward Hanson, III, pled guilty to two separate charges of obscenity as a first offender pursuant to a plea bargain agreement. For each conviction, Defendant was sentenced to serve three years’ imprisonment at hard labor, without benefit of probation, parole or suspension of sentence, with the sentences to be served concurrently. Defendant was also ordered to register as a sex offender and to pay a fine of $2,500 for each conviction, or in default, to serve an additional six months in the parish jail. Additionally, the trial judge ordered that any further charges against Defendant brought in Bossier and Webster Parishes be assigned to his own docket, ie., Division “D.” Defendant now appeals. For the reasons stated herein, the convictions of Defendant are affirmed and his sentences are affirmed as amended herein.

FACTS

By bill of information, Defendant was charged with the crime of obscenity, in violation of La. R.S. 14:106, for masturbating in a public place, ie., Pierre Bossier Mall in Bossier Parish, on or about August 29, 2007. Defendant was charged by a separate bill of information with the crime of obscenity for masturbating in a public place, ie., Kroger in Bossier Parish, on or about September 15, 2007. Pursuant to a plea bargain agreement, Defendant pled guilty as a first offender to both offenses of obscenity, with the agreement that the sentences would be served concurrently. A presentence investigation (PSI) report was ordered. The trial court advised Defendant of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court made li>a diligent effort to determine Defendant’s competence, literacy and understanding. After doing so, the trial court accepted Defendant’s guilty pleas as free and voluntarily.

At the sentencing hearing, the trial court gave detailed reasons for sentencing, which were highly critical of Defendant and the despicable nature of his crimes. After reviewing the information contained in the PSI report, the trial court determined that Defendant was the “worst” of the criminals who appeared before it that day and that he deserved a much greater sentence than allowed by law for his crimes. The trial court noted Defendant’s criminal history, including two prior obscenity convictions, as well as his fourth felony offender status. The trial court also observed that Defendant had benefited greatly from the plea bargain agreement obtained for him by his defense counsel.

Noting Defendant’s apparent disregard for his own two children, the trial court chastised Defendant’s wife for not leaving Defendant and for not preventing him from seeing his children until after he had undergone years of sex offender training. The trial court also indicated that Defendant lacked consideration for the children of others, noting that Defendant had victimized a mother and daughter as they walked across a parking lot during one of the incidents in the instant case. The sentencing guidelines set forth in La. C. Cr. P. art. 894.1 were considered and set forth for the record.

In addition to ordering the concurrent three-year sentences set forth in the plea bargain agreement, registration as a sex offender and payment of a $2,500 fíne for each conviction, or alternatively, to serve an additional |3six months in the parish jail, the trial court further ordered that Defendant undergo intensive sex offender treatment through the Department of Corrections. Additionally, the trial judge ordered that any further charges against Defendant brought in Bossier and Webster Parishes be assigned to his own docket, i.e., Division “D.” The trial court then informed Defendant of the possible penalties for future offenses, including physical or chemical castration and life imprisonment for a third offense.

Defendant timely filed a motion to reconsider, wherein he alleged that his sentences were illegal and listed the following mitigating factors which the trial court failed to take into consideration: (1) Defendant would respond favorably to probationary treatment, (2) incarceration would place a hardship on Defendant’s family, (3) Defendant desired to participate in rehabilitative programs, (4) Defendant’s age and (5) the good Defendant could provide to society. The trial court denied Defendant’s motion to reconsider without a hearing. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The sentence exceeds the bounds provided for by law and the imposition of a maximum sentence was unconstitutionally excessive, as Mr. Hanson is not the worst of offenders.

Citing applicable law and recapping the trial court’s reasons for sentencing, Defendant argues that his sentences are unduly harsh and excessive. Defendant notes the impropriety of the trial court’s statements to Defendant’s wife and points out that he has never been convicted of obscenity offenses involving children. Defendant further argues that, despite the rules regarding random allotment of criminal cases, the trial | Judge improperly ordered the Clerk of Court to assign all future cases involving Defendant to his own docket. According to Defendant, the trial judge’s harsh comments indicate that he was not a “dispassionate, neutral magistrate.” Finally, Defendant complains that, although the trial judge ordered him to undergo treatment while incarcerated, he “still seemed unable to deal with [his propensity to commit crimes of obscenity] as an illness.”

The State argues that Defendant’s significant criminal history, including his status as a fourth felony offender, justified the fines and maximum sentences of three years of imprisonment at hard labor. The State points out that Defendant gained a significant benefit from the plea bargain agreement wherein he received concurrent sentences. Finally, the State contends that the trial court complied with La. C. Cr. P. art. 894.1 by carefully considering Defendant’s background and the specific circumstances of his case. In conclusion, the State asserts that the sentences imposed are not excessive.

The penalty for the crime of obscenity applicable to the instant case is set forth in La. R.S. 14:106 G(l), which provides:

* * *

On a first conviction, whoever commits the crime of obscenity shall be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned, with or without hard labor, for not less than six months nor more than three years, or both.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial | .judge is not required to list every aggravating or mitigating factor 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, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.

The goal of La. C. Cr. P. art. 894.1 is the articulation of the factual basis for a sentence, not the rigid or mechanical compliance with its pro-visions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s prior criminal record, the seriousness of the offense, the likelihood of rehabilitation and his personal history, including his age, family ties, marital status, health and employment record. 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. 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, 07-0144 (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 and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993);6 State v. Bonanno, 384 So.2d 355 (La.1980). 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, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (LaApp. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App. 2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App. 2d Cir.11/1/06), 942 So.2d 658, writs denied, 06-2768 (La.6/22/07), 959 So.2d 494; 06-2781 (La.6/22/07), 959 So.2d 494; State v. Grissom, 29,718 (La.App. 2d Cir.8/20/97), 700 So.2d 541. In cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, however, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2d Cir.2/28/96), 669 So.2d 667, unit denied, 96-0836 (La.9/20/96), 679 So.2d 430. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. Id.

In the case sub judice, the record, including the confidential information contained in the PSI report regarding Defendant’s criminal |7history and the facts and circumstances surrounding the instant crimes, clearly supports the trial court’s imposition of the maximum sentences. The trial court properly acted within its discretion in assessing Defendant as a “worst offender” and his crimes of obscenity as the “worst offenses.” See State v. Cozzetto, supra; State v. McKinney, supra; State v. Woods, supra; State v. Grissom, supra. Defendant’s arguments regarding the excessiveness of the sentences imposed by the trial court are, therefore, without merit.

Defendant also argues that the trial court erred in imposing both imprisonment and fines. We disagree. La. R.S. 14:106 G(l) clearly provides for a fine of not less than $1,000, nor more than $2,500, or in default, imprisonment with or without hard labor, for not less than six months, nor more than three years, or both. Thus, Defendant’s argument that the trial court erred in imposing both imprisonment and fines is without merit.

We find merit, however, in Defendant’s argument that the trial court erred in imposing his sentences without the benefit of probation, parole or suspension of sentence. La. R.S. 14:106 G(l) does not deny Defendant these benefits, nor was Defendant charged as a habitual offender.

La. R.S. 14:106 G(4) provides in pertinent part:

When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned, with or without hard labor, for not less than two years nor more than five years, without benefit of parole, probation, or suspension of sentence.

| ¡¿Defendant was neither charged with nor informed that he could receive a harsher penalty if the victim was a juvenile. Furthermore, the record, specifically the PSI, confirms that none of the victims in the instant case were juveniles. Defendant’s sentence, therefore, may not be imposed with the stipulation that it be without the benefit of parole, probation or suspension of sentence. See State v. Allo, 510 So.2d 14 (La.App. 5th Cir.1987), writ denied, 514 So.2d 1174 (La.1987). Accordingly, the portion of Defendant’s sentence denying him the benefit of parole, probation or suspension of sentence must be vacated.

Further, Defendant argues that the trial court erred in ordering him to register for life as a sex offender under La. R.S. 15:541, et seq., because the statute does not require the registration of defendants convicted of violations of La. R.S. 14:106, ie., obscenity. Referencing the trial court’s remarks at sentencing, the State counters that Defendant committed a crime of obscenity against a juvenile and contends that lifetime registration is applicable. We disagree. The information contained in the PSI confirms that no victims in the instant case were juveniles. The portion of Defendant’s sentence requiring him to register as a sex offender must also be vacated.

Finally, Defendant argues that the trial judge violated the rule of random case assignment when he ordered the Clerk of Court to assign all future cases involving Defendant to his own docket. We agree.

19An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. See La. C. Cr. P. art. 841; State v. Smith, 39,698 (La.App. 2d Cir.6/29/05), 907 So.2d 192; State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. There is no contemporaneous objection contained in the record pertaining to the trial court’s order that any further charges against Defendant brought in Bossier and Webster Parishes be assigned to the trial judge’s own docket. La. C. Cr. P. art. 920(2), however, contains an exception to the contemporaneous objection rule which provides that an error patent, i.e., “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence,” shall be considered on appeal. State v. Paben, 43,-415 (La.App. 2d Cir.8/13/08), 990 So.2d 123.

La. C.C.P. art. 253.1 states:

All pleadings filed shall be randomly assigned to a particular section or division of the court by either of the following methods:
(1) By drawing indiscriminately from a pool containing designations of all sections or divisions of court in the particular jurisdiction in which the ease is filed.
(2) By use of a properly programmed electronic device or computer programmed to randomly assign cases to any one of the sections or divisions of court in the particular jurisdiction in which the case is filed.

In State v. Sprint Communications Co., L.P., 96-3094 (La.9/9/97), 699 So.2d 1058, the Louisiana Supreme Court stated the following with respect to non-random case assignment by district court judges:

[ HIJust as a litigant may not choose a courtroom or a judge, a judge may not select his caseload or his litigants. This statute was enacted to facilitate meaningful random assignment.
We hold the 18th Judicial District Court’s system of transferring cases to other divisions of the same court on a non-random basis is improper and viola-tive of La.Code Civ. Proc. Art. 253.1, Local Rule 9 of the 18th Judicial District Court and public policy.

The trial judge’s order to the Clerk of Court to assign all future cases involving Defendant to his own docket was improper, violative of La. C.C.P. art. 253.1 and against public policy. See La. C.C.P. art. 253.1; State v. Sprint Communications Co., L.P., supra. Accordingly, the portion of Defendant’s sentence specifying that any further charges against Defendant brought in Bossier and Webster Parishes be assigned to the trial judge’s own docket, i.e., Division “D,” must be vacated.

CONCLUSION

For the foregoing reasons, the convictions of Defendant, James Edward Hanson, III, are affirmed. The portions of Defendant’s sentences denying him benefits, requiring registration as a sex offender, ordering jail time in lieu of payment of fines and specifying that any further charges against Defendant brought in Bossier and Webster Parishes be assigned to the trial judge’s own docket, i.e., Division “D,” are vacated. In all other respects, the sentences of Defendant are affirmed.

CONVICTIONS AFFIRMED AND SENTENCES AFFIRMED AS AMENDED.

      . The PSI indicates that the “daughter” involved in the incident which took place at Pierre Bossier Mall in Bossier Parish was 19 years of age.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Jonathan Lee BLACK, Appellant.
    No. 44,214-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    Jonathan Lee Black, Pro se.
    Paul J. Carmouche, District Attorney, Dhu Thompson, Suzanne M. Owen, Geya W. Prudhomme, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ. STEWART, J.
   STEWART, J.

11Defendant, Jonathan Lee Black, was charged with one count of attempted armed robbery and found guilty as charged. The trial court sentenced the defendant to serve 23 years’ imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, urging two assignments of error. For the reasons stated herein, we affirm the defendant’s conviction and sentence.

FACTS

The following facts were adduced at the defendant’s trial. At approximately 5:30 a.m. on January 10, 2005, LaShanna Owens, a manager at the McDonald’s restaurant located at 6205 Youree Drive in Shreveport, was inside the store preparing to open for the day. She noticed two young black males walking back and forth in the parking lot, often stopping to look into the window of the restaurant. Ms. Owens recognized the defendant as one of these men because the defendant’s brother was an employee at the restaurant. After becoming suspicious of their odd behavior, she called the police.

Officer Steven Masson and Officer Brandon Chandler of the Shreveport Police Department (“SPD”) arrived shortly thereafter. Officer Masson stated that he pulled his patrol car into the north parking lot and saw the defendant and another man standing near the drive-through window. Officer Masson testified that when the men saw him, they “fled behind the building toward the car wash and then across the street into Colonial Plaza apartments.” Officer Brandon Chandler drove into the south parking lot just as the men ran by.

| gBoth officers chased the men on foot into the apartment complex. They witnessed them attempting to get into the back seat of a car that was backing up in the complex parking lot. The officers ordered all of the people out of the car. Three of the four people in the car complied, but a fourth person, later identified as the defendant, fled on foot and escaped. Police arrested the other male who was with the defendant outside the McDonald’s. He was identified as 16-year-old Kevin Fisher. The driver and other occupant, later identified as Damien Smith and Delicia Glass, were released pending further investigation.

Later that morning, other SPD officers found a .38 caliber handgun while searching the McDonald’s parking lot. In the meantime, the SPD detective handling the case, Detective Rod Demery, had developed the defendant as a suspect. Detective Demery went to the defendant’s home, but the defendant was not there. Later that day, the 17-year-old defendant appeared at the police station and agreed to speak with the detective. That statement was recorded on audio tape.

The audio tape was not played for the jury because the defendant mentioned several other crimes during the interview. By joint stipulation, the parties agreed that Detective Demery did indeed tape the defendant’s statement, and that his testimony would be based upon that interview. The detective said that the defendant initially denied any knowledge of the attempted armed robbery. Later in the interview, the defendant admitted that he was the fourth person at the scene that morning and that the others had planned a robbery. He told Detective Demery that he informed the |sothers that he didn’t want anything to do with the robbery because his brother worked at the McDonald’s. Black identified Fisher as the man with the gun and minimized his own role in the planning and execution of the robbery. He said that his role was to be a lookout. Black also described the firearm to the detective and said that Fisher had thrown it down as they ran away. The detective testified that Black “didn’t say specifically that Fisher had a gun and was going to go rob McDonald’s. He did say Fisher was armed and what the plan was.”

The defendant elected to testify. He said that Fisher had been at a teenage club until after 2:00 a.m. on that morning, and that Fisher and the others had picked him up after leaving the club. He then testified that the group had gone to a nearby apartment complex, Colonial Plaza, at about 3:30 a.m. The defendant explained that the group waited at the apartment complex until about 5:30 a.m. for one of the defendant’s friends, a McDonald’s employee named Crystal Raspberry, to arrive at the restaurant. The defendant testified that Ms. Raspberry routinely gave him free McDonald’s food and that obtaining the free food was his purpose for waiting two hours in the apartment complex parking lot for the restaurant to open.

The defendant said that he and Fisher had been standing in the open in the restaurant parking lot when police arrived. Black stated that he and Fisher initially approached the officer, but fled when the officer got out of the patrol car, drew his weapon and said “Get down.” Black said that there had never been any plan to rob the McDonald’s, that he had never told |4Detective Demery that there had been such a plan, and that Detective Demery was lying to the jury when he said that Black told him that the men had discussed robbing the McDonald’s.

In rebuttal, the state recalled Detective Demery and played a portion of the tape of his interview with the defendant. According to the recording, the defendant told the detective that Fisher asked him, “When you going to let me hit that lick at McDonald’s?” and that the defendant told the detective that he told Fisher that he wanted no part of the robbery. The defendant further explained that he actually knew nothing of the inside of the store and could not provide information on that subject. He also stated that he was afraid that he would be recognized by the other employees.

The defendant said that Fisher came by his house the day before the robbery, and that they went to the defendant’s girlfriend’s house. Fisher reportedly said to the defendant, “We’re going to hit that lick in the morning at 5:00 when somebody gets there.” According to the Detective Demery, the defendant also said that Fisher told the others “where they’re all going to be and what they’re going to do” as a part of the robbery.

The defendant further told Detective Demery that he was in the car with the other two people and that Fisher was the one who kept going back and forth to the restaurant waiting for someone to arrive so he could complete the robbery. The defendant stated, “All he wanted me to do was be standing out there ... I guess so he could feel safe or something, he wanted me to be standing out there while he went in.” The detective testified that Black told him that he knew that Fisher had a gun. The | r,defendant failed to mention anything to Detective Demery about waiting for a friend who would give him free food and said nothing to suggest that he did not know that Fisher had a gun prior to the robbery.

The defendant was found guilty as charged of attempted armed robbery. Both the defendant and his counsel filed a motion for post-verdict judgment of acquittal, which the court denied. The court held a sentencing hearing on June 11, 2008. The court denied the defendant’s motion for new trial, and the defendant waived the delay for sentencing. The court then sentenced Black to serve 23 years’ imprisonment at hard labor without benefits.

Through counsel, Black verbally objected to the sentence without stating a ground for the objection. He subsequently filed a motion to reconsider sentence, urging that the court should have considered that Black actually harmed no one in the commission of the offense, that he was allegedly under the influence of older co-defendants and that the court erred in finding the defendant to be the leader. The court denied the motion and the defendant now appeals.

LAW AND DISCUSSION

Sufficiency of the Evidence

The defendant asserts two assignments of error in this appeal. In his pro se brief, his sole assignment of error asserts that the evidence was insufficient to convict him of attempted armed robbery.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first | (¡determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. 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. 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; State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

When the conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984). When a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant’s own testimony, an appellate court’s task in reviewing the sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis “is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ” State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, citing Captville and Jackson v. Virginia, supra.

The defendant testified that he knew nothing of the robbery beforehand, that he was only at the McDonald’s to obtain free food, and that the detective was lying when he said that Black told him that the men had discussed the robbery earlier that morning. However, Black’s own statement to the detective fully disproves his trial testimony.

IsBlack admitted several times to the detective that he and Fisher had discussed the robbery prior to its occurrence, although Black initially denied any role in the events. Black later told the detective that his only role in the crime was as a lookout, that he was by the getaway car the entire time and that Fisher could not see him. This assertion was disproved by the testimony of both the McDonald’s manager and the responding police officers who placed Black in the store’s parking lot with Fisher. Black never told the detective that he was only at the restaurant to obtain free food, and his testimony that he did not flee immediately upon seeing the police is contradicted by the police witnesses.

Additionally, the defendant’s assertion that the state did not prove that he knew Fisher was armed so the evidence only supports a verdict of simple robbery is meritless. Not only did the defendant mention the gun several times during the interview with the detective, he also told the detective that Fisher was the person armed with the gun and that Fisher had put the gun down by the trash bin during the foot chase. These statements clearly demonstrate that Black was fully aware that Fisher was armed. Therefore, this assignment of error bears no merit.

Excessive Sentence

In the second assignment of error, the defendant contends that the 23-year sentence without benefit of probation, parole or suspension of sentence for attempted armed robbery, is excessive and not supported by the record.

|flA trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37-442 (La.App. 2d Cir.8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of an excessive sentence, an appellate court uses a two-step process. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge 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. Dunn, 80,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). 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. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33, 111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, the determination of whether the sentence imposed is too severe is contingent upon the circumstances of the case and the background of the defendant. 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 and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. 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. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

La. R.S. 14:27(A) provides a definition of “attempt”:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. Whoever commits that crime of armed robbery shall be imprisoned at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. |n14:64. Additionally, La. R.S. 14:27(D)(3), which is applicable to the offense of attempted armed robbery, states:

D. Whoever attempts to commit any crime shall be punished as follows:
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fíne 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.

The record shows that the trial court specifically considered aggravating and mitigating circumstances, thereby complying with La.C.Cr.P. art. 894.1, and tailored the sentence to the instant offense and this offender. The trial court stated that the sentence range for attempted armed robbery was from 5 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence to 49}6 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The court noted that the statute required the sentence not be suspended or probated, found that a lesser sentence would depreeate the seriousness of the offense and found that the defendant was in need of correctional treatment that only commitment to a correctional institution could provide.

As aggravating circumstances, the court found that the robbery was to be committed with a dangerous weapon and that the defendant acted in concert with other people to commit the offense. The court also stated its belief that the defendant was the leader of this group. The court further noted for the record its awareness that the defendant had been arrested for five other armed robberies, two other attempted armed robberies, and that he 112was a suspect in still other armed robberies for which he had not been arrested.

In mitigation, the court cited the defendant’s age, lack of other criminal history, and his status only as a principal and “not as the actual person to go into the location or attempt to go into the location.” Further, the court also noted that Black’s co-defendants had received “tremendous favorable consideration by the State in their prosecution.”

The record does not show that the defendant’s sentence is constitutionally excessive. Although the defendant was a youthful offender, he was an active participant in an effort to commit an armed robbery at a fast food restaurant as it opened. This is a highly dangerous and volatile type of offense where injury or death to one or more victims is an all-too-common occurrence. Although the defendant was apparently a first offender, the defendant was a suspect in numerous other armed robberies that had yet to be adjudicated. This midrange sentence does not shock the sense of justice.

This assignment of error is without merit.

CONCLUSION

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

AFFIRMED.