author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Bruce HAYES.
    No. 2012-KA-0357.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle C. Daly, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| tDefendant, Bruce Hayes was charged with one count each of possession with intent to distribute cocaine and methylene-dioxymethamphetamine, MDNA (ecstasy). A jury found defendant guilty as charged as to count one, possession with intent to distribute cocaine and as to count two, he was found guilty of the lesser included offense of attempted possession of ecstasy. Defendant was sentenced to serve five years at hard labor on count one and to serve two years at hard labor on count two. Defendant appeared for a multiple bill hearing and pled guilty to being a second felony offender. After vacating the previous sentences imposed, the district court resentenced defendant on both counts to serve fifteen years at hard labor, to run concurrently. This Court twice ordered the district court to grant defendant an out-of-time appeal. An appeal was granted on September 15, 2011.

Defendant raises three assignments of error on appeal: that he received ineffective assistance of counsel during the plea negotiations, trial and sentencing; that the trial court erred in admitting the criminalist lab report without testimony Land the evidence was insufficient to convict; and, that the his sentence is unconstitutionally excessive.

For the reasons set forth below we affirm the convictions, vacate the sentences in part, and render.

FACTUAL BACKGROUND:

The testimony at the trial reflected that on October 20, 2008 New Orleans Police Department Detectives Robbie Bangham and Victor Gant, Jr., conducted a surveillance of the residence located at 1328 Charbonnet Street due to several citizen complaints of drug activity in the area. The detectives were not in uniform, and they were driving an unmarked police vehicle. Using binoculars, the detectives observed an African-American male, later identified as the defendant standing in the gated yard of the residence on Charbonnet Street. The detectives observed three separate exchanges between the defendant and unknown subjects, which they believed to be drug transactions. As defendant was crossing the street to meet a third unknown subject at an abandoned house, he was confronted by the detectives. The defendant fled on foot, and discarded an object retrieved by one of the detectives, found later to be cocaine. After the defendant was apprehended he was brought back to the Charbonnet residence. After obtaining a search warrant, and with the use of a drug-sniffing dog, cocaine as well as ecstasy pills were found in a box located in the front bedroom of the residence.

Defendant presented a defense which included the testimony of his mother and two sisters. Their testimony revealed that while the defendant visited the Charbonnet house several times a week and received his mail there, it was not his residence. However, the search of the house revealed two tax forms bearing defendant’s name with the Charbonnet Street address in the room where the |3cocaine and ecstasy were located. In addition, male clothing was found in the same room.

DISCUSSION:

A. Insufficiency of Evidence

Defendant argues that the evidence was insufficient to support his convictions. When issues are raised on appeal 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. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

|41. Proof of Dominion and Control:

Defendant argues that the State failed to show he had dominion and control over the narcotics found inside the closet at the Charbonnet Street residence and that the crime lab report, introduced without supporting testimony, was improperly admitted.

Addressing the issue of dominion and control, to support a conviction for possession of a controlled dangerous substance in violation of La. R.S. 40:967 and La. R.S. 40:966, the State must prove that the defendant knowingly and intentionally possessed the drug. State v. Perron, 01-0214, p. 6, (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. Perron, 01-0214, p. 6, 806 So.2d 924, 928, citing State v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. Perron, 01-0214, p. 6, 806 So.2d 924, 928, citing State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4 Cir.1990). A determination of whether a defendant had constructive possession depends on the circumstances of each case. Perron, 01-0214, p. 6, 806 So.2d 924, 928, citing State v. Cann, 319 So.2d 396, 397 (La.1975). In determining whether defendant exercised the requisite dominion and control, factors which may be considered are his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users. Perron, 01-0214, p. 6-7, 806 So.2d 924, 928, citing State v. Reaux, 539 So.2d 105, 108 (La.App. 4 Cir.1989). In the instant matter, the evidence presented at trial j¿established that the defendant exercised dominion and control over the cocaine and ecstasy found in the Charbonnet Street residence.

The detectives observed the defendant outside of the Charbonnet Street residence taking part in what they believed to be three separate drug transactions. During the first two exchanges, defendant met with the subject, received currency, entered the residence and then returned outside moments later to deliver an object to the subjects.

As he attempted to cross the street to meet with the third unknown subject at an abandoned residence, defendant was confronted by the detectives and fled, discarding the cocaine to the ground as he ran. As such, the jury reasonably inferred that he possessed the cocaine found inside the Charbonnet Street residence. Though the defendant was never found to be in actual possession of any ecstasy pills, the ecstasy pills were found inside the same box in which the cocaine was located; thus, the jury also could have reasonably inferred that he exercised dominion and control over the ecstasy pills found alongside the cocaine.

2. Criminalist Report as Hearsay:

Second, defendant argues that the evidence was insufficient because the State’s criminalist lab report was erroneously admitted as proof that the substances discarded by defendant and those substances found in the Charbonnet Street residence were in fact cocaine and ecstasy. He maintains that introduction of the criminalist report was inadmissible hearsay, and the admission of the report denied him the right to confront the witnesses against him.

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), holds that the confrontation clause of the Sixth Amendment acts as an absolute bar on the admission of all out-of-court testimonial evidence unless (1) the witness who made | nthe statement is unavailable to testify in court, and (2) the defendant had a prior opportunity to cross-examine the witness. Id. at 68, 124 S.Ct. at 1374; State v. Smith, 04-3140 (La.6/24/05), 906 So.2d 391. An analyst’s report and certification regarding forensic evidence is considered a testimonial statement and is subject to confrontation clause requirements. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). If the report and certification are presented as evidence, then the person called for testimony and cross-examination on the evidence must have conducted or observed the tests on which the report and certification are based. Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610, (2011). In Melendez-Diaz, the Court recognized that some states have “notice and demand statutes” that do not violate the confrontation clause because they do not shift to the defendant the burden to call the testing analyst to trial.

Louisiana Revised Statute 15:499 provides that criminal laboratories are authorized to provide proof of examination and analysis of physical evidence by providing a certificate of the person in charge of the facility. A party introducing a certificate of analysis under La. R.S. 15:499 must provide written notice of intent to offer proof by certificate at least ten days prior to trial. La. R.S. 15:501. The defendant may then demand that the person who conducted the examination and analysis testify by timely filing a written demand within five days of the notice of intent. Id. If the certificate and notice comply with La. R.S. 15:499 and 15:501, then the certificate is admissible and considered prima facie evidence of the facts provided therein. La. R.S. 15:500. However, if the defendant properly demands the testimony of the analyst who performed the tests, then the certificate is not \7prima facie evidence and the analyst must testify to establish the test results. La. R.S. 15:501.

In State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110, the Louisiana Supreme Court found that La. R.S. 15:501 is a “notice and demand statute.” If the prosecution complies with La. R.S. 15:499, et seq., then the certificate and report are admissible and the defendant must make a timely written demand that the analyst testify, or the defendant waives his Sixth Amendment right under the confrontation clause. State v. Simmons, 11-1280 (La.1/20/12), 78 So.3d 743.

Here, the minute entry of July 2, 2009 reflects that the State timely filed its notice of intent to introduce into evidence the State’s criminalist report as prima facie proof pursuant to La. R.S. 15:499-501.

Defendant argues that Cunningham and Simmons are inapplicable as he retained counsel after the State filed its notice of intent, and the notice was never filed into the record. However, the record reflects that defendant did not object to the admission of the report insofar as it confirmed the authenticity of the cocaine and ecstasy seized from the defendant and the Char-bonnet Street residence. Instead, the defense sought a stipulation from the State that the criminalist did not know the origin of the drugs tested, which the state declined. A similar objection was made when the State introduced the report during trial, but was overruled.

| «Louisiana Code Criminal Procedure art. 841 A requires that a defendant present the grounds upon which an objection is made, and a defendant is limited on appeal to those grounds made at the time of the objection. State v. Jackson, 450 So.2d 621, 633-34 (La.1984); State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814. In the instant matter defendant did not object to the State’s crimi-nalist report being admitted as prima fa-cie proof that the substances seized from defendant and the Charbonnet Street residence were cocaine and ecstasy. We find that this claim has not been preserved for review and that the State complied with La. R.S. 15:499-501 by timely filing its notice of intent; thus, the criminalist report was properly admitted by the trial court.

B. Ineffective Assistance of Counsel:

Defendant argues that his retained counsel was ineffective during the plea bargaining process, as he did not become aware of the strength of the State’s ease until he received the preliminary hearing transcript on the second day of trial. He argues that his trial counsel was ill-prepared to advise him as to whether he should have accepted the plea bargain offered by the State of seven years at hard labor and no multiple bill.

Defendant’s claim of ineffective assistance of counsel is to be evaluated in accordance with the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must demonstrate that his counsel’s performance was deficient and that he was prejudiced by the deficiency.

| (¡Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40; State v. Prudholm, 446 So.2d 729 (La.1984). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

In support of his claim that his attorney was ineffective during the plea bargaining process, defendant cites two recent United States Supreme Court cases, Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).

In Lafler, the defendant was charged under Michigan law with assault with intent to murder and three other offenses. The prosecution offered to dismiss two of the charges and to recommend a fifty-one to eighty-five month sentence on the other two in exchange for a guilty plea. The defendant admitted his guilt before the court and expressed a willingness to accept the offer; however, he later rejected the offer after his attorney convinced him that the prosecution would not be able to establish intent to murder as the victim had been shot below the waist. The defendant proceeded to trial and was convicted on all counts, receiving a mandatory minimum 185 to 360 month sentence. The defendant subsequently urged that his attorney’s advice to reject the plea constituted ineffective assistance of counsel after his state appeals were exhausted, he sought relief in a federal | ^habeas proceeding. After noting that the parties stipulated that counsel’s performance was deficient, the Court found that the Michigan court erred because it applied the wrong standard; the Michigan court’s inquiry was whether the rejection of the plea was knowing and voluntary. The proper standard under Strickland is the prejudice test, namely, whether there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court held that when the prejudice alleged is having to go to trial that a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea, and the prosecution would have withdrawn it in light of intervening circumstances); that the court would have accepted the terms; and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Lafler at 1383-1388. Lafler made the requisite showing. Frye simply applied Strickland to the situation where counsel fails to inform a defendant of a plea offer, and the offer lapses.

In this matter, the record fails to disclose sufficient evidence to rule on defendant’s claim of ineffective assistance of counsel. The only mention made of a plea agreement was during the multiple bill hearing. Though the transcript reflects that he rejected the deal offered by the State, the transcript does not reveal |nhis reasons for rejecting the plea agreement or when the plea agreement was offered. Defendant’s claim of ineffective assistance of counsel, as regards his rejection of the plea agreement can be better raised in an application for post-conviction relief where he can attempt to make the requisite showing.

C. Improper Multiple Bill Adjudication and Excessive Sentences

In addition to the claims previously addressed during the errors patent review, defendant argues that his multiple offender adjudication should be vacated because he was not informed of the rights that he was waiving when he admitted to being a second felony offender.

Louisiana Revised Statute 15:529.1 provides that the trial court shall inform a defendant of the allegations contained in the multiple bill of information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true.

The record in the present case does not reflect that the trial court advised defendant at the multiple offender hearing of his right to a formal hearing, to have the State prove its case under the multiple offender statute, or of his right to remain silent. See State v. Johnson, 432 So.2d 815 (La.1983); State v. Desmond, 524 So.2d 147 (La.App. 4 Cir.1988). Also, no waiver of rights form for the multiple bill was executed by the defendant.

The transcript reflects that at the hearing on the multiple bill, counsel for defendant, in the best interest of his client and with the understanding that his | ^client wished to be truthful, admitted that defendant was a multiple offender based upon a felony guilty plea to cocaine possession in Texas after Hurricane Katrina, for which he received a two-year sentence. The State submitted to the court certified documents from Texas reflecting the validity of defendant’s guilty plea for possession of cocaine. The State indicated it was prepared to go forward with the multiple bill hearing. Before sentencing defendant as a multiple offender, the court first noted that defendant admitted to violating La. R.S. 15:529.1, then formally found that he was a multiple offender.

Defendant argues that his ease is similar to that in State v. Common, 10-996 (La.App. 5 Cir. 11/15/11), 78 So.3d 237, wherein the court found that because there was no competent evidence introduced at the hearing that the defendant was the same person who was convicted of two previous felonies, counsel’s stipulation that the defendant was a third felony offender without prior advisement of the defendant’s right and without a properly executed waiver of rights form constituted reversible error. In Common, the trial court informed the defendant of his right to a hearing, but did not inform him of his right to remain silent.

Unlike Common, in this matter the State offered competent evidence proving the validity of the prior guilty plea in Texas. Also, the details of the conviction provided by counsel corresponded with the evidence offered by the State.

In another case that appears more on point, the Fifth Circuit reversed the defendant’s adjudication and sentence as a multiple offender during its errors |13patent review of his case. State v. Brown, 10-238 (La.App. 5 Cir. 6/29/11), 71 So.3d 1069. The court summarized its ruling as follows:

Generally, a trial court’s failure to advise the defendant of his right to a hearing and his right to remain silent is considered harmless error, when the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing, rather than by admission of the defendant. In the instant matter, defense counsel stipulated what the testimony of the fingerprint expert would be if he testified, and further stipulated that Brown was the same person convicted of the predicate offenses. A hearing was held on defense counsel’s objections to the evidence on one of the predicate offenses, following which the trial court adjudicated Brown to be a third felony offender.
However, we find that, because Brown was never informed of his statutory rights under La. R.S. 15:529.1(D), his acknowledgment or confession of his prior felony convictions is invalid. The stipulation as to the testimony of the fingerprint expert does not change our analysis inasmuch as it, too, was made in the absence of the required advice. Further, although the State presented certified copies of Brown’s predicate convictions, it did not present sufficient proof that he was the same person that pled guilty to those offenses.
Establishing a defendant’s identity as the same person convicted of a prior felony offense may be accomplished by a variety of methods, including the testimony of witnesses, fingerprint analysis by an expert, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race, and date of birth. However, merely establishing that defendant’s name and that of the person previously convicted are the same is not sufficient evidence of identity under the multiple offender statute. [Citations omitted.]
In viewing State’s Exhibits 1-5, we find that Brown’s identity was not sufficiently established in any other acceptable manner. There was neither witness testimony nor any authenticated photographs introduced into evidence. Most significantly, Brown’s birthdate listed on 11 ¿State’s Exhibit 1 for his underlying conviction is different from the birthdates listed in State’s Exhibits 2-5, for the predicate convictions.
Brown, 10-238 at 15-17, 71 So.3d at 1078-1079 (footnotes omitted).

The Louisiana Supreme Court reversed. The Court found that the omission by the district court in advising Brown of his right was harmless in light of the documentary proof introduced by the State at the hearing that the defendant was the person who pled guilty to the predicate offenses and in light of the defendant’s own admissions in his testimony at trial that corresponded with the State’s proof. State v. Brown, 11-1656 (La.2/10/12), 82 So.3d 1232.

Though no fingerprint analysis was offered in the case at hand, defendant’s date of birth on the underlying conviction, which is reflected as July 23, 1979, is the same as that reflected on the exhibits offered by the State proving the existence of the Texas conviction; his name reflected on the exhibits is Bruce Lee Hayes. The bill of information filed by the State here reflects defendant’s name as Bruce L. Hayes. He is also described as an African-American male in both. Notably, counsel’s qualified admission on defendant’s behalf of the Texas conviction and the details provided by counsel on that conviction correspond with the exhibits offered by the State. We find that the district court properly took into account counsel’s detailed admission along with the State’s exhibits in finding that the evidence was sufficient to prove that defendant was the same person who had pled guilty to the Texas conviction. Therefore, we find no merit in this assignment of error.

1 ^CONCLUSION:

Accordingly, we affirm the convictions and fifteen-year sentence imposed on defendant as a second felony offender on the possession with intent to distribute cocaine. We vacate defendant’s sentence as a second felony offender on the attempted possession of ecstasy conviction, and reinstate the original two-year sentence imposed by the trial court.

CONVICTIONS AFFIRMED; SENTENCES VACATED IN PART; AND RENDERED

      . State v. Hayes, unpub., 2010-0638 (La.App. 4 Cir. 5/7/10); State v. Hayes, unpub., 2011-1300 (La.App. 4 Cir. 9/28/11).

      . The defendant's family testified that his mother, two sisters and five children resided at the Charbonnet address, but no adult males.

      . La. R.S. 15:499 and 15:501 were amended by 2010 La. Acts 693 (eff. 08/15/2010). All references herein are to the versions of the statutes prior to Act 693.

      . The notice of intent and criminalist’s report are not part of the appeal record. Although the documents are not part of the record, it appears that the district court also found the notice to have been timely filed by the State.

      . Defendant retained counsel on August 7, 2009, subsequent to the preliminary hearing of July 2, 2009.

      . The transcript of the second day of trial reflects that counsel filed an oral motion alleging only that he would be ineffective because he did not have ample time to prepare for trial after just receiving the preliminary hearing transcript that day.

      .The facts of the case reflect that the defendant pointed a gun toward the victim’s head and fired. The shot missed, and the victim fled. The defendant pursued the victim, firing repeatedly. The victim was shot in her buttock, hip and abdomen, but survived the assault.

      . The Court held further that if the sole advantage is that the defendant would have received a lesser sentence under the plea, the court should hold an evidentiary hearing to determine whether the defendant would have accepted the plea. If so, the court may exercise discretion in determining whether the defendant should receive the term offered in the plea, the sentence received at trial, or something in between. However, where the offered guilty plea was for less serious counts, the proper remedy may be to require the prosecution to reoffer the plea. The judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea, or leave the conviction undisturbed. Lafler at 1388-1390. The Court found the latter and remanded the case for further proceedings.

      . A review of the record reveals three errors patent. Defendant assigned the first error on appeal, sentencing him as a multiple offender on both counts, which has been addressed infra. The second error, sentence for attempted possession of ecstasy exceeds the statutory maximum, is cured by vacating the sentences. The third error patent, the trial court failed to restrict parole eligibility on first two years of sentence, is corrected pursuant to La. R.S. 15:301.1 A, without the need for remand.

      . No recent cases by this Court were found involving the trial court’s failure to advise a defendant of his rights prior to entering a guilty plea to the multiple bill because the discovery of this failure requires more than just an errors patent review of the record.

      . The documentary proof identified the defendant by his full name and date of birth.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Maya McQUIRTER.
    No. 2012-KA-0486.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant, The State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee, Maya McQuirter.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, Jr., Judge JOY COSSICH LOBRANO).
   DENNIS R. BAGNERIS, SR., Judge.

hThe State of Louisiana appeals a judgment of the trial court, which granted the appellee, Maya McQuirter’s, motion to quash. The State also filed a motion to supplement the record. For the following reasons, we hereby reverse the judgment of the trial court and deny the State’s motion to supplement the record because the material contained in the supplement was not presented to the trial court or subjected to adversarial challenge.

FACTS

Defendani/Appellee, Maya McQuirter, was charged in Orleans Parish by bill of information with the crime of Simple Burglary on June 19, 2003. Bond for the appellee was set at $7,500. Appellee was arraigned on June 24, 2003, and pled not guilty. As a special condition of her bond, the appellee was ordered to participate in the court’s intensive probation program and to report for weekly.drug tests beginning on June 25, 2003. The record indicates that the appellee was notified that her next hearing date would be July 14, 2003.

Motion hearings originally set for July 14, 2003, were reset to August 14, 2003. On August 14, 2003, the appellee did not appear for motion hearings; the record states that appellee had not been served. The trial court issued an alias |2capias and set the matter for bond forfeiture on August 27, 2003. The matter was reset on August 27, 2003, when the court learned that the appellee had not been served. Again, on September 15, 2003, the appellee did not appear for the bond forfeiture hearing. The trial court issued an alias capias and ordered that no bond be set for the appellee. The bond forfeiture hearing was continued without date.

Meanwhile, the appellee was arrested by Jefferson Parish authorities on December 29, 2003, and was sentenced to serve seven years with the Louisiana Department of Corrections on March 25, 2004.

An arrest warrant was issued by Orleans Parish Sheriff deputies on December 6, 2011, based on the alias capias of September 15, 2003. With the appellee scheduled to be released from custody on the Jefferson Parish conviction on December 7, 2011, the appellee’s attorney made an unscheduled court appearance in Orleans Parish on December 6, 2011, where a capi-as for the arrest of the appellee was issued for December 7, 2011. On December 7, 2011, the appellee appeared before the Orleans Parish trial court where her bond obligation was set at $1,000. The matter was reset for status to December 19, 2011. At the status hearing of December 19, 2011, counsel for the appellee orally moved to quash the State’s bill of information of June 19, 2003. After a hearing on January 12, 2012, the trial court granted appellee’s motion to quash. The State now appeals this final judgment.

DISCUSSION

The State argues on appeal that the trial court abused its discretion in granting the appellee’s motion to quash on January 12, 2012. The State submits that the two year limitation on prosecution of the appellee was interrupted when she failed to appear for motions on July 14, 2003, pursuant to actual notice, and | ¡¡that the running of the limitation period was restarted when she appeared in court on December 11, 2011. The State concedes that it normally bears the burden of locating an accused and bringing that person to trial; however, the State points out in its brief that in this case, appellee was arraigned on June 24, 2008; the appellee was notified in court that her next hearing date would be July 14, 2003; that prescription was interrupted when the appellee failed to appear for her motion hearing date; and that prescription restarted on December 7, 2011, when the appellee appeared before the trial court.

The Louisiana Supreme Court held in State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1287, that when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, “An interruption of prescription occurs.” The State argues that, pursuant to State v. Romar, 2007-2140 (La.7/1/08), 985 So.2d 722, and La. C.Cr.P. Article 579(B), the period of limitation in this case did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the open attachment on December 6, 2011 and appeared in court on December 7, 2011. Thus, the State argues that it had until at least December 6, 2013 to bring the appel-lee to trial.

La. C.Cr.P. art. 578(A)(2) reads as follows:

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

|4La. C. Cr. P. art. 579, recently amended by the state legislature, governs which actions by the defendant interrupt the running of prescription. The statute provides the following:

A. The period of limitation established by Article 578 shall be interrupted if any of the following occur:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state;
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state;
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record. (Emphasis added).
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

In State v. Romar, 2007-2140, p. 6 (La.7/1/08), 985 So.2d 722, 726, the defendant was charged with a third offense DWI in 1997 and appeared for arraignment in January 1998. The defendant appeared again for a pretrial motion hearing, which was then reset for April 1998. He failed to appear in April and again in June 1998, at which time the court forfeited the defendant’s bond and issued an attachment for his arrest. The defendant was not arrested until 2006, eight years later. He subsequently sought to quash the prosecution on the grounds that the state had failed to exercise due diligence to execute the outstanding warrant in the years following his non-appearance in court. He presented evidence to show that he had renewed his driver’s license in 2003 and also presented utility bills to show that he had lived at the same address for many years. He admitted |sthat he never notified the court or his bondsman of his change of address, testifying that his attorney told him that he would take care of it. The trial court quashed the charge, and the appellate court affirmed. The Supreme Court reversed, stating:

In the present case, the period of limitation did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the open attachment and appeared in court to dispose of the criminal contempt proceeding. The burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence, since 1984, is the interruption of the time limits placed on trial.

Romar, 2007-2140, pp. 7-8, 985 So.2d at 727. Thus, the Romar Court found the fact that the defendant was theoretically “loeatable” to be of no significance once it was established that the defendant had received actual notice.

In State v. Baptiste, 2008-2468 (La.6/23/10), 38 So.3d 247, the Louisiana Supreme Court found that the state did not bear a duty to monitor the status of the outstanding arrest warrant issued for the defendant, who failed to appear in Plaquemines Parish after receiving actual notice of the hearing date. The defendant was incarcerated in St. Charles Parish approximately six months after the arrest warrant was issued by Plaquemines Parish. The Louisiana Supreme- Court found that prescription was interrupted when the defendant failed to appear in court, and that the interruption of prescription ended when the St. Charles Parish authorities contacted officials in Plaquemines Parish and notified them of defendant’s impending release, after they discovered the outstanding warrant.

IfiAlso, in State v. Thomas, 2010-0528, 2010-0303, 2010-0529 (La.App. 4 Cir. 7/15/10), 54 So.3d 1, this Court overruled the granting of defendants’ motion to quash where the approximately eight-year delay was not attributable to the State.

The appellee submits that, without the exhibits the state intends to improperly introduce with its brief, service upon the appellee cannot be established and thus, this Court must affirm the trial court’s judgment. In her written motion to quash the bill of information, the appellee asserted that her right to a speedy trial had been violated. The Sixth Amendment to the United States Constitution guarantees the right to a speedy trial, providing that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” The right to a speedy trial is imposed on the states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Louisiana Constitution also provides that “[e]very person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy ... trial_” La. Const. art. I, § 16.

To assist courts in determining whether a defendant’s right to a speedy trial has been violated, the United States Supreme Court addressed the issue in Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972) and established four tests by which the determinations may be made. They are, in descending order, the length of the delay, the reason the government assigns to justify the delay, whether a defendant asserts his right to a speedy trial, and prejudice to the accused resulting from the delay. Both the State and defendant look to Barker to support their respective arguments that the other side is responsible for any delay. The relevant portion of the Barker Court’s decision reads as follows:

|7A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors:
* * *
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government, [footnote omitted]. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.
⅝ * *
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; [footnote omitted] and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

Barker, 407 U.S. at 530-531, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972).

In analyzing a constitutional speedy trial violation claim, the four-factor test set forth in Barker v. Wingo, is applied; to wit: (1) the length of the delay, (2) the 18reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant.

The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. Santiago, 2003-0693, p. 3, (La.App. 4 Cir. 7/23/03), 853 So.2d 671, 673, citing State v. De Rouen, 96-0725, p. 3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay. In State v. Reaves, 376 So.2d 136 (La.1979), the State continued a defendant’s trial at least four times due to the absence of a police officer. The Louisiana Supreme Court ruled:

Given a misdemeanor offense such as possession of a single marijuana cigarette, the requirement of prejudice is not as stringent as it could be in the case of a more serious or violent crime. See Barker, supra, and [State v.] Alfred, [337 So.2d 1049 (La.1976) ] supra. The defense counsel argued without contradiction that the defendant, a forty-two year old man with a family to support, was forced to miss six days of work to go to court. On each of four occasions the trial was set to begin, the defendant stood ready with his witness, yet the state could not put on its case. Although the prejudice to the defendant here would not normally be considered serious, the fact remains that for this misdemeanor offense the economic and psychological burdens placed on the defendant by repeated, futile court appearances may ultimately force him to plead guilty in order to maintain his job and peace of mind. See State v. Nowell, 363 So.2d 523 (La.1978); State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976).

Reaves, 376 So.2d at 139.

The appellee asserts that a delay of nearly nine years in bringing to trial a matter whose time for trial expires after two years is delay which is presumptively prejudicial, particularly in light of the fact that she was held in state custody, not in |9a distant jurisdiction but in a neighboring parish. Appellee avers that the second Barker factor has been met in that the delay is attributable to the state. She argues that she remained in state custody for over seven of the nearly nine years which have elapsed, during which time she was physically prevented from returning to court. Appellee points out that on the day before her sentence ended, paperwork had already been prepared to have her transported to Orleans Parish Criminal Court, proving that the authorities had continuing access and could have issued a writ to have her brought to court at any time. The state concedes that it made no attempt to locate her during that time. The appellee asserts that failure by a defendant to assert her right to a speedy trial is not a waiver of that right under Barker. Rather, requesting a speedy trial is only one of the Barker factors whose significance is viewed in light of the facts of the case. She argues that because she had only one court appearance; because the record is unclear regarding service; and because of her extended period in custody thereafter, she arguably had no opportunity to request a speedy trial. This factor, she submits, should not be held against her. Finally, the appellee believes that her interests have been harmed in that she has been prejudiced in this case. The State’s delays have caused her increased anxiety and concern because she believes that preparation of any meaningful defense has been impaired, citing Barker, 407 U.S. at 532, 92 S.Ct. 2182. The appellee argues that because all four of the Barker tests have been met, the trial court did not err in granting her motion to quash the bill of information.

The record before this Court shows that the appellee received notice in open court on June 24, 2003 to appear on July 14, 2003, and that she failed to do so. Because we find that the State has carried its burden of proving that the appellee received adequate service, there was no basis to quash the bill on statutory | ^grounds. Further, we do not find that the State had an obligation to bring the appellee to trial while she was incarcerated in Jefferson Parish once the prescription period was interrupted when appellee failed to appear in court. See State v. Williams, 2011-1231, pp. 6-7 (La.App. 4 Cir. 5/23/12), 95 So.3d 554, 558, (whereby this Court held that the State is under no obligation to locate a defendant who was subsequently incarcerated in another parish once the prescriptive period has been interrupted by record proof of actual notice.)

Accordingly, we hereby reverse the judgment of the trial court, which granted the motion to quash. The motion to supplement the record is also denied.

REVERSED; MOTION TO SUPPLEMENT RECORD IS DENIED.

      . As amended by 2010 Louisiana House Bill No. 1237, Louisiana Thirty-Sixth Regular Session March 29, 2010.


author:
PAUL A. BONIN, Judge.
      LOVE, J.,

text:
    STATE of Louisiana v. Timothy D. SMITH.
    No. 2011-KA-0664.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Karla M. Baker, Baker Law Firm, L.L.C., Metairie, LA, Anna L. Friedberg, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| TA less-than-unanimous jury found Timothy Smith guilty of the attempted manslaughter of Quinn Bourgeois. See La. R.S. 14:27, 14:31. Attempted manslaughter is a verdict responsive to the charged offense of attempted second degree murder. See La. C.Cr.P. art. 814 A(4); see also La. R.S. 14:30.1. The district court sentenced Mr. Smith to seventeen years imprisonment at hard labor and denied Mr. Smith’s motion to reconsider the sentence. See La.C.Cr.P. art. 881.1.

Mr. Smith appeals his conviction and sentence. See La.C.Cr.P. art. 912 C(l); La.C.Cr.P. art. 881.2 A. He assigns several errors. He argues that the evidence is insufficient to support a guilty verdict under the well-known Jackson v. Virginia standard. Related to that argument are the assignments that the State failed to disprove self-defense and that the evidence supports a guilty verdict only [ ?for the offense of aggravated battery, another verdict responsive to the offense of attempted second degree murder.

Mr. Smith further argues that he was entitled to a mistrial as a result of several rulings by the trial judge. The first of these rulings is that the trial judge did not permit him to exercise his peremptory challenges through a back-striking procedure. The next rulings challenged relate to statements made during the trial testimony of police witnesses that referenced other crimes Mr. Smith committed, and the prosecutor’s remark during his cross-examination that Mr. Smith had “law-yered-up.” Mr. Smith argues that'the trial judge erred in failing to grant him a new trial “in the interests of justice.”

Mr. Smith also argues that the sentence imposed is excessive. In addition to these assigned errors, see La.C.Cr.P. art. 920(1), he specifically requests that we conduct an error patent review, which we do irrespective of such a request from a defendant. See La.C.Cr.P. art. 920(2).

After a Jackson v. Virginia review, we reject Mr. Smith’s argument that the prosecution failed to present to the jury sufficient evidence to prove beyond a reasonable doubt all the essential elements of the crime of attempted manslaughter and, consequently, reject his argument that the jury could convict him of only aggravated battery on this evidence. We address these findings in Part I, post With respect to his motion for new trial based on back-striking complaints, we conclude that Mr. Smith failed to properly preserve this alleged error for our | .¡review and more fully explain our holding in Part II, post. In Part III, post, we address our review of the trial court’s rulings on the various motions for mistrial and conclude that in each instance there is no reversible error. Finally, in Part IV, post, we address why we find that the sentence imposed by the district judge was within her discretion and did not exceed the constitutional limit for the sentence of this offender for this offense.

We, thus, affirm both the conviction and sentence.

I

In this Part we first address the constitutional standard of review for claims of insufficiency of evidence and then turn to consider the evidence presented to the jury as the fact-finder. Finally, we explain why we find from the record that there was sufficient evidence to prove beyond a reasonable doubt every element of the offense of manslaughter and, in this case, that Mr. Smith’s killing of Mr. Bourgeois was not justified.

A

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence | ¿could reasonably support a finding of guilt beyond a reasonable doubt.” Id. “But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id. quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (emphasis added by Jackson). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (bold emphasis in original); see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), (stating: “Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt”).

In discharging our review function, we consider “all of the evidence ” before the actual fact-finder. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). The United States Supreme Court has explained that the standard of review for sufficiency of evidence is highly deferential to the fact-finder because it “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Id.

Similarly, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 2006-0481, p. 8 (La.6/1/07), 957 So.2d 1280, 1285-1286. “It is Rnot the function of an appellate court to assess credibility or re-weigh the evidence.” Id. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal eases [a court of appeal’s] appellate jurisdiction extends only to questions of law.” La. Const. art. V, § 10(B). See also State v. Barthelemy, 09-0391, p. 24 (La.App. 4 Cir. 2/24/10), 32 So.3d 999, 1015.

Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider reasonable inferences drawn from basic facts to ultimate facts. We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise. See State v. Gilmore, 10-0059, p. 5 (La.App. 4 Cir. 10/6/10), 50 So.3d 208, 212.

B

The crime of manslaughter is “a homicide which would be murder ... under Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(1). Second-degree murder is defined as “the killing of a human being ... when the offender has the specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1 A(1). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; they are merely mitigating factors lessening the culpability of a defendant. See State v. Lombard, 486 So.2d 106, 110 (La.1986). Therefore, because provocation is not an element of manslaughter, in our review function in this case, we need not consider whether there is any evidence of Mr. Smith’s provocation and need only focus on whether there was an intentional killing. See Moore, supra, 11-0025, p. 7, 75 So.3d at 26-27.

An attempt to commit any crime is a specific intent crime. See La. R.S. 14:27 A. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Accident is, of course, the anti-thesis of specific intent. A finding that a shooting was accidental would preclude a finding of the essential element of specific intent. See State v. Matthews, 380 So.2d 43, 45 (La.1980).

C

We turn now to a consideration of the record facts.

The jury had no less than three principal sources of information about the circumstances of the shooting of Mr. Bourgeois: the testimony of Mr. Bourgeois himself; the statements by Tonic Smith, the estranged wife of the defendant and the girlfriend of Mr. Bourgeois, that she made to the 911 operator and to police investigators; and the testimony of Mr. Smith. All three admit to being the only |7ones present at the shooting. With respect to each principal source, there was evidence from other sources which corroborates and contradicts each.

Before reviewing the conflicting versions — and they are conflicting — of the three principal sources, we summarize some basically undisputed background facts important to understanding and evaluating the different versions. Mr. and Mrs. Smith, although married, had been estranged for some time before the shooting of Mr. Bourgeois. Mr. Smith was residing in Atlanta. Mrs. Smith was residing with their son in an apartment in New Orleans East. Mr. Bourgeois and Mrs. Smith were romantically involved, and, although not co-habiting, they often stayed overnight at each other’s homes.

On Christmas Day of 2008, Mr. Smith had returned to New Orleans and spent the day with his family. Mrs. Smith and Mr. Bourgeois spent Christmas Day with Mr. Bourgeois’ family. During the day and through the evening, Mrs. Smith called Mr. Smith and talked with him about their prospects of reuniting. They may have, either very late that night or early the next morning, met in Mrs. Smith’s truck but soon argued, and Mr. Smith on his own made his way to Mrs. Smith’s apartment.

Mr. Smith later entered Mrs. Smith’s apartment and vandalized its contents, including those in their son’s bedroom. He found a picture of Mrs. Smith and Mr. Bourgeois, which he defaced and wrote on the back “F — k you, by Tim.” He posted it to the front door of the apartment such that it would be visible upon ^approach. Mrs. Smith and Mr. Bourgeois arrived at her apartment complex in separate vehicles at about the same time. At this point, the versions diverge.

1

Mr. Bourgeois testified that he left the Christmas party at the same time as Mrs. Smith, and he pulled into the parking lot of the complex just after she did. She was already out of her truck and walking toward the courtyard area. He did not observe her with her gun, which he knew she routinely kept under her mattress; he had never known her to have her gun in her truck. He believes that if she were holding her gun, he would have seen it. According to Mr. Bourgeois, Mr. Smith attacked Mrs. Smith, she fell to the ground, and Mr. Smith fired one shot at her head. She was not hit by the shot. After the shot was fired, Mr. Bourgeois exited his car . to come to the assistance of Mrs. Smith. Mr. Bourgeois approached Mr. Smith and “told him be cool; it’s Christmas.” Mr. Bourgeois, however, never made it close enough to physically break up the fight because Mr. Smith began to shoot at him from a distance. Mr. Bourgeois tried to protect himself by putting his hands in front of himself.

Mr. Bourgeois was profusely bleeding when the police and paramedics arrived. He was unable to answer the questions by police on the scene because he was trying to conserve his energy.

Mr. Bourgeois was shot nine times by the same firearm. According to the emergency room physician, who was familiar with gunshot wounds and directly [ 3observed Mr. Bourgeois’ injuries, at no time was Mr. Bourgeois physically close to or in contact with the weapon that shot him.

Two or three weeks after the incident and after receiving life-saving surgery, Mr. Bourgeois was able to meet with the Detective Thomas in the hospital and identified Mr. Smith from a photographic line-up as the person who shot him. Mr. Bourgeois also identified Mr. Smith in the courtroom as the person who shot him. He testified that Mr. Smith shot directly at him. Mr. Bourgeois was unarmed at all times.

2

Mrs. Smith did not testify at the trial. She had, however, telephoned the emergency 911 operator. The tape of that call was played to the jury and introduced into evidence. She also made several statements to the investigating officers. These statements were disclosed to the jury without objection.

In her 911 call, she reported that her boyfriend had been shot and that he was the only one hit in the shooting. When asked where he had been shot, she replied, “All over, all over. I can’t really tell, I can’t really tell.” After EMS was on its way, Mrs. Smith elaborated on where her boyfriend had been shot; he had been shot in his hand, “in his stomach, and all in his chest.” She stated that she and her boyfriend had just arrived home, and her boyfriend was shot outside their apartment. But she also reported to the 911 operator that she did not know who had shot him, did not know in which direction the shooter or shooters had fled, and had no idea whether he was shot by mistake.

|10In her initial statement to investigators, she told the police that she saw the shooter. But she described him only as a black man wearing a white shirt and blue jeans. She did not tell the police that she knew him.

After the police were able to further investigate and had discovered the defaced photograph, they approached Mrs. Smith at the hospital and asked whether she knew anyone named “Tim.” She answered that the only person she knew by that name was her estranged husband. But, notably, she still did not tell the police that her husband, Mr. Smith, was the shooter.

3

Mr. Smith, the defendant, also testified at trial. When he saw a picture of Mrs. Smith with Mr. Bourgeois, Mr. Smith became so enraged that he wrecked the apartment. After vandalizing the apartment and posting the defaced photograph of the couple on the door, he heard Mrs. Smith arriving. Contrary to Mr. Bourgeois’ testimony, she and Mr. Bourgeois walked towards the apartment together, and she was armed with her gun. Mr. Bourgeois was unarmed. As he exited the apartment, Mrs. Smith pointed her gun at him. While Mrs. Smith was momentarily distracted, Mr. Smith jumped her, and the three individuals tussled for the weapon. During the ensuing struggle, the gun accidentally discharged and hit Mr. Bourgeois.

When he heard the gunshots, Mr. Smith became frightened and fled. Several days later, he learned that there was a judicial warrant for his arrest, and he surrendered to the police in the company of his attorney. He made no pre-trial statements to the investigating officers. He said that he did not intend to shoot or Inharm anyone, and he said that he had no animus toward Mr. Bourgeois. The defendant did not call 911 because he did not think anyone had been injured. He further stated that he had in 2008 pled guilty to charges of possession of cocaine and marijuana.

D

Mr. Smith assigns specifically as error, regarding the insufficiency of the evidence, that the State did not disprove his assertion of self-defense. The State bears the burden of proving that Mr. Smith’s shooting of Mr. Bourgeois was not justified. See State v. Lynch, 436 So.2d 567, 569 (La.1983).

In non-homicide cases, “[t]he use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person ... provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.” La. R.S. 14:19 A. Importantly, however, the self-defense justification is not available to “[a] person who is the aggressor or who brings on a difficulty ... 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.” La. R.S. 14:21.

In State v. Bates, 95-1513, p. 9 (La.App. 1 Cir. 11/8/96), 683 So.2d 1370, 1375-1376, a ease cited by Mr. Smith, the defendant testified that his wife, wielding two kitchen knives, one in each hand, tried to kill him and successfully stabbed him in the stomach. The defendant disarmed his wife and killed her during the struggle. See id., p. 11, 683 So.2d at 1376. Other evidence from the autopsy | ^report, however, showed that the victim had been stabbed sixteen times, including defensive wounds on her hands. See id, p. 9, 683 So.2d at 1376. The trial court convicted the defendant of second degree murder, and the appellate court affirmed the conviction, after noting that the state must prove that the defendant did not act in self-defense. Similarly to Bates, sufficient evidence exists to prove that Mr. Smith did not act in self-defense. The testimony of Mr. Bourgeois, of the doctor who treated him, and of the investigating officers corroborate one another and show that Mr. Bourgeois was shot nine times by a single firearm. Furthermore, Mr. Smith’s treating surgeon, who had seen many gunshot wounds before, testified that Mr. Smith was nowhere near the firearm when it discharged, contradicting Mr. Smith’s account that the weapon discharged accidentally while the two men were struggling over it. Taking into account the fact that Mr. Bourgeois received defensive wounds to his hand, the fact that Mr. Bourgeois was shot from a distance, and the fact that Mr. Bourgeois was unarmed at all times, a reasonable fact-finder could find beyond a reasonable doubt that Mr. Smith did not act in self-defense when he killed Mr. Bourgeois, and thus the killing was not justified.

II

In this Part we address Mr. Smith’s back-striking complaint and conclude that Mr. Smith failed to properly preserve this alleged error for our review.

At the outset we observe that Mr. Smith was correct in objecting to the trial court’s refusal to allow back-striking. The statutory right to exercise peremptory challenges at any time before the jury panel is sworn has long been recognized. See State v. Watts, 579 So.2d 931 (La.1991); see also La.C.Cr.P. arts. 788, 790, and 795 B(1). Moreover, La.C.Cr.P. art. 799.1, added in 2006, codifies the Watts holding. Despite the long-standing recognition of this right and- intervening legislative action, some trial courts have continued to restrict a party’s exercise of the statutory right to peremptory challenges. See, e.g., State v. Lewis, 10-1775 (La.App. 4 Cir. 4/4/12), 96 So.3d 1165, 1176 (Bonin, J. dissenting), writ granted, 12-1021 (La.12/14/12), 104 So.3d 425, 2012 WL 6734801; State v. Patterson, 11-0648 (La.App. 4 Cir. 8/24/12), 98 So.3d 439 (Table) (Landrieu, J., concurring; McKay, J., dissenting), writ granted, 12-2042 (La.12/14/12), 104 So.3d 426, 2012 WL 6734803.

In this case, however, Mr. Smith did not seek to timely invoke our supervisory jurisdiction so that we might review the trial court’s erroneous restriction on his right to back-strike and promptly correct the error before jury selection was completed and the jurors sworn. See La. Const. art. V, § 10(A). And, importantly for the purposes of his appeal, he did not identify any juror whom he wished to back-strike at any time before the jury was sworn. After the jury’s verdict, in his motion for new trial, did Mr. Smith first identify two jurors whom he said he would have back-struck but for the trial court’s error. Thus, in | uthe absence of identifying the objectionable jurors at the time of jury selection, we conclude that Mr. Smith failed to preserve the error for our review.

In State v. Hailey, 02-1738, p. 6 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, 567, the defendant did not identify any juror whom he wished to back-strike until the hearing on his motion for new trial. We concluded that although there was then no jurisprudence requiring contemporaneous identification of an objected-to juror as essential to preserve the back-strike claim for review to consider on appeal such a claim would allow the defense to “gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have backstruek.” Id., p. 8, 863 So.2d at 569. See also State v. Crotwell, 00-2551 (La.App. 1 Cir. 11/9/01), 818 So.2d 34.

We now conclude that in order to preserve this issue for appellate review following conviction a defendant who has not timely sought supervisory review of an erroneous trial court ruling which restricts his right to fully exercise his peremptory challenges through back-striking must pri- or to the swearing in by the court of the full complement of jurors identify the specific jurors whom he would have challenged but for the trial court’s ruling. Because, just as in Hailey, Mr. Smith did not identify any specific juror, we find that he has not preserved the issue for our appellate review and consideration.

_bm

In this Part we address our review of the trial court’s rulings on the various motions for mistrial and conclude that in each instance there is no reversible error.

A

First we address the contention that the State, on two separate occasions during trial, improperly solicited testimony regarding Mr. Smith’s prior convictions. Mr. Smith, citing La.C.Cr.P. art. 770, argues that a mistrial, although a drastic remedy, should be awarded because there were references to Mr. Smith’s prior criminal background. La.C.Cr.P. art. 770 states, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

As the statements were not made by “the judge, district attorney, or a court official,” Article 770 is not applicable; and instead, La.C.Cr.P. art. 771 should be used. See State v. Carter, 412 So.2d 540, 544-545 (La.1982) (“[A] police officer is not a ‘court official’; therefore, art. 770 does not apply. Rather, art. 771 of the Code of Criminal Procedure would be the applicable article.”) La.C.Cr.P. art. 771 provides, in part, that if it is a witness that references other crimes, “the court may |1figrant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” It is, therefore, permissible and not mandatory as Mr. Smith suggests that a mistrial be granted.

The admission of other crimes evidence is reviewed under the harmless error analysis. See State v. Johnson, 94-1379, p. 17 (La.11/27/95), 664 So.2d 94, 102.

1

Mr. Smith first moved for mistrial on the basis that the state’s witness, Officer George Jackson, testified that he was able to compare latent fingerprints collected at the crime scene with the fingerprints that were “on file” for Mr. Smith, and by so testifying, illegally suggested to the jury that Mr. Smith had a prior criminal record. During a brief bench conference, the State argued that no mention was made of any criminal record, and that the file in question could have been created by any of a number of agencies. The district court denied the motion for mistrial and offered to admonish the jury, which offer was rejected by defense counsel. The district court further suggested that the statement could have meant that the comparison prints were taken from Mr. Smith in conjunction with this particular case. The district court instructed Officer Jackson not to state when or how Mr. Smith’s fingerprints were obtained and to avoid commenting that individuals listed in the Automatic Fingerprint Identification System do not necessarily have criminal backgrounds.

Because the file referenced could have been made in conjunction with the present case and no mention was made of prior convictions, admonishment to the 117jury, if anything, was all that was necessary. We find no error in the decision of the district court in this matter.

2

Mr. Smith’s second motion for mistrial arose out of Detective Thomas’ testimony that he had compiled a six-person lineup “based on [Mr. Smith’s] previous arrest information.” At the point in time when Det. Thomas compiled the lineup, Mr. Smith had already turned himself in, so the jury was aware of an arrest. But “previous” arrest suggests to the jury that the detective is referring to an arrest before the current one. The district court found that the statement was not prejudicial enough to rise to the level of requiring a mistrial. The district court offered to admonish the jury, which offer was declined. Like the reference to the fingerprints “on file,” we do not find that the district court erred in offering only an admonishment to the jury.

Mr. Smith argues that the above references to his criminal history forced him to make the last-minute decision to testify in his own defense at trial. But, by way of understatement, we find this argument difficult to accept. Without Mr. Smith’s testimony there would have been no testimony or evidence to support his claims of self-defense and accident. The detective’s statement, moreover, was vague, tangential, and, as characterized by defense counsel, unintentional. It is not plausible that Mr. Smith would believe he was compelled to take the witness stand and admit that he was convicted in 2003 of possession of marijuana and cocaine | is(see La. C.E. art. 609.1 B) in order to offset that marginal comment by the detective. An admonition to the jury, at most, would have sufficed; no mistrial was necessary or required.

B

Mr. Smith’s third motion for mistrial was based on the prosecutor’s statements during his cross-examination of Mr. Smith, wherein the prosecutor used Mr. Smith’s pre-arrest silence and his retaining of an attorney to imply Mr. Smith’s guilt. Mr. Smith’s defense counsel, however, drew more attention to the challenged offenses than did the prosecution. The contentious discourse is reproduced below:

PROSECUTOR: And you never called 911.
MR. SMITH: No, sir.
PROSECUTOR: You never went talked [sic] to the police.
MR. SMITH: No, sir.
PROSECUTOR: Until you got law-yered up.
DEFENSE: Lawyered up? Now we’re there. Now we’re there.
COURT: Sustained.
DEFENSE: Approach at side bar.
COURT: You don’t need to approach. Ask your next question, Mr. Phillips.
Examination by PROSECUTION continues:
PROSECUTOR: Right?
UiDEFENSE: He called his lawyer and his lawyer turned him in.
COURT: Mr. Boshea. Ask your next question, Mr. Phillips.
DEFENSE: Lawyered up.
PROSECUTOR: Well, he got a law-yered up.
DEFENSE: No. This is it, judge. I want the jury excused.
COURT: Gentlemen. I’m not doing it. Ask your next question.
PROSECUTOR: I will, Your Honor.
Examination by PROSECUTION continues:
PROSECUTOR: The point I’m making to you, sir, is that you went all of those days; you never called 911; never went talked [sic] to the police, ‘till you were able to do it your way, right?
SMITH: No, sir.
DEFENSE: Objection.
COURT: I’ll note your objection.

1

First we address Mr. Smith’s argument that his silence should not have been used to impeach his testimony. Mr. Smith alleges that the State improperly commented on his exercise of his right to remain silent after he was advised of this right. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The record, however, clearly shows that the timing of the “silence” in question occurred between the shooting and Mr. Smith’s turning himself in to the police. The prosecution, therefore, while trying Lpto imply a guilty conscience by commenting on Mr. Smith’s silence, did not violate any law or jurisprudential rule prohibiting such a comment.

The prohibition on the prosecution’s ability to comment on a defendant’s silence, in this situation, stems from the required Miranda warning given to arres-tees informing them of their right to remain silent. See Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The Miranda warning implicitly assures an arrestee that his silence will not be used against him. See id. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, set forth a jurisprudential rule by which a defendant will not be disadvantaged by his reliance on this assurance. See Fletcher, 455 U.S. at 605, 102 S.Ct. 1309.

The protection extended by Doyle, however, applies to a person only after he has been Mirandized. See Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. In Fletcher v. Weir, the Supreme Court found that a defendant’s silence after his arrest could be used to impeach his testimony where there was no evidence that the defendant had received a Miranda warning.

The Louisiana Supreme Court has followed this reasoning:

In the case of prearrest silence, in which “[t]he failure to speak occurfs] before the petitioner [is] taken into custody and given Miranda warnings,” and in which “no governmental action induce[s] petitioner to remain silent,” “the fundamental unfairness present in Doyle is not present.” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980). Neither Doyle specifically, nor the Due Process Clause generally, bars the inquiry. Jenkins, 447 U.S. at 239-40, 100 S.Ct. at 2129-30. In addition, Jenkins made clear, without expressly deciding “whether or under what circumstances prearrest silence may be protected by the Fifth Amendment,” id., 447 U.S. at 236 n. 2, 100 S.Ct. at 2128, that by taking the stand and exposing himself to cross-examination, “a defendant waives any Fifth Amendment | ⅞1 privilege he may have against the use of his prearrest silence for impeachment purposes.” Id., 447 U.S. at 235-36, 100 S.Ct. at 2127-28 (discussing Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926)). The federal constitution therefore leaves undisturbed the common law tradition which “allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins, 447 U.S. at 239, 100 S.Ct. at 2129 (citing 3A J. Wigmore, Evidence, § 1042, p. 1056) (Chadbourn rev.1970).

State v. Richards, 99-0067, p. 2 (La.9/17/99), 750 So.2d 940, 941.

The period of silence in question occurred between the shooting and Mr. Smith’s surrendering to the police. This is simply not the type of “silence” contemplated by Doyle. Mr. Smith’s assignment of error regarding his pre-arrest silence is, therefore, without merit.

2

We now address Mr. Smith’s challenge of the State’s implying his guilt by virtue of his retaining counsel. The State, in cross-examining Mr. Smith, commented that he did not talk to the police until he “lawyered up.”

While not codified in La.C.Cr.P. art. 770, as is the prohibition on the State’s commenting on a defendant’s choice not to take the stand, commenting by the prosecutor on a defendant’s retention of counsel has been found to be reversible error. See U.S. v. McDonald, 620 F.2d 559, 564 (C.A.5 1980) (“Comments that penalize a defendant for the exercise of his right to counsel and that also strike at the core of his defense cannot be considered harmless error. The right to counsel is so basic to all other rights that it must be accorded very careful treats ment. Obvious | ^and insidious attacks on the exercise of this constitutional right are antithetical to the concept of a fair trial and are reversible error.”).

We review the prosecutor’s comment under the harmless error analysis. See U.S. v. Martinez-Larraga, 517 F.3d 258, 269 (C.A.5 2008). Established case-law on the State’s commentary on a defendant’s right to remain silent do not justify the granting of a mistrial when the commentary refers to silence before a defendant is given his Miranda warning. Here, commentary refers to Mr. Smith’s retention of counsel at a time clearly before Mr. Smith was arrested. Thus, the promise implied by the Miranda warning not to mention a defendant’s exercise of his right to counsel is not implicated.

Justice Rehnquist, in a concurring opinion made the following comment regarding the prejudice presumed by a defendant’s seeking an attorney:

[A] request for a lawyer has essentially no probative value where the question is one of guilt or innocence: No sensible person would draw an inference of guilt from a defendant’s request for a lawyer after he had been told he had a right to consult one; it is simply not true that only a guilty person would want to have a lawyer present when being questioned by the police.

Wainwright v. Greenfield, 474 U.S. 284, 297, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). While we do not condone prosecutorial commentary on a defendant’s choice to retain counsel before he contacts the police, we find that a rational jury would not infer guilt from this fact because most people, even when innocent, would want an attorney when they have criminal charges pending against them.

We find that the prosecutor’s statements did not justify a mistrial.

_biv

In this Part we address why we find that the sentence imposed by the district judge was within the court’s discretion and did not exceed the constitutional limit for the sentence of this offender for this offense.

Excessive sentences are prohibited under the Eighth Amendment of the Unites States Constitution and La. Const, art. I, § 20. A sentence may be constitutionally excessive even when the sentence falls within the range permitted by statute. See State v. Sepulvado, 367 So.2d 762, 769 (La.1979). For a sentence to be found excessive, it must be “so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice.” State v. Cann, 471 So.2d 701, 703 (La.1985). The district court is granted broad sentencing discretion, and we will not overturn the district court’s judgment absent an abuse of that discretion. See State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.

To determine whether the district court has abused its broad sentencing discretion, we first discern whether the court took into account the sentencing criteria listed in La.C.Cr.P. art. 894.1. See Sepulvado, 367 So.2d at 767-768. The district court, while not required to expound on all factors listed in Article 894.1, is required to take into account both aggravating and mitigating factors. See State v. Square, 433 So.2d 104, 110 (La.1983). Our purpose is not to enforce mechanical compliance by a sentencing judge, but to ensure that there is a factual basis for the sentence imposed. See State v. Batiste, 06-0875, p. 18 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 820. If we find that the district court properly articulated its reasons for the defendant’s sentence, we then determine whether the defendant’s sentence was tailored to both the severity of his crime and his personal situation. See State v. Spencer, 374 So.2d 1195 (La.1979).

At the sentencing hearing, the district court noted that while the evidence may have shown that Mr. Smith did not go to the apartment with a weapon, and that the court was sympathetic for Mr. Smith’s family, the fact remains that Mr. Smith, according to his own testimony, shot Mr. Bourgeois multiple times while Mr. Bourgeois was unarmed, causing life-threatening injuries to Mr. Bourgeois. The district court, after considering the foregoing factors, sentenced Mr. Smith to seventeen years in the Department of Corrections.

The maximum sentence Mr. Smith could have received after his conviction for attempted manslaughter is twenty years. See La. R.S. 14:27 D(3) and La. R.S. 14:31 B. It is fortuitous that Mr. Bourgeois did not die from having been shot nine times by Mr. Smith. We find that the district court did not abuse its broad sentencing discretion in imposing a sentence near the maximum of the range. See State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.

DECREE

Mr. Smith’s conviction and sentence are hereby affirmed.

AFFIRMED

LOVE, J., concurs in part and dissents in part.

LOVE, J.,

concurs in part and dissents in part.

LI concur in part and dissent in part.

I agree with the majority’s opinion to reject Mr. Smith’s argument that the prosecution failed to present to the jury sufficient evidence to prove beyond a reasonable doubt the essential elements of the crime of attempted manslaughter. I also agree with the majority’s finding of no reversible error as it relates to Mr. Smith’s motions for mistrial and the majority’s finding that the sentence imposed by the district court judge was not an abuse of discretion and did not exceed the constitutional limit.

I respectfully dissent, however, with the majority’s determination that Mr. Smith failed to preserve for appellate review his back-strike claim. The majority is correct to acknowledge that the trial court’s refusal to allow Mr. Smith to exercise his statutory right to back-strike at any time before the jury panel is sworn was error. Where I disagree with the majority is in its attempt to create a new standard of review for addressing a defendant’s claim of an erroneous restriction of his right to back-strike.

The majority states that in order to preserve a back-strike claim for appellate review the defendant must prior to the swearing in by the court of the full complement of jurors identify the specific jurors whom he would have challenged, |2but for the trial court’s ruling. The majority’s reliance on State v. Hailey, 02-1738, (La.App. 4 Cir. 9/17/03), 863 So.2d 564, to reach its conclusion is misguided.

In Hailey, the defendant did not allege a particular juror he would have backstruck until the hearing on the motion for new trial. Id. at 02-1738 p. 6, 863 So.2d at 567. Similarly, the defense counsel in State v. Crotwell, upon which Hailey relies, did not point to any juror he would have back-struck during the jury selection process or at its conclusion. Crotwell, 00-2551, p. 14 (La.App. 1 Cir. 11/9/01), 818 So.2d 34, 45. Moreover, in State v. Taylor, the defense counsel did not allege any particular juror he would have backstruck until oral argument. Taylor, 93-2201, p. 25 (La.2/28/96), 669 So.2d 364, 377. In all these cases, the court applied a harmless error standard, and notably absent from their holdings is the requirement that the defendant must identify specific juror(s) he would have backstruck in order to preserve the issue on appeal. After careful review of Hailey and the cases it relies upon, I am convinced the language of Hailey, which the majority cites, is merely dicta, and cannot be used to reach the majority’s conclusion.

Further, the Second Circuit Comet of Appeal previously addressed the right to exercise peremptory challenges and preservation of the issue for appellate review. See State v. Goldman, 45, 293 (La.App. 2 Cir. 6/23/10), 41 So.3d 642, rev’d on other grounds sub nom. State v. Nelson, 2010-1724 (La.3/13/12), 85 So.3d 21. In Goldman, although the defendants made no objection to the jury selection process at the exact time the judge made its ruling, the defendants had earlier objected to any limitation of their right to exercise peremptory challenges. Id. 45, 293 at p. 10, 41 So.3d at 651. The court determined that such an objection was sufficient to preserve the issue for appellate review.

IsEven this court stated in State v. Lewis, that in order to preserve issues concerning the jury for appellate review, the defendant “cannot [raise the issue] for the first time in a motion for new trial absent a pre-verdict objection.” Lewis, 10-1775, p. 9 (La.App. 4 Cir. 4/4/12), 96 So.3d 1165, 1172 (Defendant argued that the trial court erred when it denied him the right to use a “reserved” back-strike on a provisionally accepted juror).

Much like Goldman and Lewis, Mr. Smith objected to the trial court’s limitation of his right to exercise his peremptory challenges prior to the verdict in this case, thus preserving the issue for appellate review. A defendant need not bear an additional burden of identifying specific jurors whom he would have challenged. To impose the added burden will cause defendants in this circuit to be treated differently than those in other circuits, a result our constitution does not intend. Additionally, I have found no caselaw from other circuits that have adopted the standard the majority creates.

Furthermore, the majority’s conclusion for preserving appellate review on a back-strike issue is being applied retroactively to this defendant, which affects his substantive rights.

In light of the foregoing, I find that Mr. Smith properly preserved his back-strike claim for appellate review. Thus, Mr. Smith’s claim is subject to a harmless error analysis. Hailey, supra, 02-1738 at p. 5, 863 So.2d at 567; Crotwell, supra, 00-2251 at p. 14, 818 So.2d at 44; Taylor, supra, 93-2201 at p. 26, 669 So.2d at 378. Pursuant to La.C.Cr.P. Art. 921, “a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

In this case, Mr. Smith contends he would have excluded two jurors. The first being Robert Bartlett, whom the defendant said he would have excused because Bartlett was an engineer. The defendant offers no reasons why he feels that Bartlett was objectionable or |4that Bartlett otherwise viewed Mr. Smith’s case unfavorably. Answering defense counsel’s query, Bartlett said that the absence of a weapon in this case would not prevent him from rendering a verdict. Bartlett also said that from his perspective of having testified as an expert witness, he understood that there are legitimate reasons why people would be reluctant to testify. Nothing in Bartlett’s responses in voir dire suggest he would have been an unfavorable juror for the defense.

Mr. Smith also contends but for the trial court’s refusal to allow him to exercise his right to back-strike he would have struck Willie Mingo. Mr. Smith avers that he would have struck Mingo because he “voted guilty on a prior attempted murder case.”

The defendant misconstrues Mingo’s voir dire responses. Mingo did not say he voted guilty on a prior attempted murder case, rather he stated that the jury he served on voted guilty. The following exchange occurred between the prosecutor and Mingo regarding his prior jury service:

Prosecutor: How many of you have served on a jury before?
Mingo: ... One Criminal and one civil.
Prosecutor: And what was the defendant charged with in the criminal case?
Mingo: Attempted murder.
Prosecutor: And what was the jury’s verdict?
Mingo: Guilty.

The admission of prior jury service alone does not indicate that Mr. Smith was prejudiced by Mingo’s inclusion in the jury.

Considering the facts and circumstances of this case, the defendant has failed to show that he was prejudiced by the trial court’s ruling on back-striking | ¿jurors and, that but for the inability to back-strike Bartlett and Mingo, there is a reasonable probability that the outcome of the trial would have been different.

Finally, the majority’s conclusion that to properly preserve the issue for appellate review one must identify which juror(s) he would have backstruck prior to the swearing in of the full complement of the jurors, suggests that we are to ignore our role as an error correcting court. Wooley v. Lucksinger, 2009-0571, p. 51 (La.4/1/11), 61 So.3d 507, 555; Lasyone v. Kansas City Southern Railroad, 00-2628, p. 6 (La.4/3/01), 786 So.2d 682, 689. As an appellate court, we are bestowed with the duty to review trial court rulings and correct any injury caused by the trial court’s error. Thus, by creating a new standard for preserving a defendant’s back-strike claim, I believe the majority is over-stepping the bounds of our authority as an appellate court. For these reasons, I respectfully dissent in the majority’s determination that Mr. Smith failed to preserve his back-strike claim for appellate review.

      . The sentence is with credit for time served, see La.C.Cr.P. art. 880, and concurrent with any other sentence, see La.C.Cr.P. art. 883.

      . Initially, Mr. Smith had assigned as error that the trial judge did not charge the jury with aggravated battery as a responsive ver-diet, but withdrew that assignment after the record was supplemented on this point.

      . We previously conducted a review for errors patent under La.C.Cr.P. art. 920(2) and identified that the trial judge sentenced Mr. Smith before disposing of his motion for new trial. See La.C.Cr.P. art. 873. We remanded the motion for new trial to the district court for its consideration and stayed the proceedings here pending the trial court’s ruling. We have identified no other error patent.

      . This section is reproduced from State v. Moore, 11-0025, pp. 5-7 (La.App. 4 Cir. 9/7/11), 75 So.3d 22, 25-26.

      . Manslaughter is a responsive verdict to a charge of second-degree murder, and the relevant portion of the manslaughter statute constitutes a lesser-and-included offense of the relevant portion of the second-degree statute. In this case, the conviction under review is the jury’s selection of an unchallenged responsive verdict. Even if manslaughter was not a lesser-and-included offense of second-degree, we would still find sufficiency of evidence to prove the elements of second-degree murder, the offense charged. See La.C.Cr.P. art. 814 A(3) and C; State v. Porter, 93-1106, pp. 5-6 (La.7/5/94), 639 So.2d 1137, 1141; State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-252 (La.1982); State v. Pleasant, 101533, p. 7 (La.App. 4 Cir. 5/18/11), 66 So.3d 51, 56.

      . La.C.Cr.P. art. 799.1 provides:
      Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

      . We mentioned (also in the context of harmless-error review) in State v. Plaisance that “[although the record contains a full transcript of the general voir dire, the defendant does not refer to a single juror he would have struck.” State v. Plaisance, 00-1858, pp. 30-34 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193-1196.

      . In fact, the sole defense witness was Mr. Smith.

      . "Backstriking is a party’s exercise of a peremptory challenge to strike a prospective juror after initially accepting him.” Hailey, supra, 02-1738 at p. 4, 863 So.2d at 567.


text:
    Jeffrey Dale BEECHAM v. STATE of Mississippi.
    No. 2009-CT-00251-SCT.
    Supreme Court of Mississippi.
    Dec. 6, 2012.
   EN BANC ORDER

MICHAEL K. RANDOLPH, Justice, for the Court.

Four of the justices of this Court are of the opinion that the judgment of the Court of Appeals should be affirmed, and four are of the opinion that it should be reversed; consequently, that judgment must be, and is, affirmed. Rockett Steel Works v. McIntyre, 15 So.2d 624, 624 (Miss.1943). This result was first dictated by Chief Justice Marshall for the United States Supreme Court, as follows:

No attempt will be made to analyze [the parties’ arguments and cited cases], or to decide on their application to the case before us, because the Judges are divided respecting it. Consequently, the principles of law which have been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.

Etting v. Bank of United States, 24 U.S. 59, 78, 11 Wheat. 59, 6 L.Ed. 419 (1826). In Durant v. Essex Co., 74 U.S. 107, 7 Wall. 107, 19 L.Ed. 154 (1868), addressing the effect of affirmance by a divided court, Justice Field wrote that:

There is nothing in the fact that the judges of this court were divided in opinion upon the question whether the decree should be reversed or not, and, therefore, ordered an affirmance of the decree of the court below. The judgment of affirmance was the judgment of the entire court. The division of opinion between the judges was the reason for the entry of that judgment; but the reason is no part of the judgment itself.

Durant, 74 U.S. at 110. The U.S. Supreme Court has further explained that:

it is obvious that that which has been done must stand unless reversed by the affirmative action of a majority. It has therefore been the invariable practice to affirm, without opinion, any judgment or decree which is not decided to be erroneous by a majority of the court sitting in the cause.... [A]n affirmance by an equally divided court is ... a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.

Hertz v. Woodman, 218 U.S. 205, 212-14, 30 S.Ct. 621, 622-23, 54 L.Ed. 1001 (1910).

Accordingly, as the judgment of the Court of Appeals has not been decided to be erroneous by a majority of the justices sitting in this case, we affirm, without opinion, the judgment of the Court of Appeals.

SO ORDERED.

KING, J, NOT PARTICIPATING.