author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Willie J. GROSS, Jr. State of Louisiana v. Willie Gross, Jr.
    Nos. 12-KA-73, 12-KH-826.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Willie Gross, Jr., Angola, LA, Pro se Defendant/Appellant.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

12Pefendant, Willie J. Gross, Jr., appeals his convictions of second degree murder and armed robbery. For the reasons that follow, we affirm defendant’s convictions and sentences. We also deny his writ application that was consolidated with this appeal and his motions that were referred to the merits of this appeal.

STATEMENT OF THE CASE

On February 10, 2011, the Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of LSA-R.S. 14:30.1 (count 1), and armed robbery while armed with a firearm, in violation of LSA-R.S. 14:64 and 14:64.3 (count two). At his February 11, 2011 arraignment, defendant pled not guilty. The matter proceeded to trial before a twelve-person jury on November 15, 16, and 17, 2011. After considering the evidence presented, the jury found defendant guilty of second degree murder and armed robbery. On December 9, 2011, the trial judge sentenced defendant to the |smandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence on the second degree murder conviction and to imprisonment at hard labor for forty-five years on the armed robbery conviction, to run concurrently. Defendant now appeals.

FACTS

On November 2, 2007, Marie Abreu was alone in the Metairie apartment that she shared with her boyfriend, Javier Sanchez, when she heard a knock on the door. When she opened the door, a man said something in English about a Mustang and calling the police. Ms. Abreu, who was Hispanic, did not understand what he was saying, so she closed the door and retrieved her car keys and cell phone. She went back to the door and opened it, and when she did so, three men with handguns were standing there. Upon seeing this, Ms. Abreu yelled. The men pointed their guns at her and told her to be quiet and go inside the apartment.

The men sat her on the sofa and started to look for something. Two men went upstairs, and one man stayed downstairs and stood by the door with a gun in his hand. They told Ms. Abreu that they were looking for two kilos of cocaine and asked her where her boyfriend was. She said she did not know, even though she knew Mr. Sanchez was returning movies and going to Popeye’s to get something to eat. At some point during this invasion, two of the men took her upstairs to search for the two kilos and some money.

While the men were searching, Ms. Abreu tried to call 911 and Mr. Sanchez, but the calls did not go through. One of the men took her phone away and they then tied her to the bed with gray duct tape and also taped her mouth shut. Eventually, defendant removed the tape, which was irritating her skin, and tied her up with a telephone cord and a belt. According to Ms. Abreu, the men took $9,500.00 that they found in a briefcase, as well as some jewelry worth $3,000.00.

14At some point, Ms. Abreu heard Mr. Sanchez’s car alarm. She then heard him enter the apartment and say that she had a bad habit of not answering the phone. Shortly thereafter, Ms. Abreu heard something like a bottle or a glass fall onto the floor, and the men then left the apartment. Ms. Abreu managed to get to the window, at which point she saw them get into Mr. Sanchez’s black Ford Expedition. Ms. Abreu explained that she saw Mr. Sanchez in the back seat with one man on each side of him and someone in the driver’s seat. After the Expedition drove off, she untied her legs and went to find help.

Ms. Abreu got into her Mustang and went to Bud’s Broiler, where she worked, and then by the house of Mr. Sanchez’s good friend, Rene Izaguirre, on Harvard Street. She blew the horn when she got to Mr. Izaguirre’s house; however, no one came outside. She went back to Bud’s Broiler because she knew a police officer would be there. Ms. Abreu told the officer what happened, but he did not understand her. She went back to her apartment, and when she did so, she saw “the truck where the suspects were,” but she did not see the Expedition.

Ms. Abreu went into her apartment, picked up her dog and some clothes, closed the door, and left. Afterward, she got into her Mustang and went back to Bud’s Broiler and met with Deputy Christopher Bassil of the Jefferson Parish Sheriffs Office. According to Deputy Bassil, Ms. Abreu seemed frightened and panicked, and her wrists were red. The officer accompanied Ms. Abreu back to her apartment. When they arrived, the pickup truck was not there, but the door to her apartment was open.

As Deputy Bassil entered the apartment, he saw Popeye’s chicken on the floor in the doorway as if someone had dropped it, and a soft drink spewed across the floor. He thought the rest of the apartment looked ransacked, as if someone had been looking for something. Deputy Bassil contacted his supervisor to request 15a translator. Once the Spanish interpreter arrived at the scene, Ms. Abreu explained what happened earlier that evening. She described the suspects as three black males between the ages of thirty and thirty-five years old, and she provided body type and clothing descriptions of each. After hearing her story, Deputy Bassil contacted the detective bureau and crime scene technicians.

Detective Frank Renaudin of the Jefferson Parish Sheriffs Office arrived at the scene and took control of the investigation. Detective Renaudin spoke to Ms. Abreu who was “terrified” and “hysterical.” Ms. Abreu informed the detective of what had occurred and thereafter gave her consent to search the apartment. As a result of the search, the officers recovered drug paraphernalia and white powdery residue from the apartment. In addition, the officers recovered duct tape from the bed and obtained as evidence a fingerprint from the tape. Detective Renaudin thereafter attempted to locate Mr. Sanchez through his cell phones which were also taken by the perpetrators. However, his attempts were unsuccessful.

That same evening, shortly before midnight, Mr. Sanchez’s body was discovered on the side of the road at the 1-510 exit in New Orleans East. Detective Kevin Burns of the New Orleans Police Department arrived at the scene and recovered two spent 9 mm bullet casings and a receipt from Popeye’s that showed a time of 8:39 p.m. Surveillance video from Popeye’s showed that Mr. Sanchez went through the drive-through alone at that time in a dark-colored or black SUV.

Over the next few days, Detective Re-naudin continued his investigation and took additional statements from Ms. Abreu. In the meantime, the fingerprint obtained from the duct tape had been analyzed and was positively identified as belonging to co-defendant Calvin King. Thereafter, Detective Renaudin prepared |6a photographic lineup and presented it to Ms. Abreu who positively identified King as one of the assailants in the apartment. Detective Renaudin was subsequently provided with information from another law enforcement agency that defendant fit the description of one of the suspects and had close ties to King. Detective Renaudin thereafter prepared a photographic lineup which was presented to Ms. Abreu. She positively identified defendant as another assailant in the apartment on the night in question. Also, additional fingerprints were recovered from a box of liquor in the apartment, and they were positively identified as belonging to defendant.

Based on these positive identifications, Detective Renaudin obtained arrest warrants for King and defendant. King was located and arrested, and the officers then focused on finding defendant. On December 4, 2007, defendant was arrested after a traffic stop in Chamber’s County, Texas. The next day, Detective Renaudin and Sergeant Troy Bradberry drove to Texas to get defendant. Once they arrived back in Jefferson Parish, defendant, after being advised of his rights and waiving them, gave a taped statement that was played for the jury at trial.

In his statement, defendant said Calvin King contacted him to tell him that a shipment of cocaine had come in and that he wanted defendant to go with him and his cousin, Ben. On November 2, 2007, King and Ben met defendant at defendant’s relative’s house on Francis Drive in New Orleans East. They then drove to the victim’s apartment. Once there, King and Ben waited behind a wall while defendant knocked on the door. According to defendant’s statement, a lady opened the door and defendant told her he hit her car. When she came outside, King and Ben, armed with guns, came from behind the wall and escorted her back into the apartment. Defendant pulled the truck to the back and then entered the house. The perpetrators searched the house looking for money and drugs. At |7some point, King took the lady upstairs and taped her to the bedposts with duct tape because she would not be quiet. When defendant went upstairs, the lady was crying and complaining that her blood was being cut off by the tape. Defendant then cut the tape off of her and tied her up loosely with a belt and an extension cord. As they were searching, he heard Ben, who was downstairs, holler out, “He in here. I got him.”

King and defendant went downstairs, and King asked the victim, Javier, where the “dope” was. Although Javier said he did not know at first, he eventually told King that the drugs were at Harvard Street. King and Ben, who had guns, put Javier in the Expedition. Defendant then got into the other truck and followed the Expedition to the house on Harvard Street. Another Hispanic guy was in the driveway of the house on Harvard Street, so they left. King said, “Let’s go. We going take care of this business.”

In defendant’s statement, he claimed that he followed them to New Orleans East, exited on Downman Road, and went back to his relative’s house on Francis Drive. However, King and Ben kept going on to New Orleans East. About thirty minutes later, King and Ben came to the house on Francis Drive without Javier and without the Expedition. King gave defendant $2,000.00 and told defendant, “We handled that,” which defendant interpreted to mean that they got rid of Javier by killing him. Defendant said that he and King discussed beforehand that they were going to go inside the apartment and get the money and the drugs, and that they would wait for Javier to come home. Defendant stated that they did not discuss killing Javier beforehand. In his statement, defendant also admitted that they took a 9 mm gun and money from Javier’s house.

DAt trial, defendant presented a different version of events. According to defendant, on November 2, 2007, he and King went to Mr. Sanchez’s apartment to buy four kilos of cocaine for $84,000.00. After Mr. Sanchez opened the door, they weighed the cocaine and then gave it to Ms. Abreu to start cooking it to increase its volume. At some point, Mr. Sanchez left the apartment to get some “runners,” individuals who would pick up cars with secret compartments to transport the drugs. When Ms. Abreu finished cooking the cocaine, they weighed it again and discovered that it was half a kilo short.

Defendant, King, and Rene Izaguirre, who defendant claimed was also there, started searching the apartment for the drugs. Ms. Abreu was uncooperative in finding the missing cocaine, and they eventually restrained her by taping her to the bedposts with duct tape. Ms. Abreu complained about the tape on her wrists, so defendant cut the tape off and tied her with a belt and a telephone cord. In the meantime, King and Izaguirre worked out a deal. Izaguirre subsequently released Ms. Abreu and told her to give defendant and King $9,000.00 back. Ms. Abreu went upstairs, retrieved the money, and gave it to King. As defendant and King were preparing to leave, Mr. Sanchez returned with two runners. Ms. Abreu ran downstairs crying and speaking in Spanish. While Ms. Abreu, Mr. Sanchez, and Mr. Izaguirre were speaking in Spanish, defendant and King left the apartment in King’s Monte Carlo. King drove defendant to his car, and defendant headed back to his home in Baton Rouge. When he found out he was wanted by the police, defendant went to Houston to “regroup.”

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. Specifically, defendant |3contends that the State failed to prove beyond a reasonable doubt that he murdered Mr. Sanchez, noting that no witness or evidence linked him to that murder. Defendant asserts that after the drug deal, he drove home to Baton Rouge and was unaware of any plan or intent to kill Mr. Sanchez.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, 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 have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury 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.” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

In the present case, defendant challenges his second degree murder conviction. Second degree murder is the killing of a human being: 1) when the offender has a specific intent to kill or to |ininflict great bodily harm; or 2) when the offender is engaged in the perpetration or attempted perpetration of second degree kidnapping (or other enumerated felonies) even though he has no intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1. Although the jury was charged with both theories, defendant was indicted under the second theory, LSA-R.S. 14:30.1A(2). In the indictment, the Jefferson Parish Grand Jury alleged that defendant and his two co-defendants killed the victim while they were engaged in the perpetration of the second degree kidnapping of the victim.

Under LSA-R.S. 14:24, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. State v. Pierre, 93-893 (La.2/3/94), 631 So.2d 427, 428; State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-371 (La.5/4/07), 956 So.2d 600.

Mere presence at the scene of a crime does not make one a principal to the crime. However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1225; State v. Page, 08-531 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 449, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299.

In the instant case, the State presented evidence at trial to show that defendant was guilty of second degree murder, in that he was at least a principal to the second degree kidnapping of the victim, and the victim was killed during the commission of that offense. Ms. Abreu testified that defendant, King, and another perpetrator pointed guns at her and forced their way into the apartment she shared with Mr. Sanchez. The perpetrators proceeded to search the apartment for two | n kilos of cocaine and money. Although they did not find the cocaine, they took money, jewelry, cell phones, and a pistol. During the search, one of the men tied Ms. Abreu to a bedpost in an upstairs bedroom with duct tape, which defendant subsequently removed and then re-tied her loosely with a belt and a cord.

While tied up, Ms. Abreu heard Mr. Sanchez’s car alarm, after which she heard him enter the apartment. She then heard something fall onto the floor and shortly thereafter, she got up and saw Mr. Sanchez and the other men leave the apartment. When Ms. Abren looked out the window, she saw Mr. Sanchez in the back seat of his Ford Expedition with one man on each side of him and someone in the driver’s seat. A few hours later, Mr. Sanchez’s body was found on the side of the road in New Orleans East. The coroner determined he had been fatally shot once in the abdomen. A few days later, the victim’s SUV was found backed into the driveway of a vacant duplex in New Orleans East, one block from defendant’s relative’s house. The interior of the SUV was burned and there was damage to the ignition area. Ms. Abreu positively identified defendant in a photographic lineup as one of the perpetrators, and defendant’s fingerprints were found on a liquor bottle inside the apartment.

Defendant admitted in his statement that he, Ben, and King entered Mr. Sanchez and Ms. Abreu’s apartment, that King and Ben were armed with guns, and that they took money and a pistol. He also admitted in his statement that they then forced Mr. Sanchez into his vehicle and drove him to New Orleans East, and that King later told defendant in so many words that he had killed Mr. Sanchez. However, at trial, defendant claimed that his statement was fabricated and the detectives told him what to say. Defendant also claimed at trial that he and the other perpetrators did not force their way inside the apartment, that Mr. Sanchez allowed them inside to conduct a drug deal, that they were not armed with 112weapons, that defendant and King left Mr. Sanchez’s apartment while Mr. Sanchez was still there, that he did not kill Mr. Sanchez, and that he was not in New Orleans East when Mr. Sanchez was murdered.

After hearing the testimony and considering the evidence, the jury obviously found the State’s witnesses to be more credible than defendant. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75 (La.App. 5 Cir. 5/31/05), 904 So.2d 816, 828, writ denied, 05-2591 (La.5/26/06), 930 So.2d 20.

Based on the foregoing, we find that a rational trier of fact could have found that the evidence, although largely circumstantial, was sufficient under the Jackson standard to support defendant’s second degree murder conviction. From the evidence, a rational trier of fact could have reasonably found that defendant, King and another perpetrator entered Mr. Sanchez and Ms. Abreu’s apartment, that they were armed with guns, that they took money, jewelry, pistols, and cell phones, and that they then kidnapped Mr. Sanchez and took him to New Orleans East, where one of the three men shot and killed him and dumped his body on the side of the road. A rational trier of fact could have reasonably assumed that the victim was murdered by the persons who kidnapped him. State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So.2d 908, 926, unit denied, 00-3293 (La.10/12/01), 799 So.2d 496, cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002). | ^Accordingly, we find no merit to defendant’s arguments relating to the sufficiency of the evidence.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant contends that the trial judge erred by limiting his right to present a defense. Specifically, he contends that the trial judge erred by prohibiting defense counsel from questioning Detective Renaudin regarding a bloody fingerprint that was found bn the passenger side of the vehicle of Rene Izaguirre, a known drug dealer, an associate of the victim, and the person Ms. Abreu went to look for immediately after the robbery. Defendant further contends that the trial judge erred by excluding evidence of the police investigation into Mr. Izaguirre regarding the charges in the instant case.

At trial, Ms. Abreu testified on direct and cross-examination that after the robbery, she drove to Mr. Izaguirre’s house on Harvard Street because Mr. Izaguirre was one of Mr. Sanchez’s best friends, and she thought he might know where Mr. Sanchez was. On cross-examination, Detective Renaudin testified that the DEA told him Mr. Sanchez was a person of interest, as well as the Harvard address, in a narcotics investigation. He further testified that the DEA had obtained a search warrant for the Harvard Street address where certain items were found, including drug paraphernalia, ammunition, and $73,000.00.

Defense counsel elicited from Detective Renaudin on cross-examination that Mr. Izaguirre and another individual, John Lusena, had alibis that checked out. Detective Renaudin explained that Mr. Iza-guirre and Mr. Lusena were also excluded as suspects because they did not fit the descriptions of the perpetrators given by Ms. Abreu and their fingerprints were not found in the apartment, unlike King and defendant, whose fingerprints were found in the apartment. Additionally, the detective asserted that the Jefferson Parish Sheriffs Office ran |14the names of Mr. Izaguirre and Mr. Lusena through the computer and learned that they did not have a violent criminal history, as opposed to the suspects that had already been identified, King and defendant.

During the cross-examination of Detective Renaudin, defense counsel asked the detective whether he recalled that his report went into some detail regarding the search of the Harvard Street address by members of the State Police. The State objected that it was irrelevant to the issues the jury had to decide, and that the Jefferson Parish Sheriffs Office did not seize anything from that residence and did not participate in that search. Defense counsel replied that he had a right to explore this area because the section of the report in question was more than one or two pages, it was significant, it was part of the investigation, and it was part of his client’s defense as it was their contention that Mr. Izaguirre was involved in this murder. The trial judge ruled that it was irrelevant to the instant case.

Later on during cross-examination, defense counsel asked Detective Renaudin whether he had included in his report information about a bloody fingerprint on the exterior portion of the front passenger door of Mr. Izaguirre’s vehicle. Detective Renaudin responded that he had, after which the State objected. The trial judge then sustained the objection and ordered defense counsel to move on to something else, stating that the detective had already said it was not his investigation, but the investigation of the State Police, that led to the discovery of that information. Defense counsel noted his objection for the record.

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Decay, 07-966 (La.App. 5 Cir. 6/19/08), 989 So.2d 182, 144, writ denied, 08-1634 (La.4/13/09), 5 So.3d 161. However, the right to present a defense does not require the trial court to permit the introduction of |1sevidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Marsalis, 04-827 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, 1088. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401.

Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801 C. Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation. LSA-C.E. art. 802. Nonetheless, the Louisiana Supreme Court has recognized that normally inadmissible hearsay may be admitted into evidence if it is reliable, trustworthy, and relevant, if its exclusion would interfere with the defendant’s constitutional right to present a defense. State v. Marsalis, 902 So.2d at 1088.

However, the Supreme Court has noted that this “fairness exception” to the hearsay rale was an unusual exception and should be sparingly applied. State v. Trahan, 576 So.2d 1, 11 (La.1990). A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 580, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, — U.S.-, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012).

In the instant case, we find no abuse of discretion in the trial court’s evi-dentiary rulings. The statement regarding the bloody fingerprint was inadmissible hearsay as it was sought to prove the truth of the matter asserted. Further, the circumstances herein do not warrant the use of the unusual exception to the hearsay rule. Neither Detective Renaudin nor other members of the |1⅜Jefferson Parish Sheriffs Office discovered the bloody fingerprint on the exterior of Mr. Izaguirre’s vehicle. That discovery was made by the Louisiana State Police. As such, the detective did not have direct knowledge of the circumstances surrounding that discovery.

Moreover, the trial court’s ruling excluding the evidence regarding the fingerprint and the police investigation of Mr. Izaguirre did not interfere with defendant’s constitutional right to present a defense. Although the opening and closing statements were not transcribed, it is apparent from defendant’s testimony and defense counsel’s cross-examination of Detective Renaudin that the theory of the defense was that Mr. Izaguirre may have been responsible for the victim’s murder. The record shows that, despite the particular ruling at issue, defendant had ample opportunity to present his defense. Defense counsel extensively cross-examined Detective Renaudin regarding the possibility that Mr. Izaguirre was involved in the murder. However, the detective explained that Mr. Izaguirre had an alibi for the night of the murder, did not match the description of the suspects given by Ms. Abreu, and did not have a violent criminal record, whereas King and defendant matched the description of the suspects, were positively identified by Ms. Abreu, and their fingerprints were found in the apartment.

Accordingly, we find that the trial court did not abuse its discretion in excluding the evidence relating to the bloody fingerprint or the police investigation of Mr. Izaguirre. Moreover, we find that the trial court’s rulings, in no way, hampered defendant’s right to present a defense.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first pro se assigned error, defendant seeks review of the trial court’s denial of his motion to suppress statement. He contends that his statement was not 117freely and voluntarily given but rather was the result of physical and psychological abuse by the police.

Sergeant Troy Bradberry and Detective Regina Williams testified at the suppression hearing regarding defendant’s statement. Sergeant Bradberry, a twenty-two year veteran of the Jefferson Parish Sheriffs Office, testified that on December 5, 2007, he travelled with Detective Renaudin to Texas to take custody of defendant and to bring him back to Jefferson Parish. As soon as they got into the police vehicle and prior to any conversation with defendant, Sergeant Bradberry read defendant his rights by using a card. According to Sergeant Bradberry, defendant indicated that he understood his rights and defendant did not inform him that he wanted to talk to a lawyer. During the ride back, the officers talked to defendant about the case and told him the evidence they had against him. Sergeant Bradberry acknowledged that they asked defendant questions and that defendant spoke to them most of the way home, with some breaks. According to Sergeant Bradberry, the officers did not use force, coercion, or intimidation, nor did they make any promises to him in order to get him to waive his rights and speak to them.

Sergeant Bradberry explained that during the ride, they stopped for gas, fed defendant, and allowed defendant to use the bathroom, and that defendant slept off- and-on during the ride. Once they arrived at the detective bureau, defendant requested to see the statements made against him by co-defendant King. They allowed defendant to read King’s statements, after which defendant said he wished to give a taped statement.

Sergeant Bradberry went over a written rights form with defendant at that point. Defendant signed his initials acknowledging each individual right. Defendant also signed the paragraph waiving his rights. Sergeant Bradberry [ )Stestified that nobody used any force, coercion, or intimidation, or made any promises in order to get defendant to waive his rights. Moreover, defendant did not say that he wanted to talk to a lawyer at any time, nor did he ask to terminate the interview. After executing the rights form, Sergeant Bradberry took a statement from defendant.

Detective Williams, an eight-year veteran of the New Orleans Police Department, testified at the suppression hearing that she was the lead detective on the homicide case of Mr. Sanchez and further that she had the opportunity to meet with defendant at the Jefferson Parish Detective Bureau. Detective Williams was aware that defendant had been Mirandized by Jefferson Parish personnel, and that he had waived his rights, so she did not do so at that time.

Afterward, Detective Williams talked to defendant, and defendant made inculpato-ry statements to her. Neither she nor anyone else used any force, coercion, or intimidation, or made any promises in order to obtain defendant’s statement. Detective Williams testified that defendant never asked for a lawyer. She asserted that she completed a separate waiver of rights form, which defendant signed the second time she spoke to him.

After hearing the testimony, the trial judge denied defendant’s motion to suppress statement without providing reasons. Defendant now challenges this denial on several grounds. He claims that his statement was not freely and voluntarily given because he was subject to physical and psychological abuse. In addition, defendant asserts that he did not waive his rights after he was taken into custody in Texas, and that he, in fact, invoked his right to counsel and gave the officers the name of his attorney. To further support his argument that his statement should have been suppressed, defendant points to various contradictions 11flin the officers’ testimony relating to the details leading up to the taking of his taped statement. For the reasons that follow, we find no merit to defendant’s arguments.

The State has the burden of proving the admissibility of a purported confession or statement by the defendant. LSA-C.Cr.P. art. 703(D). Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove, beyond a reasonable doubt, that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived them, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements, or promises. State v. Loeb, 09-341 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 924-25, writ denied, 10-681 (La.10/15/10), 45 So.3d 1110.

A determination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation. The admissibility of a confession or statement is a determination for the trial judge and the judge’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. State v. Arias-Chavarria, 10-116 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 433, unit denied, 10-2432 (La.2/25/11), 58 So.3d 460.

In the instant case, we find that the State met its burden of proving the admissibility of defendant’s statement. The evidence at the suppression hearing, as previously set forth, reflects that defendant was advised of his rights and waived those rights prior to giving a statement. In particular, Sergeant Bradberry testified that prior to taking defendant’s statement, he went over a written rights form with defendant, who indicated that he understood his rights and wished to waive them.

12nThe evidence adduced at trial likewise reflects that defendant was advised of his rights and knowingly and voluntarily waived those rights prior to giving a taped statement. Both Sergeant Brad-berry and Detective Williams testified at trial in accord with the testimony given at the suppression hearing. In addition, Detective Renaudin testified at trial regarding defendant’s statement. He testified that in the vehicle, on the way back from Texas, he advised defendant of his rights from a Jefferson Parish rights of arrestee form. He also explained the case to defendant and asked defendant if he wanted to make a statement at that time, but defendant only made general statements “about what was going on.” Detective Renaudin explained that defendant did not sign a waiver of rights form in the vehicle, but defendant said he understood his rights. Additionally, Detective Renaudin asserted that although defendant never waived his rights in the vehicle, no specific questions were asked of him on the ride back. Once they arrived at the Jefferson Parish Detective Bureau, defendant said he was willing to give them a statement to explain his involvement in the incident. They reviewed a rights of arrestee form with defendant line by line and filled out the information. Defendant initialed and signed the form acknowledging his understanding of his rights and his waiver of those rights.

Given the evidence presented at the suppression hearing and at trial, we find that defendant was properly advised of his constitutional rights and that he understood and waived those rights prior to giving his statement.

Defendant also argues on appeal that his statement was involuntary because the officers subjected him to physical and psychological abuse. He contends that on the ride home from Texas, Detective Renaudin persisted in making him view 121 paperwork. When defendant resisted, Detective Re-naudin slapped him repeatedly. He further contends that at another point, the officers pulled the vehicle over, and Sergeant Bradberry pulled defendant out of the vehicle and encouraged him to escape. Defendant thought the officers were going to kill him, so he sat down, and the officers put him back in the vehicle. Once back in the vehicle, Detective Renaudin allegedly slapped him again, called him derogatory names, and told him he was not going to see his sick mother again, and that he was “going down” for murder.

Defendant also asserts that when they arrived back at the bureau in Jefferson Parish, he was handcuffed to the floor of the interview room, and that the officers “kept playing mind games,” that it was freezing in the interview room, that he did not eat, that the officers beat him, and that the ATF “guy” spat on him and used a racial slur.

Despite these allegations by defendant, we find, looking at the totality of the circumstances, that defendant’s statement was voluntary. Sergeant Bradberry and Detective Williams testified that nobody used force, coercion, or intimidation, or made any promises in order to obtain defendant’s statement. They also both testified that defendant never asked to talk to a lawyer. Sergeant Bradberry explained that during the ride home, they stopped for gas, fed defendant, and allowed defendant to use the bathroom, and that defendant slept off-and-on during the ride. He noted that once defendant saw the statements made against him by King, he wanted to give his own statement explaining his involvement.

Additionally, Detective Renaudin testified that defendant was not forced or promised anything to give his statement, nor was he beaten. Further, Sergeant Bradberry testified in rebuttal for the State at trial that neither he nor Detective Renaudin beat, slapped, or struck defendant on the way back from Texas. He 1^further testified that they did not concoct a script for defendant to read so he could give a taped statement, nor did they call him names.

In the instant case, after considering the testimony at the suppression hearing, the trial judge denied defendant’s motion to suppress statement. Given that a trial court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of a defendant’s confession are afforded great weight and will not be disturbed unless unsupported by the evidence, we find no error in the trial court’s ruling. Based on our review of the evidence presented at the suppression hearing and at trial, we find that the State proved beyond a reasonable doubt that defendant was advised of his Miranda rights, that he voluntarily and intelligently waived them, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements, or promises.

As part of this assigned error, defendant further asserts that he was prejudiced at the suppression hearing because all of the officers involved did not testify, and therefore, the suppression hearing should have been reopened. He also argues that the suppression hearing was conducted before he filed his own motion to suppress, and that new facts and evidence warranted another hearing.

In the present case, all of the officers involved in the taking of defendant’s statement testified either at the suppression hearing or at trial or both. Defense counsel had ample opportunity to cross-examine the officers on any circumstances surrounding the taking of defendant’s statement. Accordingly, we find that another suppression hearing was not necessary, nor was defendant prejudiced by the failure to reopen the suppression hearing.

| y,PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his second pro se assigned error, defendant contends that the trial court erred in failing to produce transcripts of rulings on his pretrial motions and further erred in failing to rule on some of his pretrial motions.

The record indicates that defendant filed numerous pro se motions in the district court. Some were ruled on without a hearing, some were ruled on after a hearing, and others were not ruled upon at all. With regard to his pro se motions that were ruled on without a hearing, there obviously would be no transcripts to produce. With regard to the motions that were ruled on after hearings, we note that defendant was provided with those transcripts and was allowed to supplement the appellate record with any missing transcripts and minute entries. In particular, on February 14, 2012, this Court granted defendant’s motion to supplement and ordered that the appellate record “be supplemented within thirty days with the transcripts and minute entries for all pre-trial motions and proceedings incorporated from the companion case 2008-0002, and that briefing dates be suspended and reset when the record is properly supplemented.” On March 5, 2012, the record was supplemented. Again, on August 28, 2012, this Court, pursuant to defendant’s motion, ordered that the appellate record “be supplemented within thirty (30) days with the transcripts and minute entries for all pretrial motions and proceedings, including those incorporated from the companion case 2008-0002, specifically held or ruled upon on November 14, 2011.” On September 18, 2012, the appellate record was supplemented.

In defendant’s pro se argument, he specifically references this Court’s writ disposition of November 10, 2011. State v. Gross, 11-K-1015 (La.App. 5 Cir. 11/10/11). In response to defendant’s complaint that various motions had not been ruled on, this Court granted defendant’s writ application as follows:

124Relator claims, in this writ application, that the trial court has failed to rule on various pretrial motions, including his “Motion to Suppress Statement” filed on August 17, 2011, “Defendant’s Supplement and Exhibits to Adopted Motion to Quash Indictment” filed on August 11, 2011, “Motion for the Defendant [sic] Submission of Questions” filed on June 28, 2011, “Memorandum in Support of Defendant’s Motion to Dismiss” filed on June 15, 2011, “Motion to Suppress Identification” filed on March 14, 2011, and “Motion for Bill of Particulars” filed on March 2, 2011.
It appears that the motions in question have not yet been ruled upon and that trial is set for November 14, 2011. Accordingly, the writ application is granted and the trial court is hereby ordered to rule on relator’s motions at or before the beginning of trial, it if [sic] has not already done so.

In his appellate brief, defendant suggests that these motions have not been ruled upon, and if they were ruled upon, he has not been provided with transcripts from the hearings on these motions. From our review of the record, it does not appear that there were rulings on any motions by the trial judge subsequent to this Court’s November 10, 2011 disposition and prior to the start of trial. In fact, on November 15, 2011, the first day of trial, defense counsel stated on the record that he assumed that all motions had been disposed of. The trial judge replied that he thought they had. This Court’s November 10, 2011 disposition was not discussed, and the trial thereafter commenced.

A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon. State v. Alexander, 97-1199 (La.App. 5 Cir. 9/29/98), 720 So.2d 82, 86, writ denied, 98-3109 (La.4/9/99), 740 So.2d 628. In the instant case, defendant proceeded to trial without raising the issue that some of his pretrial motions were neither heard nor ruled upon. Therefore, we find that any outstanding motions, including the ones referenced above, that were not ruled upon prior to trial were waived.

|2fiWe further note that defendant was represented by counsel. A trial court is not required to entertain pro se motions when a defendant is represented by counsel and entertaining the motions -will lead to confusion at trial. State v. Holmes, 06-2988 (La. 12/2/08), 5 So.3d 42, 94, cert. denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009); State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 379.

Accordingly, we find no merit to the arguments raised by defendant in this pro se assignment of error.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review of the record reveals that the trial court failed to advise defendant of the time period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. While the commitment reflects that defendant was given a proper advisal of the time period, the transcript indicates that the trial court did not advise him of the time limitation. In accordance with the procedure routinely employed by this Court, we advise defendant, by this opinion, that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272.

| ^OUTSTANDING WRIT APPLICATION AND MOTIONS

We now turn our attention to the writ application that was consolidated with the instant appeal and to the motions that were filed by defendant in this Court and referred to the merits of the appeal.

Writ Application Number I2-KH-826

On October 25, 2012, defendant filed a “Motion for Suspension and Supplement,” which this Court treated as a writ application and consolidated with the instant appeal. In his motion, defendant requests that his appeal be suspended so he can obtain more records, documents, and transcripts. Further, he contends that the trial judge never had hearings on the pretrial motions he and his attorney filed, and that he never waived his right to those hearings. Defendant also asks this Court to order the trial court to furnish transcripts of any rulings on his motions.

As noted in our discussion in pro se assignment of error number two, defendant was provided with the transcripts from any pretrial motion hearings and was allowed to supplement the record with any missing transcripts. Moreover, defendant proceeded to trial without raising the issue that some of his pretrial motions were neither heard nor ruled upon, and therefore, waived any outstanding motions. Therefore, we find no merit to the arguments advanced by defendant in support of suspending his appeal. State v. Gross, 12-KH-747 (La.App. 5 Cir. 10/24/12). Accordingly, we find it unnecessary to suspend defendant’s appeal, and we therefore deny his writ application.

Motion to Exclude

On May 7, 2012, defendant filed a motion to exclude the opening statement of co-defendant King’s counsel. The opening statement at issue was taken from King’s trial that ended in a mistrial. It is contained in the appellate record but was not made part of the State’s evidence at trial. Defendant asserts that the State is Jurying to use this opening statement as a statement against him, and this Court should not consider it in ruling on defendant’s appeal, especially since neither King nor his attorney testified at defendant’s trial.

There is no indication in the appellate record that this opening statement was referred to or introduced as evidence at trial. Therefore, it was not considered as evidence by this Court in ruling on defendant’s appeal. Accordingly, defendant’s motion to exclude is denied.

Motion for Rulings on Motions

On July 5, 2012, defendant filed a motion for rulings on motions filed in this Court. Defendant specifically complains that this Court has failed to rule on his previously filed motion to suspend to supplement and his motion to exclude opening statement of co-defendant King’s counsel. Any outstanding motions filed by defendant in this Court have been ruled upon in this appeal, and accordingly, his motion for rulings on motions is denied as moot.

Motion of Mandamus

On July 20, 2012, defendant filed a “motion of mandamus” requesting that this Court order the trial court to produce the transcript from the motion hearing on November 14, 2011. He further requests that this Court suspend his appeal so that an adequate appellate brief can be filed. This issue has already been resolved in a previous writ application. State v. Gross, 12-KH-747 (La.App. 5 Cir. 10/24/12). On October 24, 2012, this Court issued the following disposition:

By this writ application, relator claims he has not been provided with a copy of a November 14, 2011 motion transcript. He seeks suspension of his pending appeal until the court provides him with a copy of this transcript. On August 23, 2012, this Court ordered that the record on appeal be supplemented with transcripts of all pre-trial motions and proceedings, including any proceeding held on November 14, 2011. The district court submitted the supplemental record on September 18, 2012, which contains a certification from the court reporter that nothing was taken in open court in this matter on [^November 14, 2011 and thus there is no transcript of proceedings from this date. A minute entry further indicates that upon request of the district court, trial was continued to November 15, 2011. As there is no transcript for the date specified by relator, we find no basis for the suspension of the pending appeal. The writ application is therefore denied.

Since there is no transcript from November 14, 2011, to produce, we deny defendant’s “motion of mandamus.”

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences for second degree murder and armed robbery. We deny his writ application that was consolidated with the instant appeal and likewise deny his motions that were filed in this Court and referred to the merits of the appeal.

CONVICTIONS AND SENTENCES AFFIRMED; WRIT APPLICATION AND MOTIONS DENIED

      . The Jefferson Parish Grand Jury also indicted co-defendant Calvin King for those same offenses.

      . Dr. McGarry, a forensic pathologist at the Orleans Parish Coroner’s Office, performed an autopsy on the victim on November 3, 2007. He testified that the cause of death was internal bleeding due to one gunshot wound at close range that went through the front of the abdominal wall.

      . Defendant claimed his previous statement was fabricated, that it was not freely and voluntarily given, and that the police used force and coercion to obtain the statement.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . To determine whether the trial court’s denial of a motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Addison, 05-378 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 890, writ denied, 06-1087 (La. 11/9/06), 941 So.2d 36.

      . The record indicates, however, that the trial court conducted hearings and issued rulings on previously filed motions to suppress statement and identification.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Calvin J. BRYANT.
    No. 12-KA-591.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Matthew R. Clauss, Kellie M. Rish, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ¡¿Defendant, Calvin J. Bryant, appeals his conviction for forcible rape. For the following reasons, we affirm his conviction.

Defendant was charged in a bill of information on February 15, 2011 with forcible rape in violation of La. R.S. 14:42.1. He pled not guilty and proceeded to trial on November 14, 2011. After a three-day trial, a unanimous 12-person jury found defendant guilty as charged. Thereafter, the trial court sentenced defendant to 20 years at hard labor with the first two years to be served without the benefit of parole, probation or suspension of sentence.

The State subsequently filed a multiple offender bill of information alleging defendant to be a fourth felony offender based on three predicate convictions: possession with intent to distribute marijuana, carnal knowledge of a juvenile, and aggravated battery. Defendant denied the allegations and a multiple offender hearing was held. At the conclusion of the hearing, the trial court found defendant | sto be a “triple lifer.” Accordingly, it vacated defendant’s original 20-year sentence and imposed an enhanced sentence of life imprisonment without benefit of parole, probation or suspension of sentence pursuant to La. R.S. 15:529.1.

FACTS

At approximately 6:45 a.m. on November 1, 2010, the victim, M.P., called 911 from an apartment on Tallowtree Lane in Harvey and reported that she had just been raped. Jefferson Parish Sheriff Deputy Jeffrey Reynolds responded to the dispatched call within minutes. He knocked on the door of the apartment and heard footsteps inside. A male yelled, “who is it,” and Deputy Reynolds responded, “the police.” After approximately one minute, defendant opened the door. From the door, Deputy Reynolds saw a tearful, white female standing at the top of the stairwell looking very scared. Deputy Reynolds handcuffed defendant and took him to the police car. He described defendant’s demeanor as nonchalant.

Deputy Serbrina Howard also responded to the call. By the time she arrived, defendant had already been removed from the apartment. Deputy Howard went inside and spoke to the victim, who was emotionally distraught. M.P. told Deputy Howard that she came home from work to find defendant, her live-in boyfriend, not at home. When he came home later, the two argued. After they argued, M.P. tried to go to sleep, but defendant tried to cuddle with her. M.P. refused his advances at which time defendant forced her legs open and repeatedly penetrated Rher vagina with his penis. He then made her shower. Thereafter, in the bedroom, a struggle ensued. Defendant placed M.P. in a choke-hold and she briefly lost consciousness. When she regained consciousness, defendant was applying lotion to her rectal area. He then anally penetrated M.P. According to Deputy Howard, M.P. was asked to recount the incident several times on several occasions and there were no inconsistencies in any of her accounts.

Both defendant and the victim were photographed at the scene. Defendant had no visible injuries other than an old healing scratch to his neck, which defendant testified was caused by M.P. several days earlier. On the other hand, M.P. had bruises and scratches to her back, shoulder and neck area.

Another officer, Sergeant Pamela Labo-rie, took M.P. to Lakeside Hospital for a rape examination. Sgt. Laborie testified that M.P. recounted the incident during the ride to the hospital. According to Sgt. Laborie, M.P. told her that defendant arrived home late and the two argued. M.P. went to bed at which time defendant tried to cuddle with her. She refused his advances and he became forceful. Defendant tore M.P.’s panties off, forced her legs open and vaginally penetrated her. M.P. told Sgt. Laborie that defendant threatened to knock her unconscious. After defendant ejaculated, he forced M.P. to shower and clean her vaginal area with soap. He then took her back to bed and tried to vaginally penetrate her again. M.P. fought defendant by scratching and biting him, but defendant put M.P. in a chokehold and she lost consciousness. When she regained consciousness, M.P. found herself face down in the mattress with defendant applying lotion to her anal area. Defendant then anally penetrated M.P.

Once at the hospital, Dr. Eduardo Herrera performed a rape examination. He testified that M.P. was quiet and tearful during the exam. She complained of abdominal, back, neck and anal pain. He stated M.P.’s examination was normal, |fibut explained the majority of rape victims have normal findings during a rape exam. Dr. Herrera noted that M.P. had several scratches and bruises, which were only several hours old. He further noted she had a thick, creamy discharge at her anal opening. Dr. Herrera concluded M.P.’s exam and demeanor was consistent with the history of sexual assault that M.P. provided.

Meanwhile, defendant was transported to the detective bureau where Detective Solomon Burke interviewed him after advising defendant of his rights. During the interview, defendant was relaxed and cooperative. Detective Burke testified that defendant stated he came home late and M.P. was angry. She accused him of cheating on her, which he denied. According to defendant, he and M.P. had a contentious relationship. After the argument died down, the two went upstairs and showered. He explained the two usually had sex after arguing. Defendant stated that after the shower, he initiated anal sex, which he claimed they did all the time. According to Detective Burke, when he told defendant a physical exam would be able to tell if M.P. engaged in anal sex on a regular basis, defendant changed hi's claim of anal sex from “all the time” to “once in a while.” Defendant subsequently gave a taped statement, which was played for the jury. In it, defendant claimed the sex was consensual.

At trial, M.P. testified that she and defendant had been in a romantic relationship for approximately four months and were living together at the time of the incident. She had recently learned she was pregnant with defendant’s child, and both she and defendant were excited.

M.P. stated that on the evening of October 31, 2010, she returned home from work expecting defendant to be there, but he was not. When he came home a little later, M.P. went upstairs to go to sleep. Defendant followed her into bed and tried to cuddle, but M.P. pushed him away and told him to leave her alone. M.P. stated | fithat defendant then jumped on top of her, ripped off her underwear, pried open her legs and put his penis in her vagina. M.P. testified that she tried to kick defendant off, but she could not. She stated that she was crying and screaming for defendant to leave her alone.

Defendant next brought MiP. into the shower and washed her body. When they finished the shower, defendant made M.P. lie next to him and tried to make her rub lotion on his chest. When M.P. refused, defendant became aggravated and the two started fighting. She stated she tried to hit him and poke him in the eyes but she could not get defendant off of her. She finally head-butted defendant at which time he put her in a headlock causing her to lose consciousness. M.P. woke up with her face in a pillow and discovered defendant was rubbing lotion on her butt. M.P. testified that defendant then put his penis in her anus. She told him she did not want to do that, but he threatened to knock her out again. M.P. explained that she was anally raped at the age of 12, so she did not participate in anal sex. When defendant finished, M.P. went to the bathroom, grabbed defendant’s phone out of his pants pocket, and called 911. She did not tell defendant she called the police because she was scared he was going to kill her.

Defendant also testified at trial. He stated that on the evening of October 31, 2010, he had gone to a strip club on Bourbon St. and lost track of time. When he came home, M.P. was angry and accused him of cheating. He testified M.P. followed him around hitting him. He explained he and M.P. had a physically and verbally abusive relationship, with M.P. taking out her anger by hitting him; however, he claimed he never hit M.P. Defendant stated that after the argument calmed down, the two had sex like they always did after an argument. He denied raping M.P. and testified the sex that night was consensual. He explained that he |7and M.P. often engage in rough sex and that he has never made M.P. do anything she did not want to do.

DISCUSSION

Defendant raises two assignments of error on appeal. He first asserts the evidence is insufficient to support his conviction for forcible rape because there was no evidence of force. He contends the evidence shows nothing more than mere horseplay and consensual “rough sex.”

The constitutional standard for testing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

Defendant was convicted of forcible rape in violation of La. R.S. 14:42.1. Rape is defined as “the act of anal ... or vaginal sexual intercourse ... without the person’s lawful consent.” La. R.S. 14:41(A). Emission is not necessary and any sexual penetration, however slight, is sufficient to complete the crime of rape. La. R.S. 14:41(B). The crime of forcible rape occurs when the sexual intercourse is deemed to be without the victim’s lawful consent because it is committed “[w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.” La. R.S. 14:42.1(A)(1). Thus, the elements of forcible rape are: (1) anal or vaginal sexual intercourse regardless of degree of penetration; (2) lack of consent of the victim; (3) a victim who was prevented from resisting by force or threat of physical violence; and (4) a victim who reasonably believed that resistance would not prevent the rape. State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297.

After a thorough review of the record, we are convinced that any rational trier of fact viewing the evidence presented in this case in the light most favorable to the State could find that the evidence proved, beyond a reasonable doubt, all of the elements of forcible rape. In this case, the jury was confronted with conflicting testimony offered by defendant and various witnesses for the State. Defendant testified he and M.P. engaged in consensual “rough” sex. He claimed M.P. called the police because she was mad at him for cheating on her, which he maintained he did not do.

Conversely, M.P. testified she refused defendant’s advances, at which time he ripped off her panties, forced open her legs and inserted his penis into her vagina. She stated she was crying and screaming for defendant to leave her alone and even tried to unsuccessfully kick him off of her. She further stated she later tried to hit him and poke him in the eyes, but still could not get defendant off of her. M.P. explained that when she finally head-butted defendant, he put her in a headlock, which caused her to lose consciousness. When she regained consciousness and found defendant rubbing lotion on her rectal area, M.P. told defendant she did not want to do “that.” According to M.P., defendant then threatened to knock her out again.

In addition to M.P.’s testimony, the jury heard testimony from two different police officers, both who testified that M.P.’s repeated accounts of the incident were consistent. The jury saw photographs of M.P. taken at the scene that showed numerous bruises and scratches on her neck, shoulder and back, which Dr. Herrera testified were only hours old. Additionally, Dr. Herrera testified that M.P. |9complained of abdominal, neck, back and anal pain, which was consistent with the history she gave regarding the events of that morning.

Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gordon, 11-373 (La.App. 5 Cir. 4/24/12), 94 So.3d 29, 34, writ denied, 12-1189 (La.10/8/12), 98 So.3d 851. Accordingly, the reviewing court’s role is not to assess credibility or reweigh evidence. Id.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact is sufficient support for a requisite factual finding. State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66, 79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004). In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Tapps, 02-547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1001, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789.

The jury heard all of the evidence and found the victim to be a credible witness. A review of the record as a whole shows the jury’s determination was reasonable and that a rational trier of fact could have found the evidence sufficient to prove the elements of forcible rape beyond a reasonable doubt. Accordingly, we find no merit to defendant’s argument.

Defendant next argues that the trial court erred in granting the State’s motion in limine, which prevented him from asking M.P. about her claims of two past sexual assaults. He asserts her claims of past sexual abuse were fraudulent and, therefore, were important for impeachment purposes and were not prohibited by | inLa. C.E. art. 412. Defendant claims the trial court’s prohibition violated his constitutional right to confront his accuser.

On the morning of trial, the State filed a motion in limine under La. C.E. art. 412 seeking to prohibit defendant from introducing evidence of M.P.’s past sexual history, including any past allegations of sexual abuse by a person other than defendant. Specifically, the State sought to prohibit defendant from questioning M.P. about two instances: (1) M.P.’s report of sexual abuse to the Jefferson Parish’s Sheriff’s Office in 2003; and (2) M.P.’s disclosure to the State that she believed she was the victim of sexual abuse at a garage party when she was 13 years old. The State argued these incidents were not admissible as exceptions to Article 412, were not admissible as prior false accusations because they were not false, and the incidents were irrelevant. The trial court agreed and granted the motion in limine.

Louisiana Code of Evidence Article 412 prohibits evidence regarding the past sexual behavior of the victim in sexual assault cases, except (1) when there is an issue of whether the accused was the source of semen or injury, and (2) when the past sexual behavior is with the accused and there is an issue of whether the victim consented to the charged sexually assaul-tive behavior. Article 412 does not apply when a defendant attempts to use evidence of a victim’s false allegations of improper sexual behavior to impeach the victim’s credibility. State v. Smith, 98-2045 (La.9/8/99), 743 So.2d 199, 202-03. However, the admissibility of such evidence is still subject to all other standards for admissibility under La. C.E. arts. 403, 404, 607, 608 and 613. Id., at 203.

When a defendant attempts to use evidence of a victim’s false allegations of sexual assault to impeach the victim’s credibility, the question of admissibility is whether reasonable jurors could find, based on the evidence presented by _Jjj defendant, that the victim had made pri- or false accusations, and whether all other requirements of the Code of Evidence have been satisfied. Smith, 743 So.2d at 203. The trial court’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Hernandez, 11-712 (La.App. 5 Cir. 4/10/12), 93 So.3d 615, 628, writ denied, 12-1142 (La.9/28/12), 98 So.3d 834.

We find that the trial court properly-granted the State’s motion in limine and prohibited defendant from questioning the victim about her allegations of sexual abuse against individuals other than defendant. First, La. C.E. art. 412 prohibits evidence of the victim’s past sexual behavior. Second, none of the exceptions to Article 412 apply: specifically, there was no issue as to whether defendant was the source of semen or injury and the evidence of past sexual behavior was with persons other than defendant. Finally, there was no evidence the victim’s prior allegations of improper sexual behavior were false.

At the hearing on the motion in limine, the State introduced the transcribed statements of M.P. and the suspect relating to the 2003 incident into evidence. Based on M.P.’s allegations, the defendant in that incident was arrested for carnal knowledge of a juvenile. In his statement, the defendant, who was 19 years old, admitted to having sex with M.P., who was 14 years old. Defendant offered no evidence to show that any of M.P.’s statements regarding the incident were false.

Defendant also failed to offer any evidence that M.P.’s belief that she may have been sexually abused during the garage party when she was 13 was false. According to the State, M.P. disclosed the garage party incident at some point prior to trial. M.P. indicated that she had been drinking during the party, blacked out, and woke up with hickies and bruises. She did not remember what happened and could not say anything of a sexual nature occurred. The State noted that M.P. did h ¡¡not report the incident, no allegations were made against anyone, and no one was ever charged. The State explained that it nonetheless disclosed the information to defense counsel because it felt it had a duty to do so. Although defendant argued the incident impacted M.P.’s credibility, he never showed, or even attempted to show, her allegations were false. Defendant’s mere assertion that the M.P.’s allegations were false, does not meet the Smith test for admissibility. See State v. Wallace, 788 So.2d at 587-88.

Accordingly, we find no error in the trial court’s granting of the State’s motion in limine to preclude mention of these two prior incidents involving M.P.

ERROR PATENT

In accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), we have reviewed the record for errors patent. Upon review, we find that the trial court failed to advise defendant of the two-year prescriptive period for filing an application for post-conviction relief at either the conclusion of his original sentencing or multiple offender sentencing. Although the multiple offender commitment reflects the advi-sal was given, the transcript, which prevails, is silent. See State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications seeking an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922. See State v. Keller, 09-403 (La.App. 5 Cir. 12/29/09), 30 So.3d 919, 932, writ denied, 10-267 (La.9/17/10), 45 So.3d 1041.

Additionally, we find the trial court failed to inform defendant of the sex offender registration requirements in accordance with La. R.S. 15:540, et seq. | ^Defendant’s forcible rape conviction is defined as a sex offense by La. R.S. 15:541(24)(a). La. R.S. 15:542 outlines the mandatory registration requirements for sex offenders. La. R.S. 15:543(A) requires the trial court to notify a defendant charged with a sex offense in writing of the registration requirements of La. R.S. 15:542. The trial court’s failure to provide this notice is an error patent that requires remand. Therefore, we remand this case to the trial court with instructions to the trial judge to inform defendant of the registration requirements for sex offenders by sending appropriate written notice to defendant, within ten days of this Court’s opinion, and to file written proof in the record that defendant received such notice. See State v. Starr, 08-341 (La.App. 5 Cir. 11/25/08), 2 So.3d 451, 460-61, writ denied, 08-2991 (La.9/18/09), 17 So.3d 384.

We further note the record does not reflect that defendant was advised of his rights prior to the multiple bill hearing as required by La. R.S. 15:529.1(D), which requires the trial court to advise a defendant of the allegations contained in the information, his right to a hearing, and his right to remain silent. State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 582. However, the failure of the trial court to advise a defendant of these rights is harmless when the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant. Id. at 583. Here, defendant denied the allegations of the multiple bill, and the State presented competent evidence at the hearing to establish his multiple offender status. Thus, we find the trial court’s failure to advise defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error and no corrective action is required.

1 uDECREE

For the foregoing reasons, we find no merit in defendant’s claims that the evidence was insufficient to support his forcible rape conviction or that he was prevented from confronting his accuser by the trial court’s granting of the State’s motion in limine. Accordingly, we affirm defendant’s conviction and remand for the trial court to give defendant written notification of the sex offender registration requirements.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . At the multiple bill hearing, the State presented evidence of defendant's underlying forcible rape conviction and his three predicate convictions. In adjudicating defendant a multiple offender, the trial court referenced the multiple offender statute relating to fourth felony offenders. La. R.S. 15:529.1(A)(4)(b). The trial court specifically found that defendant’s aggravated battery conviction was a crime of violence, his carnal knowledge of a juvenile was a sex offense, and his possession with intent to distribute marijuana conviction was a violation of the Uniformed Controlled Dangerous Substance Law punishable for ten years or more. The trial court then found defendant to be a “triple lifer" and sentenced defendant to life imprisonment as required by the habitual offender laws. Any confusion as to whether defendant was found to be a third felony offender or fourth felony offender is of no consequence in this case because the same sentence was mandated under the habitual offender laws. When either the third or fourth felony and two of the prior felonies are felonies defined as a crime of violence, a sex offense when the victim is under the age of 18, or a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, the law requires the defendant to be imprisoned for life without benefits. See La. R.S. 15:529.1(A)(3)(b) and (4)(b).

      . Initials are used under the authority of La. R.S. 46:1844(W)(3), which allows the Court to identify a victim of a sex offense by using his or her initials.

      . While we recognize that defendant ultimately received a life sentence in this case, no distinction has been made between those defendants with life sentences and those who have received less than life sentences for the purposes of the required written notice of La. R.S. 15:543. See State v. Smallwood, 09-86 (La.App. 5 Cir. 7/28/09), 20 So.3d 479, 491, ■writ denied, 09-2020 (La.9/24/10), 45 So.3d 1065.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Bruce C. WALLACE.
    No. 12-KA-594.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Paul D. Connick Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Seth W. Shute, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Powell W. Miller, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

|2Pefendant was charged with two counts of possession of a firearm during the commission of a crime of violence in violation of La. R.S. 14:95(E). Defendant was tried by jury and found, on count one, guilty of the responsive verdict of attempted possession of a firearm during the commission of a crime of violence in violation of La. R.S. 14:27:95(E), and not guilty on count two. Defendant was sentenced to 90 days at hard labor with credit for time served. Defendant now appeals.

The following facts were adduced at trial. At approximately 2:80 p.m., on August 31, 2009, Mr. Robert Goertz, an off-duty Louisiana State Trooper, and his wife, Mrs. Jeanette Goertz, were driving eastbound in the left lane on Jefferson Highway in Harahan, Louisiana. While driving, Mr. Goertz observed in his Rrearview mirror a pickup truck approaching them from the rear at high speed. Anticipating a collision, he told his wife, “Hold on. It looks like we’re getting hit.” But the truck swerved around them to the right, nearly sideswiping the couple, cut back in front of them, and came to a stop at a red light at Folse Street. As Mr. Goertz approached the truck from behind, Mrs. Goertz noted the license plate number before the truck drove through the red light. The light turned green within seconds, so Mr. Goertz continued down Jefferson Highway behind the truck until the truck made an abrupt U-turn. As it passed the Goertzs in the opposite direction, the driver pointed a gun out of his open window in their direction. This prompted Mr. Goertz to tell his wife to get down in the backseat. Mrs. Goertz jumped in the backseat and called 911'. Mr. Goertz then made a U-turn to follow the truck, to keep it in front of him so that he could relay details of its location to the police. The truck continued to make U-turns in an effort to try to get behind him, so Mr. Goertz continued to make U-turns to keep the truck in front of him. Then, after a series of these U-turns, the truck made an “S” maneuver, in which it approached the Goertzs head-on, and threatened to collide with them, before cutting back out of their path.

Moments later, Mr. Goertz noticed a marked Jefferson Parish Sheriffs unit parked on the shoulder of the road and stopped to notify the officer of the incident. The officer instructed him to lodge a complaint at the Harahan Police station. As Mr. Goertz headed towards the police station, the truck reappeared on the highway from a side street and began following the Goertzs. This prompted Mr. Goertz to pull into the Winn-Dixie parking lot at Folse Street and Jefferson Highway. The truck followed them into the parking lot, so Mr. Goertz exited the lot and continued towards the police station. When they arrived at the station, Mr. Goertz |4was informed that he was needed back at the Winn-Dixie. He returned to the Winn-Dixie where he identified the vehicle and the individual driving the vehicle.

Deputy Shane Rivolo of the Jefferson Parish Sheriffs Office assisted in making the traffic stop of the vehicle. Defendant was cooperative and informed the officer that there was a firearm in the vehicle. A Ruger semi-automatic pistol and two loaded magazines were located in the center console of the vehicle.

In defendant’s first assignment of error, he contends that his right against double jeopardy was violated when he was prosecuted for a violation of La. R.S. 14:95(E) based on an underlying felony of aggravated assault in violation of La. R.S. 14:37. Defendant argues that because the state was required to use the same evidence to prove violations of La. R.S. 14:95(E) and La. R.S. 14:37, his right against double jeopardy was violated.

The state responds that relief should be denied on the ground of law of the case since the panel previously denied relief on this issue in a pre-trial supervisory writ application. Alternatively, the state contends that defendant’s argument has no merit.

The record reflects that defendant raised his double jeopardy claim in a pretrial motion to quash, which was denied by the trial court. The panel then denied defendant’s writ application, and the Louisiana Supreme Court denied writs thereafter. State v. Wallace, 11-508 (La.App. 5 Cir. 5/27/11) (unpublished writ disposition), writ denied, 11-1355 (La.9/30/11), 71 So.3d 292.

In denying defendant’s writ application, the panel determined that defendant was not charged with violating La. R.S. 14:37. State v. Wallace, 11-508 (La.App. 5 Cir. 5/27/11) (unpublished writ disposition). Rather, “[t]he bill of information clearly states that [defendant] ‘violated R.S. H:95 E in that he did possess a handgun while in the commission of R.S. 14:37.’ ” (Emphasis as in writ ^disposition). Id. The panel found that LSA-R.S. 14:37 “is only listed in the bill to describe what offense [defendant] committed while possessing or using a handgun. Thus, no double jeopardy violation exists.” Id.

Under the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Pettus, 11-862 (La.App. 5 Cir. 5/22/12), 96 So.3d 1240 (citation omitted). The law of the case doctrine is discretionary. Id. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Id.

In the present case, our review of the record reveals no new evidence was introduced that affects the double jeopardy analysis. Defendant was brought to trial on two counts of violating La. R.S. 14:95(E). He was convicted of the responsive verdict of an attempted violation of La. R.S. 14:95(E), on only one count and found not guilty as to the second count. There is nothing to suggest that the panel’s determination on defendant’s writ application was patently erroneous or produced unjust results. Accordingly, we deny relief on the basis of law of the case.

In his second assignment of error, defendant argues that the trial court erred in denying him the opportunity to present the testimony of a juror regarding improper jury considerations. In support of his motion for post-verdict judgment of acquittal, defendant filed a motion to adduce testimony from a juror, which the trial court heard and denied on May 3, 2012. The defense objected and now appeals this denial.

In response, the state contends that the trial court did not err in denying defendant’s motion to adduce juror testimony because Louisiana’s jury shield law prohibits such testimony and the exceptions to the law are not applicable here.

|f,In defendant’s motion to adduce testimony, he alleged that after his trial, one of the jurors, Ms. Lorraine Broderick, contacted defense counsel to express concerns with the verdict and the jury’s deliberations. Ms. Broderick informed counsel that the jury returned a verdict of attempted illegal possession of a firearm because the jury believed defendant was a convicted felon and wanted to punish him for being a felon in possession of a firearm. Ms. Broderick also filed into the record a sworn affidavit, in which she states that during a break in the trial, one juror informed the other jurors that because defendant had been charged with illegal possession of a firearm, he was a convicted felon. Her affidavit contends that two other jurors also stated that they recognized defendant from The Times-Picayune crime reports. The affidavit also provides that during deliberations, the jurors all agreed that neither Mr. nor Mrs. Goertz were actually concerned with being shot by defendant, and that the jury returned the conviction based on the belief that defendant was a convicted felon.

In denying the motion, the trial court stated:

I have a real problem with bringing jurors in, because I do not want to hear from one juror without hearing from the others, and I have a real problem with bringing jurors in to question them as to what they did in their deliberations. I feel that that goes beyond what we’re asked to do.
I mean, I understand your argument, that this is what your belief is, is that they believed that Mr. Wallace was a convicted felon. The verdict, as I remember it came down, they found him guilty of one count—
And an attempt was a lesser included offense under the charges. I found it to be a valid verdict. It’s not that they reached any conclusions that were beyond that which was presented. I just — I think we’d be violating the jury room.
I invite you to take it up on appeal. If they tell me that we need to have the hearing, I’ll have the hearing. But, you know, at this time, I’m denying your motion, and I’m denying the motion for post-verdict judgment of acquittal.

JjLouisiana’s jury shield provision, codified in La. C.E. art. 606(B), generally precludes inquiry into the course and conduct of a jury’s deliberations. State v. Ingram, 10-2274, p. 5 (La.3/25/11), 57 So.3d 299, 301. This shield is intended to preserve the confidentiality and finality of jury verdicts, and the confidentiality of discussion among jurors. State v. Videau, 04-923, p. 11 (La.App. 5 Cir. 3/1/05), 900 So.2d 855, 863, unit denied, 05-0841 (La. 1/9/06), 918 So.2d 1037. It provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

The prohibition against juror testimony is not absolute, but must yield to a substantial showing that the defendant was deprived of his constitutional rights. Videau, 04-923 at 12, 900 So.2d at 863 (citations omitted).

The intent behind the jury shield provision was explained by the court in State v. Currie, 00-2284 (La.App. 4 Cir. 2/13/02), 812 So.2d 128, 136-7, writ denied, 02-0786 (La.11/15/02), 829 So.2d 421:

Historically, the law was intended to preserve the finality of jury verdicts and the confidentiality of discussions among jurors. State v. Richardson, 91,2339 (La.App. 1 Cir. 5/20/94), 637 So.2d 709; State v. Harris, 597 So.2d 163 (La.App. 2 Cir.1992). As the Supreme Court has further stated: “[N]o juror is competent to impeach the verdict of the jury on which he served. This firmly-established rule prevents jurors from impeaching their verdict by disclosure of jury deliberations or even by testimony of misconduct within the jury room.” State v. Abney, 347 So.2d 498, 502 (La.1977).
| Although not strictly held in criminal cases where, as explained above, there are additional constitutional considerations, in civil cases “affidavits and other testimony by jurors cannot be used as evidence to impeach a jury’s verdict.” Uriegas v. Gainsco, 94-1400 (La.App. 3 Cir. 9/13/95), 663 So.2d 162, 170, citing Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.1989); Theriot v. Theriot, 622 So.2d 257 (La.App. 1 Cir.1993); Coleman v. Brooks, 583 So.2d 133 (La.App. 4 Cir.1991). “One reason for this rule is that if, after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would invite tampering with the jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of oath.” Parker v. Centenary Heritage Manor, 28,401 (La.App. 2 Cir. 6/26/96), 677 So.2d 568, 574.

In this case, it is not alleged that an outside person presented evidence to the jury that was not adduced at trial. Rather defendant contends that comments made by jurors unfairly contributed to the verdict. This is exactly the situation addressed by Currie, where a juror is attempting to impeach a verdict that the jury had rendered. We find no error in the trial court’s decision to deny defendant’s motion to adduce testimony from a juror. This allegation is without merit.

In addition, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following errors.

First, we note that defendant’s sentence is illegally lenient. At the time of the offense, La. R.S. 14:95(E) provided for a fine of “not more than ten thousand dollars and imprison[ment] at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.” In addition, the pertinent portion of the attempt statute, La. R.S. 14:27(D)(3), provided that an offender “shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment | prescribed for the offense so attempted, or both.” Accordingly, defendant was eligible for no more than five years at hard labor and a fíne of no more than five thousand dollars. Defendant was sentenced to 90 days at hard labor, but was not fined.

In cases of indigent defendants, this Court has in the past declined to correct an illegally lenient sentence based on the omission of a mandatory fíne. State v. Horton, 09-250, p. 10 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376. In this case, defendant is represented by the Louisiana Appellate Project. Since defendant is indigent, we decline to correct this omission.

Second, a review of the record reveals that the trial court failed to inform defendant of the prescriptive period for seeking post-conviction relief. Although the commitment indicates that defendant was informed of this period, the transcript indicates otherwise. Since the transcript prevails, this is an error patent. State v. Lynch, 441 So.2d 732, 734 (La.1983).

This Court has in the past corrected this error patent by way of its opinion. See State v. Ramsey, 10-333, p. 10 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42; State v. Davenport, 08-463, p. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, unit denied, 09-0158 (La.10/16/09), 10 So.3d 473. We now advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

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

AFFIRMED

      . Count one charged defendant with the offense against Mr. Robert Goertz. Count two charged defendant with the identical offense against Mrs. Jeanette Goertz, Mr. Goertz’s wife.

      . It is noted that the crime of violence defendant was alleged to have committed was aggravated assault in violation of La. R.S. 14:37.

      . It is well settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520.