author: MARC E. JOHNSON, Judge.

text:
    Milbia REYES, William Reyes and Donovan Cordova v. Alfredo CLASING & U.S. Agencies Casualty Insurance Company.
    No. 13-CA-791.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.

      Ivan A. Orihuela, Attorney at Law, Ken-ner, LA, for PlaintifffAppellant.
    James L. Donovan, Jr., P.M. Donovan, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

| gPlaintiffs/Appellants, Milbia Reyes William Reyes and Donovan Cordova, appeal the trial court’s judgment dismissing their lawsuit regarding an automobile accident against Defendants/Appellees, Alfredo Clasing and USAgencies Casualty Insurance Company, filed in the 24th Judicial District Court, Division “L”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 29, 2010, Sergeant D. Imbornone of the Jefferson Parish Sheriffs Office reported to the scene of a hit-and-run accident in the parking lot of Ideal Supermarket located at 3805 Hessmer Avenue in Metairie, Louisiana. Ms. Reyes stated that as the Kia Sephia she occupied drove into the parking lot, a white truck backed into her vehicle and then fled from the scene. Sgt. Imbornone did not observe any paint transferred to Ms. Reyes’ vehicle. Ms. Reyes provided Sgt. Imbornone with the license plate number of the white truck that matched the | c.vehicle registered to Mr. Clasing. Sgt. Imbornone found the driver of the white truck in violation of La. R.S.14:100, hit- and-run driving.

On January 28, 2011, Plaintiffs filed a Petition for Damages against Mr. Clasing and his automobile insurance carrier, US-Agencies Casualty Insurance Company, for damages resulting from the accident. Defendants denied all of the petition’s allegations in their Answer filed on March 4, 2011.

A trial on the merits was held on October 16, 2012. After the presentation of the evidence and a brief recess, the trial judge ruled from the bench in favor of Defendants. The trial judge stated that he had serious questions concerning the credibility of Ms. Reyes due to inconsistencies in her testimony and the exhibits presented. In a judgment rendered on December 4, 2012, the trial court found that Plaintiffs failed to carry their burden of proof and rendered judgment in favor of Defendants. Plaintiffs’ lawsuit was dismissed with prejudice, and Plaintiffs were assessed the costs of the proceedings. The instant appeal followed that judgment.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs allege the trial court erred when it found that: 1) they failed to carry their burden of proof, even though they proved a 'prima facie ease by a preponderance of the evidence, and 2) it permitted inadmissible hearsay into evidence.

LAW AND ANALYSIS

Burden of Proof

Plaintiffs allege the trial court erred in finding that they failed to carry their burden of proof at trial. Plaintiffs argue the record for this matter shows they presented sufficient evidence to meet their burden of proof. They aver that the police report for the accident establishes the fact that Mr. Clasing backed out of a parking space and struck the vehicle they occupied, and their medical records | ¿support the assertion they were involved in an accident. Additionally, Plaintiffs aver the testimony of Ms. Sheryl Tardo, a casualty adjuster for USAgencies, confirmed Mr. Clasing was actually in an accident with Mr. Pat-zan’s vehicle. Plaintiffs further aver that Defendants failed to submit direct evidence to refute the version of events recounted by Plaintiffs.

Defendants contend the trial court was correct in its determination that Plaintiffs failed to meet their burden of proof by a preponderance of the evidence that they were actually in Mr. Patzan’s vehicle at the time of the accident. Defendants stress that Ms. Reyes’ live and deposition testimonies regarding the occurrence of the accident were inconsistent in many respects. Because of the inconsistencies, Defendants argue that the trial court properly ruled in their favor after determining that Ms. Reyes was not credible.

The appropriate standard for appellate review of factual determinations is the manifest error standard, which precludes the setting aside of a trial court’s factual findings, unless they are clearly wrong. Lambert v. Ray Brandt Dodge, Inc., 09-739 (La.App. 5 Cir. 1/26/10); 31 So.3d 1108, 1111, writ denied, 10-430 (La.4/30/10); 34 So.2d 293, citing Lee v. Smith, 08-455 (La.App. 5 Cir. 12/16/08); 4 So.3d 100. In order to reverse a fact-finder’s determination on the basis of manifest error, a two-part test must be satisfied: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must also determine that the record establishes that the finding is clearly wrong. Id. at 1112, citing Morris v. Zurich American Ins. Co., 05-109 (La.App. 5 Cir. 5/31/05); 905 So.2d 1139.

The appellate court may not merely decide if it would have found the facts of the case differently and substitute its opinion for the conclusions made by the trial court, which is in a unique position to see and hear the witnesses as they ^testify. Evans v. State Farm Mut. Auto. Ins. Co., 03-1003 (La.App. 5 Cir. 12/30/03); 865 So.2d 195. “Where there is conflict in the testimony, reasonable determinations of credibility and reasonable inferences of fact should not be disturbed on appeal.” Id., citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Id.

In this matter, the trial court found that Plaintiffs failed to carry their burden of proof. According to the transcript, the trial court made this determination based upon credibility concerns regarding Ms. Reyes’ testimony. After reviewing Ms. Reyes’ live and deposition testimonies, we note there are a few inconsistencies in Ms. Reyes’ recount of the accident. Thus, we cannot say the trial court was clearly wrong in its credibility determination. Because of the trial court’s concern with Ms. Reyes’ credibility, it would have been reasonable for the trial court to give little to no weight to the police report filed by Ms. Reyes. Based upon the evidence presented at trial, we cannot find the trial court was manifestly erroneous or clearly wrong in determining that Plaintiffs failed to meet their burden of proof.

Inadmissible Hearsay

Plaintiffs allege the trial court permitted the introduction of inadmissible hearsay at trial through the testimony of Ms. Tardo. Plaintiffs also allege the trial court improperly admitted a denial letter into evidence that contained hearsay. Plaintiffs contend the evidence did not meet any of the hearsay exceptions, and the trial court relied upon said evidence to determine that they did not meet their burden of proof. As a result, Plaintiffs argue the trial court’s judgment was affected by the improperly admitted evidence, which was prejudicial and denied |flthem an opportunity to cross-examine or contest the statements.

Defendants maintain that the testimony and letter were properly admitted into evidence because that evidence simply explained to the court why the insurance claim filed by Plaintiffs had been denied by USAgencies. In addition, Defendants maintain that Plaintiffs failed to preserve their right to raise the admission of the letter in this appeal because they only objected after Ms. Tardo’s testimony had been entered into evidence.

At trial, Ms. Tardo testified that a letter sent by Vickie Gibson denied Plaintiffs’ claim due to insufficient proof that they were in the vehicle at the time of the accident. Plaintiffs’ counsel did not object to that particular part of Ms. Tardo’s testimony. Ms. Tardo also confirmed the police report, as well as statements provided by Ms. Reyes and Mr. Patzan, established that Plaintiffs were occupants in the vehicle; however, she also testified that Mr. Clasing stated Plaintiffs were not in the car. Plaintiffs’ counsel objected to the statement; however, the trial' court allowed the statement as Ms. Tardo’s explanation for the denial of the claim. At the conclusion of the cross-examination of Ms. Tardo, defense counsel introduced Ms. Gibson’s letter into evidence.

“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. La. C.E. art. 801. Hearsay is not admissible except as otherwise provided by the Code or other legislation. La. C.E. art. 802. According to La. C.E. art. 103, an error may not be predicated on a ruling which admits evidence unless a contemporaneous objection has been made to its admission. Cargo Carriers Div. of Cargill Marine & Terminal, Inc. v. Industrial Maintenance Products Co., Inc., 03-109 (La.App. 5 Cir. 5/28/03); 848 So.2d 126, 128.

In this matter, Ms. Tardo testified as to a statement that was made by Mr. IvClasing. That statement was hearsay and was improperly allowed into evidence. However, we consider the admission of the statement into evidence to be harmless error because there was other evidence properly admitted to support Defendants’ position. Furthermore, we find that USA-gencies’ denial letter was properly admitted into evidence as a hearsay exception pursuant to La. C.E. art. 803(6). The denial letter was a record of USAgencies’ regularly conducted business activity. Additionally, even if the letter was not a business record, Plaintiffs’ attorney failed to object to testimony of Ms. Tardo as to the information contained in the letter. The contents of the letter were already admitted into evidence by the time Plaintiffs’ counsel objected to the introduction of the letter.

After reviewing the record with the exclusion of Ms. Tardo’s hearsay statement, we still cannot find the trial court was manifestly erroneous in determining that Plaintiffs failed to meet their burden of proof.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment. Each party is to bear their own costs for this appeal.

AFFIRMED.

      . She is also known as Milbia Polanco.

      . Sgt. Imbornone’s first name could not be ascertained from the record.

      . The police report lists Ms. Reyes as the driver of the car. Ms. Reyes testified that Albert Patzan was the driver of the car at the time of the accident.

      . The Kia Sephia was also occupied by Ms. Reyes’ children William Reyes and Donovan Cordova. The police report lists Donovan as "Donovan Reyes.”

      . The letter contained an accusation by a former adjuster of USAgencies, Vickie Gibson, that Ms. Reyes falsified a police report.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John Michael MARLBROUGH.
    No. 13-KA-688.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Andrea F. Long, Jody Fortunato, Jennifer Z. Rosenbach, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

12Defendant, John Michael Marlbrough, has appealed his conviction of driving while intoxicated (DWI), third offense, in violation of La. R.S. 14:98(A)(D). For the reasons that follow, we affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Louisiana State Trooper Travis Canci-enne testified at trial that on July 20, 2012, at approximately 11:00 p.m., he was operating radar on Lapalco Boulevard in Jefferson Parish when he observed defendant’s vehicle traveling westbound on La-palco at “what appeared to be a very high rate of speed.” He activated his radar, which confirmed that defendant was going 63 miles per hour in a 40 miles per hour speed zone. Trooper Cancienne pulled defendant over and asked him for his driver’s license and his vehicle insurance and registration papers. Defendant did not have a driver’s license with him, as it was suspended; he did, however, have a Louisiana identification card in his possession.

| -jUpon speaking to defendant, Trooper Cancienne smelled “a strong odor of an alcoholic beverage on his breath.” Further, defendant “had slurred speech” and “was swaying on his feet as he was talking” to the officer, leading the officer to believe that defendant might be impaired. Based on these observations, Trooper Can-cienne asked defendant to perform a standardized field sobriety test, which he explained was a test to see how defendant would do with his coordination. Defendant agreed. Trooper Cancienne then administered the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test to defendant. Trooper Canci-enne testified that defendant did not perform well on any of these tests.

Based on his observations of defendant, Trooper Cancienne arrested defendant for DWI, handcuffed him, placed him in the rear of his police unit, and advised him of his Miranda rights. Defendant was then transported to the Jefferson Parish lockup (the jail) and was subsequently booked with DWI, speeding, driving under a suspended driver’s license, and having an open alcoholic beverage container in his vehicle. At the jail, Trooper Cancienne again advised defendant of his Miranda rights, as well as his rights relating to a chemical test for intoxication. Defendant agreed to submit to an Intoxilyzer test. During the standard interview prior to administration of the test, defendant admitted that he had had three to four drinks at a bar that evening, starting at about 9:00 p.m. and ending at about 10:00 p.m. Defendant subsequently blew into the Intoxilyzer. The results of this breath test showed that defendant had a blood alcohol level of .201 grams per cent as of that time (12:22 a.m.).

Sergeant Joel O’Lear of the Jefferson Parish Sheriffs Office (the “JPSO”), who works in the JPSO Crime Lab, was accepted by the court as an expert in the 14field of latent fingerprint examination and identification, and testified that he took defendant’s fingerprints on the day of trial (identified as State’s Exhibit 8) and compared them to fingerprints found in a certified conviction packet from a DUI (driving under the influence) arrest on November 7, 2010 in Santa Rosa County, Florida (State’s Exhibit 9). He concluded that both sets of prints came “from one individual, and that’s Mr. Marlbrough.”

Sergeant O’Lear also reviewed a certified conviction packet from Case No. S1118500 of Second Parish Court for the Parish of Jefferson for first offense DWI (State’s Exhibit 11); however, the fingerprints in that packet could not be used due to them being of insufficient quality. Therefore, Sergeant O’Lear’s JPSO colleague, Nicky Passalaqua, printed and certified a ten-print card (State’s Exhibit 12) taken by the JPSO when defendant was arrested on March 21, 2009 for the same offense as was applicable to State’s Exhibit 11. Sergeant O’Lear then compared the fingerprints contained in State’s Exhibit 8 to those in State’s Exhibit 12 and found that “they were produced by one and the same individual, and that was Mr. Marlbrough.”

At the conclusion of the trial, the six-person jury found defendant guilty as charged. On May 31, 2013, after a hearing, the trial judge denied defendant’s motions for post-verdict judgment of acquittal and for a new trial. After defendant waived sentencing delays, the trial judge sentenced defendant to one year in the Department of Corrections without the benefit of parole, probation, or suspension of sentence, and to pay a $2,000.00 fine. Also on May 31, 2013, defendant filed a timely motion for an appeal which was granted. This appeal followed.

| ¡ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

The State failed to present sufficient evidence to uphold defendant’s conviction. (Assignment Number One)

The trial court erred in admitting pri- or conviction in Jefferson Parish case number S1118500. (Assignment Number Three)

In these related assignments of error, defendant argues that the evidence was insufficient to support his third offense DWI conviction because the State failed to sufficiently prove one of the prior DWI convictions. Specifically, he contends that the State failed to present sufficient proof that he knowingly, freely, and intelligently waived his constitutional rights in case number S1118500 in Second Parish Court for the Parish of Jefferson on August 9, 2011. Defendant asserts that he did not sign the “Certificate” at the end of the guilty plea form in that case that certifies that his rights had been read and explained to him and that he had no further questions. He thus asserts that the trial judge erred by admitting into evidence the prior conviction in case number S1118500 from Second Parish Court.

The record reflects that on May 28, 2013, defendant filed a motion in limine to prohibit the State from introducing evidence of his 2011 guilty plea in case number S1118500 from Second Parish Court. In that motion, defendant contended that he did not sign the “Certificate” at the end of the form indicating that his rights had been read and explained to him and that he had no further questions. Therefore, in his motion, defendant argued that his plea was not knowingly and intelligently waived.

On May 28, 2013, the trial judge found that the motion in limine was actually a motion to quash and treated it as such; the State agreed. At the hearing on the motion, defendant repeated his arguments. The State responded that ^defendant, his attorney, and the trial judge had signed the Boykin form that listed all of the relevant Boykin rights, noting that defendant had cited no law showing that a certification by defendant was necessary to confect a proper Boykinization in a DWI case. The State also noted that certified minute entries showed that defendant was advised of his Boykin rights by the court when he pled guilty to said charge on August 9, 2011.

After hearing argument of counsel, the trial judge denied the motion to quash, stating that the form in question properly advised defendant of his Boykin rights and that the form was signed by defendant, defense counsel, and the trial judge. The trial judge noted that the form provided at the beginning that defendant had been informed of and understood the charge to which he was pleading and that he had waived the “following rights,” which the form then listed. The trial judge found that this was a sufficient waiver of rights, and that it was clear that defendant freely and voluntarily waived his rights. The trial judge found that the “Certificate” and certification at the end of the form was “superfluous” and not necessary, as the form met all the legal requirements set out by Boykin. He said that although the “Certificate” at the end of the form was not filled out, it was of “no moment” because the signed form showed that defendant was advised of his rights and that he understood them as indicated by his signature thereon, and that the minute entry for that court appearance also showed that defendant was Boykinized. Defense counsel objected to this ruling, contending that the certification was not “superfluous” and was a requirement under the law.

In reviewing the sufficiency of the 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 17rational 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, 00-674 (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.” La. R.S. 15:438.

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.

Louisiana Revised Statute 14:98 provides, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood[.]

In order to convict an accused of driving while intoxicated, the prosecution must prove that the defendant was operating a vehicle and was under the influence of alcohol or drugs. State v. Cowden, 04-707 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082, writ denied, 04-3201 (La.4/8/05), 899 So.2d 2. To convict a defendant of third offense driving while intoxicated, as in the present case, the State must also show that the defendant had two other valid convictions. La. R.S. 14:98(D). In the present case, defendant does not dispute on appeal that he was operating a vehicle or that he was under the influence of alcohol or drugs or that he |shad one valid predicate conviction. He only contends that the State failed to prove that his conviction in Second Parish Court case number S1118500 was valid.

A presumption of regularity attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 04-255 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62.

In State v. Balsano, 09-0735 (La.6/19/09), 11 So.3d 475, 479 (per curiam ), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under La. R.S. 15:529.1, State v. Shelton, 621 So.2d 769 (La.1993), or in habitual offender DWI prosecutions, State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. This line of jurisprudence sets forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the recidivist habitual offender and driving while intoxicated statutes.

The Louisiana Supreme Court’s decision in Carlos established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. Balsano, supra. Adopting the Court’s prior opinion in Shelton, supra, and acknowledging the presumption of regularity that attaches to prior final convictions, Carlos placed the initial burden on the State of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. Balsano, supra. If the State meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Balsano, supra (quoting Carlos, 738 So.2d at 559).

l3If the defendant makes the required showing, the burden reverts to the State to produce a “perfect” Boykin transcript, i.e., one “which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin.” Id. (quoting Carlos, 738 So.2d at 559 n. 4 and Shelton, 621 So.2d at 775 n. 12). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Balsano, supra (quoting Carlos, 738 So.2d at 559).

In Boykin v. Alabama, supra, the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Under Boykin, the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his privilege against self-incrimination, and his rights to a trial by jury and confrontation. State v. Payton, 04-1024 (La.App. 5 Cir. 1/11/05), 894 So.2d 362, 365. The record must also show the defendant freely and voluntarily waived those rights. Id.

The Balsano court explained that Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance a sentence in many cases, if not most, are misdemeanor offenses as to which the defendant does not have the right to a jury trial, shrinking the three-right rule to two rights. Balsano, 11 So.3d at 479-80.

| ^Whenever a misdemeanor guilty plea is to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty, he waives these enumerated constitutional rights. State v. Vu, 02-1243 (La.App. 5 Cir. 4/8/03), 846 So.2d 67, 71. The trial judge must also ascertain that the accused understands what the plea connotes and its consequences. “While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” Id.

In State v. Robair, 622 So.2d 829 (La. App. 4 Cir.1993), the defendant pleaded guilty to a theft charge and was later found to be a second felony offender. At the multiple bill hearing, defense counsel objected to the defendant being adjudicated a second felony offender because the plea form from the earlier offense was not signed a second time at the bottom of the page acknowledging that there was a colloquy between the judge and the defendant. In Robair, the defendant signed the plea form indicating his understanding of his right to a jury trial, his right to confront his accusers, and his privilege against self-incrimination. The plea form was signed once by the defendant, the judge, and the defendant’s attorney. The Fourth Circuit found that the fact that the defendant was represented by counsel at the time he pleaded guilty, that he signed a plea form on which his rights were specified, and that the rights were delineated on the minute entry, were evidence that the defendant voluntarily waived his constitutional rights when he pleaded guilty to the predicate offense. The Fourth Circuit also found that the law did not require that the defendant sign the bottom line on the plea form. Id. at 830-32.

|1TIn the present case, the plea form for the predicate conviction in question, Second Parish Court case number S1118500, provides that defendant was pleading guilty to DWI after having been informed of and understanding the charge to which he was pleading. The plea form further provides that defendant was waiving the “following rights,” which included the right to a trial by a judge (and if convicted, the right to appeal), the right to cross-examine witnesses, and the right against self-incrimination. Defendant was also advised of his right to compulsory process of the court to require witnesses to appear and testify for him, and the right to have an attorney present at every stage of the proceeding, and if financially unable to employ counsel, one would be appointed to represent him.

The plea form states that by entering this plea under La.C.Cr.P. art. 894, defendant was waiving all of those rights. It also set forth the sentence defendant was going to receive and the fact that defendant had not been forced, threatened, or intimidated to make this plea. The plea form reflected that this conviction could be used in the future to enhance or increase the penalties he would receive for any subsequent conviction of the crime of DWI. The plea form was dated August 9, 2011 and signed by defendant, defense counsel, and the trial judge.

Defendant is correct is asserting that the “Certificate” at the end of the waiver of rights form (located on the form immediately after the signatures of defendant, his attorney, and the trial judge) was not completed or signed by defendant. It states:

CERTIFICATE

I hereby certify that the above rights have been read and explained to my full satisfaction by _, and that I have no further questions to ask concerning my rights and that this acknowl-edgement by me will become part of these proceedings.
|12Cretna, Louisiana, this _ day of -, 20—
Signature of Defendant

Upon review of the conviction packet in Second Parish Court case number S1118500, we find that defendant knowingly and voluntarily waived his constitutional rights in the prior guilty plea, and therefore that plea can be used as a predicate conviction in the present case. The guilty plea form dated August 9, 2011 reflects that defendant was advised of his Boykin rights and then knowingly and voluntarily waived them as evidenced by his signature and that of his attorney and the trial judge on the form. Additionally, the master docket sheet for the subject case states that on August 9, 2011, defendant was advised of his Boykin rights by the court and pleaded guilty as charged under La. C.Cr.P. art. 894. Thus, we agree with the trial judge (and with the analysis by the Robair court) and find that the above-quoted “Certificate” and certification at the end of the waiver of rights form was unnecessary, because defendant acknowledged in the previous portions of the form that he had been advised of and was waiving his rights.

Accordingly, the trial judge did not err by denying defendant’s motion to quash and by admitting into evidence at trial defendant’s prior conviction in Second Parish Court case number S1118500. Further, the Second Parish Court conviction was properly used as a predicate conviction in the present case.

In conclusion, we find that a review of the evidence introduced at defendant’s trial indicates that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant’s conviction of third offense DWI. Under the Jackson standard, we find that the evidence when viewed in the light most favorable to the prosecution, was sufficient 11sto convince a rational trier of fact that all of the elements of third offense DWI have been proven beyond a reasonable doubt.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court’s limiting of defense counsel’s closing argument violated defendant’s constitutional right to put on a defense.

In this assignment of error, defendant argues that the trial judge erred by limiting his closing argument which violated his constitutional right to put on a defense. Specifically, he contends that the trial judge erred by refusing to allow him to argue that the Second Parish Court predicate plea was invalid due to the lack of defendant’s signature on the “Certificate” at the end of the guilty plea form pertaining to that conviction.

A review of the closing arguments shows that defense counsel argued that the jury should disregard the Second Parish Court conviction because defendant did not sign the “Certificate” at the end of the guilty plea form pertaining to that conviction. Defense counsel stated in pertinent part:

In fact, on the final page of the plea form, which again, you all reviewed, there’s a certification, a certificate where the defendant is given the opportunity to say, I certify that the above rights have been read and explained to my full satisfaction by whomever, and I have no further questions to ask concerning my rights and that this acknowledgement by me will become part of these proceedings. It was never signed. This is an official record.

Afterwards, both counsel approached the bench. The prosecutor stated defense counsel’s argument on this point had been previously heard and rejected by the trial judge. Defense counsel responded that he was not arguing for the suppression of evidence, but that this evidence should not be given any weight. The trial judge stated that he was not going to let defense counsel go any further with regard to the certification. The trial judge added that he thought defense [ 14counsel had made his point in that regard and that he could now move on, to which defense counsel responded, “Alright.”

Defense counsel did not proffer the substance of any additional arguments he wanted to make to the jury.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13), 108 So.3d 763. However, this right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. The trial court is accorded great discretion in ruling on evidentiary matters, and absent a clear abuse of that discretion, rulings on admissibility of evidence will not be disturbed on appeal. State v. Magee, 11-574 (La.9/28/12), 103 So.3d 285, 321, cert. denied, — U.S. —, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).

Louisiana Code of Criminal Procedure article 774 provides the following regarding the scope of argument, including closing argument, to-wit:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.

Here, the trial judge had previously denied defendant’s motion to quash, thereby allowing the prior conviction from Second Parish Court to be used as a predicate conviction in the present case. In denying the motion, the trial judge found that defendant had been advised of and waived his constitutional rights even though he did not sign the “Certificate” at the end of the form. However, even though the trial judge denied the motion, he still allowed defense counsel to 1^present his defense to the jury. The record shows that defense counsel argued to the jury that it should disregard the prior conviction from Second Parish Court because defendant did not sign the “Certificate” at the end of the plea agreement certifying that his rights had been read and explained to him and that he had no questions. Although the trial judge did not allow any further argument on that issue, defense counsel was allowed to make his point to the jury regarding the certification.

Accordingly, we find that the record reflects that the trial judge did not abuse his discretion by limiting defense counsel’s closing argument, as defendant was sufficiently allowed to present his defense in this case.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court erred in failing to reread more extensive portions of jury instructions in response to jury’s question during deliberations.

In this assignment of error, defendant argues that the trial judge erred by denying his request to re-read portions of the jury instructions that he contends would have answered the jury’s question submitted during deliberations. He contends that the trial judge’s failure to do so was not harmless error.

The record reflects that during deliberations, the jury presented a question to the court. The question read, “Are we determining the level of offense based on previous convictions or intoxication levels/evidence in previous convictions?” The prosecutor stated that he thought the court should read the jury instructions to the jury. Defense counsel said that it might also be helpful to give the jury the elements of the crime again. The prosecutor commented that the jury either believed or disbelieved that defendant was previously convicted. The trial judge 11firesponded that he was going to read the elements of third offense DWI to the jury. Defense counsel urged the trial judge to also read the elements of first and second offense DWI. The prosecutor replied that the jury did not ask anything about responsive verdicts, so those elements need not be read. The trial judge said the obvious answer to the question was that the jury should determine the level of offense based on previous convictions, but short of telling them that, he would read the elements of the crime again.

After further discussion, the trial judge instructed the jury “that in order to find the defendant guilty of a third offense operating a vehicle while intoxicated, you must find that the defendant has been convicted of the offense of operating a vehicle while intoxicated on two prior occasions.”

Although defense counsel did not specifically object to the trial judge’s failure to re-read all of the responsive verdicts, he made it clear that he wanted all of the responsive verdicts re-read to the jury and not just the instruction pertaining to third offense DWI. As such, defendant properly preserved this issue for review.

Louisiana Code of Criminal Procedure article 802 requires the trial court to charge the jury as to the law applicable to the case. Here, the jury asked whether it was to determine the level of offense based on previous convictions or intoxication levels from previous convictions. The record reflects that the trial judge properly answered the question by re-instructing the jury that in order to find defendant guilty of third offense DWI, it must find that defendant has been convicted of the offense of operating a vehicle while intoxicated on two prior occasions. It was unnecessary for the trial judge to re-read all of the responsive verdicts, as the jury did not ask for those.

1 t7In light of the foregoing, we find that the trial judge did not err by denying defendant’s request to re-read more extensive portions of the jury instructions in response to the jury’s question during deliberations.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

The trial court erred in denying jury’s request to review documentary evidence of defendant’s prior conviction.

Finally, defendant argues that the trial judge erred by denying the jury’s request to review evidence of the prior Second Parish Court conviction.

The record reflects that during deliberations, the jury presented a second question to the court which read, “Can we look at the evidence from first offense Jefferson Parish again?” Defense counsel said he had no objection; however, the prosecutor objected, stating that the jury had already reviewed that evidence extensively and that no written documents could be given to the jury according to the “Code,” meaning the Louisiana Code of Criminal Procedure. The trial judge commented that the “Code” said the jury could “review documents but not writings.”

After hearing arguments of counsel and reviewing La.C.Cr.P. art. 793, noting that this article stated that the jury shall not have access to written evidence, the trial judge ruled he would not send the certified conviction packet from Second Parish Court (State’s Exhibit 11) back to the jury. The trial judge noted that the jury had ample time to review the documents during trial. Defense counsel objected to the trial judge’s position that the law did not allow it, asserting that the law did allow it. When the jury was brought back into the courtroom, the trial judge told the jury that the law did not allow them to see evidence of the first |18offense Jefferson Parish conviction again, as it was a written document, and they would have to go by their memory.-

Louisiana Code of Criminal Procedure article 793 provides in pertinent part:

A. Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

Generally, a jury is not allowed to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue which does not require the examination of the verbal contents of the document. State v. Perkins, 423 So.2d 1103, 1109-10 (La.1982). A jury can examine a written statement to ascertain or compare a signature or to see or feel it with regard to its actual existence, but not to examine its verbal contents. Id.

In the present case, defense counsel admitted in closing argument that defendant was operating a vehicle while intoxicated. Consequently, the only issue for the jury to decide was whether defendant had two prior DWI convictions. The exhibit in question, State’s Exhibit 11, is a certified conviction packet from Second Parish Court, which contains minute entries, a bill of information, a guilty plea form, fingerprints, and a master docket sheet relating to that conviction.

In State v. Lewis, 611 So.2d 186 (La.App. 5 Cir.1992), the defendant was charged with illegal possession of a firearm by a convicted felon. After beginning deliberations, the jury requested permission to examine various exhibits introduced into evidence at trial, which the trial judge allowed. Included in these exhibits were: 1) Exhibit S-l, an arrest register with fingerprints on the reverse side and an 119arrest date of 3/18/84; 2) Exhibit S-2, fingerprints of defendant taken on 2/24/92; 3) Exhibit S-3, an arrest register with a date of arrest of 1/6/90 with an attached set of fingerprints; and 4) Exhibit S-4, a bill of information pertaining to the 3/18/84 arrest. Id. at 187-88.

The Lewis Court found that the trial judge did not err by allowing the jury to view these exhibits during deliberations and concluded that the sole purpose for the jury to view Exhibits S-l through S-4 was for a physical examination and not for the examination of verbal contents. It asserted that the purpose for the examination of these documents was analogous to a comparison of signatures approved by the Louisiana Supreme Court in Perkins, supra, since the jury in Lewis could have only wished to view the fingerprints to determine whether the defendant was the same person who was previously convicted of attempted simple burglary. This Court found that there was a need for the jurors to physically examine the viewed exhibits in order to arrive at a verdict and that a physical examination of these documents aided the jury in determining that the defendant was the same individual who had previously been convicted of attempted simple burglary. This Court stated that that finding was necessary in arriving at the present conviction of illegal possession of a firearm by a convicted felon. State v. Lewis, 611 So.2d at 189.

We find that the trial judge in the present case did not abuse his discretion by not allowing the jury to view evidence of the Second Parish Court conviction. First, the exhibit contained written information, and La.C.Cr.P. art. 793 specifically provides that the jury cannot have access to any “written evidence.” Second, although the jury did not indicate why it wanted to view the exhibit in question, it does not appear that the jury wanted to compare fingerprints, as in Lewis, supra, since the jury did not request the exhibit of defendant’s fingerprints |2ntaken during the present case to compare them to the prior conviction. As such, it appears that the jury wanted to view the exhibit in question to determine whether defendant’s lack of a signature on the “Certificate” at the end of the form rendered his prior guilty plea invalid. However, in order to determine that, the jury would have had to read the plea agreement, which is prohibited by Article 793. Further, it is noted that all of the State’s exhibits, including State’s Exhibit 11, were published to the jury prior to deliberations.

In light of the foregoing, we find that the trial judge did not err by not allowing the jury to view the written evidence of the prior conviction from Second Parish Court, as this is specifically prohibited by La.C.Cr.P. art. 798.

This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to 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. 5 Cir.1990). The review reveals no errors patent that require corrective action.

CONCLUSION

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

AFFIRMED.

      . Trooper Cancienne's last name is also spelled "Canciennes” in the trial transcript.

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

      . Also, with regards to the bench trial conducted simultaneously on the misdemeanor charges, the trial judge found defendant guilty as charged of speeding and operating a vehicle with a suspended driver’s license, and not guilty of having an open container of an alcoholic beverage in the vehicle. These convictions are not part of this appeal.

      . Additionally, the trial judge sentenced defendant to seven days in the Department of Corrections without the benefit of parole, probation, or suspension of sentence and a $500.00 fine on the driving under a suspended license conviction, to run consecutively to the one-year third offense DWI sentence. The trial judge also fined defendant $250.00 on the speeding conviction (case number 13-07).

      . Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).

      . La.C.Cr.P. art. 894 generally allows for the suspension and deferral of sentence and imposition of probation in misdemeanor cases.

      . Additionally, as discussed infra, it appears that the jury considered this argument, since it requested, but was denied, the opportunity to review again the evidence pertaining to that predicate conviction.

      . It is noted that Paragraph B is not applicable to the present case.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Errol FALCON, Jr.
    No. 13-KA-849.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.

      Terri R. Lacy, Blair Berthelot, Assistant Attorneys General, Louisiana Department of Justice, Baton Rouge, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Errol R. Falcon, Jr., Angie, Louisiana, In Proper Person.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

| .Defendant, Errol Falcon Jr., now appeals his convictions on nine counts of possession of stolen things valued over $500 in violation of La. R.S. 14:69. Defendant argues the trial court erred in denying his motion to suppress the evidence first, because the warrant, pursuant to which that evidence was found, was not based on probable cause, and second, because the detectives who executed the search warrant exhibited a flagrant disregard for the warrant’s particular description of what was to be seized. For the following reasons, we find defendant’s argument to be without merit and affirm his convictions and sentences.

PROCEDURAL HISTORY

On October 16, 2009, the trial court issued a warrant authorizing the search of defendant’s home and the seizure of particular items therein which detectives believed defendant had stolen from the Walmart in Boutte. Detectives thereafter ^searched defendant’s home and seized various items which were not particularly described in the warrant. On February 11, 2010, a grand jury indicted defendant on nine counts of illegal possession of stolen things in violation of La. R.S. 14:69. Each count of the indictment alleged defendant illegally possessed various corporeal movables stolen from a specific victim. None of the items listed in the indictment were items listed in the search warrant. Defendant filed three motions to suppress before pleading guilty on these charges.

Three Motions to Suppress

Defendant filed his first motion to suppress evidence on January 21, 2010. The trial court held a hearing on this motion on October 20, 2010. Thereafter, at a hearing on November 17, 2010, the trial court denied defendant’s first motion to suppress.

Also at the November 17, 2010 hearing, the trial court found that a video disc which contained a recording of defendant’s visit to the Walmart on December 13, 2009 was now available. The trial court ordered the state to turn over that video disc to defendant. The trial court reserved for defendant the right to file a second motion to suppress evidence, if defendant felt the December 13, 2009 recording contradicted the testimony at the hearing on the first motion to suppress.

On December 1, 2010, defendant sought a supervisory writ on the trial court’s denial of his first motion to suppress. This Court denied defendant’s writ application on February 24, 2011, stating:

[b]ased upon the showing made, we do not find the trial court erred in denying Relator’s Motion to Suppress. We conclude there was sufficient probable cause within the search warrant application to justify the issuance of the search warrant for the residence, and there was no need for a good faith exception to apply to this circumstance. Relator has an adequate remedy on appeal in the event of a conviction. Accordingly, the writ is denied.

State v. Errol Falcon, Jr., 11-29 (La.App. 5 Cir. 1/10/11) (unpublished writ).

[ 4After this Court denied defendant’s writ application, defendant sought review of the trial court’s denial of his first motion to suppress by the Louisiana Supreme Court; the Supreme Court denied defendant’s writ application on April 25, 2011. State v. Errol Falcon, Jr., 11-625 (La.4/25/11) (unpublished writ).

On June 15, 2011, defendant filed a second motion to suppress evidence. In it, defendant argued that the evidence against him should be suppressed because “the Sheriffs Office seized nearly 1,000 items from the defendant’s residence during the search it conducted,” the seizure disregarded the terms of the search warrant “and was nothing more than a pretex-tual search for property for which the Sheriffs office had no probable cause.” On June 23, 2011, the trial court denied defendant’s second motion to suppress evidence without a hearing or accepting new evidence, finding that defendant had not raised any new issues which defendant did not have the opportunity to raise on his previous motion to suppress.

On July 5, 2011, the trial court heard defendant’s motion for a subpoena duces tecum. Defendant sought to compel the state to bring the seized items that formed the basis of his prosecution into court. At this hearing, the district attorney admitted that there were many items seized by the state which had not been returned to victims, which may belong to defendant. The trial court denied defendant’s motion.

Defendant filed a third motion to suppress, arguing the court should suppress a statement he made to Captain Madere in which he admitted that stolen items were stored in his residence. On July 7, 2011, the trial court held hearing on | r,defendant’s third motion to suppress. After taking testimony from Captain Mad-ere, the trial court denied this motion.

Guilty Plea and Sentencing

After this denial of his third motion to suppress, defendant informed the court he ■wished to pled guilty. The trial court advised defendant of his rights under Boy-kin. Thereafter, defendant pled guilty, as charged, to the nine counts of possession of stolen things valued at five hundred dollars or more. Defendant made this plea pursuant to Crosby, reserving his right to appeal the denial of his motion to suppress. The trial court accepted defendant’s guilty plea.

On July 20, 2011, the trial court sentenced defendant to “ten years on the first two counts, to run consecutively, and then ten years on the remaining seven count [sic], to run concurrently” with the Department of Corrections. Defense counsel objected to this sentence and moved for the court to reconsider the sentence. The trial court denied defendant’s motion to reconsider his sentence.

On October 28, 2011, the state filed a motion to reduce defendant’s sentence. In it, the state argued defendant’s sentence should be reduced by three to five years because defendant had assisted the state by testifying in the trial of Joseph Austin. The trial court granted the state’s motion and reduced defendant’s sentence, stating:

at this time, I’m going to go with the recommendation of the state and reduce Mr. Falcon’s sentence. So the minutes will reflect that Mr. Falcon is sentenced to 15 years with the Department of Corrections rather than the original 20 years.

|fiAt a later hearing, the trial court amended the minutes to reflect Mr. Falcon’s sentence was “five years on count one, ten years on count two, to run consecutive. And ten years on count [sic] three through nine to run concurrent with one and two.”

Additional Procedural History

On December 19, 2011, defendant filed a motion for return of seized property. This was a joint motion on behalf of defendant, Ms. Tracie Wright, and defendant’s father, Errol Falcon, Sr. At the hearing on this motion on March 27, 2012, movants’ counsel argued that they were entitled to the return of the seized property still possessed by the sheriffs office, which was not returned to victims or otherwise identified as stolen. Movants’ counsel also complained that while the Sheriffs Office had returned property belonging to Mr. Falcon Sr., it would not return his son’s property to him. This was problematic because his son, defendant, was incarcerated and could not retrieve the property himself. The trial court granted this motion at the hearing and later confirmed its decision in a written judgment issued on April 27, 2012.

On August 2, 2012, defendant filed an application for post-conviction relief in the trial court seeking an out-of-time appeal. At a hearing on September 19, 2012, the trial court granted defendant’s application for post-conviction relief and appeal. This is defendant’s direct appeal from the above described convictions.

FACTS

The facts relevant to defendant’s assignments of error were developed on October 20, 2010, at the hearing on defendant’s first motion to suppress, by exhibits and the testimony of Detective Jody Fahrig, Casey Oncale, and Detective Jeremy Pitchford.

17Detective Jody Fahrig, of the St. Charles Parish Sheriffs Office’s Criminal Investigation Bureau, testified that she and Det. Pitchford began a physical surveillance of defendant on December 11, 2009. Det. Fahrig testified she and Det. Pitchford began this surveillance in connection with their investigation into a series of burglaries, not because they suspected defendant was shoplifting at Walmart. Det. Fahrig did not believe that she had the probable cause for a search warrant on December 11, 2009.

During this surveillance, Det. Fahrig observed a vehicle of interest travel to the Walmart store in Boutte. On December 11, 2009, Det. Fahrig contacted Casey On-cale, an asset protection manager at the Walmart, regarding this vehicle. Ms. On-cale informed Det. Fahrig that the vehicle belonged to her subordinate, Ms. Wright, and that Ms. Wright was defendant’s girlfriend. Ms. Oncale then also informed Det. Fahrig that she believed defendant and Ms. Wright were working together to steal from Walmart during the shifts Ms. Wright was working in asset protection.

On December 13, 2009, Det. Fahrig observed defendant drive to the Walmart in Boutte, walk inside at approximately 10:00 p.m., and leave around fifty minutes later. When defendant left, Det. Fahrig did not observe him carrying any items, nor did she observe any items protruding from the pouch on the hoodie defendant was wearing. Det. Fahrig testified that she also did not see defendant place anything into his vehicle after he came out of the store that night. Det. Fahrig admitted that when she saw defendant leave the store that night, she had no idea if defendant had stolen from the store.

After leaving the Walmart that night, defendant drove home. Det. Fahrig followed him. Defendant did not make any stops on his way home and did not throw any items out of his vehicle’s window. Det. Fahrig observed defendant |sarrive at his home, exit his vehicle, and go inside. During her surveillance that night, Det. Fahrig did not observe defendant with any of the items that were later listed in the search warrant.

On December 14, 2009, Det. Fahrig contacted Ms. Oncale regarding defendant’s visit to the Walmart on the previous night. Ms. Oncale subsequently reviewed the video recording on the Walmart’s security camera system from the time of defendant’s visit. Ms. Oncale reported back to Det. Fahrig that she had observed a series of actions by defendant where he removed items from the shelves and carried them into areas of the store which were not viewable by the store’s security cameras. Ms. Oncale also reported that she observed defendant leave the Walmart -without paying for any items. Ms. Oncale explained to Det. Fahrig that the areas of the store not viewable by its security cameras were only known to the upper level members of management and the store’s asset protection managers, such as her and Ms. Wright.

Det. Fahrig testified that Ms. Oncale further reported to her that, after watching the video recording of defendant in the store, Ms. Oncale had gone to the areas of the store out of the view of the store’s security camera system to which defendant went on the night of December 18, 2009. There, Ms. Oncale reported that she found empty packaging from items consistent with the items she saw defendant take from the shelves.

Det. Fahrig testified that after receiving this report, she then traveled to Ms. On-cale’s office in the Walmart and personally viewed the video recording from the night of December 13, 2009 on the store’s security camera system. Det. Fahrig testified that this viewing of the video in Ms. On-cale’s office was the first time that |9she had seen the video recording. At some point after Det. Fahrig took Ms. Oncale’s statement and viewed the store’s security camera recording in Ms. Oncale’s office, she received the video disc recording that was admitted as State’s Exhibit One. Det. Fahrig confirmed that the videos she viewed in Ms. Oncale’s office showed what Ms. Oncale described them as showing.

Det. Fahrig testified that she applied for a search warrant to search defendant’s home based on: her observation on the night of December 13, 2009 of defendant’s trip to the Walmart; her viewing of the store’s security camera footage from that night; and Ms. Oncale’s report of the empty packaging she found.

Det. Fahrig testified that the warrant was issued on December 16, 2009, and that it allowed the police to search for items that Det. Fahrig believed were stolen from the Walmart, namely, Blu-Ray DVDs, a Sony Playstation controller, several packages of printer ink, a Canon printer ink and paper package, a bottle of cologne, and two packages in the pharmacy section.

Det. Fahrig testified that she executed this search warrant and searched defendant’s residence with Det. Pitchford, Det. Madere, Det. Smith, Det. Duhurst, Det. Brass, and other officers. Det. Fahrig testified that, when they executed this search warrant, they did not initially bring a van with them to contain the seized items.

Det. Fahrig authenticated State’s Exhibit One as the disc that Ms. Oncale provided her which contained a video recording from the store’s security camera system.

| inCasey Oncale, an Asset Protection Coordinator at the Walmart in Boutte, testified that she had previously been Ms. Wright’s supervisor. Ms. Oncale testified that she and Ms. Wright performed their job in an office at the Walmart that was accessible only to themselves and other salaried or managerial employees; the office was not accessible to the general public. Ms. Oncale also testified that the Walmart had about one hundred and fifty security cameras. She testified that those cameras did not record video of every area in the Walmart; there were certain “dead” areas which were not recorded. Ms. On-cale testified that only asset protection associates, such as she and Ms. Wright, and other salaried or managerial employees, would know which areas were recorded and which areas where not.

Ms. Oncale also testified that other employees often saw defendant inside the Walmart when he was waiting for Ms. Wright to finish her shift. Ms. Oncale had been investigating defendant’s trips to the Walmart before being contacted by Det. Fahrig because of reports by other Wal-mart employees that defendant was acting suspiciously during his visits.

Ms. Oncale testified that she communicated with Det. Fahrig on December 14, 2009, and that as a result of that communication she retrieved the Walmart’s security camera video showing defendant during his time at the Walmart on the previous night. Ms. Oncale testified that the Wal-mart’s cameras showed defendant go from areas viewable by the cameras, to the un-viewable or “dead” areas.

Describing what she saw, Ms. Oncale testified that she first observed defendant in the Walmart’s electronics area near the Blu-ray DVDs. Defendant chose two DVDs from the shelf, and then walked out of the view of the security cameras, into the picture frame aisle. Ms. Oncale next observed defendant come back into view, take Playstation controllers, and then walk to an area in the shoe department not visible by the cameras. The video next showed defendant in the |n pharmacy selecting an over the counter medicine, then moving into areas of the store’s tire, lube, and automotives department which were not visible to the store’s security system.

Ms. Oncale testified that, on the next day, she searched the un-viewable areas of the picture frame aisle and the shoe department. In the picture frame aisle, she found the empty packages of two DVDs underneath the shelves in the picture frame aisle. In the shoe department area, she found the empty packages of Playstation controllers and an empty box of over-the-counter medicine.

Ms. Oncale testified about a week after she found the empty packaging of these items that she scanned them, created a “training receipt” showing what she had found, and returned the packaging to the store’s return center. Ms. Oncale testified that she prepared this “training receipt” to mark the items as stolen and so that she would have dollar values of what was taken. Ms. Oncale testified that this was her regular practice for packaging she found from items she suspected had been stolen. Ms. Oncale testified that she gave the information she obtained by scanning the found packaging to Det. Fahrig.

After hearing Ms. Oncale’s testimony regarding the video recording of defendant on the night of December 13, 2009, the trial court played the video disc recording admitted as State’s Exhibit One. However, as Ms. Oncale watched this video, discrepancies emerged between what Ms. Oncale remembered viewing and what the recorded video on State’s Exhibit One showed. Furthermore, beyond the recording’s content, State’s Exhibit One also displayed a date stamp indicating a date before December 13, 2009.

As Ms. Oncale watched the video contained on State’s Exhibit One, she observed that while it was a recording by the Walmart’s security camera system 112depicting defendant in the Walmart, the video did not contain recordings that she remembered, namely: defendant with items in his arms; defendant in the Wal-mart’s pharmacy section; or of defendant selecting two DVDs in the electronics section. Additionally, and contrary to her previous testimony, this video showed defendant enter the Walmart’s sporting goods section.

Furthermore, Ms. Oncale admitted that the video contained on State’s Exhibit One bore a date stamp of November 17, 2009. While Ms. Oncale originally tried to explain away this discrepancy by stating that the wrong date could have been caused by a power failure or by a person changing the date on the video recording system, Ms. Oncale later conceded that those were not possible reasons why a video recording from December 13, 2009 would display a date of November 17, 2009. Ms. Oncale also admitted that, in order to make the video disc recording that was State’s Exhibit One, she had to enter a date into the Walmart’s computerized security camera system to retrieve video from that date.

For these reasons, Ms. Oncale concluded State’s Exhibit One was not a recording of defendant’s visit to the Walmart on the night of December 13, 2009. Rather, Ms. Oncale believed that State’s Exhibit One was, in fact, a recording of defendant on November 17, 2009. Ms. Oncale then specifically testified that the video watched in the court that day was not the same video she and Det. Fahrig watched in her office.

Regarding her transfer of State’s Exhibit One to Det. Fahrig, Ms. Oncale testified that the description on the video file, showing that it was last modified on December 19, 2009, meant that was the date she copied Walmart’s video recording from the computerized security camera system on to the disc. Although Ms. Oncale at first testified that she gave two video recordings to Det. Fahrig, in 113response to questioning by the court, Ms. Oncale changed her testimony. Ms. Oncale testified that she may not have actually burned a second video or given a second physical video disc to Det. Fahrig; Ms. Oncale testified that she may have simply shown another video to Det. Fahrig. Ms. Oncale eventually concluded that she had never copied the video recording of defendant’s December 13, 2009 trip to the Walmart to a disc and given that disc to Det. Fahrig. At the request of the court, Ms. Oncale then left the courtroom in order to go to the Wal-mart to search for a recording of defendant’s trip to the Walmart on the night of December 13, 2009.

The trial court next heard the testimony of Detective Pitchford, a detective with the St. Charles Parish Sheriffs Office. Det. Pitchford confirmed that he and Det. Fah-rig were conducting an on-going surveillance of defendant when, on the night of December 13, 2009, they viewed defendant make a trip to the Walmart in Boutte. When defendant entered the Walmart, he and Det. Fahrig stayed in their vehicle. Det. Pitchford testified that he did not personally observe defendant exit the Wal-mart that night because of the position in which the detectives’ vehicle was parked.

Det. Pitchford also confirmed that, based on the information he received during his surveillance of defendant with Det. Fahrig, he applied for, and was granted, a search warrant to search defendant’s home. Det. Pitchford testified that Det. Fahrig had told him that she viewed the Walmart’s security camera video recordings of December 13, 2009 from the Wal-mart’s computerized security j14 earner a system, not from recorded discs. Det. Pitchford admitted that he did not independently verify with Ms. Oncale the information that Det. Fahrig claimed that Ms. Oncale gave to her before he wrote that information in his search warrant application.

After the state rested their case, the trial court received information from Ms. Oncale that she had located the recording of defendant’s December 13, 2009 trip to the Walmart. Defense counsel objected to the re-opening of the proceeding and the introduction of this new video, arguing it was irrelevant. The trial court agreed and did not allow the state to re-open its case.

At the close of the October 20, 2009 hearing, the trial court concluded that the warrant application at issue was based on what Det. Fahrig and Det. Pitchford had personally observed, as well as video that Det. Fahrig observed in Ms. Oncale’s office on December 14, 2009.

The trial court found that the warrant application was not based on two discs containing video recordings that were at issue in the suppression hearing. First, as to the video disc that was introduced as State’s Exhibit One, the court found that it was provided to the detectives by Ms. On-cale and was a recording of something other than the video Det. Fahrig had observed in Ms. Oncale’s office. Second, the trial court found that the detectives also did not base their warrant application on a different video disc which Ms. Oncale claimed she found on the day of the suppression hearing. The trial court found that both discs were made after Det. Pitchford had applied for the search warrant.

DISCUSSION

Defendant now appeals his conviction on nine counts of possession of stolen things valued at or over $500 in violation of La. R.S. 14:69. In his counseled appellate brief, defendant argues the trial court erred in denying his motion to | ^suppress evidence because the search warrant justifying the search of his residence was not validly issued because the detectives lacked probable cause. In his pro se appellate brief, defendant reasserts these arguments, but also argues that the seizure of a thousand or more items from his home during the officer’s search of his home exhibited a flagrant disregard for the terms of the search warrant and that the search was therefore unauthorized. We will treat each of these as separate assignments of error.

Assignment One

As to the first assignment of error, we recognize defendant has already applied for writs of supervisory review of this denial both to this Court and to the Louisiana Supreme Court. Both applications were denied.

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.

Upon our review of this denial by the trial court, we find no reason now to disturb the trial court’s finding. No new evidence calling into question the probable cause of the officer to obtain the warrant has been admitted and no further proceedings suggest that our determination of defendant’s writ application was patently erroneous or produced unjust results.

Furthermore, defendant’s argument fails on its merits. When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. See La.C.Cr.P. art. 703(D); State v. Johnson, 08-265 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 599. The trial court 11fiis afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of its discretion. State v. Clement, 11-1150 (La.App. 5 Cir. 9/11/12), 101 So.3d 460, 469, writ denied, 12-2214 (La.4/1/13), 110 So.3d 139; State v. Rogers, 09-13 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La.4/9/10), 31 So.3d 382.

Here, detectives viewed defendant make a trip to the Walmart, stay fifty minutes, leave without any visible items, and drive home. Upon further investigation, Det. Fahrig saw defendant, on a recording of the Walmart’s security camera system, take items from the Walmart’s shelves, carry those items to areas not viewable to the security cameras, and then return to the cameras’ viewable area without those items. Det. Fahrig learned that the areas of the Walmart not visible to the security cameras were only known to a limited group of individuals, one of whom was defendant’s girlfriend. Detectives also received a report from Ms. Oncale that empty packaging, consistent with the items defendant took off the shelves, was found in the areas where defendant went which were not visible to the store’s security cameras. After defendant’s trip to the Walmart that night, defendant drove home without stopping. Under these circumstances, we cannot say the trial court erred in finding there was probable cause to search defendant’s home for items the detectives suspected defendant stole from the Walmart. Accordingly, defendant’s first assignment of error is without merit.

Assignment Two

In his second assignment of error, defendant argues the trial court erred in denying his motion to suppress evidence because, when the detectives searched his home pursuant to the warrant, the seizure of items within his home disregarded the terms of the search warrant.

117Pefendant raised this exact issue in his second motion to suppress. In support of' his motion, defendant cited United States v. Medlin, 842 F.2d 1194 (10th Cir.1988). The state submitted argument in response, citing State v. Landry, 339 So.2d 8 (La.1976) and State v. Thompson, 448 So.2d 666 (La.1984), reversed on other grounds by, Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984), arguing the trial court should not reconsider the denial of defendant’s motion to suppress.

In Medlin, the Tenth Circuit United States Court of Appeals suppressed all items seized during a search of the defendant’s residence. Id. The court found that while the search warrant executed by the officers was validly issued, the officers exhibited a “flagrant disregard” for the warrant’s particular description of items to be seized. Id. at 1199. The warrant was issued to search the defendant’s home for firearms. Id. at 1195-1196. While the officers seized 130 firearms, they also seized 667 items of property they believed to be stolen. Id. at 1196. The court held that “[w]hen law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” Id. at 1199.

The state responded to defendant’s second motion to suppress the evidence by arguing that the Louisiana Supreme Court, in Landry, supra, and Thompson, supra, indicated that re-hearings to present new evidence on motions to suppress are generally prohibited. The state pointed to the Supreme Court’s instruction in Thompson that re-hearings on motions to suppress for re-argument “should be sparingly made and limited to instances when the trial judge firmly believes that his prior decision was legally infirm.” Thompson, supra at 669.

118After considering these arguments, but without another hearing or additional evidence, the trial court denied defendant’s second motion to suppress. On review, we recognize that it is well settled that a court of appeal will not reverse a trial court’s decision on a defendant’s motion to reconsider or re-urge his motion to suppress absent an abuse of discretion by the trial court. State v. Lee, 11-398 (La.App. 4 Cir. 1/30/12), 83 So.3d 1191; State v. Robinson, 11-12 (La.App. 5 Cir. 12/29/11), 87 So.3d 881, n. 14.

The transcript from the October 20, 2010 suppression hearing reveals that defendant was well aware of the seizure of the items of his personal property but, despite this knowledge, engaged only in limited questioning on this topic. Furthermore, defendant failed to introduce any evidence that would establish this claim. Defendant did not introduce any evidence showing how many items were seized from his residence when it was searched pursuant to the warrant, nor of the circumstances of that seizure. Defendant’s limited questioning, without additional evidence, was insufficient for defendant to prove his claim that the searching officers illegally exceeded the terms of the warrant.

While the trial court allowed defendant the opportunity to file an additional motion to suppress on the limited grounds of what he would learn upon his review of the video of the Walmart security camera system from December 13, 2009, defendant’s review of that video was not connected to his claim in his second motion to suppress. Therefore, we cannot say that the trial court left the door open for defendant to file his second motion to suppress on this ground. Given his knowledge of this claim, defendant should have presented evidence on this claim at the hearing on his first motion to suppress. When defendant filed his second motion to suppress over a year later, defendant attempted to gain a second bite at the apple.

Lain Landry, supra, the Louisiana Supreme Court stated that the Louisiana Code of Criminal Procedure “contemplates that the pre-trial motion to suppress will be heard expeditiously, with both the prosecution and defense presenting all of their evidence.” Considering this jurisprudence, and defendant’s knowledge of the circumstances constituting this claim, we cannot say the trial court abused its discretion in failing to consider defendant’s second motion to suppress. Accordingly, we find this assignment of error to be without merit.

ERRORS PATENT REVIEW

We have examined this record for errors 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. 5 Cir.1990). We find no errors patent requiring correction.

CONCLUSION

For the foregoing reasons, we find defendant’s assignments of error to be without merit and affirm his convictions and sentences.

AFFIRMED.

      . At a June 15, 2011 hearing, the state amended the bill of information filed against defendant. The state changed its eighth count to change the victim's name on that count. The trial court then re-arraigned defendant on count eight, and defendant pled not guilty.

      . Captain Rodney Madere, with the St. Charles Parish Sheriff’s Office, testified at the July 7, 2011 hearing that he arranged for defendant to meet his sister, Crystal St. Am-ant. Captain Madere testified that, after this meeting finished, defendant asked to speak with him and then told him that he wanted to cooperate and get a deal. Defendant reportedly told Captain Madere that a person named Joey Austin committed the burglaries and then stored the items at his residence. After hearing Captain Madere's testimony and argument by counsel, the trial court found that Ms. St. Amant was not an agent of the state and that Captain Madere had not interrogated defendant before defendant made his statements to Captain Madere.

      . Defendant did not specify which particular motion to suppress denial he wished to appeal.

      . It is unclear from Det. Fahrig’s testimony whether she first viewed the security camera recordings of defendant in the Walmart on December 14 or December 16, 2009.

      . This search warrant was admitted as State’s Exhibit Two. Additionally, Det. Fahrig testified that she relayed the information she had gathered to Det. Jeremy Pitchford, and that it was Det. Pitchford who actually obtained the search warrant.

      . The state offered a receipt it claimed was the one Ms. Oncale created. However, because Ms. Oncale did not authenticate this receipt during her testimony, the trial court did not admit it into the record.

      . Ms. Oncale testified that the security camera recordings made at the Walmart are usually deleted ninety days after they are initially recorded.

      . Det. Fahrig, in response to a question by the court during the testimony of Ms. Oncale, testified that she was certain that she only received one video from Ms. Oncale during this investigation. Det. Fahrig clarified that she took Ms. Oncale’s statement and viewed the store’s security camera footage in Ms. Oncale's office first, but that she did not receive the burned copy of the store’s video camera footage until a later date, Det. Fahrig testified .that she believed she received the disc containing a copy of the store's security camera footage and the receipt which itemized the value of the things stolen from Ms. Oncale on the same day.

      . The warrant specifically allowed the detectives to search defendant’s residence at 399 Marcia Drive, Luling, Louisiana, 70070, all vehicles located on the property, curtilage, and all structures located on the property.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Sean GRIFFIN.
    No. 13-KA-701.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan-Appellate Counsel, Vincent J. Pa-ciera, Jr. — Trial Counsel, Seth W. Shute, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Appellant, Sean Griffin.
    Sean Griffin, Louisiana State Penitentiary, Angola, Louisiana, Appellant in Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

12Pefendant, Sean Griffin, is appealing his convictions for second degree murder and attempted felon in possession of a firearm. For the following reasons, we vacate defendant’s sentences and remand the matter to the trial court for further proceedings.

Jurisdictional Issue

This matter was tried on May 8 and 9, 2013. At the conclusion of trial, the twelve-person jury found defendant guilty as charged of second degree murder and the responsive verdict of attempted felon in possession of a firearm. On May 16, 2013, defendant filed a pro se motion for appeal, which was granted on May 17, 2013.

Thereafter, defendant filed a counseled motion for a new trial and motion for post-verdict judgment of acquittal, which the trial court heard and denied on June 24, 2013. Finally, on June 24, 2013, the trial court sentenced defendant to life imprisonment at hard labor for second degree murder, and seven years, six months imprisonment at hard labor for attempted possession of a firearm by a convicted felon.

|,.¡Pursuant to La.C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant’s motion for an appeal. State v. Johnson, 13-75 (La.App. 5 Cir. 10/9/13), 128 So.3d 325, 327. Once the trial court is divested of jurisdiction, it may take only certain specified actions, none of which include imposing sentence, except an enhanced sentence pursuant to La. R.S. 15:529.1. See La.C.Cr.P. art. 916. Thus, after the trial court granted defendant’s pro se motion for appeal on May 17, 2013, the trial court was divested of jurisdiction to sentence defendant or to rule on defendant’s subsequently-filed post-trial motions. See, State v. Johnson, supra.

This ease is factually different from the long line of jurisprudence that holds that a prematurely-filed motion for appeal is “cured” when the motion is subsequently granted after sentencing. See, State v. Enclard, 03-283 (La.App. 5 Cir. 6/19/03), 850 So.2d 845, 848, n. 3 (finding the defendant’s prematurely filed motion for an appeal was cured when his appeal was granted after he was sentenced); State v. Hayes, 01-736 (La.App. 5 Cir. 12/26/01), 806 So.2d 816, 818, n. 2, writ denied, 02-0263 (La.10/25/02), 827 So.2d 1169 (also finding the defendant’s prematurely filed motion for an appeal was cured when his appeal was granted after he was sentenced). In cases such as these, the trial court may sentence a defendant then grant the motion for appeal, because it has not divested itself of jurisdiction. However, in our case, the trial court granted the defendant’s |4motion for appeal before there was a final judgment, i.e., a sentence, for the defendant to appeal. See, La.C.Cr.P. art. 912(A) and (C). Consequently, the trial judge was without jurisdiction to impose sentence and we are constrained to vacate the sentences imposed on defendant and remand this matter to the trial court to rule on defendant’s post-trial motions, and, if denied, to re-sentence defendant.

Conclusion

For the foregoing reasons, we vacate defendant’s sentences and remand this matter to the trial court to rule on defendant’s post-trial motions, and, if denied, to re-sentence defendant. Further, once defendant has been sentenced, he has the right to appeal his convictions and sentences under La.C.Cr.P. art. 912 et seq.

SENTENCES VACATED; MATTER REMANDED

      .La.C.Cr.P. art. 916 provides that, once the trial court enters the order of appeal and is divested of jurisdiction, it only has authority to take certain actions as provided by law, including:
      1. Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
      2. Correct an error or deficiency in the record.
      3. Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
      4. Take all action concerning bail permitted by Title VIII.
      5. Furnish per curiam comments.
      6. Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
      7. Impose the penalty provided by Article 844.
      8. Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

      . Under the circumstances of this case, we pretermit discussion of defendant's assignments of error.