author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Tre L CLEMENTS.
    No. 2012-KA-1132.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the Appel-lee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for the Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

|, This is a criminal appeal. The defendant, Tre Clements, seeks reversal of his conviction for possession of a firearm by a convicted felon pursuant to La. R.S. 14:95.1. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On February 23, 2011, Mr. Clements was charged by bill of information with possession of a firearm by a convicted felon. On March 1, 2011, Mr. Clements pled not guilty at his arraignment. On April 1, 2011, following a hearing, the district court denied Mr. Clements’ motion to suppress evidence and found probable cause. On August 8, 2011, following a jury trial, Mr. Clements was found guilty as charged. On September 2, 2011, Mr. Clements was sentenced to ten years at hard labor with credit for time served.

On March 8, 2012, a multiple bill hearing was held; and Mr. Clements pled guilty to the multiple bill. The district court vacated the prior sentence and resentenced Mr. Clements as a multiple offender to ten years at hard labor with credit for time served.

On January 19, 2012, the district court granted Mr. Clements’ request to file an out-of-time appeal. This appeal followed.

| STATEMENT OF THE FACTS

On January 24, 2011, Detective Travis Brooks, accompanied by several other officers, executed a search warrant at a residence located at 1632 Mandeville Street in New Orleans. The warrant stemmed from an investigation of suspicious drug activity at the residence. The officers entered the unlocked door of the shotgun style house. Inside, they observed two individuals in the first room: the lessee, Perry Hall, and a female. While other officers secured the two individuals, Detective Brooks and Officer Lawrence Weathersby continued toward the rear of the house. Detective Brooks observed Mr. Clements exiting a bathroom and heard the toilet running, as if it had just been flushed. Detective Brooks described Mr. Clements as looking nervous. Officer Weathersby detained Mr. Clements while Detective Brooks entered the bathroom. Detective Brooks noticed that the toilet tank was open and that two firearms were located inside the tank. He also noticed that the water inside the tank was still rising, which made him believe the toilet had just been flushed. Almost immediately after, the toiled finished filling to normal level and stopped running. Detective Brooks secured the bathroom to protect the evidence until another officer, Detective Benja Johnson, took over.

Detective Brooks also interviewed Mr. Hall, the lessee. According to Detective Brooks, Mr. Hall denied having any knowledge of the guns. The guns were not processed for prints. On cross examination, Detective Brooks testified that no firearms were found on Mr. Clements and that he did not see Mr. Clements handle any firearms.

Officer Weathersby’s testimony tracked that of Detective Brooks. He testified that he assisted in executing the search warrant. He and Detective Brooks saw Mr. Clements exit the bathroom, immediately heard the toilet running, and ^observed the two firearms inside the open toilet tank. He handcuffed Mr. Clements while Detective Brooks guarded the bathroom.

Detective Johnson testified that she assisted in the execution of the warrant. Once she arrived, Detective Brooks assigned her to watch the bathroom area because he had located two weapons in the toilet. He wanted her to make sure that no one tampered with the evidence.

All three witnesses — Detective Brooks, Officer Weathersby, and Detective Johnson — identified photographs of the bathroom taken at the scene depicting two firearms visible inside the toilet tank. Detective Brooks and Officer Weathersby also made an in-court identification of Mr. Clements.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals that the district court erred in imposing the sentence on the felon in possession of a firearm count. Pursuant to La. R.S. 14:95.1, the sentence must be imposed without the benefit of parole, probation, or suspension of sentence. In addition, the district court found that Mr. Clements was a second offender. La. R.S. 15:529.1 G provides that a sentence as a second offender must be imposed without the benefit of probation or suspension of sentence. The district court, however, failed to include these prohibitions when imposing the sentence. Nonetheless, pursuant to La. R.S. 15:301.1 A, and State v. Williams, 00-1725, pp. 10-11 (La. 11/28/01), 800 So.2d 790, 798-99, the sentence is deemed to have been imposed with these restrictions of benefits even in the Labsence of the district court delineating them. See State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675, 677. Thus, there is no need for this court to correct the sentence. There are no other patent errors.

ASSIGNMENT OF ERROR NUMBER 1

Mr. Clements contends that the State failed to’ present sufficient evidence establishing that he was in actual or constructive possession of the firearms. Specifically, he contends that the State did not present evidence to show that he was living at the residence, that the firearms belonged to him, that he put the firearms in the .toilet tank, or that he otherwise possessed a firearm. Mr. Clements maintains that the State failed to negate at least one reasonable hypothesis of innocence — that he was simply using the bathroom where the firearms were found. In support of this argument, he points out that his behavior, as described by the arresting officers, was not consistent with someone who was in constructive possession of a firearm. Specifically, Detective Brooks and Officer Weathersby testified that Mr. Clements was cooperative and made no attempt to flee.

This court set forth the applicable standard of review for sufficiency of the evidence in State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-28, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the |sevidence, the rational trier’s Anew of all the evidence most favorable to the prosecution must be adopted; The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green, supra. “[A] re-vievfing court is not called upon to decide whether it believes the vfitnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of'the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Id.; see also State v. Huckabay, 00-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111.

In order to convict a person of violating La. R.S. 14:95.1, the State must prove the folloAving elements: 1) the defendant possessed the firearm, 2) the defendant had a prior conviction for an enumerated felony, 3) the defendant possessed the firearm within ten years of the prior conviction, and 4) the defendant had the general intent to commit the offense. State v. Ussin, 08-1577, p. 2 (La.App. 4 Cir. 4/8/09), 10 So.3d 848, 849; State v. Husband, 437 So.2d 269, 271 (La.1983).

Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1; constructive possession is sufficient. State v. Day, 410 So.2d 741, 743 (La.1982). A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. The “mere presence of a defendant in the | fiarea of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession.” Johnson, 03-1228 at p. 6, 870 So.2d at 999. The State must prove that the defendant was aware that a firearm was in his presence and that the defendant had the general intent to possess the weapon. Johnson, 03-1228 at p. 5, 870 So.2d at 998. Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. Whether the proof is sufficient to establish possession turns on the facts of each case. State v. Harris, 94-0970, pp. 3-4 (La.12/8/94), 647 So.2d 337, 338-39; State v. Bell, 566 So.2d 959, 959-60 (La.=1990).

In State v. Major, 08-0861 (La.App. 4 Cir. 12/10/08), 1 So.3d 715, this Court considered the sufficiency of evidence to support a conviction for violation of La. R.S. 14:95.1. This court set forth the elements of La. R.S. 14:95.1, which include that the defendant intentionally possessed the weapon, and explained:

General intent is present when the circumstances indicate that the defendant, in the ordinary course of human experience, must have adverted to the proscribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). The element of possession is satisfied by establishing the defendant had either actual or constructive possession. State v. Day, 410 So.2d 741 (La.1982); State v. Silva, 447 So.2d 1242 (La.App. 4 Cir.1984). Constructive possession exists if a defendant has dominion and control over a weapon even if it is only temporary in nature and even if the control is shared. State v. Edwards, 354 So.2d 1322 (La.1978); Silva, 447 So.2d at 1245 [1243]; State v. Washington, 605 So.2d 720, 722 (La.App. 2 Cir.1992). The defendant’s awareness is a factor that overlaps both of these elements-possession and intent. State v. Evans, 29,675, p. 8, n. 5 (La.App. 2 Cir. 9/24/97), 700 So.2d 1039, 1043. “[A] careful review of recent decisions on the offense of La. R.S. 14:95.1 indicates that awareness is used to prove “possession,” although awareness must exist to have intent.” Id. (citing State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809).

Major, 08-0861 at p. 6, 1 So.3d at 719-720.

In the present case, the testimony of the arresting officers — Detective Brooks and Officer Weathersby — established Mr. Clements’s close proximity to the firearms. Mr. Clements was the sole occupant of the bathroom where the firearms were found in plain view in the open toilet tank. Mr. Clements’s actions— flushing the toilet, moving away from the area from which the firearms were immediately recovered, and his nervousness— demonstrated his awareness of the presence of the firearms and his general criminal intent to possess the firearms. Given the circumstances of this case, we find that the evidence was sufficient to allow a rational juror to find beyond a reasonable doubt that Mr. Clements had, at a minimum, constructive possession of the firearms. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

When resentencing Mr. Clements to ten years as a multiple offender, the district court informed Mr. Clements that his original sentence of ten years “will now be set aside.” In this assignment of error, Mr. Clements contends that the district court did not actually then set aside the original sentence. Mr. Clements thus requests, out of an abundance of caution, that this matter be remanded for the district court to order the original sentence be set aside.

Both the docket master entry and the minute entry from the March 8, 2012 re-sentencing hearing expressly reflect that the district court vacated Mr. Clements’s original sentence. In addition, the commitment form indicates that the district court vacated the original sentence. Thus, a remand is unnecessary. See State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309; State v. Norwood, 01-0432 (La.App. 4 Cir. 8/29/01), 802 So.2d 721.

| /This assignment of error lacks merit.

DECREE

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

AFFIRMED

      . The photographs are not in the record on appeal.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dominic C. BUHCANNON.
    No. 2011-KA-1727.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Appellant/Dominic C. Buhcannon.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

_JjThis appeal arises from defendant’s conviction of attempted second degree robbery. The defendant was sentenced to six years at hard labor, with credit for time served. The issues raised on appeal include: (1) whether the trial court abused its discretion by denying the defendant’s motion to suppress the out-of-court identification; (2) whether there was sufficient evidence to support the conviction and sentence; and (3) whether the defendant received ineffective assistance of counsel. We find that the trial court did not abuse its discretion by denying the motion to suppress the out-of-court identification, because the identification was reliable. Additionally, when viewed in a light favorable to the prosecution, the evidence was sufficient to convince a rational trier of fact that the defendant intended to attempt to commit the crime of second degree robbery; and, the defendant received effective assistance of counsel. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Dominic Buhcannon (“Mr. Buhcannon”) was charged by bill of information with second degree robbery. Mr. Buhcannon appeared for arraignment and entered a plea of not guilty. A hearing was held, following which, the trial court deferred ruling on probable cause and on Mr. Buh-cannon’s motion to suppress. The trial | ?court denied the motion to suppress and found sufficient probable cause to substantiate the lesser offense of simple robbery.

Mr. Buhcannon elected to have a trial by judge, following which, the judge found him guilty of attempted second degree robbery. Mr. Buhcannon filed a motion for a new trial and a motion for post-verdict judgment of acquittal, which were denied. Mr. Buhcannon was sentenced to six years at hard labor with credit for time served. Through counsel, Mr. Buhcannon moved for appeal, and defense counsel filed a written motion for appeal. Additionally, Mr. Buhcannon filed two motions to file a supplemental pro se brief which this court granted on two separate occasions. Thereafter, the defendant filed a supplemental pro se brief. Through counsel, Mr. Buhcannon contends the trial court erred in denying his motion to suppress identification. Likewise, Mr. Buh-cannon urges in his pro se brief two assignments of error including claims that the evidence was insufficient to support his conviction and that he received ineffective assistance of counsel.

On September 18, 2008, around 2:80 p.m., Joseph Centanni (“Mr. Centanni”) was working on his house at 212 North Clark Street in New Orleans. Mr. Cen-tanni was on a step ladder working on a transom window when he saw a blue car driven by a woman passing slowly. Shortly afterwards, he walked out on his porch and saw the woman at the bottom of his stairs on the side of his house. The woman asked to see his house. Mr. Centanni asked if she was alone and she said that she was by herself. Mr. Centanni let her in and once inside she asked if he had a bathroom. The woman looked at the bathroom, and then asked Mr. Centanni if he had any work for her to do. Mr. Centanni told her no and they walked outside to the porch.

[ .¡When Mr. Centanni walked outside on the porch he saw a man sitting on his stairs. The woman told Mr. Centanni that he wanted to use the bathroom. Mr. Cen-tanni reluctantly let the man into his house so that he could use the bathroom. Mr. Centanni indicated that it was time to go after he noticed the man was in the bathroom for some time. The man walked out of the bathroom and into the doorway in front of Mr. Centanni. The woman was seated on the chair behind Mr. Centanni. The woman then asked Mr. Centanni if this was “a black and white thing?” Mr. Centanni turned back to face the woman to respond to her and the man hit him from behind. Mr. Centanni fell to the ground. The man rolled him to the front of the house. The man started kicking him and jammed his foot across his face. Mr. Cen-tanni noticed that the woman had a red hammer, and she hit him on his legs. Then man grabbed Mr. Centanni’s wallet, and he and the woman left. Mr. Centanni was left in a daze and was not able to see the man and woman leave.

After Mr. Centanni regained his composure, he drove around and stopped a police officer who followed him to his house. Detective Krister Villen (“Detective Villen”) along with another detective went to Mr. Centanni’s home and he described the suspects to them. Mr. Centanni described the woman as a heavy-set woman with reddish complexion and straight hair and described the man as a woman or a man dressed in black tights with cut-off jeans and wearing a black skullcap.

Detective Villen testified that he was assigned to the First District Robbery Unit, and investigated the robbery at 212 North Clark Street. Detective Villen stated when he met with Mr. Centanni he was a little shaken up and had a busted lip. Detective Villen stated Mr. Centanni described the woman as having a reddish complexion, heavy set with long straight hair and believed he described the man as ^wearing “black tights, blue jeans and a yellow bandana in his hair.” Mr. Centanni also described to Detective Villen the vehicle in which the suspects fled as a dark blue Buick Park Avenue.

Sergeant Troy Williams testified that later that day he and Lieutenant Cambiotti responded to a dispatch in an unmarked police car near Le Petit Motel. The officers observed a man dressed in female attire, wearing a yellow bandana, a blue shirt and jean shorts with tights. When the man saw the officers he discarded a hammer he had in his hand underneath the rear of a vehicle that was parked in the parking lot of Le Petit Motel.

During trial Detective Villen testified that he went to Le Petit Motel because there was a call dispatched about a black male dressed as a female chasing after another black male with a hammer. The man had on “black tight shorts, with blue jeans over it.” He also had a yellow headband in or on his hair. Detective Villen further stated the man “was a black male dressed as a female.” The man identified himself as “Charles Frazier” and agreed to do a show-up identification with the police officers.

About six hours after the robbery, Detective Villen contacted Mr. Centanni so that he could do a one-on-one identification. Sergeant Williams and Lieutenant Cambiotti drove Mr. Centanni to the Le Petit Motel and Mr. Centanni was seated in the back. The police car pulled about 20 feet away from Mr. Frazier. Detective Villen was standing six to eight feet away from Mr. Frazier and there was no one else near him. Mr. Buhcannon was the only African American man standing outside. The windows on the car were tinted, but Mr. Centanni put the window down and identified the man as the one who robbed him earlier. After Mr. Centanni identified Mr. Frazier, the police officers arrested him. During booking, |sit was determined that the man that was arrested was Dominic Buhcannon and not Charles Frazier.

At trial, Mr. Centanni testified that he wore glasses when driving and while working on houses. Mr. Centanni stated that he did not call 911 immediately after the incident because he was not sure his insurance was going to cover it, but he later made an appointment to see a doctor. Mr. Centanni sought treatment with Dr. Martinez, a pain management physician, for his leg shortly after the incident. Mr. Cen-tanni also testified that he underwent microscopic surgery at the Pontchartrain Clinic and that he is currently taking Dar-vocet daily for pain as a result of the incident.

During the trial, Mr. Centanni was not able to identify Mr. Buhcannon. He stated, “If that’s him he looks completely different.” Mr. Centanni further explained that something was different about Mr. Buhcannon’s hair. Mr. Centanni stated when he first identified the man six hours had passed, but at trial he could no longer identify him.

At trial, Detective Villen was able to identify Mr. Buhcannon as the gentlemen who referred to himself as Charles Frazier on the night of the incident. Sergeant Williams was also able to identify Mr. Buh-cannon. Sergeant Williams testified that Mr. Buhcannon looked different, but his facial features were the same. Sergeant Williams also testified that Charles Frazier and Mr. Buhcannon are the same individual.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

1 MOTION TO SUPPRESS IDENTIFICATION

In Mr. Buh'cannon’s original brief, counsel for Mr. Buhcannon asserts as the sole assignment of error that the trial court erroneously denied his motion to suppress the out-of-court identification. He contends that the identification was suggestive and was not reliable under the totality of the circumstances. A review of the record demonstrates that Mr. Buhcannon’s identification was reliable under the totality of the circumstance test. For the following reasons, we find that the trial court did not abuse its discretion by denying Mr. Buh-cannon’s motion to suppress the out-of-court identification.

In State v. Cyrus, 11-1175, pp. 9-10 (La.App. 4 Cir. 7/5/12), 97 So.3d 554, 560, this Court acknowledged the well-settled standard of review of a trial court’s ruling with respect to a motion to suppress identification, as well as the defendant’s burden:

A trial court’s determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed in the absence of an abuse of discretion. State v. Stovall, 2007-0343, p. 17 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1085.
The defendant bears the burden of proving that an out-of-court identification was suggestive and that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Ballett, 98-2568, p. 17 (La.Ap. 4 Cir. 3/15/00), 756 So.2d 587, 597; State v. Martello, 98-2066, p. 8 (La.App. 4 Cir. 11/17/99), 748 So.2d 1192, 1198. A defendant must first prove that the identification was suggestive. State v. Thibodeaux, 98-1673, pp. 20-21 (La.9/8/99), 750 So.2d 916, 932. An identification procedure is suggestive if it “unduly” focuses attention on the defendant. State v. Moore, 2010-0314, p. 8 (La.App. 4 Cir. 10/13/10), 57 So.3d 1033, 1039, writ denied, 2011-0404 (La.9/2/11), 68 So.2d 525.
In addition to suggestiveness, a defendant must prove that there was a substantial likelihood of misidentification as a result of the identification 17procedure. State v. Robinson, 2009-0922, p. 3 (La.App. 4 Cir. 3/10/10), 50 So.3d 158, 161. Despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 58 L.Ed.2d 140 (1977); State v. Leger, 2005-0011, p. 59 (La.7/10/06), 936 So.2d 108, 151. Under Manson, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification include: 1) the witness’ opportunity to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Manson, 432 U.S. at 114-15, 97 S.Ct. at 2254.
However, a defendant must make a threshold showing that an identification is suggestive before the reliability of the identification becomes relevant. [State v. Boudreaux, 2007-0089, p. 4 (La.App. 4 Cir. 8/15/07), 966 So.2d 79, 82].

The Louisiana Supreme Court recently held that an identification procedure is suggestive if, during the procedure, the witness’s attention is unduly focused on the defendant. State v. Higgins, 03-1980, p. 19 (La.4/1/05), 898 So.2d 1219, 1233.

Mr. Buhcannon argues that the identification was suggestive in that Mr. Buhcannon was the only person shown to the victim by the police. He submits that the show-up identification was suggestive due to improper police procedures. In the instant case, police told Mr. Centanni that they had caught one of his perpetrators and had him identify Mr. Buhcannon, while the only person near him was the detective who informed him that they caught one of his perpetrators. This procedure unduly focused Mr. Centanni’s attention on Mr. Buhcannon. Thus, we find that the identification procedure was suggestive.

UEven with a finding that the identification procedure was suggestive, an application of the five Manson, supra, factors evidences that Mr. Centanni’s identification of Mr. Buhcannon was reliable.

Here, Mr. Buhcannon asserts that the identification was unreliable for the following reasons: Mr. Centanni’s description was too vague, Mr. Centanni did not claim he was certain in his identification of Mr. Buhcannon and he may have been pointing to one of the nearby officers as his assailant, and the one-on-one identification was not conducted immediately after the crime.

The first two Manson factors: the witness’s opportunity to view the criminal at the time of the crime and the witness’ degree of attention are not contested by Mr. Buhcannon. Mr. Buhcannon asserts that Mr. Centanni “apparently got a good look at his assailant.” .The robbery occurred during the day and Mr. Centanni testified that he viewed the man that attacked him for about fifteen minutes and during this time the man was inside of his home. Accordingly, the first two Manson factors are sufficiently met.

The third Manson factor examines the accuracy of the witness’s prior description of the criminal. Mr. Centanni described his assailant as a woman or a man dressed in black tights with cut-off jeans. While Mr. Centanni did not describe his assailant’s height or weight, but only his physical attire, his description matched Mr. Buhcannon’s actual appearance at the time the police first detained him. Therefore, the degree of accuracy of his prior description was not unreliable.

The fourth Manson factor examines the level of certainty displayed by the witness at the confrontation. During the confrontation, Detective Villen was the closest individual standing next to Mr. Buhcannon, six feet away. Additionally, |9the other individuals were Caucasian and Mr. Buh-cannon was the only African-American man standing outside at the time Mr. Cen-tanni made his identification. Furthermore, Mr. Centanni was able to identify Mr. Buhcannon, even though he had changed clothes and was no longer wearing black tights with cut-off jeans. Thus, Mr. Centanni displayed a high level of certainty in his identification.

Finally, the fifth Manson factor examines the length of time between the crime and the confrontation. It was a six hour delay between Mr. Centanni’s original observation and his identification. While a six hour delay may not be ideal, this court recently upheld a one-on-one identification made nine hours after the crime. See State v. Green, 10-0791 (La.App. 4 Cir. 9/28/11), 84 So.3d 573. In the instant case, the one-on-one identification was done within a short period of time after Mr. Buhcannon was first detained. Here, the six hour delay between the crime and the confrontation did not cause a very substantial likelihood of irreparable misidentification.

Considering all five of the Manson factors, Mr. Buhcannon has failed to establish that Mr. Centanni’s identification of him was unreliable.

SUFFICIENCY OF THE EVIDENCE

In Mr. Buhcannon’s first pro se assignment of error, he argues that the evidence was insufficient to support his conviction.

In reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Using the Jackson standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the |inelements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657 (quoting State v. Captville, 448 So.2d 676, 678 (La.1984)). The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Holmes, 06-2988, p. 34 (La.12/2/08), 5 So.3d 42, 68; State v. Vessell, 450 So.2d 938, 943 (La.1984).

As previously noted, Mr. Buhcannon was found guilty of attempted second degree robbery, a violation of La. R.S. 14:64.4 which provides in pertinent part:

A. (1) Second degree robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another when the offender intentionally inflicts serious bodily injury.
(2) For purposes of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

With regard to attempted crimes, La. R.S. 14:27(A) provides, in pertinent part:

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

To convict Mr. Buhcannon of attempted second degree robbery, the State had to prove beyond a reasonable doubt that Mr. Buhcannon in this case 1) attempted to take 2) “anything of value” 3) which “belong[ed] to another from the person of another” or was “in the immediate control of another”, and 4) that he intended to “intentionally inflict[ ] serious bodily injury.” See La. R.S. 14:64.4(A)(1).

|nMr. Buhcannon argues that the evidence is insufficient because the State failed to prove beyond a reasonable doubt that Mr. Buhcannon had the specific intent to take something of value belonging to the victim, Mr. Centanni. ■ Mr. Buhcannon also argues that the State failed to meet its burden because the wallet “was taken during the course of the crime and later recovered during [the] police investigation at the Capri [M]otel in a trash can” and “it is very plausible that defendant did not attempt to take something that had been taken [already].”

With respect to intent, this Court has found that “[s]pecific criminal intent is ‘that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’ ” State v. Pittman, 11-0741, p. 3 (La.App. 4 Cir. 2/29/12), 85 So.3d 782, 784-85, writ denied, 12-0680 (La.9/14/12), 97 So.3d 1016 (quoting La. R.S. 14:10(1)). Accordingly, “[s]pecific intent need not be proven as fact, but may be inferred from the circumstances and actions of the defendant.” Id. at pp. 3-4, 85 So.3d 782 (citing State v. Hebert, 00-1052, p. 12 (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050).

In this case, Mr. Centanni testified that after the woman in the house asked him a question, as he turned to address her, he was hit from behind by Mr. Buh-cannon, at which time he fell to the ground, striking his shoulder. Mr. Cen-tanni further testified that Mr. Buhcannon began kicking him in the face and “stomping” him as Mr. Buhcannon rolled him over and reached for his wallet. Mr. Cen-tanni testified that he fought against Mr. Buhcannon, but that Mr. Buhcannon tore the ligaments in his arm and took his wallet.

Detective Villen similarly testified that Mr. Centanni advised him that Mr. Buh-cannon kicked him in the face and took his wallet from him. After the perpetrators fled, Mr. Centanni noticed that his phone was in pieces on the floor.

|12When Mr. Centanni’s wallet was returned to him after it was recovered pursuant to Mr. Buhcannon’s arrest, Mr. Centanni confirmed that it contained Mr. Centanni’s driver’s license, a Chase bank card, his medical cards, the death notice of his mother, and cards from business associates; however, all the money was missing, and the wallet was “to[rn] apart.”

Considering the foregoing, the State established beyond a reasonable doubt that Mr. Buhcannon intentionally attempted to take something of value that did not belong to him.

Mr. Buhcannon further alleges that the State failed to prove that he acted with specific intent to cause serious bodily injury. Specifically, Mr. Buhcannon argues that the State failed to prove that he caused Mr. Centanni’s injuries, because no medical records were introduced for Mr. Centanni, and because Mr. Centanni’s testimony was inconsistent regarding whether he was injured as a result of the robbery. Mr. Buhcannon also contends that Mr. Centanni’s injuries could have been the result of previous accidents.

Mr. Buhcannon relies upon State v. Helou, 02-2302, p. 9 (La.10/23/03), 857 So.2d 1024, 1029, wherein the Louisiana Supreme Court found that the evidence presented by the State was “insufficient to sustain the defendant’s conviction for second degree battery.” In Helou, the defendant was charged with second degree battery after the defendant struck the victim’s nose with his fist, and the defendant’s friends “jumped on the victim and beat him until a bystander yelled that the police were on the way.” Id. at p. 2, 857 So.2d at 1025. The victim was transported to the hospital to treat his nose, which was bleeding. Id. A jury found the defendant guilty as charged of second degree battery, and the appellate court affirmed. Id.

113The State relied upon testimony from the victim, his wife, and an eyewitness to the incident, all of whom testified regarding the profuse amount of bleeding suffered by the victim as a result of being struck on the nose. The Supreme Court found “that the presence of blood alone does not satisfy the 'serious bodily injury’ element of second degree battery.” Id. at p. 6, 857 So.2d at 1028. The Supreme Court recognized cases wherein the State proved the “serious bodily injury” element of second degree battery, as well as cases wherein the State established that less substantial injuries may nevertheless constitute “serious bodily injury.” Id. at pp. 6-8, 857 So.2d at 1028-29.

114In concluding that the State failed to establish “extreme physical pain” pursuant to the statute, the Court reasoned that the State offered no testimony from medical witnesses or medical records which would go to proving the pain factor. Id. at p. 8, 857 So.2d at 1029. In Helou, the only evidence presented dealt with the amount of blood the victim lost, and the State’s direct witnesses “avoided the subject of pain.” Id. The Court concluded that because the jury had to infer the victim’s pain, the State failed to prove beyond a reasonable doubt that the victim suffered extreme physical pain. Id. Thus, the evidence was insufficient to convict the defendant of second degree battery; however, the evidence was sufficient to support a conviction for simple battery. Id. at p. 9, 857 So.2d at 1029.

Here, Mr. Centanni testified that as a result of the injuries he sustained as a result of the robbery, he suffered protracted pain in his left shoulder and neck. He also testified that due to the incident his left arm was dislocated. Additionally, Mr. Centanni displayed in open court the scars from his surgery in connection with the injuries he sustained in the robbery. When asked whether “that surgery was done as a result of what happened on [the date of the incident] at North Clark Street,” Mr. Centanni replied, “I was told if I didn’t have the surgery done then that there [sic] wasn’t much they can do for me afterwards ‘cause I tried to delay it.”

Further with regard to his injuries, Mr. Centanni testified that he was not rendered unconscious, but was momentarily stunned after being struck in the back of the neck. As previously noted herein, Mr. Centanni also testified that Mr. Buhcannon tore the ligaments in his arm during the struggle over Mr. Centanni’s | iswallet. As a result of the robbery, Mr. Centanni sees a physician every three months to get shots “for pain” and is in pain “every day.”

Mr. Centanni refused EMS and did not call 911 on the date of the incident. However, Mr. Centanni testified that the reason he refused EMS was because he was not sure what his insurance would cover. Mr. Centanni testified that he sought treatment from Dr. Martinez, a pain management physician, for his leg shortly after the incident, but could not recall Dr. Martinez’s first name or the name of the clinic. Mr. Centanni took Darvocet the morning before testifying in court, but could not recall the dose, other than that it was one pill that he was supposed to take every four hours.

Mr. Centanni further testified that he had never seen a doctor before the date of the incident for his shoulder pain. Mr. Centanni testified that “Dr. Hadad” at the Pontchartrain Clinic performed “microscopic” surgery on him. Dr. Hadad did not give Mr. Centanni any information as to whether he had arthritis or bursitis in his shoulder. The State introduced a photograph of Mr. Centanni’s facial injuries, which Mr. Centanni also identified in open court.

Detective Villen also testified regarding Mr. Centanni’s injuries. Detective Villen spoke with Mr. Centanni at the scene and observed that he had a “busted lip,” which was photographed by another detective. Detective Villen also testified that Mr. Centanni reported to him that he was hit from behind, knocked to the ground, and kicked in the face by Mr. Buhcannon.

When asked whether Mr. Centanni told him that he was unconscious after being hit in the head, Detective Villen responded in the negative. Detective Villen testified that he did not recall whether his report indicated that Mr. Centanni suffered no injuries. When he was shown his report, which indicated an “N” in the | ir,block for injury, Detective Villen clarified that the “N” was in reference to Mr. Buhcannon, not Mr. Centanni. Detective Villen testified that if he indicated in his report that Mr. Centanni only suffered minor injuries, that at the time, that was the extent of his knowledge regarding Mr. Centanni’s injuries. He confirmed that Mr. Centanni refused EMS.

Considering the foregoing testimony and evidence, the trial judge determined that the State proved beyond a reasonable doubt that Mr. Buhcannon intentionally inflicted serious bodily injury causing extreme physical pain to Mr. Centanni. The trial judge also determined as the trier of fact that the State also proved beyond a reasonable doubt that Mr. Buhcannon attempted to take something of value from Mr. Centanni.

Additionally, the facts of this case are distinguishable from Helou, which involved a second degree battery, and not an attempted second degree robbery. Unlike Helou, the State introduced evidence of extreme physical pain, as Mr. Centanni testified to having surgery and having prescription pain medication injections several times per year as a result of injuries sustained during the robbery, as well as daily prescription pain medication. Mr. Centan-ni also displayed the scars he sustained as a result of the surgery in open court as evidence of disfigurement, unlike the victim in Helou.

When viewed in a light most favorable to the prosecution, these facts support a determination by a rational trier of fact that Mr. Buhcannon intended to attempt to commit the crime of second degree robbery. This assignment of error lacks merit.

|17.INEFFECTIVE ASSISTANCE OF COUNSEL

In Mr. Buhcannon’s second and final pro se assignment of error, he argues that he had ineffective assistance of counsel because counsel failed to properly impeach Mr. Centanni on cross-examination.

In State v. Stovall, this Court recently recognized a defendant’s burden of proof in establishing a claim for ineffective assistance of counsel:

The defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974, but to sustain a claim of ineffective assistance of counsel, he must show that (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable,” and, accordingly, to prevail on a claim for ineffective assistance, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Stnckland, supra. Claims of ineffective assistance of counsel are more appropriately addressed through an application for post-conviction relief rather than direct appeal, State v. Truitt, 500 So.2d 355 (La.1987), but will be addressed on direct appeal in the interest of judicial economy if the record contains sufficient evidence to decide the issue. State v. Peart, 621 So.2d 780 (La.1993).

State v. Stovall, 12-0014, p. 6 (La.App. 4 Cir. 10/17/12), 102 So.3d 994, 998.

Mr. Buhcannon argues that his counsel failed to impeach Mr. Centanni related to an automobile accident that occurred in Jefferson Parish. Mr. Buhcannon alleges that his counsel “was in possession of the documentation evidence that counsel could have impeach[ed] the victim’s testimony in that, the victim did in[sic] fact file a lawsuit [sic] for personal injuries” related to the Jefferson Parish automobile accident. Mr. Buhcannon argues that Mr. Centanni’s injuries could have resulted 11sfrom a vehicle accident which occurred prior to the attempted second degree robbery, and the outcome of his trial would have been different because the “serious bodily injury” element might not have been established beyond a reasonable doubt.

Review of the record indicates that documentation of the personal injury lawsuit was not submitted into evidence at trial. Therefore, because the evidence that Mr. Buhcannon references was not made a part of the record, it cannot be considered on appeal. State v. Crockham, 99-2867 (La.App. 4 Cir. 2/7/01), 780 So.2d 1079; See also State v. Vallot, 05-532 (La.App. 3 Cir. 4/5/06), 926 So.2d 98.

Nevertheless, even if evidence of the personal injury lawsuit was part of the record before this court, the evidence is subject to a harmless error review. State v. Dabney, 633 So.2d 1369 (La.App. 4 Cir.3/15/94) (State’s failure to provide defense with prior arrest records of potential jurors and to include information as part of the record was harmless error). The question then becomes whether there is a reasonable possibility that the evidence complained of might have altered the outcome. State v. Rovaris, 464 So.2d 958 (La.App. 4th Cir.2/12/1985). We have determined that in light of the evidence before this court, the failure to introduce evidence of the personal injury lawsuit did not contribute to the verdict. Therefore, the error was harmless and without merit.

DECREE

For the abovementioned reasons, we find that Mr. Buhcannon’s motion to suppress the out-of-court identification was correctly denied by the trial court, | ^there was sufficient evidence to support his conviction, and Mr. Buhcannon received effective assistance of counsel. Accordingly, we affirm.

AFFIRMED

      . The Court listed the following cases where the State established the "serious bodily injury” element:
      Our jurisprudence demonstrates many cases where the State proved the "serious bodily injury” element of second degree battery. Some examples are: 1) State v. Abercrumbia, 412 So.2d 1027 (La.1982), where the defendant hit the victim with boards across his head, neck, and arm, causing a "deep cut over his right eye;” 2) State v. Robertson, 98-883 (La.App. 3d Cir. 12/9/98), 723 So.2d 500, writ denied, 99-0658 (La.6/25/99), 745 So.2d 1187, where the defendant knocked the victim to the ground and repeatedly kicked and hit her until she "kind of lost her senses for a minute;” the victim had bruises and contusions over the entire extent of her body, which left significant scars and lacerations on her nose; and 3) State v. Robinson, 549 So.2d 1282, 1285 (La.App. 3d Cir.1989), where the defendant stabbed the victim twice with a large, folding knife.

        Helou, 02-2302, p. 7, 857 So.2d at 1028.

      . The Court listed the following cases where less substantial injuries were found to constitute "serious bodily injury”:
      There are other cases which indicate that less substantial injuries may also constitute "serious bodily injury." See State v. Young, 00-1437, pp. 9-10 (La.11/28/01), 800 So.2d 847, 852-853, where the victim suffered a bloody nose, tenderness in hyoid area below the larynx, and complained of pain at incision in his lower abdominal area. The physician testified that the defendant’s act of choking the victim could have resulted in substantial risk of death, and three months after the attack, the victim continued to have throat problems; State v. Diaz, 612 So.2d 1019, 1022-1023 (La.App. 2d Cir.1993), where the defendant broke the victim’s jaw during a group fight; State v. Mullins, 537 So.2d 386, 391 (La.App. 4th Cir.1988), where a 6 foot tall defendant punched a 5 § 5 girlfriend, breaking her nose; State v. Legendre, 522 So.2d 1249, 1251 (La.App. 4th Cir.1988), writ denied, 523 So.2d 1321 (La.1988), where the defendant raised the victim over his head and smashed her to the floor, rendering her momentarily immobile and requiring a brief hospitalization followed by outpatient treatment leading to a loss of employment for several weeks; State v. Accardo, 466 So.2d 549, 552 (La.App. 5th Cir.1985), writ denied, 468 So.2d 1204 (La.1985), where a 17-year-old female victim was struck on the head by the defendant with either his fist or a blackjack, causing the side of her face to swell.

        Id. at pp. 7-8, 857 So.2d at 1028-29.

      .The Helou Court noted that "[tjhis Court has held that the phrase ‘extreme physical pain’ as used in [La. R.S. 14:64.4] is not unconstitutionally vague, since it describes a condition which most people of common intelligence can understand.' " Id. at p. 6, 857 So.2d at 1027 (quoting State v. Thompson, 399 So.2d 1161, 1168 (La.1981)).

      . Mr. Centanni also testified that he hurt his shoulder while serving in the military in 1955.

      . See also State v. Lipscomb, 00-2836, p. 1 (La. 1/25/02), 807 So.2d 218, 219 (recognizing "the general preference for addressing claims of ineffective assistance of counsel in post-conviction proceedings and not on appeal”).


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Michael L. CURTIS, Demond T. Solomon.
    No. 2011-KA-1676.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Michael L. Curtis.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Demond T. Solomon.

      (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

LThe defendants, Michael Curtis and Demond Solomon, challenge the sufficiency of the evidehce underlying their respective convictions for manslaughter and raise other assignments of error pertaining to the validity and constitutionality of their convictions. In addition, defendant Curtis contends that his sentence is unconstitutionally excessive and illegal. After review of the record in light of the applicable law and arguments of the' parties, we affirm the defendants’ convictions and sentences.

Relevant Procedural History

The defendants were jointly charged by grand jury indictment on August 27, 2009, with second degree murder, a violation of La. Rev.Stat. 14:80.1, for the shooting death of Lindsey Singleton which occurred on March 29, 2009. On September 2, 2009, they pleaded not guilty. After a hearing on March 12, 2010, the trial court denied defendants’ motions to suppress the evidence and identifications. The defendants’ trial before a twelve-person jury began on February 14, 2011, with jury selection. The trial court denied the defendants’ motion to declare La.Code Crim. Proc. art. 782(A) unconstitutional on February 15, 2011, and the following day both defendants were found guilty of 1 manslaughter. The trial court denied defendant Curtis’s motion for new trial and defendant Solomon’s motion for post-verdict judgment of acquittal on May 26, 2011, and, after waiver of sentencing delays, both defendants were sentenced to forty years at hard labor. On June 22, 2012, defendant Curtis was adjudicated a second-felony habitual offender, his original sentence was vacated and he was resen-tenced to eighty years at hard labor with credit for all time served.

The defendants’ appeal is timely filed.

Relevant Facts

The following evidence was adduced at trial.

On the evening of March 29, 2009, Officer Thomas Clark of the New Orleans Police Department (NOPD) Sixth District responded to a call pertaining to a shooting incident at 1223 South Johnson Street in the B.W. Cooper Housing Development. He arrived at the scene and observed a black male lying on the steps at that address, bleeding profusely. That individual, Lindsey Singleton, subsequently died.

Detective Nicholas Gernon of the NOPD arrived at the scene at approximately 7 p.m. to assist in the murder investigation. Although he canvassed the area and attempted to speak to potential witnesses, no one gave him their own names or that of any of the perpetrators.

NOPD Crime Lab Technician Shaheed Mohammed photographed the crime scene and collected evidence, including at least two CBC .40 S & W caliber cartridge casings, and wrote a report.

|3Panielle Singleton, the victim’s sister, testified that she was sitting in her parked car with the door open in the driveway of the South Johnson Street residence when her brother was shot. Just before the shooting, he had walked over to her to get a cigarette and returned to the porch where ten or fifteen people were gathered, including Calvin Rankins and them cousin Venezia Singleton. Ms. (Danielle) Singleton was talking on her cell phone when she heard gunshots. After ducking down, she lifted her head and saw a white Grand Prix speed out of the driveway in front of her car. Looking back towards her brother, she saw him run towards her, grab his back, turn around, run to the other side of the driveway, and collapse on a porch. She did not see the license plate or the driver of the car but asserted that a photograph of a white Grand Prix depicted the same model of car, if not the specific car, that she saw drive away after the shooting. She admitted that she and her brother both knew defendant Curtis as a former resident of the housing project but was unable to say whether his (defendant Curtis) relationship with her brother was friendly or one of conflict.

Calvin Rankins testified that he was sitting on the porch with the victim, someone he knew only as “Nunu,” (subsequently identified as Venezia Singleton) and other persons when a white Pontiac stopped for a speedbump halfway through the driveway in front of them and “Demond” rolled down the window of the front passenger seat (which was closest to the porch) and pointed a gun. As “Demond” brought up the gun to fire, Mr. Rankins ran.

Mr. Rankins subsequently identified “Demond” in a photographic lineup as defendant Solomon. He also identified the driver of the vehicle in another photo lineup shown to him by the police, as well as an individual he referred to as “Bam” in a third photo lineup as the passenger in the backseat of the vehicle. Although |4Mr. Rankins identified the photo lineups relating to the two defendants, he was unable to definitely identify them in court. Specifically, when first asked whether he saw the shooter and the driver in court, Mr. Rankins replied in the affirmative but then identified defendant (Michael) Curtis as the driver referring to him as “Kevin” and when asked again whether he saw the shooter in court, Mr. Rankins replied in the negative. Mr. Rankins reiterated, however, that the individuals he picked out in the photo lineups were the individuals he saw on the day of the murder. He also asserted that the police did not promise him anything, coerce him in anyway, or force him to make an identification when they showed him the photo lineups. He stated that he did not know any of the people involved personally and that the only person he had seen prior to the day of the shooting was “Kevin,” and that was just around the project. Mr. Rankins declared he had never seen “Bam” or the individual he referred to as “Demond” before the shooting but that people in the project told him the names of “Bam” and “Demond.” On redirect examination, Mr. Rankins confirmed that the person he identified as “Demond,” number five in the photo lineup labeled State Exhibit 41, was the shooter. When asked if he was certain of his identification, he replied affirmatively. When asked again on recross examination whether, as he had previously stated, he did not see the shooter in the courtroom, Mr. Rankins replied: “I guess not. I don’t see him. Not right now I don’t. He could be somewhere else. I don’t know.”

In a recorded bench conference after Mr. Rankins was excused as a witness, the State moved to have the court permit the jury to be made aware of the fact that defendant Solomon had obscured his facial tattoos with makeup. Ultimately, the State read a stipulation to the jury, agreed to by defense counsel, to the effect that defendant Solomon had makeup applied to his forehead for trial that obscured his |fifacial tattoos. In addition, the defendant removed the makeup at the direction of the court and stood in front of the jury so that the jurors could observe his face without the makeup.

Venezia Singleton, a cousin of the victim, testified that she was sitting to the left of the victim when shots rang out from the white Grand Prix automobile. Ms. Singleton stated that she saw the window of the vehicle being rolled down and then someone stick a gun out. The first shot fired hit the ground, but the shooter continued firing. As she ran behind a car on her left, she felt a bullet graze her. Her cousin ran in the other direction where there was no cover and, once shot, grabbed his side, staggered across the driveway and collapsed on a porch. Ms. (Venezia) Singleton remembered seeing Mr. Rankins on the evening of the shooting. She identified defendant Solomon in court as the shooter and defendant Curtis as the driver of the white Grand Prix. Ms. Singleton stated that, although she was there when the police arrived she did not speak to them at the scene. She explained that no one at that time was really talking to the police because the focus was on the victim.

On cross-examination, Ms. (Venezia) Singleton stated that the white Grand Prix slowed down but did not come to a complete stop. She again confirmed that she never talked to police about the shooting. She explained that, although the police had tried to contact her through family members, they did not have her real name as at the time of the shooting she went by the nickname “Nunu.” Moreover, she knew that the individuals responsible had been arrested and were incarcerated. Ms. Singleton stated that she did not decide to testify until the week before the trial. Upon being called by the District Attorney’s Office and informed that the defendants were going to trial, she agreed to come forward as a witness. Ms. Singleton stated that she learned defendant Solomon’s name after the incident from the people who, she surmised, he had been trying to shoot. Ms. [(¡Singleton stated that she had never been shown a photo lineup but that the shooting incident was unforgettable.

On further cross examination, Ms. Singleton stated that she saw two people in the vehicle and that the car windows were tinted, but not darkly. She testified that the windshield was not tinted and that she was able to see both defendants as the car approached the driveway, prior to the passenger side window being rolled down. Although she did not recognize the driver at the time of the shooting, she stated he was sitting in the courtroom. She did not remember what hairstyle the driver had that day — whether he had short hair or long dread locks-and could not see what type of clothing the driver was wearing but he had dark skin and a nose ring.

On redirect examination, Ms. Singleton confirmed that the trial was the first opportunity she had to see the defendants since the shooting. When asked whether there was any doubt in her mind that defendant Solomon was the shooter that day, Venezia replied: “Yeah, that’s who it was. It was him.” When asked whether there was any doubt in her mind that defendant Curtis was the person driving the car, Venezia replied: ‘Tes, he was driving.”

Dr. Paul McGarry, qualified by joint stipulation as an expert in the field of forensic pathology, performed the March 30, 2009, autopsy on the victim’s body, determining that the cause of death was a single gunshot wound to the center of Lindsey’s back, two inches to the left of the midline, ten inches below the shoulder. The bullet entered the victim’s left lung, causing massive hemorrhage in the left chest cavity, filling his respiratory tract with blood. The bullet then 17traveled upward into the victim’s neck, where the jacket of the bullet was found, and into his mouth, where the lead core of the bullet was found. Dr. McGarry testified to the effect that the wound and the bullet tract were consistent with the shooter being forty-eight to fifty inches off the ground, shooting horizontally from the shoulder, and with the victim bending over in a moving posture, such as a running posture. Dr. McGarry viewed State Exhibit 11, a photo, and confirmed that in the case of someone firing through the window of a sedan, the shooter’s shoulder would be about four feet off the ground. Dr. McGarry identified a .40 caliber lead bullet and bullet jacket he recovered during the autopsy of the victim that, he confirmed, caused the victim’s death.

It was stipulated by the State and the defense that, if called to testify, Kenneth Leary would qualify as an expert in the field of firearms examination and that he would testify (consistent with his report) that four .40 caliber spent cartridge casings recovered from the scene were all fired from the same gun; that the bullet jacket recovered during the autopsy was consistent with .40 caliber ammunition; and that the lead bullet was unsuitable for caliber identification or comparison purposes.

Homicide Detective Robert Long of the NOPD, the lead detective in the murder investigation, testified that although initial attempts to speak with witnesses at the scene were unsuccessful, when he returned to his office he spoke to Danielle Singleton. He later developed defendants Curtis and Solomon as suspects, along with Dwayne Butler. Accordingly, he prepared photo lineups for those three suspects, which he identified as State Exhibits 40, 41, and 42, and presented them to Mr. Rankins. Mr. Rankins identified defendant Solomon as the person depicted in photo number five in one lineup, as well as the front seat passenger and shooter. | sWhen shown photo lineup labeled State Exhibit 41, Mr. Rankins identified defendant Curtis as the person depicted in photo number three, as well as the driver of the vehicle. Finally, Detective Long testified that in the third lineup Mr. Rankins identified Dwayne Butler, aka “Bam,” as the person in photo number two. Detective Long recalled that in his statement Mr. Rankins kept confusing defendant Curtis’s first name, referring to him both as “Michael” and “Kevin.” He identified State Exhibit 46 as a transcribed copy of a recorded statement by Calvin Rankins, which the defense objected to on hearsay grounds, and confirmed that it reflected Mr. Rankins’ confusion as to defendant Curtis’ first name.

Detective Long identified the arrest warrants issued for Curtis, Solomon, and Butler, and testified that, after Officer Dean Moore provided him with defendant Curtis’s cell phone number, he obtained a “real time” location of that cell phone — in the 9000 block of Oleander Street. When he arrived in that block, he saw a white Grand Prix parked in front of a residence at 9021 Oleander Street and, upon knocking on the door, defendant Curtis answered it. Defendant Curtis was taken into custody at that point and Detective Long ascertained that the owner of the Grand Prix was defendant Curtis’ girlfriend. Detective Long identified a photograph of that vehicle.

Detective Long confirmed also that, during the course of his investigation, he determined that the cell phone associated with defendant Curtis was used around the time of the murder. Accordingly, he plotted the location of the towers reflected in three calls placed near the time of the murder with a computer-generated printed map of the city. The first call was placed at 5:33 p.m. and received by the cell phone tower near First Street and Simon Bolivar Avenue. The second call, placed 5:48 p.m., was received by a cell phone tower located in the |t>1200 block of- South Derbigny Street which is approximately two blocks from the scene of the murder. The third call was intercepted by a cell phone tower on Erato Street near South Broad Avenue at 5:55 p.m. The detective surmised that the murder occurred somewhere around 5:50 p.m., several minutes before the first 911 call was made. The detective indicated on the city map (State Exhibit .51) where the three cell towers were located and where the murder occurred.

Detective Long confirmed that a search warrant was obtained for the white Grand Prix but that nothing of evidentiary value was recovered from it. He also confirmed that a search warrant was obtained for the residence of defendant Solomon, but did not recall anything of evidentiary value being recovered from that residence. Detective Long identified both defendants in court. When asked if the defendants looked the way they had at the time he prepared photo lineups for them, the detective replied: “If I remember correctly, no, they do not.” On cross examination Detective Long confirmed that the photo in the lineup depicted defendant Curtis with a long dread-lock hairstyle which he no longer had at trial. Detective Long did not know when defendant Curtis cut his hair, but confirmed that his hair was short at the time of arrest. Detective Long stated that, to the best of his recollection, nó one provided' him with a physical description of the driver of the white Grand Prlx, identified by both Mr. Rankins and Venezia Singleton as defendant Curtis. Officer Moore had discovered the telephone number associated with defendant Curtis and had spoken to defendant Curtis on that number, but when Detective Long checked with the subscriber (Sprint), then-records of the number were not in the name of Michael Curtis. Detective Long conceded that he tracked the number to the 9000 block of Oleander Street a month after the murder |1fland there was no evidence Curtis used the cell phone associated with that number on the - day of the murder.

Detective Long also conceded that the phone calls associated with the phone on the day of the murder, particularly the one placed at 5:33 p.m., could have been made from three to five miles away from the tower in any direction, i.e., tracking the cell phone towers was not tracking the real time location of the cell phone with a GPS coordinate. Thus, as to the three cell phone calls made around the time of the murder, Detective Long could not say with certainty where the calls were made from, except to within three to five miles of the respective towers.

Detective Long confirmed that no witness identified the license plate number of the white Pontiac found parked outside the Oleander Street residence where defendant Curtis was arrested. He stated that the white Pontiac was photographed and he examined it but, because of the month-long time lapse between the murder and seizure of the vehicle, the vehicle was not processed for evidence and there was no objective evidence linking it to the homicide.

Detective Long acknowledged that despite the number of people in the vicinity at the time of the murder, the only witness he found in the two year period between the homicide and trial was Mr. Rankins. He also acknowledged that he received an anonymous tip that an individual named Kentrell Hickerson was the perpetrator of the crime and, although he compiled a photo lineup containing Hickerson’s photo, he did not show it to Mr. Rankins. Detective Long testified before taking the taped statement, Mr. Rankins indicated that he knew all three individuals, defendants Solomon and Curtis, as well as Dwayne Butler but in the recorded statement denied knowing them.

| nDetective Long said on redirect examination that Crimestoppers had received a tip about Kentrell Hickerson. He further stated that defendants Solomon, Curtis and Dwayne Butler had also been named in Crimestoppers tips. Detective Long identified State Exhibit 46 as a transcript of a recorded statement he took from Calvin Rankins. The State introduced that statement, as well as State Exhibit 66, a CD recording of that statement, over a defense hearsay objection, and the CD was played for the jury.

Officer Moore confirmed that in March/ April 2009, defendant Curtis was a person of interest in the homicide investigation and that he assisted Detective Long in locating him. He obtained a contact telephone number from Curtis and gave it to Detective Long and helped Detective Long contact defendant Demond Solomon and Dwayne Butler. Officer Moore confirmed on further cross examination that he found Mr. Rankins and took him to Detective Long and that he did not pay Mr. Rankins for any information in the case.

Frank Mistretta, a private investigator since 1989, with approximately twenty years of law enforcement experience prior to that, testified that he was retained by defense counsel and found that defendant Curtis had been arrested on some traffic attachments on March 3, 2009. He obtained from the Orleans Parish Criminal Sheriff’s Office a booking information sheet containing a booking photo of Curtis that was taken on March 3, 2009. Mistret-ta identified Defense Exhibit 1 as that booking information sheet.

Errors Patent

A review of the record reveals no patent errors.

Sufficiency of the Evidence

112In their respective Assignments of Error No. 2, the defendants argue that the evidence is insufficient to support their respective convictions because the State failed to negate any reasonable probability of misidentification pursuant to Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in evaluating whether evidence is constitutionally sufficient to support a conviction, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Green, supra. Notably, we are not called upon to decide whether we believe the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992). The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 2003-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311.

La.Rev.Stat. 14:31(A) defines manslaughter as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by | ^provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.

In turn, a principal is defined in La.Rev. Stat. 14:24:

All 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.

In this case, the State presented the testimony of two eyewitnesses that defendant Solomon fired the bullet that struck and ended the victim’s life and that defendant Curtis drove the car from within which defendant Solomon fired the fatal shot into the victim, thus making him a principal to the homicide. Although Mr. Rankins was unable to identify defendant Solomon in court and identified defendant Curtis as “Kevin,” shortly after the shooting, he positively identified both defendants in separate photo lineups, neither of which, as discussed infra, was suggestive. Moreover, at the close of Mr. Rankins’ testimony, it was determined that defendant Solomon was wearing facial makeup that obscured the indigo blue tattoo of a cross on his forehead between his eyebrows that was depicted in his photo in the photo lineup marked State Exhibit 40. Subsequently, defendant Solomon was ordered to remove his makeup to allow the jury to view him sans makeup. In addition, Detective Long testified that during his interview, Mr. 114Rankins was confused as to Curtis’ first name, referring to him interchangeably as “Kevin” and “Michael.” Mr. Rankins testified that “Nunu,” subsequently identified as Venezia Singleton, the victim’s cousin, was sitting on the porch with both him and the victim just prior to the shooting. Ms. (Venezia) Singleton, in turn, positively identified Solomon and Curtis, respectively, as the shooter and driver in court. Finally, although the victim’s sister could not positively identify the defendants as the perpetrators, she confirmed the peripheral details provided by Mr. Rankins and Ms. Venezia “Nunu” Singleton.

In arguing that the identifications of Mr. Rankins and Ms. (Venezia) Singleton are insufficient because the State failed to negate any reasonable probability of misiden-tification, the defendants misapprehend Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). That case pertains to identification made under suggestive circumstances that are arranged by the police and create the “substantial likelihood of misidentification.” Accordingly, the factors of Manson v. Brathwaite come into play only after the defendant establishes improper police conduct, its very purpose being “to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.” Perry v. New Hampshire, — U.S. -, -, 132 S.Ct. 716, 724-726, 181 L.Ed.2d 694 (2012). In this case, however, there is no suggestion that the photo lineups presented to Mr. Ran-kins were suggestive or that his pre-trial identifications of defendants were made under suggestive circumstances arranged by police. Mr. Rankins’ in-court identification of the defendants was equivocal but he positively identified them as the perpetrators in the photo lineups presented by the police. Moreover, it was subsequently revealed that defendant Solomon was wearing facial makeup at trial that concealed, at least to some degree, his facial tattoo or tattoos, including a prominent indigo one of a hscross on his forehead, between his eyebrows and, in any event, Ms. (Venezia) Singleton positively identified them as the perpetrators in court. Accordingly, viewed in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendants were the perpetrators of the homicide. There is no merit in the defendants’ arguments that the evidence is insufficient to support their convictions.

Michael Curtis-Pro Se Assignment of Error 1

In his first pro se assignments of error, defendant Curtis asserts that the evidence is insufficient to support his conviction for manslaughter because the State failed to prove that he was a principal to the killing of the victim in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection as statutorily required.

With regard to his argument that there is insufficient evidence to support a conviction of manslaughter because there is no evidence that the offense was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection, the general rule is that if the evidence adduced at trial is sufficient to support a conviction of the charged offense, then a responsive verdict is authorized. See State v. Knight, 2000-1051, p. 4 (La.App. 4 Cir. 5/23/01), 794 So.2d 33, 36-37. Accordingly, to obtain a conviction for second degree murder, the offense charged, the State had to prove only that the defendant killed a human being with the specific intent to kill or to inflict great bodily harm. La.Rev.Stat. 14:30.1. Clearly, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant Curtis was a principal to the second degree murder of Lindsey Singleton (having | if,aided and abetted defendant Solomon in killing the victim by driving the vehicle and slowing down or stopping it to allow defendant Solomon to take aim and fire the fatal shot) while possessing the specific intent to kill or inflict great bodily harm upon the victim. Thus, the statutorily-provided responsive verdict of manslaughter was authorized and was properly returned by the jury.

Defendant Curtis also argues that his trial counsel was ineffective in failing to object to the inclusion of the responsive verdict of guilty of manslaughter. Although as a general rule, a claim of ineffective assistance of counsel is more properly raised by application for post-conviction relief, it may be addressed if (as here) the record is sufficient to address it. State v. Rubens, 2010-1114, pp. 58-59 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 66-67, writ denied, 2012-0374 (La.5/25/12), 90 So.3d 410. In order to prevail under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that (1) counsel’s performance was deficient and (2) he was prejudiced by the deficiency. State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. A counsel’s performance is ineffective when it is shown that he made.errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment or if his errors were so serious as to deprive him of a fair trial. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Thus, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. However, if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986).

As discussed, supra, the evidence against defendant Curtis was sufficient to support a conviction of second degree murder. Two witnesses identified him as the driver of a white Pontiac Grand Prix from which the fatal shot was fired into the victim and a white Pontiac Grand Prix automobile belonging to his girlfriend was found parked outside the residence where he was arrested a month after the killing. Thus, his defense counsel could have reasonably believed that the potential for conviction of second degree murder, carrying with it a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, warranted leaving in the legislatively-responsive verdict of manslaughter so as to provide a possible “compromise” alternative guilty verdict for jurors. Manslaughter carries a maximum sentence of forty-years at hard labor, with no restriction as to parole, probation, or suspension of sentence. While defendant Curtis ultimately received a sentence of eighty years at hard labor as a second-felony habitual offender and, pursuant to La.Rev.Stat. 15:529.1(G), such sentence is without the benefit of probation or suspension of sentence, he still has the benefit of parole. Accordingly, given that if an alleged error falls within the ambit of trial strategy it does not establish that counsel was ineffective, it cannot be said that defendant has shown that trial counsel was ineffective.

We find no merit in the defendant’s pro se assignments of error.

Motions to Suppress

In their respective first assignments of error, both defendants argue that the trial court erred in denying their motions to suppress Mr. Rankins’ respective out-of-court identifications of them in the photo identification procedures.

|1SA trial court’s determination of the admissibility of’identification evidence is entitled to great weight and will not be disturbed in' the absence of an abuse of discretion. State v. Stovall, 2007-0343, p. 17 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1085. In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Brown, 2009-0884, p. 3 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, 978. “A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure.” State v. Sparks, 88-0017, p. 52 (La.5/11/11), 68 So.3d 435, 477 (emphasis in original). An identification procedure is suggestive if it unduly focuses attention on the defendant. Id. In addition to suggestiveness, a defendant must prove that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Robinson, 2009-0922, p. 3 (La.App. 4 Cir. 3/10/10), 50 So.3d 158, 161. Despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a very substantial likelihood of irreparable mis-identification. Manson v. Brathwaite, 432 U.S. at 116, 97 S.Ct. 2243. Under the Manson v. Brathwaite, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification include: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 114-15, 97 S.Ct. 2243. However, consideration of these factors |19is required only when there has been a police-arranged suggestive pre-trial identification, for it is only at that point it becomes necessary to determine whether, despite such suggestive identification, there nevertheless was not a very substantial likelihood of irreparable misidentification. Perry, supra.

It was jointly stipulated at the motion to suppress hearing that Detective Long presented three photo lineups to a witness on April 30, 2009, depicting, respectively, defendant Curtis, Dwayne Butler, and defendant Solomon. At this point, during the motion to suppress hearing, the name of the witness was not used but it is obvious that “the witness” referred to was Mr. Rankins. Detective Long testified that he presented the lineups individually, face down, and asked Mr. Rankins if he recognized anyone depicted in the photographs. As to the lineup containing a photo of defendant Solomon, Detective Long recalled that Mr. Rankins actually used the name “Demond” in making the identification. As to Dwayne Butler, Detective Long recalled Mr. Rankins using Butler’s nickname, “Bam,” in selecting Butler’s photo. He. further recalled Mr. Rankins using the name “Mike” when selecting defendant Curtis’ photo. Detective Long replied in the negative when asked at the motion to suppress hearing whether at any time he forced, coerced, or told Mr. Ran-kins who to select in any of the three lineups. He replied in the affirmative when asked whether Mr. Rankins made the identifications freely and voluntarily.

After having his memory refreshed by referring to a transcribed statement of Mr. Rankins, Detective Long testified on cross examination that he asked Mr. Rankins whether he had ever seen any of the three individuals before. The detective stated that Mr. Rankins replied in the negative. Detective Long also testified that, to the best of his recollection, Mr. Rankins initially indicated that he |2nknew of these individuals, that they were not complete strangers to him, and' that he had some limited knowledge as to each perpetrator. Detective Long had no first-hand knowledge how Mr. Rankins knew the names of the three individuals depicted in the lineups but recalled that Mr. Rankins described each perpetrator to him, although he could not recall what the description had been as to the individual in the driver’s seat. Detective Long recalled that he first spoke to Mr. Rankins on April 30, 2009, although he did not remember whether it was by phone or in person. Detective Long estimated that the witness picked defendant Solomon out of the lineup within five seconds, stating “I’ll never forget that face,” and “I looked him right in the eyes.”

On appeal, the defendants assert that the respective photo-lineup identification procedures were “suggestive” because Detective Long testified at the hearing that in identifying defendant Curtis’ photo, he recalled Mr. Rankins used the name “Mike” and in identifying defendant Solomon’s photo he recalled Mr. Rankins using the name “Demon d.” They com plain that the trial court erred in failing to order the State to produce Mr. Rankins at the motion hearing to be examined as to how he knew them first names, but cite no authority for the proposition that the State must present an eyewitness who has made an identification that is the subject of the motion to suppress at the hearing. Moreover, the defendants had ample opportunity to cross examine Mr. Rankins at trial as to how he knew their first names at the time he made the identifications. Mr. Rankins testified on cross-examination that he did not know any of the people involved — the perpetrators — personally. He said the only one he had seen prior to the day of the shooting was “Kevin,” (ie., defendant Curtis) who he had seen around the project and, thus, came to know his name. Mr. Rankins stated he had |⅞1 never seen “Bam” or “Demond” before the shooting, but that people in the project had told him those names on the day of the shooting, after it had occurred. Rankins replied in the affirmative when asked on cross examination: “And so your identification -of these individuals in terms of the names of people, that came from something somebody else told you?”

On appeal, the defendants infer in their respective arguments that the identifications had to have been suggestive given that Rankins knew their first names at the time he made the identifications, had learned those names from others and, in defendant Solomon’s case, had learned his first name after the shooting. Thus, the defendants complain, the trial court erred in not employing the Manson v. Brathwaite factors to determine the reliability of the identifications.

Mr. Rankins made his respective identifications from two photo lineups consisting of six photos each, however, and there were no names on the lineups shown to Mr. Rankins. Thus, it is irrelevant whether he learned defendant Curtis’ first name from others in the project at some point prior to the shooting or learned defendant Solomon’s first name on the day of the shooting. Even if it could be inferred from the circumstances that some sort of collusion existed between Mr. Rankins and others to falsely accuse the defendants of the crime by knowingly identifying their photos as depicting the perpetrators, there is no hint of police misconduct. Detective Long testified that he presented each of the three photo lineups to Mr. Rankins separately, face down, and asked him if he recognized anyone in them and there is nothing in the record which suggests that the identification procedure unduly focused attention on the respective defendants’ photos. Accordingly, the Manson v. Brathwaite factors are not implicated. See Perry, supra (Manson v. Brathwaite factors applicable only to police misconduct | ^resulting in suggestive identification procedure). Therefore, the trial court did not abuse its discretion in denying the defendants’ motion to suppress and, accordingly, these assignments of error are without merit.

Michael Curtis-Assignment of Error No. 3

In his third assignment of error, defendant Curtis argues that the trial court erred in permitting Detective Long to testify as to the location of three cell phone towers that received three respective cell phone calls made in close temporal proximity to the murder from a cell phone number linked to defendant Curtis. Notably, the cell phone records were not introduced into evidence and Detective Long did not consult them while testifying, referring to them only in the narrative of steps he took in the investigation. In any event, even accepting arguendo that the reference to the cell phone records and the proximity of the cell phone towers was inadmissible hearsay, any such error was harmless. State v. Campbell, 2006-0286, p. 69 (La.5/21/08), 988 So.2d 810, 855 (guilty verdict may stand if it is determined that it is unattributable to the error). In this case, Detective Long conceded on cross examination that even with reference to the cell towers, he could not determine where the cell phone was located in the three to five mile radius of the cell tower. Again on redirect examination by the State, Detective Long reiterated that his testimony as to the cell phone calls was limited to placing them within a radius of three to five miles of a particular cell phone tower. Thus, considering Detective Long’s admission of the limited relevance of the cell tower evidence, the eyewitness identification of defendant Curtis by Mr. Rankins and Ms. (Venezia) Singleton, as well as the evidence that defendant Curtis’ girlfriend owned a white Pontiac Grand Prix, the guilty verdict rendered in this case is clearly not attributable to any error pertaining to Detective Long’s testimony regarding the cell phone records. Finally, even assuming arguendo that Detective Long’s testimony about the | ¡^cell phone towers implicated Curtis’ right to confront witnesses against him and cross-examine his accusers, confrontation errors are also subject to harmless error analysis. There is no merit to this assignment of error.

Michael Curtis-Assignment of Error 4; Demond Solomon-Assignment of Error 3

Both defendants argue that conviction by a non-unanimous jury (ten to two votes of guilty of manslaughter) was a violation of the rights guaranteed by the Sixth and Fourteenth Amendments. However, it is well-settled that under current jurisprudence these assignments of error are without merit. State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); McDonald v. City of Chicago, — U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010),(reaffirming Apodaca’s viability).

Michael Curtis-Supplemental Assignment of Error

In his supplemental assignment of error, defendant Curtis argues that his sentence of eighty years at hard labor as a second-felony habitual offender is unconstitutionally excessive.

A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Ambeau, 2008-1191, p. 9 (La.App. 4 Cir. 2/11/09), 6 So.3d 215, 221. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Galindo, 2006-1090, pp. 15-16 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, 1113. In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied | ^with statutory guidelines in La. Code Crim. Proc. art. 894.1 and whether the sentence is warranted under the facts established by the record. State v. Wiltz, 2008-1441, p. 10 (La.App. 4 Cir. 12/16/09), 28 So.3d 554, 561. If adequate compliance with La.Code Crim. Proc. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious offenders. State v. Bell, 2009-0588, p. 4 (La.App. 4 Cir. 10/14/09), 23 So.3d 981, 984. Even where there has not been full compliance with La.Code Crim. Proc. art. 894.1, resen-tencing is unnecessary where the record shows an adequate factual basis for the sentence imposed. State v. Stukes, 2008-1217, p. 25 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233, 1250 (citation omitted); see also La. Code Crim. Proc. art. 881.4(D) (“appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.”).

In sentencing defendant Curtis, the trial court set forth numerous reasons for imposing the maximum sentence, reviewing defendant Curtis’ extensive record as detailed in the presentencing report and noting, that although it contained no previous history of violent crime, it did indicate a total disregard for law enforcement and the rules of probation (specifically the rule prohibiting engaging in criminal activity while on probation) or for living in an orderly civilized society. The court also noted a history of substance abuse and that defendant tested positive for marijuana while on probation. The court also stressed the egregious circumstances of the killing of the victim in the instant crime, observing that the shooter fired while there were five or six people on the steps, a teenage girl was shot in the leg in the incident, and the victim died as result of a barrage of | ^gunfire. Thus, the court cited defendant Curtis’ creation of harm to more than one person as a factor under La. Code Crim. Proc. art. 894.1. Further, the court stated that it believed the imposition of any lesser sentence would deprecate the seriousness of the offense.

Although defendant’s record was lacking violent offenses, the instant offense itself was extremely violent. Moreover, although the defendant was only twenty-eight at the time of his sentencing, his arrest and conviction record was substantial. See State v. Green, 418 So.2d 609, 615 (La.1982) (eligibility for parole is an ame-lioratory factor which should be considered in gauging whether a sentence is excessive). Moreover, the evidence in this case was sufficient to support a conviction for second degree murder which would have carried a mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Thus, considering all of the facts and circumstances, we cannot say the eighty-year sentence imposed on defendant makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime, nor does it shock our sense of justice.

There is no merit to this assignment of error.

Michael Curtis-Pro Se Assignment of Error 2

In his second pro se assignment of error, defendant Curtis argues that in vacating defendant’s original sentence and re-sentencing him as a second-felony habitual offender, the trial court failed to deduct from the new sentence the time actually served under the sentence vacated, as he asserts is required under La.Rev.Stat. 15:529.1(D)(3) of the Habitual Offender Law, which states:

12(i(3) When the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling, (emphasis added).

Our review of the record indicates that the trial court complied with La.Rev.Stat. 15:529.1(D)(3) by ordering that the habitual offender sentence be served with “credit for all time served.” The defendant offers no authority for the proposition that in “deducting from the new sentence the time actually served under the sentence so vacated,” a trial court must make an actual calculation of the number of days served under the sentence vacated and subtract them from the new habitual offender sentence. There is no merit to this assignment of error.

Conclusion

For the foregoing reasons, the convictions and sentences of defendants Michael Curtis and Demond Solomon are affirmed.

AFFIRMED

      . A third individual, Dwayne Butler, was also charged in the same indictment. The State severed defendant Butler's trial, and he ultimately pleaded guilty to accessory after the fact to second degree murder.