text:
    STATE of Louisiana v. Aja DOUCETTE
    State of Louisiana v. Brandon A. Guidry
    NO. 2017-KA-0501 NO. 2017-KA-0768
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 23, 2018
   Leon A. Cannizzaro, Jr., District Attorney, Orleans Parish, Scott G. Vincent, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE, STATE OF LOUISIANA

Julie C. Tizzard, JULIE C. TIZZARD, L.L.C., 700 Camp Street, Suite 101, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT, AJA DOUCETTE

Katherine M. Franks, Louisiana Appellate Project, P.O. Box 220, Madisonville, Louisiana 70447, COUNSEL FOR DEFENDANT/APPELLANT, BRANDON GUIDRY

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )

Judge Terri F. Love This appeal arose from a French Quarter shooting outside the Famous Door wherein one man was killed and another gravely injured. The two defendants include the principal and his female companion. The principal appealed contending that the trial court erroneously denied his motion to suppress the identification by the surviving victim, that the trial court erred by denying him the opportunity to introduce other photographs of a man he alleged to be the "real" murderer, and because he was allegedly unable to completely view the videos placed into evidence at trial.

We find that the trial court correctly denied the principal's motion to suppress the identification because the lineup was not unduly suggestive. The trial court did not abuse its discretion by denying the principal's attempt to introduce more pictures of an alleged shooter because one was already admitted into evidence. Lastly, the principal did not demonstrate that he was prejudiced as a result of his alleged inability to view the videos completely at trial. Accordingly, his convictions and sentences are affirmed.

The female companion appealed asserting that her sentence for being an accessory after the fact was excessive. We do not find that her sentence was excessive. Her guilty plea and sentence are affirmed.

FACTUAL BACKGROUND AND TESTIMONY

Two men were shot on March 21, 2015, near the intersection of Conti and Bourbon Streets. Bruce Tims was fatally wounded, while Anthony Joseph survived his injuries.

New Orleans Police Officer Girod Peterson, of the Eighth District, which encompasses the French Quarter and the Central Business District, responded to the shooting. As he approached the scene, Officer Peterson viewed a wounded man down in the middle of the 700 block of Conti. Officer Peterson noticed a second man down on the ground near the 800 block of Conti. Officer Peterson's role in the investigation was primarily to secure the scene. The body camera video taken by Officer Peterson was played and introduced into evidence.

New Orleans Police Homicide Detective Rayell Johnson, the lead homicide investigator on the homicide of Mr. Tims and attempted homicide of Mr. Joseph, explained there are several bars, hotels, and restaurants in the area where the crime occurred. The shooting took place on the corner of Bourbon and Conti outside the Famous Door. During his investigation, Det. Johnson obtained surveillance video footage from businesses with cameras in the area. Det. Johnson assigned homicide detectives to go to the hospital to speak with Mr. Joseph.

Det. Johnson identified photographs taken at the scene depicting the location and evidence including shell casings. Det. Johnson stated that Mr. Joseph was found on the sidewalk on Conti, next to the Famous Door, right off of Bourbon Street.

Mr. Tims ran on Conti in the opposite direction from Mr. Joseph and was found on Conti next to the Famous Door. Det. Johnson identified a photograph, which depicted a silver Honda next to the Famous Door. Det. Johnson stated the silver Honda was significant because a witness was seated inside the vehicle. The witness was identified as Felicia Williams. Ms. Williams knew both victims and had been with them that evening. Both victims had traveled to the French Quarter with Ms. Williams in the silver Honda.

Det. Johnson identified the bullet casings found on the scene and also collected surveillance footage from various locations including the Swamp, the Last Call, the Jester, and Oceana. Det. Johnson obtained the surveillance footage from the Swamp because he learned a prior incident involving Brandon Guidry and a possible witness occurred at that location. Footage from the Last Call was obtained because a fight involving Mr. Joseph occurred at that location. Footage from the Jester was obtained because it showed views of Conti towards Rampart and Conti towards the river as well as views of Bourbon and Conti. The surveillance camera from Oceana points toward the Famous Door, where the homicide occurred.

The videos were played for the jury, beginning with the video from the Swamp. Det. Johnson noted that the video footage from the patio depicted Mr. Guidry walking with Aja Doucette, his then romantic interest. Det. Johnson learned Ms. Doucette was with Mr. Guidry prior to the incident. Ms. Doucette was with Mr. Guidry when Mr. Joseph and Mr. Guidry fought at the Last Call. The footage showed Mr. Guidry wearing suspenders and high socks, and Ms. Doucette wearing light colored pants and a black top. Mr. Guidry remained at the Swamp while Ms. Doucette worked. When Mr. Guidry left the Swamp he went to the Last Call, where he encountered Mr. Joseph, with whom he eventually fought.

Det. Johnson learned that Mr. Guidry and Mr. Joseph fought at the Last Call thirty to thirty-five minutes prior to the shooting. A photograph of Ms. Doucette, Mr. Guidry and Mr. Joseph, taken from the video footage at the Last Call, was shown to the jury. Det. Johnson stated the Last Call is a half a block from where the shooting occurred.

Mr. Joseph, the surviving victim, testified that he knew the deceased victim, Mr. Tims, for a few years. Mr. Joseph and Mr. Tims went to Bourbon and Conti to the Last Call along with Ms. Williams. Ms. Williams drove. The three were ordering food, when a young man tapped Mr. Joseph on the shoulder and asked to talk to him. Mr. Joseph had not seen the person before. The man asked Mr. Joseph whether he knew the woman standing with him. Mr. Joseph recognized the woman, but did not know her name. They spoke for a few minutes, but the situation was uncomfortable. Mr. Joseph denied repeatedly on the stand that he had grabbed Ms. Doucette's behind. Mr. Joseph said the argument turned physical when the man sprayed mace in his face. Mr. Joseph then walked to Déjà Vu on Conti to wash his face with milk to remove the mace. Mr. Joseph's face was numb, but he could see where he was going.

After Déjà Vu, Mr. Joseph, Mr. Tims, and Ms. Williams decided to return to the vehicle. Because Mr. Joseph could not smoke in the vehicle, the group waited for him to smoke outside the vehicle. The vehicle was parked near the Famous Door on Conti and Bourbon. As he smoked, Mr. Joseph was saying to Mr. Tims that he could not believe what had happened. As Mr. Joseph was smoking, he saw the person who had sprayed mace on him earlier approach down Bourbon in the middle of the street and raise a gun from his waist. Mr. Joseph saw him shoot in the direction he and Mr. Tims were standing. Mr. Joseph identified Mr. Guidry as the person he fought with at the Last Call; who sprayed him with mace; and shot him as he smoked on Bourbon and Conti. Mr. Joseph said after the first shot was fired, he ran toward Mr. Guidry to try and grab the gun. Mr. Guidry continued to backup and shoot. Mr. Joseph was shot three times.

Mr. Joseph identified himself and Mr. Tims in a video near the parked Honda when the shooting took place. After being shot, Mr. Joseph was taken to the hospital, where he later met with detectives. After his release from the hospital, Mr. Joseph was shown a six-pack photographic identification line-up. Mr. Joseph identified the photograph of Mr. Guidry as the individual he had the dispute with and as the shooter.

Ms. Doucette, Mr. Guidry's romantic interest at the time of the shooting, testified that she already pled guilty to one count of accessory after the fact to second degree murder and accessory after the fact to attempted second degree murder. Ms. Doucette was awaiting sentencing. At the time of the shooting she was employed by the Swamp as a shot girl. Mr. Guidry accompanied Ms. Doucette to the Swamp that evening as she began her shift. Once she finished working, she and Mr. Guidry eventually walked to the Last Call where Mr. Guidry and Mr. Joseph were in an altercation. Ms. Doucette stated that she was unaware of the cause of the fight. Sometime after the altercation, Ms. Doucette was separated from Mr. Guidry. Ms. Doucette testified that she heard the gunshots, but did not see the shooting and never saw Mr. Guidry with a firearm. She then attempted to find out if anyone she knew was hurt. Ms. Doucette stated that she ingested at least twenty alcoholic shots while at work, one pill of ecstasy walking to work, as well as a marijuana cigar walking to work. She also consumed some alcohol after leaving work.

Ms. Doucette stated that Mr. Guidry contacted her the Sunday following the shooting and asked to meet with her. Mr. Guidry then asked Ms. Doucette to drive him to Miami, Florida. Although she worked and had two kids, Ms. Doucette testified that she drove Mr. Guidry to Florida and paid for all the gas to do so. She stated that she did not ask Mr. Guidry why he wanted to go to Florida. Ms. Doucette said that she and Mr. Guidry did not talk on the way to Florida, but instead just listened to music for twelve hours. After staying with Mr. Guidry about a day, she returned to New Orleans.

Upon her return, Ms. Doucette and her mother met with police officers investigating the shooting. She identified a photo of herself, but misidentified Mr. Guidry as "Ashton." Ms. Doucette stated that she misidentified Mr. Guidry because she was "nervous" and "didn't know what was going on." However, her mother immediately identified the picture as Mr. Guidry. Ms. Doucette then stated to her mother that she was going to get herself killed. Ms. Doucette explained that she was just trying to protect her mother from people who could be trying to go after Mr. Guidry because she was closest to him. Ms. Doucette traveled back to Florida in May and remained there with Mr. Guidry for three months.

Det. Johnson stated that when Ms. Doucette arrived with her mother she was "very confrontational," "real stand-offish," and did not "want to talk with me or cooperate in the investigation in any kind of way." Det. Johnson testified that Ms. Doucette gave a false name for Mr. Guidry.

PROCEDURAL HISTORY

On December 10, 2015, Ms. Doucette, was charged by bill of information with accessory after the fact to second degree murder, a violation of La. R.S. 14:(25)30.1 and accessory after the fact to attempted second degree murder, a violation of violations La. R.S. 14:(25)(27)30.1. Ms. Doucette appeared for arraignment and entered a plea of not guilty to each count. Ms. Doucette withdrew her prior plea of not guilty and entered a plea of guilty to each count. Ms. Doucette was charged as a multiple offender on both counts based upon a prior conviction for possession of a Schedule II narcotic.

Ms. Doucette was initially sentenced on each count to five years imprisonment at hard labor in the custody of the Department of Corrections, with credit for time served, with the sentences to be served concurrently. At the multiple bill hearing conducted on the same day, Ms. Doucette was found guilty of being a second offender. At that time, the trial court vacated Ms. Doucette's prior sentences and resentenced her on both counts as a multiple offender to eight years at hard labor, with credit for time served, with the sentences to be served concurrently. Ms. Doucette's appeal followed.

On December 10, 2015, the Orleans Parish Grand Jury returned an indictment charging Mr. Guidry with second degree murder and attempted second degree murder, violations of La. R.S. 14:30.1 and (27)30.1, respectively. Mr. Guidry appeared for arraignment and entered a plea of not guilty. Mr. Guidry's counsel filed a number of written pre-trial motions, including a Motion to Suppress Identification. The trial court denied the Motion to Suppress Identification. Notably, Mr. Guidry did not object to the trial court's ruling denying his Motion to Suppress Identification, nor did he seek supervisory review of the ruling.

Mr. Guidry's case proceeded to a jury trial. At the conclusion of the trial, the jury returned a verdict of guilty as charged on both counts. Mr. Guidry filed a motion for a new trial, which was denied.

Mr. Guidry was sentenced to life imprisonment for second degree murder and to fifty years at hard labor for attempted second degree murder, both sentences to be served without benefit of probation, parole or early release, to be served concurrently. Mr. Guidry orally stated his intention to seek an appeal.

ERRORS PATENT

A review of the record reveals no errors patent in regards to either Ms. Doucette or Mr. Guidry.

MS. DOUCETTE

Ms. Doucette's sole assignment of error on appeal is that she received an excessive sentence. A review of the record reflects that Ms. Doucette entered a plea of guilty to both charges. Ms. Doucette was advised of the rights she was waiving by entering pleas of guilty and acknowledged such by completing a Felony Waiver of Constitutional Rights Plea of Guilty Form. In completing the form, Ms. Doucette acknowledged she was entering the pleas of guilty because she was in fact guilty of the crimes. Ms. Doucette was advised that the sentence she could receive would be between zero and five years with or without hard labor. The trial court found there was a substantial factual basis for the guilty pleas and ordered it recorded. Following the acceptance of the plea as to both counts, the State filed a multiple bill. The multiple bill was undisputed.

At the sentencing hearing, the trial court heard witness impact statements from the victims' families. Ms. Doucette was found to be a second felony offender pursuant to La. R.S. 15:529.1 and was notified that sentencing would be between two-and-one-half to ten years. Following arguments by counsel, the trial court stated:

Ms. Doucette, the thing that I find most troubling about your participation in Mr. Tims' murder is your continued and unapologetic lack of remorse. You have been unremittingly false with everything you have done. Every act that you have taken, from the moment law enforcement got involved in this investigation, in my opinion, was a purposeful choice to not do the right thing.
What I find most troubling of all is the fact that you would choose to begin your testimony in front of a Jury and in front of me by-I don't even know how best to describe this, other than your lack of respect for the judicial system and the criminal justice system as a whole, you started your testimony with this mood of, "I have been in jail since the time of my arrest, I have two small kids and the reason is because the DA's office charged me with this," just complete lack of remorse.
You are in jail because of the choices you've made when Detective Johnson came to talk to you. You chose to give Detective Johnson a false name for Brandon Guidry.
That was a choice you made.
Your two small children, where were your two small children when you are driving this murderer to Miami? Where were your two small children when you are downing 22 shots by your own admission? Where were your two small children when you were living in some hotel?
That is a mother for you? That is how your mom raised you?
Your mom, unfortunately, is now saddled with raising your kids because of the choices you have made, you and you alone.
Now you want sympathy? What sympathy did you show to Ms. Hunn? What sympathy did you show to the Tims' family? You are on video.
It is undisputed. You were present and accounted for in full pixilated view watching the fight that ensued and you remember every single thing about the entire day except for the span of time from one video shot to the next. How convenient for you, Ms. Doucette.
I find that your entire testimony stretches the bounds of credibility. The thing I find most offensive is the fact that you would dare, under oath, to testify that the reason you lied about Brandon Guidry's name was because you were in fear of the victim's family. That is pathetic. That is even worse because not only are you going out of your way to assist Brandon Guidry, you are also going out of your way to trash someone that didn't even deserve to be shot down like a dog in the middle of the street. Not only are you helping, you are also stepping on this man for no reason.
So, Ms. Doucette, I have no sympathy, I really don't. Based on your prior conviction, as well as the complete lack of remorse you have shown to this Court, to the Jury, to the probation officer that did your PSI and to anybody else that asks, I'm sentencing you to serve eight years in the custody of the Department of Corrections.
MS. TIZZARD [defense counsel]:
Note my objection for the record.
THE COURT:
Noted.
The original sentence is withdrawn. This is pursuant to Louisiana Revised Statute 15:529.1 and I am relying on Code of Criminal Procedure Article 894.1.

The Louisiana Supreme Court, in State v. Smith , 01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4, set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that "[n]o law shall subject any person to ... excessive ... punishment." (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno , 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann , 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker , 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462, cf. State v. Phillips , 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906. (Emphasis added).

Ms. Doucette's sentence imposed in the case sub judice was within the range provided by the legislature. For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const. art. I, § 20, i.e., when it imposes "punishment disproportionate to the offense." State v. Soraparu , 97-1027 (La. 10/13/97), 703 So.2d 608 (quoting State v. Sepulvado , 367 So.2d 762, 767 (La. 1979) ).

In State v. Batiste , 06-0875 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, this Court further explained that a reviewing court may not set aside a sentence for excessiveness if the record evidences a factual basis for the imposed sentence, even if there has not been full compliance with La. C.Cr.P. art. 894.1 :

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La. C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry , [2003-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235] supra ; State v. Trepagnier , 97-2427 (La. App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major , 96-1214, p. 10 (La. App. 4 Cir. 3/4/98), 708 So.2d 813 :
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos , 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, "keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged." State v. Landry , 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard , 98-0665 (La. App. 4 Cir. 8/4/99), 752 So.2d 184.

Batiste , 06-0875, p. 18, 947 So.2d at 820.

The trial court articulated the basis for the sentence, finding Ms. Doucette was less than candid and evidenced no remorse. Ms. Doucette entered a plea of guilty to accessory after the fact to second degree murder and accessory after the fact to attempted second degree murder. Under Batiste , this Court must determine whether the sentence the trial court imposed is too severe in light of the particular defendant and the circumstances of the case. This Court must recognize that the maximum sentences are to be reserved for the most egregious violators of the offense charged. Id. , 06-0875, p. 19, 947 So.2d at 820.

Ms. Doucette entered a plea of guilty to assisting an individual who shot two men in the French Quarter, killing one and gravely injuring another. When questioned by the police, Ms. Doucette provided a false name for the shooter. In addition, Ms. Doucette assisted the shooter in absconding from the jurisdiction by driving him to Florida. The trial court articulated that Ms. Doucette lacked remorse and was "unremittingly false with everything you have done." The trial court found Ms. Doucette lacked credibility and blamed the fear of retaliation by the victim's family for her failure to give her co-defendant's correct name.

We find that the trial court did not abuse its discretion in sentencing Ms. Doucette to an eight-year sentence. Ms. Doucette entered a plea of guilty to one count of accessory after the fact to second degree murder and one count of accessory after the fact to attempted second degree murder. Ms. Doucette also admitted to being a second felony offender for multiple bill purposes. As such, Ms. Doucette failed to show that the trial court abused its discretion when it sentenced her to eight years imprisonment and her claim that the term imposed constituted excessive punishment lacks merit. Ms. Doucette's guilty plea and sentence are affirmed.

MR. GUIDRY

Motion to Suppress Identification

Mr. Guidry contends that the trial court erred in denying his Motion to Suppress Identification made by Mr. Joseph.

Mr. Joseph identified Mr. Guidry as the shooter in a six-person photographic lineup. Mr. Guidry contends the photographic lineup was unduly suggestive because his photograph was the only photograph in which a subject had a tattoo of a cross between his eyes.

In State v. Williams , 10-1197, pp. 9-10 (La. App. 4 Cir. 5/25/11), 66 So.3d 1207, 1213-14, this Court stated:

The law pertaining to the suppression of out-of-court identifications is well-settled:
La. Code of Criminal Procedure art. 703(D) provides that the defendant has the burden of proof on a motion to suppress an out of court statement. To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm , 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness' attention is unduly focused on the defendant. State v. Robinson , 386 So.2d 1374, 1377 (La.1980). Moreover, a defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Valentine , 570 So.2d 533 (La.App. 4 Cir.1990).The Supreme Court has held that even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux , 98-1673 (La.9/8/99), 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy , 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517. If a suggestive identification procedure has been proved, a reviewing court must look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification at trial. State v. Martin , 595 So.2d 592, 595 (La.1992). The U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite , Id. The corrupting effect of the suggestive identification itself must be weighed against these factors. Martin , 595 So.2d at 595.
In evaluating the defendant's argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Lewis , 2004-0227 (La.App. 4 Cir. 9/29/04), 885 So.2d 641, 652. A trial court's determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Offray , 2000-0959 (La.App. 4 Cir. 9/26/01), 797 So.2d 764.

quoting State v. Holmes , 05-1248, pp. 6-7 (La. App. 4 Cir. 5/10/06), 931 So.2d 1157, 1161.

Mr. Guidry asserts that the photographic lineup was suggestive because he has a prominent facial tattoo of a cross between his eyes. In making the identification, Mr. Joseph stated he did not focus on the tattoo on Mr. Guidry's face, but rather, focused on his entire face. Mr. Joseph stated on cross-examination, specifically when questioned about the tattoo on Mr. Guidry's face:

They asked me to point out the guy who I recognized. I wasn't in it for the tattoos in his face and all that. I looked at him. That's the guy I had a dispute with and had a fight with. And who I saw shooting at me, and that's the guy who I was running at.... I'll never forget that face.

Counsel for Mr. Guidry asked Mr. Joseph whether he could have picked any of the other five photographs since they did not have tattoos on their faces to which Mr. Joseph replied:

I know who I saw shooting at me; who I had a fight with; who maced me; who I had a conversation with; who I had a dispute with. That's the face I was looking for in any picture. It could have been a stack this big (demonstrating.)

A review of the photographs used in the photographic lineup reflects six photographs depicting individuals with similar facial features. Mr. Guidry's photograph has a smudge or cross between his eyebrows. However, photograph four has a smudge between the individual's eyebrows and, in photograph three, the individual has what appears to be a scar above his eyebrows and a facial teardrop tattoo. The photographs are similar and the tattoo on Mr. Guidry's face is not so prominent as to make the photographic line-up unduly suggestive.

In State v. Savoy , 501 So.2d 819, 821 (La. App. 4th Cir. 1987) this Court stated:

A defendant attempting to suppress an identification must prove 1) that the identification was unduly suggestive and 2) that there was a substantial likelihood of irreparable misidentification. State v. Prudholm , 446 So.2d 729 (La.1984).
A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness' attention is focused upon the defendant. State v. Neslo , 433 So.2d 73 (La.1983) ; State v. Tate , 454 So.2d 391 (La.App. 4th Cir.1984). Strict identity of physical characteristics among those in the photos is not required. All that is necessary is a sufficient resemblance to reasonably test identification. State v. Smith , 430 So.2d 31 (La.1983) ; State v. Roberson , 445 So.2d 12 (La.App. 4th Cir.1983), writ denied 449 So.2d 1344 (La.1984).
There is no exact detailed criteria for a legitimate photographic lineup. Each case must be considered on its own facts. State v. Tonubbee , 420 So.2d 126 (La.1982), cert. denied 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983).
The six color photographs were the same size and shape, depicting the head and upper chest of the individuals. All of the subjects were black males of similar skin tone and age with various degrees of facial hair. The defendant's photo shows a mole on his left cheek which is almost invisible.
In State v. James , 431 So.2d 1075 (La.App. 2d Cir.1983), writ denied, 439 So.2d 1076 (1983), the defendant had a facial tattoo which had been noted by the victim in her description of her assailant. The court of appeal found the tattoo was not readily apparent in the defendant's photograph and it was not unduly suggestive. The Second Circuit noted that even if the tattoo had been visible the lineup would not be automatically invalidated.
A similar result was reached by this court in State v. Buchanan , 463 So.2d 660 (La.App. 4th Cir.1985). Although the defendant was the only person in the photo lineup with a tattoo on his hand, we noted the tattoo was hardly noticeable and concluded the lineup was not unduly suggestive. Buchanan considered the reliability factors and affirmed the denial of the motion to suppress.
* * *
Even if the photo identification could be considered suggestive, that alone would not violate the defendant's right to due process. There must also be a likelihood of misidentification which requires five factors to be considered.
These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

quoting State v. Guillot , 353 So.2d 1005, 1008-09 (La. 1977), quoting Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

Mr. Joseph's identification of Mr. Guidry in the present case was reliable, and thus, admissible. There is no dispute that Mr. Joseph had a good look at his assailant. The street and exterior lights outside the Famous Door illuminated the scene of the shooting. Mr. Joseph testified that he saw the shooter walk down Bourbon and raise a gun from his waist and that he "got a good clear look at his face." Mr. Joseph immediately recognized the shooter as the same man with whom he had gotten into a fight approximately thirty minutes earlier at the Last Call. Mr. Joseph provided a description to the police of the cross tattooed between the shooter's eyes. Mr. Joseph testified that he would "never forget that face." Mr. Joseph further identified Mr. Guidry in court.

According to Mr. Guidry, another man named Gerald Arnold committed the shooting. Mr. Guidry contends that Mr. Joseph misidentified him as the shooter. However, Mr. Joseph testified that he knew Mr. Arnold ("Network") for "a few years" "from hanging out in the Quarter" and identified "Network" in a photograph depicting Mr. Arnold, which was introduced into evidence. All of these factors establish that the identification of Mr. Guidry by Mr. Joseph was reliable, and that there was no substantial likelihood of misidentification. Therefore, Mr. Guidry's assertion lacks merit.

PROBABILITY OF MISIDENTIFICATION

Mr. Guidry contends the trial court erred in denying him the opportunity to present evidence of the probability of misidentification when identity was a key issue at trial. Mr. Guidry avers the trial court denied attempts by his counsel to introduce various photographs of Mr. Arnold in support of the defense's claim of misidentification into evidence.

During the testimony of Det. Johnson, counsel for Mr. Guidry sought to introduce an article from the newspaper showing a photograph of Mr. Arnold so as to compare his appearance to that of Mr. Guidry. The State objected to the article and photograph marked as D-3 and the trial court judge sustained the objection. The article and photograph were not allowed to be introduced into evidence.

La. C.E. art. 901(A) provides, the authentication requirement for admissibility "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Further, La. C.E. art. 901(B) provides a non-exclusive list of methods for authenticating evidence. One method for authenticating evidence is testimony by a witness with knowledge that the "matter is what it is claimed to be." La. C.E. art. 901(B)(1).

It is well settled that a photograph need not be identified by the person who took it to be admissible. The proper foundation for the admission of a photograph into evidence is laid when a witness having personal knowledge of the subject depicted by the photograph identifies it as such. State v. LeBlanc, 10-1484, p. 22 (La. App. 4 Cir. 9/30/11), 76 So.3d 572, 586. Determining the proper use of photographs at trial is generally within the sound discretion of the trial judge. State v. Kelly , 362 So.2d 1071, 1077 (La. 1978) ; State v. Allen , 00-0346, pp. 20-21 (La. App. 4 Cir. 10/17/01), 800 So.2d 378, 390.

Counsel for Mr. Guidry failed to lay a proper foundation necessary to authenticate the photographs: that is, that the witness had personal knowledge of the subject depicted by the photograph in order to identify the subject depicted therein as Mr. Arnold. Additionally, the newspaper article sought to be introduced contained hearsay. Accordingly, the trial court properly excluded the photographs of Mr. Arnold tendered by the defense. Even if improperly excluded, the error was harmless because during the testimony of Mr. Joseph, the State introduced a photograph of Mr. Arnold. Mr. Joseph indicated he knew Mr. Arnold for several years as both were frequent visitors to the French Quarter.

Counsel for Mr. Guidry offered another photograph of Mr. Arnold during the testimony of Ms. Doucette, which he numbered as D-5. A discussion regarding the defense exhibits then took place outside the presence of the jury. Because D-3 and D-4 were newspaper articles and D-6 was a booking record, the admissibility of the exhibits was challenged. The trial court denied the introduction of these photographs because one was attached to a newspaper article detailing Mr. Arnold's death in an unrelated shooting in the French Quarter, which the trial court concluded contained hearsay. The other photograph Mr. Guidry sought to introduce of Mr. Arnold was attached to his criminal record, which the trial court found prejudicial.

The record reflects a photograph of Mr. Arnold was shown to Mr. Joseph. Mr. Joseph stated he knew Mr. Arnold as "Network" and had known him for years. As such, we find that Mr. Guidry failed to demonstrate how he was prejudiced by the trial court's refusal to allow the additional photographs of Mr. Arnold into evidence. The allegation concerning misidentification was placed before the jury. The jury rejected the allegation. Therefore, Mr. Guidry's contention lacks merit.

VIDEO OBSERVATION

Mr. Guidry contends the trial court erred in not allowing him to be placed where he could completely observe the videos at trial. Mr. Guidry asserts the trial judge refused to allow him to move from the defense table and sit in another part of the courtroom during the State's presentation to the jury of various surveillance videos, thereby denying him of his right to be present during trial guaranteed pursuant to La. C.Cr.P. art. 831.

Under La. C.Cr.P. art. 831(A)(5), a defendant in a felony prosecution is required to be present at all proceedings when the jury is present. La. C.Cr.P. art. 831(A)(5) provides: "[A] defendant charged with a felony shall be present ... [i]n trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced."

During the playing of the initial video, counsel for Mr. Guidry sought permission for Mr. Guidry and his attorney to move in order to see the video. The court granted permission and then requested the attorneys approach the bench. What occurred afterwards is not contained in the record. Mr. Guidry has not identified any prejudice suffered as a result of his alleged inability to view the surveillance tapes. Further, Mr. Guidry's counsel expressly stipulated to the authenticity and admissibility of the surveillance tapes. Accordingly, we find that Mr. Guidry's averments lack merit.

DECREE

For the above mentioned reasons, we find that Ms. Doucette's sentence was not excessive. Her guilty plea and sentence are affirmed. Further, we do not find that the trial court erred by denying Mr. Guidry's Motion to Suppress the Identification because it was not unduly suggestive. Further, the trial court has broad discretion concerning the admittance of photographs and a picture of Mr. Arnold was already admitted into evidence. Lastly, Mr. Guidry did not demonstrate that he suffered prejudice as a result of allegedly not being able to completely view the videos at trial. Therefore, Mr. Guidry's convictions and sentences for Count 1, second degree murder, and Count 2, attempted second degree murder, are affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT

      Det. Johnson testified based on photographic evidence of the scene.

      Ms. Williams did not testify at Mr. Guidry's trial.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    STATE of Louisiana v. Demarcus Daniel JAMES
    NO. 2017 KA 1253
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 27, 2018
    Hillar C. Moore, III, District Attorney, Dana J. Cummings, Dylan C. Alge, Assistant District Attorneys, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    Bruce G. Whittaker, New Orleans, LA, Attorney for Defendant-Appellant, Demarcus Daniel James
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

The defendant, Demarcus Daniel James, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a trial by jury, the defendant was unanimously found guilty as charged. The trial court denied the defendant's motion for new trial and motion for postverdict judgment of acquittal. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, assigning error to the sufficiency of the evidence to support the conviction.

STATEMENT OF FACTS

Around 5:00 a.m. on December 11, 2013, officers of the East Baton Rouge Parish Sheriff's Office (EBRPSO) were dispatched to an apartment complex located at 9143 Ridge Pecan Drive, after 911 calls reported gunfire. Corporal Marlon Roundtree, a crime scene investigator, and Sergeant Scott Henning, the homicide supervisor, were among the officers who responded to the scene. Corporal Roundtree took photographs and located evidence outside of the apartment, including blood trails from the apartment within the vicinity. One blood trail was coming out of the apartment door leading to the parking area, and to a vehicle that was parked at the end of the trail. Another trail of blood extended from the same apartment door/porch area, leading to a set of apartments on the other side of the same parking lot. Sergeant Henning obtained a search warrant after noting signs that a struggle took place in the victim's bedroom. Subsequently, the apartment was photographed and dusted for fingerprints, and evidence was collected. The officers observed additional blood that was tracked on the floor in the apartment. A bag of suspected marijuana was located on the floor near the victim's bedroom door. The body of the deceased victim, Jared Vincent, was discovered on the floor inside of his bedroom doorway. Shell casings consisting of three different calibers (.45 casings, a .380 casing, and a nine-millimeter casing), and a nine-millimeter live round were located near the victim's body. Other items located on the bedroom floor near the victim's body included cash that appeared to have been pulled from the victim's right pocket, a wad of cash with an apparent bullet hole through the bills, the victim's wallet, and a cell phone. A handgun magazine consisting of twenty-eight rounds was located inside of the nightstand drawer, an empty magazine for .45 caliber rounds was located on the living room floor, and a grinder commonly used for processing marijuana with suspected marijuana residue was located on the living room table. Additional blood (on the floor, sheets, and walls), suspected marijuana, live rounds, and shell casings were located throughout the apartment, along with bullet holes in the victim's apartment and the apartment next door.

When investigators from the Coroner's Office arrived, it was noted that the victim had a visible injury on the left side of the back of his head. The victim's roommate, Leonard Wyatt, who was awakened by the gunfire, was struck by gunfire in his lower back as he jumped over the loft balcony in the apartment and fled to nearby apartments seeking assistance. As Leonard fled, wearing only the underwear and socks that he slept in, he did not see the shooting, the victim, or anyone in the apartment. He stated that he heard the victim screaming for help followed by multiple gunshots. A neighbor, Nicholas Chevalier, heard the gunshots and saw a black and tan pickup truck speed from the scene after at least two people jumped in just before the doors were closed. Nicholas relayed his observations to EBRPSO Corporal William Thomas, who was canvassing the area and located a pool of blood on the ground in the area from which the truck reportedly sped. EBRPSO Deputy James Freeman collected a sample of the blood. Though Leonard did not return after the shooting, his father assessed the apartment and Leonard reported several items missing, including game systems, a nine-millimeter firearm, and watches.

At approximately 5:50 a.m., around the time of the reported shooting at Ridge Pecan Drive, Officer Lance Bourgeois and Detective Joe Ruiz of the Gonzales Police Department (GPD) were dispatched to St. Elizabeth Hospital in Gonzales as a male (the defendant) was admitted with three gunshot wounds, a laceration on his hand, and scratches on his face. The officers briefly questioned the defendant, who was disoriented at the time, took photographs, and collected the defendant's clothing, from which money, a clear plastic bag of suspected marijuana, and a bullet fragment were recovered. The officers were informed by hospital security that the defendant had been transported there by two black males in a black pickup truck who dropped him off and left. The defendant was subsequently transferred to the New Orleans University Medical Center.

While the defendant's clothes were being processed at the GPD, at approximately 8:00 a.m., the department received a call from the EBRPSO regarding another male, identified as Patrick Anderson, who was transported to Our Lady of the Lake Hospital with a gunshot wound to his hand and no other visible injuries. Detective Ruiz and Corporal Thomas proceeded to the hospital and interviewed Patrick, who was alert and coherent. Patrick was again interviewed at the Violent Crimes Unit. After the interviews, a bullet projectile, a jacket with blood on the sleeves and pocket area, and a hat with blood and debris on it, were recovered at Patrick's residence in Prairieville.

Later that day, Detective Lawrence Cavalier (EBRPSO) was dispatched to the hospital in New Orleans. He noted that the defendant seemed coherent and he advised the defendant of his Miranda rights. The defendant indicated that he understood those rights and agreed to be questioned. The defendant indicated that while he was walking down Worthey Street in Gonzales, an unknown, approximately five-feet and eight-inches tall, male subject dressed in all black exited a black four-door vehicle and started shooting at him, and he was struck as he attempted to take cover. He further stated that after he was shot the vehicle left, travelling north. The defendant changed his story at trial and admitted shooting the victim and being shot as he wrestled with the victim for control of the gun. The police determined that there were no reported incidents at the location where the defendant indicated he had been shot. The next day a warrant was obtained for the defendant's arrest, he was released from the hospital and taken into custody in New Orleans as a fugitive, and Detective Cavalier returned to arrest the defendant and transport him back to Baton Rouge.

SUFFICIENCY OF THE EVIDENCE

In the sole assignment of error, the defendant argues that under the circumstances the evidence was insufficient to support the verdict. While the defendant does not deny shooting the victim, he claims that the gun was discharged in self-defense. The defendant notes that the victim was an armed drug dealer. The defendant describes himself as a mere customer, claiming he had the right to carry a firearm while attempting to purchase narcotics and an equally fundamental right to self-defense. He notes that he admitted his transgression in seeking to purchase drugs and in being armed while doing so and further notes his testimony that the victim drew his gun out of anger in response to the defendant's failure to pay a prior drug debt. The defendant argues that the State's evidence did not disprove his claim that the victim was shot in self-defense.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438 ;

State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984) ; State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932.

The crime of second degree murder, in pertinent part, "is the killing of a human being: (1)[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La. R.S. 14:30.1(A)(1). Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160.

When the defendant in a homicide prosecution claims self-defense, the State must prove beyond a reasonable doubt that the homicide was not committed in self-defense. Louisiana Revised Statute 14:20(A)(1) provides that a homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. On appeal, the relevant inquiry is whether or not, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith. See La. R.S. 14:21.

Ivan Graham agreed to testify truthfully at the trial in exchange for a plea agreement on the charge of accessory after the fact. During the nighttime hours leading to the shooting, Ivan was travelling in a black and brown Dodge Ram that was initially being driven by his friend, Bryton Montelaro, who took LSD at around midnight. Once the LSD began to take effect, Ivan took over as the driver. After riding around, they visited Ivan's cousin, Avery Honea, and then picked up the defendant and Aaron Hargrove, who lived in the same area as Avery.

During the early morning hours, Ivan and the defendant texted the victim under the pretext of wanting to purchase marijuana, though they planned to rob him. When asked why they wanted to rob the victim, Ivan testified as follows, "I don't know. We just did. A quick come-up." He confirmed that they wanted to gain money and drugs from the robbery. Ivan and the defendant agreed to enter the apartment to perform the robbery while the other two males would wait in the truck. Ivan, and he presumed the defendant, had previously purchased drugs from the victim and, therefore, believed that the victim would open the door for them while under the impression that another sale would take place. They parked in a lot near the victim's apartment. Ivan decided to stay in the vehicle with Bryton, who was "tripping" (hallucinating) from the LSD by that time, while the other three, the defendant, Avery, and Aaron, exited the truck to commit the robbery. Ivan was certain that the defendant and Aaron were armed at the time, but testified that he was uncertain as to whether or not Avery was armed. Five to ten minutes later, Ivan began hearing gunshots. The defendant, who was bleeding profusely at the time, was being assisted as they ran back to the truck. Ivan attempted to figure out the location of the nearest hospital as he heard the others stating, "it went wrong," that the victim "shot back" and/or "fought back," and the defendant "got hit." Ivan admitted that he had no personal knowledge as to who fired first. They left the defendant at the hospital after helping him to the door.

Patrick Anderson lived in Prairieville at the time of the offense with his girlfriend, Deja Curtis, and sister, Keva Anderson. Deja indicated that she and Patrick were asleep on the morning in question when Patrick received a text from his cousin, Aaron Hargrove, who shortly thereafter arrived at their residence with blood on his all black clothing and shoes, and "a few" (also referenced as five or six) guns in his possession. Deja noticed that one of the guns had blood on it. According to Keva, around 6:00 a.m., Patrick woke her up and asked her to take Aaron home, who by then was wearing a white shirt and Keva's son's plaid shorts. Keva did not see any guns on Aaron's person when she gave him a ride home and was unaware that he arrived with guns that morning. After giving Aaron a ride, Keva returned home and went back to her bedroom.

According to Deja, Aaron had left one of the guns at their residence and when Patrick was attempting to clean the blood from the gun, it discharged and struck him in the hand. Keva was in her bedroom at the time and heard the gunshot. Deja accompanied Patrick as he was transported to the hospital by ambulance. While Deja and Patrick were at the hospital, Deja sent Keva a text message prompting Keva to check her car trunk. Keva opened her car trunk and observed two guns, one black and one silver and beige. She was previously unaware that the guns were in the trunk and had no idea how they got there. Keva removed the guns and hid them behind a tree at her grandmother's house before contacting her brother, Jeffery Anderson, who later retrieved the guns. Jeffery further described the black gun as possibly a nine-millimeter caliber and the silver as chrome, and possibly a .22 caliber. He put the guns in his car trunk before subsequently turning them over to the police upon their request.

The fingerprint evidence was examined by EBRPSO latent print examiner Jackie Hohensee, who was qualified at trial as an expert in latent print comparison. While some of the lifted prints were not detailed enough to produce conclusive results, a print taken from the 2011 Dodge Ram right rear interior door matched Bryton Montelaro's right palm print. Cheryl Swearingen, a forensic scientist of the Louisiana State Police Crime lab and a qualified firearms expert, examined the nine-millimeter and .380 handguns, and nine-millimeter, .380, and .45 caliber bullets. She concluded that the .380 casings in evidence (one was located in the gun) were fired by the .380 pistol, and five .45 caliber casings were all fired from the same weapon. The projectile recovered from the lumbar spine area of the victim was deformed and could not be matched to any weapon or casing. The nine-millimeter handgun was eliminated from connection to the casings in evidence. Tammy Rash, a crime lab DNA analyst and qualified expert, testified that the defendant's DNA was consistent with samples collected just outside of the victim's bedroom, from the victim's living room floor, and from the parking lot of the crime scene. She further concluded that a blood sample retrieved from the Dodge Ram rear passenger-seat floor was consistent with the profile obtained from the defendant. Further, the DNA sample taken from the victim's left hand was consistent with a mixture of the victim and the defendant's DNA.

The defendant testified that he had known the victim and his roommate, Leonard, for about seven to eight years prior to the shooting and had been purchasing marijuana from them for over five years. The defendant stated that he was smoking marijuana that night with Aaron when Ivan and Bryton arrived. The defendant texted Leonard because they wanted to purchase "halves." The defendant further stated that Leonard routinely instructed him not to park directly in front of his apartment, so they parked in a nearby lot. Leonard was not initially there when they arrived, so he texted him again. When Leonard texted him back, they walked over to the apartment.

After they entered the apartment, the defendant paid the victim, who began counting the money and questioning the defendant about a previous debt. A physical fight ensued after the defendant stated that he did not have the money that he owed from a previous transaction. According to the defendant, the victim stepped back and pulled out a gun. While the defendant was armed at the time with a .380 caliber handgun, he claimed that he did not initially have a chance to pull out his gun, so he grabbed the victim's gun, which discharged during a struggle. The defendant alleged he was shot as they wrestled for control over the gun. The defendant testified that he became weak, and finally let go of the gun. The victim allegedly hit the defendant in the head three times. The defendant stated that on the third hit, the gun fell out of the victim's hands, and when the victim went to pick up the gun the defendant "pulled [his own] gun out and [he] shot [the victim]."

The defendant later clarified that it was the victim who hit the defendant in the head three times with the gun before the defendant shot him. After firing his gun, the defendant fled from the apartment and Avery and Aaron helped him get back into the truck. The defendant denied that he planned to rob the victim. He stated that comments about "jacking" the victim were only meant as a joke, claiming that no one took it seriously, and that he only intended to buy marijuana. The defendant stated that he only shot the victim once, while the victim shot him three times. The defendant stated that he did not see Leonard that night.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. Williams, 804 So.2d at 939.

Herein, the defendant testified that he went to the victim's apartment with the intent to purchase marijuana, and that he shot the victim once in self-defense. The guilty verdict in this case indicates the jury rejected the defendant's claim of self-defense. The record indicates that the defendant and his cohorts entered the victim's apartment armed with guns. Though he claimed that it was only a joke, the defendant admitted that remarks about robbing the victim were made before they arrived at the victim's apartment, and Ivan unequivocally testified that they planned to rob the victim. The autopsy showed that the victim suffered multiple gunshot wounds. Further, the victim's roommate Leonard specifically testified, "I heard [the victim] scream, like he was screaming for me. And then I just heard, you know, like multiple gunshots." After the defendant, Avery, and Aaron returned to the truck, Ivan specifically overheard comments indicating that the victim shot or fought back. A rational fact finder, viewing the evidence in the light most favorable to the prosecution, could find that the evidence presented by the State established that the defendant was the aggressor in the conflict and, thus, not entitled to claim self-defense. Likewise, the jury could have reasonably concluded that the defendant was not defending himself when he pulled out his gun and fired it.

The defendant's testimony was self-serving and wholly inconsistent with that of Ivan and Leonard. Further, the defendant's trial testimony was inconsistent with his initial account to the police indicating that an unknown individual accosted him in the street and shot him. The defendant's omissions and actions after the shooting (of failing to report the shooting and subsequently lying to the police) are inconsistent with a theory of self-defense. See State v. Emanuel-Dunn, 2003-0550 (La. App. 1st Cir. 11/7/03), 868 So.2d 75, 80, writ denied, 2004-0339 (La. 6/25/04), 876 So.2d 829 ; State v. Wallace, 612 So.2d 183, 191 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1253 (La. 1993). We also note that "lying" has been recognized as indicative of an awareness of wrongdoing. See State v. Rault, 445 So.2d 1203, 1213 (La. 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984). Purposeful misrepresentation reasonably raises the inference of a guilty mind. See Captville, 448 So.2d at 680 n.4. Thus, the jurors could have reasonably inferred that the failure of the defendant to tell the truth supported the inference that the truth was unfavorable to him and also showed an awareness of wrongdoing. State v. Guirlando, 491 So.2d 38, 41 (La. App. 1st Cir. 1986). The jury viewed the defendant's appearance and demeanor when he testified at trial. Their verdict indicates they found the defendant's testimony was not credible and, therefore, they gave it no weight and rejected it. This is a finding of fact over which this court has no jurisdiction. Guirlando, 491 So.2d 38 at 41.

A rational juror could have found the State established beyond a reasonable doubt that the defendant did not act in self-defense. We cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. Accordingly, we find no error in the jury's rejection of the defendant's claim of self-defense. Furthermore, an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814, *2-4 (per curiam). A rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder. Due to the foregoing conclusions, the defendant's sole assignment of error lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      Prior to obtaining the search warrant, Sergeant Henning found a significant amount of blood inside the living room and followed a blood trail leading toward the back of the apartment. He observed open packages of marijuana and a handgun magazine on the floor. As the officer proceeded to the rear bedroom, it was obvious that a significant struggle had taken place inside of the room. He also saw additional quantities of marijuana in the bedroom. Based on what the officer had seen at that point, he exited the residence, and obtained a search warrant before proceeding further.

      Dr. William "Beau" Clark, the Coroner for East Baton Rouge Parish (qualified at trial as an expert in emergency medicine), reviewed the autopsy report. In addition to a gunshot grazing wound on his right hand and other hand injuries, the victim suffered a gunshot to the abdomen, a through-and-through gunshot wound to his thigh, and a projectile was recovered from the lumbar vertebrae. The victim died from multiple gunshot wounds, the manner of death was homicide, and the toxicology report showed that he had marijuana and opiates in his system.

      Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      Ivan's pretrial police interview, by and large consistent with his trial testimony, was played during the trial. Therein, he stated that all three individuals were armed with at least one gun each when each returned to the vehicle, conceding that they may have had other guns on their person at the time.

      The guns were subsequently identified as a nine-millimeter handgun and .380 handgun. Both handguns had magazines with live bullets, and a spent casing was removed from the .380.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Bryant GUMMS
    NO. 17-KA-566
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, Jane L. Beebe
    DEFENDANT/APPELLANT, BRYANT GUMMS, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   CHEHARDY, C.J.

On appeal, defendant's appointed appellate counsel has filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. Further, defendant has filed a pro se supplemental brief alleging three assignments of error. For the following reasons, we affirm defendant's convictions and sentences.

Facts and Procedural History

Because defendant pled guilty, the facts were not fully developed in the record. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty plea:

Bryant Gumms engaged in conduct that furthered the aims of an enterprise by engaging in a pattern of racketeering activity. He conspired with members of that enterprise to distribute controlled dangerous substances, including cocaine, heroin and marijuana. This conduct, which occurred between 2006 and 2015, included participating in the operation of a narcotics distribution network on the Westbank of Jefferson Parish wherein a violent street gang named by its members the "Harvey Hustlers" obtained controlled dangerous substances from associates and Enterprise members who transported the drugs into the New Orleans Metropolitan Area.
The ranking members of the Harvey Hustlers then directed the conversion of these drugs into a saleable form, such as converting powder cocaine to crack cocaine, and provided the drugs to rank and file Harvey Hustlers who sold the drug product on the street for the profit of Enterprise members.
Members of the Enterprise who engaged in this activity on a daily basis, other than when one or more of them were in jail, included Mr. Gumms, multiple individuals named in the indictment, and others not included in the indictment. This activity included all of them working on the streets of Scottsdale, in sight of each other, selling cocaine, heroin, or marijuana.

On February 26, 2015, the Jefferson Parish grand jury indicted Bryant Gumms, defendant-herein, and twenty other co-defendants on thirty criminal counts for acts committed in furtherance of a narcotics distribution network in Jefferson Parish, operated by a street gang known as the "Harvey Hustlers." Specifically, defendant was charged with three counts, including one count of racketeering, in violation of La. R.S. 15:1352 ; one count of conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A) ; and one count of conspiracy to distribute heroin and marijuana, in violation of La. R.S. 40:979 and La. R.S. 40:966(A).

On January 28, 2016, defendant withdrew his prior pleas of not guilty, and pled guilty as charged. In accordance with the plea agreement, the court sentenced defendant as follows: for racketeering, twenty years imprisonment at hard labor; for conspiracy to distribute cocaine, fifteen years imprisonment at hard labor; and for conspiracy to distribute heroin, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The court ordered that all of defendant's sentences be served concurrently.

That same day, the State filed a multiple offender bill of information on count two alleging defendant to be a second felony offender. After defendant stipulated to the allegations of the multiple offender bill of information, the trial court vacated defendant's sentence for conspiracy to distribute cocaine, and imposed an enhanced sentence of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence pursuant to La. R.S. 15:529.1, concurrent with his other sentences.

On August 21, 2017, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which was granted by the trial court on August 22, 2017. This appeal follows.

Anders brief

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).

In Jyles , supra , the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Discussion

Defendant's appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that the appellate record contains no rulings of the trial court to be challenged on appeal, and that she considered whether to raise the issue of excessiveness of sentence but felt such claim would be frivolous as the sentences fall within the statutory penalty ranges for the offenses.

Appellate counsel has filed a motion to withdraw as attorney of record, stating that she filed an Anders brief and that defendant has a right to file his own brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing defendant of his right to file a pro se supplemental brief, which he timely filed with this Court.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history of the case and that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles and should be granted permission to withdraw. The State further agrees with appellate counsel that, after a careful review of the record, there are no non-frivolous issues to raise on appeal. The State asserts that, without reserving his right to challenge any pre-trial rulings, defendant entered knowing and voluntary pleas of guilty after the trial court conducted a thorough and comprehensive colloquy wherein he was fully informed of the nature of the charges against him, his potential sentencing exposure, and his constitutional rights. The State further asserts that the sentences imposed were within the statutory limits. Also, the State notes that defendant was informed of his multiple offender rights before he stipulated to being a second felony offender. As such, the State contends that defendant's convictions, habitual offender adjudication, and sentences should be affirmed.

Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 462 - 466. Further, the minute entries reflect that defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea, multiple bill stipulation, and sentencing. As such, there are no appealable issues surrounding defendant's presence.

Further, defendant pled guilty as charged and stipulated to the allegations of the multiple offender bill of information. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465, p. 9 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304. Here, defendant entered unqualified guilty pleas and stipulations, and therefore, all non-jurisdictional defects are waived.

Although defendant filed several omnibus motions which were not ruled on, the motions are considered waived when a defendant does not object to the trial court's failure to hear or rule on a pre-trial motion prior to pleading guilty. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Further, as there were no rulings, none were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976). Thus, no issues were preserved for appeal.

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

A review of the record reveals no constitutional infirmity in defendant's guilty pleas. The record reflects that defendant acknowledged reviewing the waiver of rights form with his attorney. The record shows that defendant was aware he was charged with and pleading guilty to a number of felony charges: one count of racketeering, one count of conspiracy to distribute cocaine, and one count of conspiracy to distribute heroin and marijuana.

Further, in the waiver of rights form and by the trial judge during the colloquy, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama , supra. Defendant signed the waiver of rights form, indicating that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood those rights.

During his guilty plea colloquy and in his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant was informed during the colloquy of the minimum and maximum sentences and of the sentences that would be imposed on each count if his guilty pleas were accepted. Moreover, a factual basis was given by the State for the offenses, after which defendant admitted to having committed the crimes as charged in the indictment. After the colloquy with defendant, the trial court accepted defendant's pleas as knowingly, intelligently, freely, and voluntarily made.

Further, our review of the record also reveals no constitutional infirmity in defendant's stipulation to the multiple bill. The record indicates that defendant reviewed the multiple offender waiver of rights form with his attorney. The waiver of rights form and the colloquy between the trial judge and defendant indicate that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status, and of his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender and the sentence that would be imposed. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill.

Afterward, the trial judge accepted his stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made by defendant. By stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects. Defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple offender adjudication when he waived the hearing. See Schaefer , supra .

With regard to defendant's sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed.

State v. Williams , 12-299 (La. App. 5 Cir 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-0109 (La. 6/21/13), 118 So.3d 406. Here, defendant's original sentences and enhanced sentence were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea.

Even if we were to review defendant's sentences, they all fall within the sentencing ranges set forth in the statutes. See La. R.S. 15:1354(A) ; La. R.S. 40:979 ; La. R.S. 40:967(B)(4)(b) ; and La. R.S. 15:529.1. Moreover, defendant's plea agreement was beneficial to him because he received midrange sentences for his convictions for racketeering, conspiracy to distribute heroin, and conspiracy to distribute cocaine. Also, regarding his enhanced sentence, defendant received a twenty-year sentence, which was less than the thirty-year maximum exposure.

Although our review of the record reflects that defendant may have received inadequate information regarding the restriction of benefits for his enhanced sentence, the omission does not require correction so it does not warrant an assignment of error. Specifically, defendant was not informed that parole was restricted during the first two years of his enhanced sentence.

The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1"are those called for in the reference statute." State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n.24, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983. When the underlying offense carries a parole restriction, the habitual offender sentence is to likewise be imposed without parole. See State v. Smith , 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied , 09-2102 (La. 4/5/10), 31 So.3d 357.

Here, the trial judge imposed defendant's enhanced sentence without the benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1(G), but did not also restrict parole during the first two years of the sentence as required by La. R.S. 40:967(B)(4)(b). Thus, the trial court imposed an illegally lenient sentence.

However, La. R.S. 15:301.1(A) provides that the statutory restrictions, even if they are not recited at sentencing, are deemed to be contained in the sentence, and are, therefore, statutorily effective. State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790, 799. Thus, the omission does not require corrective action. See State v. Young , 13-745, p. 2 (La. App. 5 Cir. 4/9/14), 140 So.3d 136, 140 n.2, writ denied , 14-1002 (La. 12/8/14), 153 So.3d 439. More importantly, this issue did not affect the voluntariness of defendant's guilty plea or multiple offender stipulation. See State v. Harrell , 09-364 (La. App. 5 Cir. 5/11/10), 40 So.3d 311, writ denied , 10-1377 (La. 2/10/12), 80 So.3d 473.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel's assertion, we will grant appellate counsel's motion to withdraw as attorney of record by this opinion.

Pro Se Assignment of Error

In his first pro se assignment of error, defendant challenges the validity of the multiple offender bill of information used to charge him as a second felony offender on count two and his conviction and sentence on count three because the State charged and convicted him of crimes committed when he was a juvenile. Specifically, defendant claims the multiple bill seeks to enhance count two, his underlying conviction for conspiracy to distribute cocaine, which he contends he committed on August 29, 2005-a time when he was a fourteen-year-old juvenile and could not have committed the crime because of the mandatory evacuation in place due to Hurricane Katrina. He further contends that he should not have been multiple billed using a predicate conviction which he committed in 2012, after his underlying 2005 offense. Defendant also makes the same argument as to his conviction and sentence on count three, maintaining that he committed the offense as a juvenile, therefore, rendering his conviction on this count invalid.

First, as previously noted in the Anders section of this memorandum, defendant pled guilty as charged; he also admitted to being a second felony offender as alleged in the multiple bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter , 05-697, p. 5 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465, p. 9 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304. Accordingly, we find defendant has waived the challenges to his guilty plea on count three and to the alleged multiple bill deficiency he now raises on appeal.

Next, even if defendant's arguments had been preserved, we would find no merit. In this case, the multiple offender bill of information alleged defendant was a second felony offender based on defendant's April 13, 2014, predicate conviction for second offense possession of marijuana, in violation of La. R.S. 40:966(C). The State sought to enhance defendant's underlying conviction of conspiracy to distribute cocaine (count two), which is based on offenses that the State maintained occurred between 2006 and 2015. Further, defendant pled guilty on count three-conspiracy to distribute heroin-which is also based on offenses that occurred between 2006 and 2015. Defendant admitted that he committed a series of offenses during this time frame with respect to both counts.

Defendant reported his birth date as June 6, 1991, making him a juvenile up until his eighteenth birthday on June 6, 2009. Thus, any offenses that occurred after 2009 were committed after defendant had attained majority.

Further, based on the date range of the underlying offenses extending until 2015, defendant's argument that a crime committed in 2012 for which he was convicted in 2014 could not be used as a predicate in the multiple bill and could not be charged as an offense in the indictment, lacks merit because the offenses on counts two and three could have been committed at any time between 2009 and 2015, and still fall within the relevant time frame.

In his second pro se assignment of error, defendant contends his convictions of conspiracy/attempted distribution of cocaine (count two) and conspiracy/attempted distribution of heroin (count three) in connection with related racketeering crimes subjected him to double jeopardy.

Defendant and twenty other co-defendants were charged in a thirty-count indictment for various acts of racketeering committed in furtherance of a narcotics distribution network on the Westbank of Jefferson Parish, operated by a street gang known by its members as the "Harvey Hustlers." Specifically, defendant was charged and pled guilty to racketeering, in violation of La. R.S. 15:1352 ; conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A) ; and conspiracy to distribute heroin, in violation of La. R.S. 40:979 and La. R.S. 40:966(A).

The Fifth Amendment to the United States Constitution, as well as Article I, § 15 of the Louisiana Constitution prohibit placing a person twice in jeopardy of life or limb for the same offense. See also La. C.Cr.P. art. 591. Double jeopardy provisions are intended to protect an accused not only from a second prosecution for the same criminal act, but also multiple punishments for the same act. State v. Lefeure , 00-1142 (La. App. 5 Cir. 1/30/01), 778 So.2d 744, 750, writ denied , 01-1440 (La. 9/21/01), 797 So.2d 669.

The protections against double jeopardy mandated by the federal constitution, as restated in this state's constitution, fall within the analytical framework set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See State v. Frank , 16-1160, 234 So.3d 27 (La. 10/18/17). Under Blockburger , the question is whether the same act or transaction constitutes a violation of two distinct statutory provisions. To determine whether there are two offenses or only one, the pertinent question is whether each provision requires proof of an additional fact which the other does not. State v. Knowles , 392 So.2d 651, 654 (La.1980) ; State v. Bridgewater , 98-658, p. 9 (La. App. 5 Cir. 12/16/98), 726 So.2d 987, 991.

Defendant appears to argue that, under Blockburger , the constitutional protection against double jeopardy prevents the State from separately charging and convicting him on conspiracy to distribute cocaine and heroin after he has already been convicted on the racketeering charge.

In State v. Bailey , 97-0302, (La. App. 5 Cir. 4/28/98), 713 So.2d 588, this Court addressed the issue of whether double jeopardy barred the defendant's convictions on one count of racketeering, seven counts of attempted possession of cocaine, one count of distribution of cocaine, and one count of attempted distribution of cocaine. On appeal, the defendant argued that the trial court erred in denying his motion to quash, which alleged that his convictions on the racketeering charge and on the nine overt acts violated the constitutional guarantee against double jeopardy. This Court, finding that double jeopardy did not bar convictions on both the racketeering offense and the other offenses, determined:

... [w]e must look to the Legislative intent regarding multiplying defendant's punishment under these circumstances. Clearly, in enacting the Racketeering Act, the Legislature expressed its clear intent to increase the punishment for the individual crimes when a pattern of criminal or racketeering activity is also proven.
Moreover, in looking to our federal counterpart we note that the federal courts have consistently held that prosecuting and sentencing of a defendant for both Racketeer Influenced and Corrupt Organization (RICO), 18:1961 et seq . violations and the predicate offenses does not violate double jeopardy. United States v. Padgett , 78 F.3d 580 (4th Cir. 1996) ; United States v. O'Connor , 953 F.2d 338 (7th Cir. [1992] ), cert. denied , 504 U.S. 924, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992) ; United States v. Evans , 951 F.2d 729 (6th Cir. 1991), cert. denied , 504 U.S. 920, 112 S.Ct. 1966, 118 L.Ed.2d 567 (1992) ; United States v. Arnoldt , 947 F.2d 1120 (4th Cir. 1991), cert. denied , 503 U.S. 983, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992) ; United States v. Erwin , 793 F.2d 656 (5th Cir. [1986] ), cert. denied , 479 U.S. 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986).

Bailey , 713 So.2d 588 at 603.

Based on the foregoing jurisprudence, we find that there was no double jeopardy bar to the prosecution of defendant for conspiracy to distribute cocaine and heroin.

In his third pro se assignment of error, defendant contends his counsel was ineffective for failing to investigate his prior criminal history, and, as a result, neglected to object prior to the entering of his guilty pleas, and to the use of an invalid underlying conviction for enhancement purposes in the multiple offender bill of information. He further asserts that his counsel was ineffective because he permitted defendant to plead guilty to crimes that were allegedly committed on August 29, 2005, during a mandatory hurricane evacuation when defendant was only fourteen-years-old. Defendant also contends his counsel was ineffective for permitting him to be twice put in jeopardy for the same offenses.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant's right to effective assistance of trial counsel. According to the United States Supreme Court's opinion in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel's performance was deficient; and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Taylor , 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924 - 930.8. Id.

In this case, we will address the merits of defendant's claims in the interest of judicial economy. Defendant's contention that his counsel was ineffective for failing to investigate his criminal history is unsupported by the record. As discussed supra , the record reflects that defendant's underlying convictions were for offenses committed between August 29, 2005 and February 26, 2015, a time frame during which defendant attained majority. Further, as further discussed supra , defendant was not subjected to double jeopardy when charged and convicted of racketeering and other drug offenses.

Accordingly, defendant's pleas, sentences, and stipulation to the multiple bill are supported by the record and appear to be an advantageous consequence of the plea-bargaining process. The record lacks any indication and defendant fails to provide any evidence that defense counsel's performance was deficient or that any alleged deficiency prejudiced defendant. Therefore, we find defendant is not entitled to relief.

Errors Patent

Defendant requests an error patent review, which this Court routinely performs in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

We note that the State of Louisiana Uniform Commitment Order (UCO) contains the incorrect offense dates for counts two and three. The record reflects that counts two and three were committed on or around August 29, 2005 through February 26, 2015 , and not on or around "8/29/05 through 2/26/16 " as incorrectly indicated on the UCO. (Emphasis added).

Accordingly, we remand the matter for correction of the UCO to reflect the correct offense dates and direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2) ; State ex rel. Roland v. State , 06-224 (La. 9/15/06), 937 So.2d 846 (per curiam) ).

AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER; MOTION TO WITHDRAW GRANTED.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

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

      La. R.S. 15:1354(A) provides, in pertinent part: "any person who violates any provision of R.S. 15:1353 shall be fined not more than one million dollars, or imprisoned at hard labor for not more than fifty years, or both."

      Defendant's sentence for conspiracy to distribute heroin, which is classified as a *Schedule I narcotic drug, under the penalty provision of La. R.S. 40:979(B), which reads in pertinent part:
      B. Any person who attempts or conspires to distribute or possess with intent to distribute any substance classified in Schedule I, as provided for in R.S. 40:963 and R.S. 40:964, which is a narcotic drug (all substances in Schedule I preceded by an asterisk "*") shall, upon conviction, be imprisoned at hard labor for not less than eight nor more than fifty years without benefit of parole, probation or suspension of sentence and may, in addition, be required to pay a fine of not more than ten thousand dollars.

      La. R.S. 40:967(B)(4)(b) provides in pertinent part:
      Distribution...[of] cocaine... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

      La. R.S. 15:529.1 provides in pertinent part that upon a second felony conviction, "the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction."

      At the enhanced sentencing, the trial court did not personally advise defendant of the two-year restriction of benefits provided by La. R.S. 40:967(B)(4)(b) and La. R.S. 40:979(A). However, this Court has held that the trial judge's failure to restrict benefits does not affect the voluntariness of a multiple offender stipulation. See State v. Davis , 17-81 (La. App. 5 Cir. 6/29/17), 224 So.3d 1211 ; State v. Duncan , 16-493 (La. App. 5 Cir. 2/8/17), 213 So.3d 1247, 1253.