author: PER CURIAM. JOHNSON, J.,

text:
    STATE of Louisiana v. Lawrence JACOBS.
    No. 2009-K-1304.
    Supreme Court of Louisiana.
    April 5, 2010.
   PER CURIAM.

hThe defendant was found guilty as charged on two counts of second degree murder by a unanimous twelve-person jury and was sentenced to two consecutive life sentences at hard labor, without the benefit of parole, probation, or suspension of sentence. On appeal, the defendant asserted sixteen assignments of error. The appellate court found merit in the defense’s claim that the trial judge failed to properly address two of the defendant’s Batson objections raised during voir dire, and concluded that the prosecution improperly used peremptory challenges to remove these jurors with a racially discriminatory intent. Pretermitting review of the other assignments of error raised on appeal, the court of appeal set aside the defendant’s convictions and sentences and ordered a new trial. State v. Jacobs, 2007-887 (La.App. 5 Cir. 5/12/09), 13 So.3d 677. After our review of the issues raised, we reverse the court of appeal’s determination and remand for its consideration of the other issues raised on appeal.

In his appeal, the defendant claimed his Batson objections raised during voir dire were supported by (1) statistical evidence of racial discrimination, (2) disparate questioning by the prosecutor of black and white jurors, (3) the prosecutor’s failure li>to conduct a meaningful voir dire on matters of alleged concern that formed the basis for his peremptory strikes, and (4) the prosecution’s disparate treatment of white jurors and black jurors with similar conditions. The appellate court found evidence of all four factors claimed by the defense. State v. Jacobs, 2007-887 p. 5 (La.App. 5 Cir. 5/12/09), 13 So.3d 677, 683.

We first address the court of appeal’s determination that the trial judge failed to properly address the Batson objections raised to the prosecution’s use of peremptory challenges to two prospective jurors, Eric Hughes and Leola Florence.

Eric Hughes

As found by the court of appeal, the prosecutor challenged Mr. Hughes based on a “medical condition.” Jacobs, 2007-887 p. 14-16, 13 So.3d at 689-690. As explained in the appellate opinion, the prosecutor learned of this medical condition either from the trial judge himself, or the judge’s staff, as Mr. Hughes had discussed what was apparently a muscular problem with the bailiff and the judge’s secretary. After the prosecutor discussed Mr. Hughes’ desire to be excused from jury duty based on this muscular problem with the judge and defense counsel, and after defense counsel rejected the prosecutor’s request for a joint challenge for cause, the prosecutor exercised a peremptory challenge to backstrike Mr. Hughes from the jury.

The court of appeal found the record devoid of any evidence from Mr. Hughes about his condition and was, thus, unclear how the trial judge was able to assess the plausibility of the prosecutor’s proffered race-neutral explanation for the third step of a Batson analysis. Consequently, the appellate court held the trial court erred in determining that the prosecutor’s explanations for striking Mr. Hughes were convincingly race-neutral. Jacobs, 2007-887 pp. 16, 18, 13 So.3d at 689, 691.

To the contrary, we find the court of appeal missed an important point in its ^analysis. The trial judge could have no qualms about assessing the plausibility of the prosecutor’s explanation because the trial judge and members of his staff were the ones who knew of the prospective juror’s condition in the first place. While the record is devoid of any evidence from Mr. Hughes directly, there is no serious or creditable argument to be made that Mr. Hughes did not approach the judge’s staff with a request to be excused from jury service on the basis of his medical condition. In other words, the defense has never claimed that the trial judge, prosecutor, and court staff were involved in some sort of conspiracy to manufacture a medical condition for Mr. Hughes that would serve as a race-neutral reason for striking him from the jury. The prosecutor did not know anything about Mr. Hughes’ medical condition until the issue was raised by court staff and then explained by the trial judge himself. The condition was plausible because the trial judge knew about the prospective juror’s request before the prosecutor did. The fact that the prosecutor also claimed as a reason for exercising the peremptory challenge his belief that people kept on juries when they did not wish to serve would be more likely to punish the state, this prejudice, if it is a prejudice, is a race-neutral one.

In connection with this peremptory challenge, the appellate court found suspicious the prosecutor’s failure to ask questions of any voir dire panel whether any of its members had a medical condition which would preclude jury service. We find the fact that the prosecutor did not ask any panel, but only reacted when the issue was raised by others, supports the racial neutrality of the explanation rather than serves as evidence of its opposite.

As further support for its finding, the court of appeal found the prosecutor engaged in disparate treatment of a white prospective juror who also had a medical condition. As evidence of this finding the appellate court points out that prospective 14juror Ms. Thibodeaux interrupted the trial judge, prosecutor and defense counsel at a bench conference to state that she was a diabetic, was dizzy, and could not participate in voir dire much longer. The court of appeal found disparate treatment between white and black prospective jurors because the prosecutor did not inquire about Ms. Thibodeaux’s medical condition and ultimately accepted her to serve on the jury.

However, for disparity of treatment to be present, the medical conditions must be truly similar. Not all medical conditions are alike in how the condition may effect a person’s ability to participate in jury service. As any experienced litigator or trial judge would know, a prospective juror who indicates a diabetic condition may be maintained for jury service simply by making available sufficient types of food and reasonable breaks to ensure that appropriate food is consumed. This condition is unlike someone with a muscular problem in their back or neck which would prevent them from sitting or paying attention during jury service. Apparently, the trial judge, prosecutor and defense counsel in this case all recognized that Ms. Thibodeaux did not present a similar medical condition as Mr. Hughes, as neither the prosecutor nor defense counsel asked Ms. Thibodeaux whether her diabetes would interfere with her ability to serve on the jury. Jacobs, 2007-887 p. 17, 13 So.3d at 691. Moreover, Ms. Thibodeaux did not ask to be released from the jury, unlike Mr. Hughes. The court of appeal’s “evidence” of disparate treatment fails because the medical conditions at issue are not truly similar.

Upon close analysis, we find each of the reasons given by the court of appeal for its conclusions that the prosecutor’s proffered explanation for striking Mr. Hughes was implausible, and that the trial judge failed in his duty to assess the implausibility |sof the prosecutor’s stated reasons, are ultimately unsupported. Consequently, we find there was no error in the trial court’s acceptance of the prosecutor’s race-neutral reasons for raising a peremptory challenge to Mr. Hughes.

Leola, Florence

We now turn our analysis to the second prospective juror which the court of appeal found the prosecutor improperly excluded from the jury, Leola Florence. The appellate court found the prosecutor challenged Ms. Florence because she was sleeping during voir dire, she had previously served on a hung jury in a criminal case, and she had received a subpoena in a possible ongoing case in which she may have been the victim. The trial court accepted the prosecutor’s proffered race-neutral reasons without comment and simply denied the defense’s Batson objection. Jacobs, 2007-887 p. 18, 13 So.3d at 692.

The court of appeal found the prosecutor failed to question Ms. Florence further about her jury service and that he treated differently a white prospective juror, Ms. Rood, who had also served on a previous hung jury. The court of appeal recognized, without realizing the significance of the distinction, that Ms. Florence |fivolunteered the information that the jury she previously served on had not known what to do, whereas Ms. Rood, when asked, did not indicate there had been any lack of understanding of the jury’s role in her prior service. Jacobs, 2007-887 p. 19, 13 So.3d at 692. This distinction alone may be enough to explain the prosecutor’s different handling of these two jurors. However, we do not have to base our decision on this distinction alone, as the other two grounds raised by the prosecutor for challenging Ms. Florence additionally support the distinction made.

The appellate court did not address the prosecutor’s other proffered reasons for challenging Ms. Florence, other than to note that the prosecutor did not question Ms. Florence further as to the subpoena she had received, and that the trial judge did not independently assess the plausibility of the prosecutor’s proffered reasons. Jacobs, 2007-887 p. 20, 13 So.3d at 692. However, this Court has previously held that while a cause challenge may not be sustainable without an inquiry into whether the prospective juror’s impartiality is affected, a prosecutor’s peremptory challenge based on the fact that a prospective juror has been a victim of crime is race-neutral. Compare State v. Harris, 2001-2730 p. 12 (La.1/19/05), 892 So.2d 1238, 1261 with State v. Manning, 2003-1982 pp. 40-42 (La.10/19/04), 885 So.2d 1044, 1084-1085.

Finally, with regard to the prosecutor’s proffered reason that Ms. Florence was sleeping during voir dire, the court of appeal concluded:

Under Miller-El and Snyder, as noted above, the trial judge must independently assess the plausibility of the prosecutor’s proffered reasons. Yet again, the trial judge failed to specifically address the 17plausibility of any of the prosecutor’s proffered race-neutral explanations, based on the prosecutor’s credibility and the prospective juror’s demeanor. This failure also constituted reversible error.

Jacobs, 2007-887 p. 20,13 So.3d at 692.

Since the court of appeal opinion was handed down, the United States Supreme Court issued its ruling in Thaler v. Haynes, 559 U.S.-, 130 S.Ct. 1171, — L.Ed.2d - (2010), which provides an important limitation on the Supreme Court’s previous analysis of Batson issues, specifically the Supreme Court’s holding in Snyder. This new case specifically addresses the court of appeal’s conclusion that Snyder requires some sort of articulation by the trial judge on a demeanor-based challenge. As such, a review of Thaler v. Haynes is critical to our analysis of the issue.

Thaler v. Haynes is a per curiam decision in a federal habeas corpus case involving a Texas criminal defendant who was convicted in Texas state court of the murder of a police officer and sentenced to death. In this case, the Supreme Court rejected the argument that Batson, Snyder, or any other decision established a rule that a demeanor-based explanation for a peremptory challenge must be rejected unless the judge personally observed and recalled the relevant aspect of the prospective juror’s demeanor. In explaining its previous reasoning in Snyder, the Supreme Court noted the prosecutor in that case had proffered a demeanor-based explanation and a non-demeanor-based reason. The Supreme Court found the record negated the non-demeanor-based challenge and, “in light of the particular circumstances of the case, we held that the peremptory challenge could not be sustained on the demeanor-based ground, which might not have figured in the trial judge’s unexplained ruling.” Thaler v. Haynes, No. 09-273, 130 S.Ct. at 1174-75. The Supreme Court explained that the “particular circumstances of the case” included the fact that “the peremptory challenge was not exercised until some time after the juror was questioned, [and] the trial judge might not have recalled the juror’s demeanor.” Id. However, the Court maintained that

“[tjhese observations do not suggest that, in the absence of a personal recollection of the juror’s demeanor, the judge could not have accepted the prosecutor’s explanation.” Indeed, Snyder quoted the observation in Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395(1991) (plurality opinion), that the best evidence of the intent of the attorney exercising a strike is often that attorney’s demeanor. See 552 U.S., at 477, 128 S.Ct. 1203.

Id., 130 S.Ct. at 1175 (emphasis added).

In conclusion, the Supreme Court held “that no decision of this Court clearly establishes the categorical rule on which the Court of Appeals appears to have relied,” i.e., that in ruling on a demeanor-based explanation of a peremptory challenge, a trial judge must personally observe and remember the prospective juror’s demean- or as characterized by the prosecutor. Id., 130 S.Ct. at 1175. The Supreme Court, in remanding, cautioned that its ruling did not mandate the rejection of the respondent’s Batson claim with regard to this juror, but directed that the federal appellate court in this federal habeas matter consider whether the Texas courts’ determination may be overcome under the federal habeas standard for reviewing a state court’s resolution of a fact question. Id.

Applying the rule of Thaler v. Haynes to this case, the trial court’s failure to comment on the prosecutor’s demeanor-based reason does not mean the peremptory challenge should automatically be rejected. Even if the trial judge did not observe Ms. Florence sleeping, his ruling on whether the prosecutor raised the challenge due to a purposeful discriminatory intent could have been validly based on the judge’s ^personal observation of the prosecutor’s demeanor. Under the Supreme Court’s further explanation of its Snyder holding in Thaler v. Haynes, this alone would suffice to reject a Batson objection to a peremptory challenge premised on a demeanor-based reason. As found by the court of appeal, the trial judge expressly stated he accepted the state’s race-neutral explanation.

Upon closer analysis, and with the further guidance from the Supreme Court that no categorical rule exists to reject a demeanor-based explanation for a peremptory challenge when the trial judge fails to specifically comment on that explanation, we find each of the reasons given by the court of appeal for its conclusion that the prosecutor’s proffered explanation for striking Ms. Florence was implausible, and that the trial judge failed in his duty to assess the implausibility of the prosecutor’s stated reasons, are ultimately unsupported.

Other prospective jurors

Because the court of appeal ordered a remand for a third trial of this matter, the appellate court also discussed the peremptory strikes of three other prospective jurors, Melanie Auzenne, Ivory Jordan, and Virgie Stevenson. At the outset, the court of appeal acknowledged that these strikes do not rise to the level of a racial taint that could not be purged. However, the appellate court found the strikes “illustrated] the need for the trial judge to perform his pivotal role in evaluating the claims as required by Snyder.” Jacobs, 2007-887 p. 21,13 So.3d at 693.

Our review finds the court of appeal, in its analysis of the claims under Snyder, improperly imposed a requirement on the trial judge to articulate on the record whether the trial judge both observed and remembered the demeanor-based explanations given by the prosecutor as race-neutral reasons for the peremptory challenges. As previously discussed, Thaler v. Haynes rejected such a requirement.

|inThe court of appeal found the prosecutor offered three reasons for striking Ms. Auzenne: (1) she avoided eye contact with the prosecutor and appeared to be unfriendly to the prosecutor or amenable to the prosecutor’s discussion; (2) she was formerly employed at the New Orleans District Attorney’s office, which has been plagued with problems; and (3) the prosecutor was puzzled when Ms. Auzenne spontaneously volunteered she had never been accused of anything. The trial judge stated he also observed Ms. Auzenne’s disinterest, but could not tell whether she responded differently to either party. The court of appeal found the trial judge failed to give his opinion on the prosecutor’s credibility regarding Ms. Auzenne’s body language and failed to comment on Ms. Auzenne’s puzzling remark, thus, abandoning his pivotal role mandated by Snyder. Finally, the court of appeal noted the prosecutor did not ask follow-up questions of this prospective juror regarding her former employment, which the court of appeal found to be suspicious and evidence that the explanation was a sham and a pretext for discrimination. Jacobs, 2007-887 p. 21,13 So.3d at 693-694.

However, the court of appeal also noted a prospective juror’s inattentiveness and body language have been held to be valid race-neutral reasons for exercising a peremptory challenge. Jacobs, 2007-887 p. 21 n. 75, 13 So.3d at 693 n. 75, citing State v. Coleman, 2006-518 (La.11/2/07), 970 So.2d 511, 515. Since Thaler v. Haynes instructs that a trial judge is not required to articulate whether or not the judge observed or remembers the demeanor-based explanation proffered by the prosecutor, as long as the trial judge accepts the prosecutor’s explanation, the court of appeal’s conclusion that this failure automatically invalidates the trial court’s ruling is erroneous. Moreover, the trial judge was present when Ms. Auzenne made her strange comment, basically a non-sequitor, which supplies yet another race-neutral | n reason for the prosecutor’s strike.

As for the prosecutor’s comment about the prospective juror’s previous employment at the New Orleans District Attorney’s office, and in the absence of knowing when the prospective juror worked at that office, which the attorneys and judge would have known, the response was facially race-neutral. Moreover, as found by the court of appeal, nothing in the totality of the voir dire of this prospective juror rose to the level of a Batson violation.

The state proffered four race-neutral reasons for striking Mr. Jordan: (1) he was the only juror wearing shorts on the first day of voir dire; (2) he was employed at a casino and the prosecutor did not believe law-abiding citizens should be involved in some of the things that occur in a casino; (3) he gave the prosecutor a disgusted look when he related he had been a crime victim and there had been a 2-hour delay in the police response; and (4) he had difficulties speaking, which the prosecutor believed could hinder communications with other jurors during deliberations. Jacobs, 2007-887 p. 21-22, 13 So.3d at 694. The trial judge indicated on the record he had observed the disgusted look and the hesitation in speech. The court of appeal found these race-neutral reasons were worthy of credence. Id., 2007-887 p. 22, 13 So.3d at 694. However, because the trial judge did not indicate if he believed the prosecutor’s remark on Mr. Jordan’s attire, the court of appeal found, under its flawed interpretation of Snyder, that the trial judge abandoned his pivotal role regarding this explanation. The Supreme Court’s recent ruling shows the court of appeal’s conclusion as to this demeanor-based reason was incorrect.

In addition, the court of appeal found the failure of the prosecutor to question Mr. Jordan further about his employment was suspicious and was evidence the 1 ^explanation was a sham and a pretext for discrimination. Id. When examined, however, the comment, which indicates a prejudice, is still a race-neutral one. No amount of questioning would have elicited the response that Mr. Jordan did not work at a casino. And the appellate court does not point to any other prospective juror with a similar job who was white whom the prosecutor failed to strike. Prosecutors often have prejudices against having persons with certain jobs on the jury, i.e. teachers, ministers, accountants, etc. Unless the trial judge found the prosecutor’s race-neutral reason masked a racially-discriminatory intent to remove Mr. Jordan from the jury, the trial judge was entitled to find there was no prohibited motive in the prosecutor’s peremptory challenge of this prospective juror. The court of appeal has previously noted that the trial judge expressly stated he accepted the state’s race-neutral explanation as to Mr. Jordan, and additionally indicated there was nothing in the voir dire of this prospective juror as a whole which uncovered a valid Batson violation.

The state proffered the following race-neutral reasons for the peremptory challenge of Ms. Stevenson: (1) she was asleep while sitting in the general venire audience while the first jury panel was questioned, (2) she taught Sunday School, (3) she had two nephews in jail, and (4) she found in favor of a plaintiff in a civil ease. As noted by the court of appeal, Louisiana courts have found that having relatives in jail is a valid race-neutral reason, as well as a prospective juror’s involvement in church activities. Jacobs, 2007-887 p. 22-23,13 So.3d at 694-695.

The court of appeal expressed two concerns with regard to these reasons; i.e. that a white prospective juror active in her church was accepted by the state and the trial judge failed to articulate whether he saw Ms. Stevenson sleeping. As previously discussed, Snyder does not require an articulation by the trial judge that he observed the demeanor-based explanation proffered by the state. If the trial judge accepts the 11sprosecutor’s explanation, based on the prosecutor’s demeanor, the trial judge may find no discriminatory intent. Moreover, the court of appeal also related that the state distinguished the white churchgoer as someone who had also voted guilty in a criminal case, as contrasted with Ms. Stevenson, who, as a juror in a civil trial, voted to award money to the plaintiff. Even more compelling as a distinction, however, is that Ms. Stevenson was observed sleeping during voir dire and the white prospective juror was not. Finally, even with its concerns, the court of appeal found the trial judge expressly accepted the prosecutor’s race-neutral reasons and did not find the questioning of this prospective juror constituted a valid Batson violation.

Disparate questioning

Defense counsel argued on appeal that the prosecutor asked different questions when there were black prospective jurors on the venire panel. To panels with non-white prospective jurors, the defense claimed the prosecutor asked if the panel members knew anyone in jail but did not pose that question to panels with only white prospective jurors. In addition, the defense claimed that only to panels which included non-white prospective jurors did the prosecutor discuss that Jacobs was facing a potential life sentence. Jacobs, 2007-887 p. 13-14, 13 So.3d at 689.

A close reading of the appellate opinion reveals the court of appeal did not make its own finding as to this issue other than to agree with the defense’s contentions. See Jacobs, 2007-887 p. 5, 13 So.3d at 683. In fact, our review of the information provided by the appellate court makes the accuracy of the defense’s argument questionable.

The appellate opinion states that the entire jury venire was comprised of 48 people and explains the make-up of the first three panels. The first panel consisted of 15 people-14 who were white and one who was Hispanic. The second panel | ^consisted of 14 people-9 who were white and 5 who were black. The third panel consisted of 13 people-11 who were white and two who were black. Consequently, these first three panels all contained nonwhite prospective jurors and 42 of the entire 48 people in the venire were questioned. Voir dire continued with the remaining six venire members. Considering the racial make-up of the entire voir dire, the last panel would have consisted of only white prospective jurors. Taking into account that voir dire was almost completed, that only a few jury members, or alternates, needed to be selected, and that these remaining venirepersons sat through the questioning of the prior three panels, the fact that the prosecutor may have compressed his questioning near the end of voir dire is far different than if disparate questioning occurred between the first and second panels, had there been all white prospective jurors in one and non-white prospective jurors in the other. When examined, the factor of disparate questioning loses the significance given to it by the court of appeal.

Statistical argument

The appellate court found the state used seven of the eight peremptory challenges exercised to remove non-white prospective jurors. From a purely statistical perspective, the court of appeal found the state used 87% of its peremptory strikes to challenge non-white prospective jurors, in a venire where non-white prospective jurors comprised less than 19% of the prospective jurors. Jacobs, 2007-887 p. 13, 13 So.3d at 688. The appellate court, with reference to Miller-El, “f[ound] it unlikely that the disparity in the present case was pure chance.” Id.

From a purely statistical standpoint, we would agree. However, we have more than a bare statistical viewpoint to gauge the appropriateness of the peremptory | ^challenges in this case. For three of those peremptory challenges, the appellate court found there was no valid Batson claim that would invalidate the strike, i.e. for Melanie Auzenne, Ivory Jordan, and Virgie Stevenson. As previously discussed, our review of the two peremptory challenges which the court of appeal determined were motivated by a racially-discriminatory intent cannot be supported as such. Consequently, we have found that, after a comprehensive review of these issues, five of the seven state peremptory challenges of non-white prospective jurors did not evince a racially-discriminatory intent. Thus, the statistical argument fails to have merit upon further inquiry.

Conclusion

In sum, after a close analysis of the appellate opinion, and consideration of the Supreme Court’s recent ruling, we find that the court of appeal erred in reversing the defendant’s convictions on the basis of the Batson issues raised on appeal.

DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed. This matter is remanded to the court of appeal for its consideration of the other issues raised by the defendant on appeal.

REVERSED AND REMANDED.

JOHNSON, J., dissents with reasons.

WEIMER, J., would grant and docket.

JOHNSON, J.,

dissents and assigns reasons.

hit is now well settled in American jurisprudence that prosecutors may not discriminate against minorities in the use of peremptory challenges during jury selection. See, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. In 1998, defendant, Lawrence Jacobs was convicted of first degree murder and sentenced to death for the double murder of Della and Nelson Beaugh. On direct appeal, this court reversed the conviction and sentence, and remanded the case for a new trial after finding error in the trial court’s denial of two of defendant’s challenges for cause. State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280. (Jacobs I).

At a second trial, the original indictment was amended, and defendant was found guilty of two counts of second degree murder, and sentenced to two consecutive sentences of life imprisonment. On appeal, the court found that the trial court erred in denying defendant’s Batson challenges, where the State used seven of eight peremptory challenges to strike six African Americans and one Hispanic venireman, from the pool of prospective jurors. The court of appeal set [2aside the convictions and sentences and remanded the case for a third trial. State v. Jacobs, 2007-887, (La.App. 5 Cir. 5/12/09), 13 So.3d 677. (Jacobs II).

The majority relies on a per curiam decision from the United States Supreme Court, Thaler v. Haynes, 559 U.S. -, 130 S.Ct. 1171, — L.Ed.2d- (2010), which is peculiar in its facts because voir dire was presided over by two different judges. One judge presided over questioning of prospective jurors and a second judge presided over the peremptory challenges and ruled on the prosecution’s proffered race-neutral reasons. This case simply presented an occasion to consider how Batson applies when different judges preside over two stages of the jury selection process.

When a court is faced, as here, with statistical evidence that a prosecutor has used peremptory strikes to exclude 100% of the minorities from the jury, and there is evidence in the record of disparate treatment of similarly situated white and black prospective jurors, we need not accept any proffered race-neutral reasons that emphasize demeanor, (nervousness, inattentiveness, etc.). The prosecutor’s discriminatory intent is evident from the record.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      .The court of appeal concluded:
      After reviewing the voluminous record as a whole, we seriously doubt the sincerity and validity of the proffered race-neutral reason where, as here, [1] the prosecutor failed to further inquire into Mr. Hughes’ "medical condition,” [2] failed to ask any other jurors about relevant medical conditions, and [3] accepted Ms. Thibodeaux, for jury service, without questioning. In light of the record before us, we find that the prosecutor's proffered explanation for striking Mr. Hughes was implausible and strongly infers discriminatory intent. Accordingly, we find that the trial judge erred in determining that the prosecutor's explanations for striking Mr. Hughes were convincingly race-neutral. Based on the foregoing, we hold that the trial court erred in denying defense counsel's Batson challenge as to Mr. Hughes.

        Jacobs, 2007-887 p. 18, 13 So.3d at 691 (emphasis added).

      . As conceded by the court of appeal, the trial judge expressly stated he accepted the prosecution's race-neutral explanation for all of the challenged prospective jurors except Mr. Hughes. However, for Mr. Hughes, defense counsel stated on the record at a later time that the trial court had, indeed, ruled on the Batson challenge raised for the peremptory challenge of Mr. Hughes. See Jacobs, 2007-887 p. 16 n. 60; 13 So.3d at 690 n. 60.

      . In other words, Ms. Rood may not also have been a victim of crime and have been observed sleeping during voir dire.

      . The court of appeal earlier noted ‘‘[ajddi-tionally, the record does not reflect that Ms. Florence was sleeping.” Jacobs, 2007-887 p. 20, 13 So.3d at 692.

      . Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

      . Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The trial judge in this case was also the trial judge in State v. Snyder, which the Supreme Court case reversed.

      . In Thaler v. Haynes, two judges presided over voir dire; one presided over the prospective juror questioning and a different judge presided over the peremptory challenges. The presiding judge, in finding the demeanor-based challenge race-neutral, was unable to comment further on his ruling because he had not been present to see the prospective juror’s demeanor during questioning. Although the state courts on direct appeal and state post conviction, and the federal district court on habeas review, rejected Haynes' Batson claim, the federal appellate court reversed, holding Haynes was entitled to a new trial.

      . Instead, the trial judge commented he did not really notice the short pants.

      . The state disputes this number and claims it used nine of its 12 peremptory challenges. The state additionally contends the record shows that one of the peremptory challenges imputed to the state was actually a cause challenge. For purposes of this analysis, we do not find it necessary to clarify this point.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cindy B. VICKNAIR.
    No. 09-KA-612.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, George Wallace, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, Louisiana, for Defendant/Appellant.
    Panel composed of MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER, Judges.
   WALTER J. ROTHSCHILD, Judge.

|20n February 26, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Cindy Viek-nair, with possession of methadone in violation of LSA-R.S. 40:967(C), possession of morphine in violation of LSA-R.S. 40:967(C), and possession of clonazepam in violation of LSA-R.S. 40:969(C). She was arraigned and pled not guilty to these charges. On May 26, 2009, defendant executed a waiver of rights form, was advised of her Boykin rights, withdrew her not guilty pleas, and pled guilty as charged to all three counts. The trial court deferred imposition of defendant’s sentences, pursuant to LSA-C.Cr.P. art. 893, and placed defendant on active probation for two years on each count, to run concurrently.

FACTS

Because this appeal arises from guilty pleas and defendant did not proceed to trial, there are few facts in the record before us. The bill of information and the [sfactual basis presented by the State during the guilty plea colloquy indicate that on January 2, 2009, defendant was in possession of methadone, morphine, and clo-nazepam in Jefferson Parish.

LAW AND DISCUSSION

On appeal, defendant argues that her guilty pleas are invalid because she did not personally articulate a waiver of rights or guilty plea. She contends her guilty pleas were proffered by counsel, who was appointed after her retained counsel failed to appear. She argues that she never expressly stated, “I plead guilty” or any words to that effect. Defendant contends that her guilty plea is invalid and must be set aside in light of the recent First Circuit case of State v. Holden. She further asserts she did not understand the proceedings and the trial judge failed to explain that by pleading guilty she would instantaneously become a third felony offender.

The State responds that defendant indicated her willingness to plead guilty throughout the plea colloquy and stated that she understood the rights she was waiving by pleading guilty. The State contends that there is nothing in the record to indicate that defendant did not understand the proceedings. The State further argues that reliance on the Holden case is misplaced, because it is distinguishable. The State explains that in Holden, the defendant was advised of the Boykin rights, but was not asked if the defendant waived those rights, whereas in the present case defendant was advised of her rights and expressly waived the rights, stating that she understood the waiver.

A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was 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, p. 7 (La.App. 5 Cir. |42/27/06), 924 So.2d 1120, 1124. Failure to make a formal motion to withdraw a guilty plea does not prohibit a reviewing court from setting aside a constitutionally infirm guilty plea. Id.

LSA-C.Cr.P. art. 556.1 outlines the duty of the court when accepting a plea of guilty or nolo contendere:

A.In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4)That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
B. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
C. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.
|;;D. In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo contendere.
E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

Violations of LSA-C.Cr.P. art. 556.1 that do not rise to the level of Boy-kin violations are subject to harmless error analysis. State v. Guzman, 99-1528, 99-1753, pp. 10-13 (La.5/16/00), 769 So.2d 1158, 1164-66; State v. Gilliam, 01-748, 01-749, 01-750 pp. 5-6 (La.App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-0512 (La.11/1/02), 828 So.2d 562. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his or her willingness to plead guilty. Id.

In the present case, defendant pled guilty on May 26, 2009. On this date, defense counsel stated, “I placed a Boykin form and a probation form on your desk, Your Honor. And at this time, on behalf of Ms. Vicknair, we’d like to withdraw our original plea of not guilty and tender a plea of guilty as charged.” Thereafter, the trial court entered into a colloquy with defendant. The trial judge stated that she wanted defendant to convince her that she understood what she was doing that day by entering the guilty pleas. Defendant said she understood that she could stop the judge for additional instructions if she had questions or if she did not understand anything.

During the colloquy, the judge then explained that defendant had a right to a trial by jury or by the court alone, had a right to confront her accusers, and a right against self-incrimination. The judge stated that by entering the guilty plea, she was waiving these rights. Defendant stated that she understood this. The judge then questioned defendant about her age and education. The judge listed the 16charges defendant was pleading guilty to and explained that the minimum sentence could be no jail time and the maximum sentence she faced was five years at hard labor on each count. Defendant indicated that she understood this. The judge told defendant that if she accepted her guilty plea, she would defer sentencing under LSA-C.Cr.P. art. 893 and place her on active probation for two years. The Court explained the conditions of probation that would be ordered. Defendant indicated she understood the nature of her sentence.

The trial judge explained to defendant that the guilty plea was her decision and that no one could force her to plead guilty. Defendant denied that anyone used force, coercion, intimidation, promise, or reward to induce her to plead guilty. The judge then noted that pleading guilty could expose her to greater penalties as a habitual offender if she were to plead guilty or be found guilty of another felony in the future. Defendant stated that she understood this. The judge explained defendant’s appeal right if she went to trial and was found guilty as well as her right to counsel on appeal. She indicated that she understood she was waiving these rights.

The trial judge stated that “[b]y pleading guilty, you’re telling this Court that you have in fact committed these three crimes. Do you understand that?” Defendant responded affirmatively. After the State presented a factual basis for the plea, the judge asked defendant, “Is that what you did, Ms. Vicknair?” Defendant stated, ‘Tes, ma’am.” The trial judge found that she was satisfied that defendant was aware of the nature of the three crimes to which she was pleading guilty, that she did in fact commit the three crimes, and that she understood the consequences of the guilty plea. The judge then concluded the plea was “a knowing, intelligent, free and voluntary act of pleading guilty” and accepted defendant’s guilty plea.

^Defendant also executed a “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” form. The first paragraph of this form provides, “[y]ou have the right (1) to a trial by jury or by the Court alone, (2) to confront your accusers, and (3) against self-incrimination. By entering this plea of guilty, you are waiving or giving up these rights.” Defendant placed her initials next to this paragraph.

Considering the record before us, we find that defendant’s guilty pleas are not constitutionally infirm. Rather, the record shows that defendant’s guilty pleas were freely and voluntarily entered. The record also reveals that the trial court complied with LSA-C.Cr.P. art. 556.1.

Defendant was advised of her constitutional rights and said she understood she was waiving them by pleading guilty. She said she understood that she could stop the judge if she had questions or did not understand something, but the record does not show that defendant asked questions or indicated she was confused about the proceedings. Defendant was questioned about her age and education, and was advised of the sentencing ranges if her guilty pleas were accepted. She denied that anyone used force, coercion, intimidation, promise, or reward to force her to plead guilty, and she agreed that she committed the crimes asserted by the State in its factual basis. Although defendant argues that she did not realize that the proceedings made her a third felony offender, the record reflects that defendant was advised that she was pleading guilty to three charges, and the judge informed her that pleading guilty could expose her to greater penalties if she pled guilty to or was convicted of a future felony.

Although the record shows that defendant freely and voluntarily entered her guilty pleas, defendant nevertheless argues that in light of State v. Holden, her pleas should be set aside, because it was her attorney who told the trial judge that |sshe was pleading guilty. In State v. Holden, 08-2191 (La.App. 1 Cir. 6/23/09), 11 So.3d 1247, (unpublished opinion; not designated for publication), the defendant argued that the trial court failed to elicit a guilty plea personally from the defendant on the record. She specifically argued that the trial court failed to adhere to LSA-C.Cr.P. art. 556.1(D), which requires a verbatim record wherein the defendant “ ‘enters a plea of guilty.’ ” The Holden court set aside the conviction and provided the following:

Louisiana Code of Criminal Procedure Article 556.1(D) provides, in pertinent part: “In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo contendere.” A valid guilty plea must be a free and voluntary choice by the defendant. An express and knowing waiver of rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed.
Neither defense counsel nor the judge can presume a waiver and enter a plea of guilty for the defendant, she must do it for herself, expressly. A tacit, “understood” plea of guilty is not valid. The trial court advised the defendant of her constitutional rights and elicited her agreement to a factual basis presented by the State, but the defendant did not expressly enter a guilty plea or waive her rights. While the trial court elicited from the defendant that she “understood” her Boykin rights, the defendant did not expressly waive her rights or actually plead guilty. Article 556.1(D) requires that a guilty plea be entered by the defendant.

This Court is not bound by decisions of the First Circuit, and we decline to follow the Holden decision. Although Holden suggests that “magic words” are required to expressly plead guilty and for a valid waiver of rights, this approach seems contrary to established jurisprudence, which provides that the entire record should be considered in deciding the voluntariness of the plea, as well as the ^jurisprudence that provides a colloquy may not be indispensable as long as the record contains some other affirmative showing to support the guilty plea.

In State v. Strain, 585 So.2d 540, 543 (La.1991), the Louisiana Supreme Court emphasized that the determination of a valid waiver of counsel during a guilty plea depends on the entire record and not just by certain magic words used by the trial judge. In State v. Hinson, 01-1548, pp. 1-2 (La.9/14/01), 797 So.2d 32, 32-33 (per curiam), the Louisiana Supreme Court found that the defendant knowingly and intelligently waived his right to counsel before pleading guilty based on the totality of the circumstances. The court cited Strain, supra, and noted that it had earlier provided that whether a plea is knowing and voluntary is determined by the entire record and not just by certain magic words used by the trial judge.

In State v. Hebert, 02-884, pp. 3-4 (La.App. 5 Cir. 12/30/02), 838 So.2d 30, 32, this Court stated that while it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.

In State v. Brooks, 38,963, p. 7 (La.App. 2 Cir. 9/22/04), 882 So.2d 724, 728-29, writ denied, 04-2634 (La.2/18/05), 896 So.2d 30, the Second Circuit found that although the defendant never used the magic words “ T plead guilty’ ” to each charge, it was evident that he was fully informed that he was pleading guilty to three separate charges. The court further noted that there was “no contemporaneous objection to the method of proceeding with the charges” and that what the accused understood was to be determined in terms of the entire record and not just certain “magic words” used by the trial judge.

| inEven if we were to follow the First Circuit’s State v. Holden decision, our review of the present case reveals that it is distinguishable from Holden. In the present case, the record contains an affirmative showing that defendant expressly pled guilty and waived her Boykin rights, as evidenced in the waiver of rights form. Defendant signed the waiver of rights form, acknowledging her act of pleading guilty was a knowing, intelligent, free and voluntary act. Defendant expressly waived her Boykin rights in the waiver of rights form by placing her initials after the paragraph that lists the Boykin rights and then provides: “By entering this plea of guilty, you are waiving or giving up these rights.”

Considering the record before us and the applicable law and jurisprudence, we find that defendant knew she was pleading guilty, waived her Boykin rights, and entered valid guilty pleas. Her guilty pleas should not be set aside as constitutionally infirm. Accordingly, this assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action by this Court.

DECREE

For the foregoing reasons, we find that defendant’s guilty pleas are valid, and we affirm defendant’s convictions.

AFFIRMED.

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

      . State v. Holden, 08-2191 (La.App. 1 Cir. 6/23/09), 11 So.3d 1247, (unpublished opinion; not designated for publication).

      . It is noted that Holden includes a dissent that was written by Judge McDonald, wherein he states that he disagreed with the majority opinion and believed the record, when considered as a whole, indicated the defendant’s guilty plea was valid.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Travis JOSEPH.
    No. 09-KA-659.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Harry J. Morel, Jr., District Attorney, Juan Byrd, Assistant District Attorney, Hahnville, Louisiana, for Defendant/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

On April 29, 2008, the St. Charles Parish District Attorney filed a bill of information charging the defendant, Travis Joseph, with possession of cocaine, a violation of LSA-R.S. 40:967(C). A one-day jury trial was held.

Michael Delaune, a probation and parole agent with the State of Louisiana, Department of Public Safety and Corrections, Division of Probation and Parole, testified that on April 9, 2008 he arrested the defendant on a parole violation arising out of pending charges for battery on a police officer, resisting arrest, and obstruction of justice. Both Delaune and Michael P. Collins, a probation and parole agent with the State of Louisiana, Department of Public Safety and Corrections, Division of Probation and Parole, testified that, on the same day, they transported the defendant to the Nelson Coleman Correctional Center in St. Charles Parish and booked the defendant for violating his parole. Before they transported the defendant, Delaune testified that he patted the defendant down looking for weapons for officer safety and searched the back seat of the vehicle. At the jail, the defendant was searched by Chance Blenks, formerly with the St. Charles Sheriffs Office, while Delaune was present.

Blenks testified that he searched the defendant after he was brought into the correctional facility by Agents Delaune and Collins. During the search of the ^defendant, Blenks found a clear plastic bag with a white powder substance in the defendant’s rear pants pocket. Blenks testified that he brought the clear plastic bag with a white powder substance to De-laune. Blenks had no doubt that he obtained the clear plastic bag with a white powder substance from the defendant’s pants. According to Blenks, no one else was being processed in the area at the same time as the defendant.

According to Delaune, Deputy Blenks brought him the defendant’s property that included a clear plastic bag with white powdery residue. Delaune testified that he found the bag in the defendant’s property, identified the residue as possibly being cocaine, and seized it as evidence. Deputy Blenks told Delaune that he found the bag in the defendant’s rear pants pocket, which Collins overheard. Both De-laune and Collins transported and turned over the clear plastic bag with white powdery residue to Detective Richard Dubus, Jr. with the St. Charles Sheriffs Department, Narcotics Division, for field-testing. Delaune testified that the evidence was turned over in the same condition in which he seized it. Both Delaune and Collins identified, in court, the evidence that they turned over to Detective Dubus.

Detective Dubus testified that, on the date of the incident, Agents Delaune and Collins came to his office. Detective Du-bus testified that Delaune gave him a clear plastic bag with white residue. Detective Dubus testified that he field-tested the residue for cocaine. According to Detective Dubus, after he field-tested the residue, he put it into evidence, wrote an incident report, and eventually turned it over to Sergeant Bill Slayton, an evidence technician with the St. Charles Sheriffs Office. Detective Dubus identified the evidence he received from Delaune in court. According to Delaune, when he received the bag it was tied, not sealed.

| ¿Sergeant Slayton testified that he received the evidence from Detective Dubus. The evidence was eventually sent to the Jefferson Parish Crime Lab for testing. The residue was found to be positive for cocaine. Sergeant Slayton testified that the Jefferson Parish Crime Lab indicated that there was “no weight obtained” on the residue.

The defendant testified that, on the date of the incident, he went to see Delaune. According to the defendant, he had just been released from prison on bond related to misdemeanor simple battery and resisting arrest charges. Delaune asked him to take a drug test. The defendant testified that Delaune only gave him a couple of minutes to urinate, and that he could not urinate at that time. Delaune subsequently arrested him. According to the defendant, Delaune told him that he should not have been allowed to bond out as a parole violator. Before Agents Delaune and Collins transported the defendant to the Nelson Correctional Center. Delaune asked him if he had anything in his pockets that they needed to know about. The defendant replied negatively. According to the defendant, he was not patted down or searched before he was transported.

At the correctional facility, the defendant was searched thoroughly by Blenks. The defendant testified that, during the search, Blenks located a clear plastic bag, allegedly containing cocaine, in his rear pocket. The defendant claimed that at the time of the search he was in possession of two plastic bags and neither of them contained anything. The defendant claimed that he knew the bags in his possession were empty because he previously ate the candy that was in them. The defendant testified that he had no idea where the cocaine came from. The defendant suggested that the bag in evidence was put into his pocket. The defendant suggested that, even though Blenks found the bag, Blenks had no idea about the contents of the bag. According to the defendant, after Delaune took | (¡possession of his property-located in a basket, Delaune said, “ ‘What is this?’ ” The defendant testified that he told Delaune that it was nothing, and the bags previously contained candy. The defendant admitted that he had a 2004 conviction for unauthorized use of a vehicle for which he was currently on parole and a 1998 conviction for distribution of cocaine.

Following trial, the jury found the defendant guilty as charged. The trial court imposed a sentence of five years at hard labor. The defendant takes this out-of-time appeal.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant claims that the evidence was insufficient to support his conviction. Specifically, the defendant claims that the State failed to prove that he intentionally possessed the cocaine. The defendant argues that the State did not prove that he intended to take the bag with cocaine residue with him when he visited his probation officer. The defendant suggests that the evidence at most supports a misdemeanor paraphernalia charge. In addition, the defendant argues that the testimonies of the corrections officer and his probation officer were contradictory. The defendant claims that Blenks testified that he found something that he believed to be contraband. However, Delaune claimed that he found the bag with the cocaine residue. The defendant also notes that Delaune did not find the bag with cocaine when he patted him down. In addition, the defendant claims that the purity of the evidence is cast into doubt because Delaune did not seal the bag after he seized it. The defendant argues that a small amount of residue could have gotten into the unsealed bag off of paper money near it.

The State claims that there is absolutely no doubt that the bag containing residue was removed from the rear pocket of the defendant’s pants, that the defendant was wearing those pants at the time of his arrest, and that the residue in |fithe bag was cocaine. Therefore, the defendant was in actual possession of the cocaine.

Based upon the following, we find that the State provided evidence that the defendant was in actual possession of the cocaine from which the jury could have reasonably inferred that the defendant had both the knowledge and intent to possess the cocaine based upon the circumstances presented.

The constitutional standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review for sufficiency of evidence does not require the appellate court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Instead, the court, on review, is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 at 7, 985 So.2d at 240.

The trier of fact evaluates the credibility of witnesses, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. The credibility of witnesses presenting conflicting testimony on factual matters is within the trier of fact’s sound discretion. Id. As part of its function, the appellate court does not second-guess the credibility of witnesses as determined by the trier of fact or reweigh the evidence absent impingement on the fundamental due process of law. Id.

The evidence may be either direct or circumstantial. Direct and circumstantial evidence both must be sufficient to support the conclusion that the 17defendant is guilty beyond a reasonable doubt. Jones, 08-20 at 7, 985 So.2d at 241. In order to convict a defendant of possession of cocaine, the State must prove that the defendant was in possession of the cocaine and that the defendant knowingly possessed it. LSA-R.S. 40:967(C). State v. Jones, 08-20 at 8, 985 So.2d at 241. Unlawful possession of cocaine is a general intent crime. State v. Sylvia, 01-1406, p. 8 (La.4/9/03), 845 So.2d 358, 364. General criminal intent is present “when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” Id,., citing LSA-R.S. 14:10(2).

Guilty knowledge is an essential element of the crime of possession of cocaine. State v. Sylvia, 01-1406 at 3, 845 So.2d at 361. Guilty knowledge is a state of mind and, therefore, it need not be proven as fact. Id. Intent is also a state of mind that need not be proven as fact. Id. Both knowledge and intent may be inferred from the circumstances. Id. A fact finder may draw reasonable inferences based upon the evidence presented at trial to support contentions of knowledge and intent. State v. Bright, 03-489, p. 14 (La.App. 5 Cir. 10/28/03), 860 So.2d 196, 205, writ denied, 03-3409 (La.4/2/04), 869 So.2d 875.

Possession of cocaine may be established by showing that the defendant exercised either actual or constructive possession of the drugs. State v. Jones, 08-20 at 8, 985 So.2d at 241. A person is in actual possession when the person has an object in their possession or on their person in such a way as to have direct physical contact with and control of the object. State v. Bright, 03-489, p. 14 (La.App. 5 Cir. 10/28/03), 860 So.2d 196, 205, writ denied, 03-3409 (La.4/2/04), 869 So.2d 875. A conviction for possession of cocaine may rest upon possession of any amount of the drug. State v. Sylvia, 01-1406 at 3, 845 So.2d at 361. Cocaine |8residue that is visible to the naked eye would be evidence sufficient to support a conviction for possession of cocaine. State v. Sylvia, 01-1406 at 4, 845 So.2d at 361.

On review, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. State v. Jones, 08-20 at 7-8, 985 So.2d at 241. Rather, the reviewing court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Jones, 08-20 at 8, 985 So.2d at 241.

In State v. Toney, 99-1574 (La.App. 4 Cir. 11/8/00), 796 So.2d 1, writ denied, 802 So.2d 619 (La.2001), the defendant claimed among other errors that the State failed to produce sufficient evidence to sustain his conviction for possession of heroin. State v. Toney, 99-1574 at 9, 796 So.2d at 8. The appellate court found that the State produced sufficient evidence to sustain the defendant’s conviction for possession of heroin. State v. Toney, 99-1574 at 12, 796 So.2d at 10. In that case, the appellate court noted that a warrant officer for the Office of Probation and a New Orleans Police Officer arrested the defendant on the outstanding warrant. One of the officers performed a search of the defendant incident to arrest and found a syringe containing heroin residue in the defendant’s pants pocket. The defendant was arrested again for possession of drug paraphernalia and possession of heroin. A criminalist with the Crime Lab testified that the substance found in the syringe tested positive for heroin. State v. Toney, 99-1574 at 11, 796 So.2d at 9.

The appellate court noted that the testimony of arresting officers and the crimi-nalist with the Crime Lab provided the State was sufficient to prove, beyond a 1treasonable doubt, that the defendant was in possession of heroin. The court also noted that the syringe containing heroin residue was found on the defendant’s person. State v. Toney, 99-1574 at 11-12, 796 So.2d at 9-10.

In the present case, cocaine was found on the defendant’s person. Delaune testified that he arrested the defendant on a parole violation, patted the defendant down, searched the back seat of the transport vehicle, and along with Collins transported the defendant to the Nelson Coleman Correctional Center in St. Charles Parish. According to Blenks, no one else was being processed in the area at the time he searched the defendant at the correctional center. During the search of the defendant, Blenks found a clear plastic bag with a white powder residue in the defendant’s rear pants pocket. Blenks testified that he brought the clear plastic bag with a white powder residue to Delaune. Blenks had no doubt that he obtained the clear plastic bag with a white powder residue from the defendant’s pants. Delaune testified that he found the bag in the defendant’s property, identified the residue as possibly being cocaine, and seized it as evidence. Both Delaune and Collins turned over the seized evidence to Detective Dubus, who field-tested the residue and subsequently turned the evidence over to Sergeant Slayton. Sergeant Slayton, an evidence technician, testified that the evidence eventually was sent to the Jefferson Parish Crime Lab for testing. The residue was tested and found to be positive for cocaine.

While the defendant testified that the two plastic bags that he had in his possession were empty and the bag containing the cocaine residue' was planted on him, the jury obviously found the State’s witnesses to be more credible. As in State v. Toney, supra, we find that the testimony of the arresting officers and the evidence technician provided by the State was sufficient to prove, beyond a reasonable doubt, that the defendant was in possession of the cocaine residue that |inwas found on his person. In addition, we find that the jury could have reasonably drawn an inference based upon the circumstances presented to support a determination of the defendant’s guilty knowledge and intent to possess the cocaine. Thus, we find this assignment of error is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent in this case.

Neither the commitment/minute entry nor the sentencing transcript indicate that trial judge informed the defendant of the appropriate time period for filing an application for post-conviction relief. LSA-C.Cr.P. art. 930.8(A) provides that the prescriptive period for filing an application for post-conviction relief is “two years after the judgment of conviction and sentence has become final[.]” The trial judge is required to inform the defendant of the prescriptive period at the time of sentencing. LSA-C.Cr.P. art. 930.8(C). Therefore, we correct this error and inform the defendant in this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. State v. Hill, 09-89, p. 7 (La.App. 5 Cir. 5/26/09), 15 So.3d 1042, 1046.

Accordingly, the defendant’s conviction of possession of cocaine is affirmed.

AFFIRMED.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Bobby JOHNSON.
    No. 09-KA-611.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kevin Y. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2On October 28, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Bobby Johnson, with distribution of marijuana in violation of LSA-R.S. 40:966(A). At the arraignment, defendant pled not guilty. Thereafter, on April 13, 2005, the trial court heard and denied defendant’s motions to suppress evidence and identification.

Defendant proceeded to trial before a twelve-person jury on September 12 and 13, 2007. After considering the evidence presented, the jury found defendant guilty as charged. On December 4, 2008, the trial court denied defendant’s motions for post-judgment verdict of acquittal and for new trial and then sentenced defendant to fifteen years imprisonment at hard labor. The State filed a multiple offender bill of information alleging that defendant was a second felony offender based on a 1999 conviction of aggravated battery. On February 12, 2009, after defendant admitted the allegations of the multiple bill, the trial judge vacated his original sentence and resentenced defendant as a second felony offender to fifteen years imprisonment at hard labor without benefit of probation or suspension of | ^sentence. Defendant’s oral motion to reconsider this sentence was denied. Defendant now appeals.

FACTS

On August 19, 2004, Deputy Gene Dixon of the Jefferson Parish Sheriffs Office was working an undercover detail in the Wood-mere subdivision, which was a high crime area. At trial, Deputy Dixon testified that after he arrived in the Woodmere area, he observed defendant, who was wearing a white muscle shirt and blue jean shorts, riding a bicycle in the 2400 block of Alex Kornman. He stated that he rolled down the passenger side window and asked defendant if he had any weed. Defendant came to the car by the passenger side window and asked “How many?” Deputy Dixon said “Four.” Defendant walked away and talked on his cell phone. Defendant returned to the car and said he only had “three.” Deputy Dixon stated he would take it and defendant sold him three bags of marijuana. Deputy Dixon gave defendant a twenty dollar bill, and defendant gave him five dollars in change. Deputy Dixon left the area, described defendant to the agents, and told them about the transaction. Although the car is usually equipped with a video camera, the video recording equipment in the agent’s car malfunctioned at the time of the transaction.

Sergeant Corey Wilson of the Jefferson Parish Sheriffs Office was also part of the investigation and was located across the street from the transaction. Sergeant Wilson testified that he witnessed the transaction between the undercover agent and defendant and that the undercover agent purchased drugs from defendant, who was on a bicycle. He testified that he contacted Agent Joseph Ragas of the Jefferson Parish Sheriffs Office by radio and directed him to where |4defendant was located and what he was doing at the time in order for him to make an identification.

In response to Agent Wilson’s request, Sergeant Ragas conducted a stop of defendant on Alex Kornman within minutes. Sergeant Ragas explained that when defendant saw the police car, he started riding off on the bicycle and came to another individual, set the bicycle down, and began talking to him. Sergeant Ragas testified that he spoke with defendant and had known him for probably over ten years. A field interview card was completed on defendant and the information matched an identification card defendant had in his possession. A Polaroid photograph was taken of defendant as well. A photograph was also taken of defendant along with the other individual he was with at the time so that attention would not be drawn to the narcotics investigation.

About six days after the transaction, Agent James Aikman, who was with the Sheriffs Office at the time, presented Deputy Dixon with a lineup. Deputy Dixon identified defendant in a photographic lineup' as the person involved in the drug transaction in the 2400 block of Alex Korn-man.

The vegetative material in the three plastic baggies was tested by Daniel Wag-uespack, who testified as an expert in the field of drug analysis identification. He testified that the material in the baggies was 3.6 grams of marijuana, a Schedule I controlled dangerous substance.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first two assigned errors, defendant challenges the sufficiency of the evidence used to convict him. In assignment one, defendant contends that the State failed to prove his identity as the seller; and in his second assigned error, defendant asserts that the trial court erred in denying his motion for new trial based on insufficient evidence.

15The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005).

In the present case, defendant was convicted of distribution of marijuana. LSA-R.S. 40:966(A)(1) provides, in pertinent part, that it is unlawful for any person knowingly or intentionally to distribute a controlled dangerous substance classified in Schedule I. As such, to support a conviction of LSA-R.S. 40:966(A), the State must prove that the defendant distributed a controlled dangerous substance classified in Schedule I. State v. Pierre, 03-1306 (La.App. 5 Cir. 2/23/04), 869 So.2d 206, 211, writ denied, 04-0959 (La.10/1/04), 883 So.2d 1006. Marijuana is a controlled dangerous substance classified in Schedule I. LSA-R.S. 40:964. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926.

On appeal, defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction, but rather contends the State failed to prove beyond a reasonable doubt his identity as the offender. Defendant specifically asserts that he was not the person who was engaged in the drug ^distribution. He argues that the actual seller was Patrick Stevens, the person who he was photographed with immediately after the sale and who also matched the clothing description.

At trial, the State presented the testimony of two eyewitnesses in this case. Deputy Dixon, who was the undercover agent, testified that he purchased marijuana from someone riding a bicycle and wearing a white muscle shirt and blue jean shorts on Alex Kornman. Deputy Dixon testified that he gave defendant money, and in exchange, he received three bags of marijuana. He identified defendant in a photographic lineup about six days after the transaction and in court as the person who sold him the drugs on Alex Kornman.

Deputy Dixon testified that it was daylight at the time of the transaction. He agreed that he was able to look at defendant’s face when defendant came to the car. Deputy Dixon also stated that he had a good opportunity to see defendant. He watched defendant as he approached the first time, as he walked around on his cell phone, as he approached the second time, and then while the agent drove off. He explained that defendant was no more than five feet from him. He testified that he had no doubt that defendant sold him drugs. He also testified that he had no difficulty in selecting defendant, who was a stranger, out of the lineup that included six photographs of people similar in appearance.

Further, Sergeant Wilson was located across the street and witnessed the transaction between the undercover agent and defendant, who was on a bicycle. Sergeant Wilson identified defendant in court as the seller involved in this transaction. Sergeant Wilson stated that he never lost sight of defendant after the transaction. He testified that he contacted Agent Ragas by radio and directed him to where defendant was located and what he was doing at the time in order for him |7to make an identification. Sergeant Wilson testified that the transaction took place at approximately 3:40 p.m. and that he had a clear view of defendant.

Sergeant Ragas testified that he was within two blocks of the 2400 block of Alex Kornman and stopped defendant within minutes on Alex Kornman after he was contacted by Agent Wilson. Agent Wilson had given Sergeant Ragas a physical description and a clothing description of the subject who was riding a bicycle and doing “little circles” in the street. Sergeant Ragas said that when defendant saw the police car, he started riding off on the bicycle and came to another individual, set the bicycle down, and started talking to him. A field interview card was completed on defendant and the information matched an identification card defendant had in his possession. A Polaroid photograph was taken of defendant as well.

In the present case, the video recording equipment in the undercover officer’s car malfunctioned at the time of the transaction. However, the State presented eyewitness testimony and identifications. Positive identification by only one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

On appeal, defendant points to several factors to support his argument that the evidence presented does not negate the reasonable probability of misidentification. He asserts that Deputy Dixon’s identification was not reliable because he had difficulty recalling details, and he further admitted that it was hard to keep track of all the people he interacts with. Defendant also points out that the identification from the photographic lineup happened six days after the transaction and after numerous other drug transactions had occurred. Additionally, since there was no videotape of the transaction, the undercover agent did not have the opportunity to view a videotape prior to making the identification. Defendant also | ^attacks Deputy Dixon’s degree of attention and notes discrepancies between the police report and the testimony regarding whether defendant had a bicycle or cell phone. Defendant further claims that Agent Wilson’s testimony was suspect because of the discrepancies in his testimony regarding whether the transaction took place on the passenger or driver’s side of the car.

In the present case, the jury heard the testimony of the State witnesses regarding the details of the narcotics transaction as well as the circumstances surrounding the identification of defendant as the perpetrator. In addition, the jury heard the testimony of the defense witnesses. Sherry Johnson, defendant’s mother, and Kurbie Johnson, defendant’s sister, testified that they had never seen defendant ride a bicycle, except for when he was younger. Kurbie Johnson further testified that she saw her brother on the date of the transaction standing outside with Patrick Stevens on Alex Kornman. She was shown the photograph of defendant and Patrick Stevens. She testified that in the photograph she only saw Patrick with a cell phone. She admitted that she did not know what defendant was doing prior to the time she drove up and saw him standing with Patrick.

After being presented with the testimony and any inconsistencies therein, the jury obviously chose to believe the testimony of the State witnesses identifying defendant as the individual who sold the narcotics to the undercover officer. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. It is- not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental |9due process of law. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

Based on the foregoing discussion, we find that the State negated any reasonable probability of misidentification and proved beyond a reasonable doubt that defendant was guilty of distribution of marijuana. Accordingly, the arguments raised by defendant in his first two assigned errors are without merit.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

By these two assignments, defendant challenges the sentence imposed. In assignment of error number three, defendant contends that his fifteen year sentence is excessive especially considering the quantity of marijuana is this case was less than four grams. In his fourth assigned error, defendant asserts that the trial court erred in denying his motion to reconsider sentence.

Under LSA-C.Cr.P. art. 881.2(A)(2), a defendant “cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that this Article precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed prior to stipulating to the multiple bill. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

In the present case, defendant’s fifteen year mandatory minimum enhanced sentence was imposed in conformity with his plea agreement on the multiple bill. As such, he is barred from challenging the excessiveness of his multiple offender sentence on appeal.

We further note that even if we chose to review the constitutional exces-siveness of defendant’s sentence, the sentence imposed was the mandatory minimum allowed by law. See LSA-R.S. 40:966(B) (3) and LSA-R.S. 15:529.1(A)(l)(a). It is presumed that a mandatory minimum sentence under the | inHabituaI Offender Law is constitutional. State v. Roberts, 08-391 (La.App. 5 Cir. 10/28/08), 996 So.2d 1147, 1150.

Based on the foregoing discussion, we find that the arguments raised by defendant in these assigned errors are without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record reveals no errors which require corrective action.

Accordingly, for the reasons set forth herein, defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Deputy Dixon explained that "Four” was street terminology for wanting four $5.00 bags of weed or marijuana.

      . It was stipulated that the tape of another matter two hours prior to the transaction worked.


author: MARC E. JOHNSON, Judge.

text:
    JEFFERSON MARINE TOWING, INC. v. KOSTMAYER CONSTRUCTION, LLC.
    No. 09-CA-310.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Raymond A. Osborn, Jr., Attorney at Law, Harvey, LA, for Plaintiff/Appellant.
    George B. Recile, Preston L. Hayes, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2The Plaintiff, Jefferson Marine Towing, Inc., appeals a judgment in a suit on open account that granted a peremptory exception of res judicata to the Defendant, Kostmayer Construction, L.L.C. We affirm.

In January of 2005, the Plaintiff was hired by the Defendant to tow one of its work cranes to a job site in Texas. The tow began in Baton Rouge, Louisiana. The MW MISS ENOLA was the tow vessel, and it was moving the BARGE OU701, which the Defendant leased to carry its crane. On the way, the trip was interrupted when the crane struck a bridge over the Atehafalaya River causing the crane and other equipment to fall into the water. The crane was not usable after, but the barge was later transported back to the Defendant’s shipyard in Belle Chase, Louisiana. The Defendant then had to send another crane/barge to Texas. Again, the Plaintiff operated the tow. After the Texas job was completed, the Plaintiff towed the crane/barge back to its yard, as originally contemplated by the parties.

|3As a result of the damage to the crane, the Defendant filed a suit in federal court against the Plaintiff for negligence and/or breach of contract. Several other parties intervened. The Plaintiff did not counterclaim for towage fees. The case was subsequently settled.

In October of 2007, the Plaintiff filed a petition on open account demanding the towage fees for the second voyage. The petition asserts that the Defendant is indebted to the Plaintiff for towing services performed on or about February 1, 2005. The Defendant responded with a peremptory exception of res judicata, alleging that the Plaintiff failed to assert this claim in a previously litigated action between the parties in federal court that was ultimately settled.

After a hearing in July of 2008, the trial judge allowed the Plaintiff to amend the petition, as there was some question as to whether the second tow vessel was a proper party. In the amended petition, the Plaintiff asserts it is appearing solely as the marine towage broker for the M/V MADAM ROSE, the second towing vessel, and its owner, Madam Rose, Inc.

In February of 2009, a second hearing was held on the exception. On March 2, 2009, the trial judge rendered a judgment sustaining the exception and dismissed the Plaintiffs petition. In oral reasons for judgment at the hearing in February, the trial judge found that the towing contract was between Jefferson Marine and the Defendant, rather than the M/V MADAM ROSE, and that the cost of the towage for the second voyage would have been a factor in the federal case as an element of damages. He concluded the Plaintiff should have filed a compulsory counterclaim in the federal suit. In addition, he found no privity of contract between the Defendant and any of the other parties that intervened in the federal suit.

14 On appeal, the Plaintiff asserts that the trial judge erred in failing to apply the Louisiana law of res judicata, and in particular, Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049. It also contends that the trial judge erred in determining that the services provided by the M/V MADAM ROSE were a part of the original agreement between the parties, and thus was required to be raised in a compulsory counterclaim in the federal lawsuit.

In Burguieres, the Court held that, for res judicata to apply, there must be identity of parties, however, that does not mean the physical identity, but that the parties must appear in the same capacity in both suits.

Here, the Plaintiff claims that it appears in the capacity solely as the broker to collect the fee for the M/V MADAME ROSE’s towing services, whereas in the federal suit, it was sued for the damages caused by an allision, a marine collision between a moving vessel and its tow and a fixed object. It argues that all of the damages to the crane are related to the actions of the M/V MISS ENOLA, not the M/V MADAM ROSE. In regard to the capacity issue, the Plaintiff also cites Claussen v. Hofmann, 06-560 (La.App. 5 Cir. 11/28/06), 947 So.2d 76.

Furthermore, the Plaintiff contends that this claim does not arise out of the same transaction or occurrence as the federal suit. It contends that the original contract involving the first vessel terminated when the crane struck the bridge and fell into the water. This claim, on the other hand, arose when the Defendant hired it to undertake the second voyage, which then became a separate obligation.

In response, the Defendant contends the trial judge correctly found that this claim is subject to the federal law on res judicata and compulsory counterclaims. Under those requirements, the Plaintiff had to raise all issues arising from the accident, and the towing costs would have been an element of the Defendant’s damages in the federal case. It argues that the only reason the M/V MADAM | ¿ROSE became involved was because of the Plaintiffs negligence in causing the damages that interrupted the original voyage.

The preclusive effect of a prior federal court judgment is controlled by federal res judicata rules. Paradise Village Children’s Home, Inc. v. Liggins, 38,926, p. 7 (La.App. 2 Cir. 10/13/04), 886 So.2d 562, 568, writ den., 05-0118 (La.2/4/05), 893 So.2d 884; Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (C.A.5 2000). See Agrilectric Power Partners, Ltd. v. General Electric Co., 20 F.3d 663, 664 (5th Cir.1994); Steve D. Thompson Truckivig, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044, 1045 (5th Cir.1989).

Res judicata ensures the finality of judgments. Under federal law, it prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Paradise, 38,926 at 7, 886 So.2d at 568. Thus, when a final judgment has been entered on the merits, it is final as to the claim or demand in controversy, and precludes parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Paradise, 38,926 at 7, 886 So.2d at 568; Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983).

The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005), cert. den., 547 U.S. 1055, 126 S.Ct. 1662, 164 L.Ed.2d 397 (2006).

The federal rule of res judicata encompasses two separate, but linked, pre-clusive doctrines: (1) true res judicata or claim preclusion and (2) collateral | (¡estoppel or issue preclusion. Id.; St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir.2000) (internal citation omitted). Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit. Test Masters, 428 F.3d at 571.

The test for res judicata has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. Id.

In order to determine whether both suits involve the same cause of action, this Court uses the transactional test. Test Masters, 428 F.3d at 571. Under the transactional test, a prior judgment’s pre-clusive effect extends to all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose. Id. “What grouping of facts constitutes a ‘transaction’ or a ‘series of transactions’ must be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” Test Masters, 428 F.3d at 571. The critical issue is whether the two actions are based on the “same nucleus of operative facts.” Id.

Under the federal law of res judi-cata, a person may be bound by a judgment, even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (C.A. 5 (Fla.)1975).

In addition, Federal Rules of Civil Procedure require a defendant to plead any counterclaim which “arises out of the transaction or occurrence that is a subject matter of the opposing party’s claim and does not require for its | adjudication the presence of third parties of 'whom the court cannot acquire jurisdiction.” F.R.C.P. Rule 13(a). The failure to file a compulsory counterclaim in federal court will bar future litigation of a claim. Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469, 94 S.Ct. 2504, 2506, n. 1, 41 L.Ed.2d 243 (1974); Mesker Bros. Iron Co. v. Donata Corp., 401 F.2d 275, 279 (4 Cir.1968).

The test for whether a claim is compulsory is: (1) whether the issues of fact and law raised by the claim and counterclaim largely are the same; (2) whether res judicata would bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule; (3) whether substantially the same evidence will support or refute plaintiffs claim as well as the defendant’s counterclaim; and (4) whether there is any logical relationship between the claim and the counterclaim. An affirmative answer to any of the four questions indicates the claim is compulsory. Underwriters at Interest on Cover Note JHB92M10582079 v. Nautronix, Ltd., 79 F.3d 480, 483 (5th Cir.1996). See also, Air Liquide America, L.P. v. Process Service Corp., 2004 WL 325143, *2 (E.D.La.2004) [Not Reported in F.Supp.2d.]

The evidence shows that the Defendant contracted directly with the Plaintiff to provide towage for both the first and second barges, and not the individual vessels. Furthermore, the Plaintiff and the M/V MADAME ROSE are connected “in time, space, origin, or motivation,” such that they “form a convenient trial unit,” and their treatment as a unit conforms to the parties’ expectations or business understanding or usage. See, Test Masters, 428 F.3d at 571. Thus, the Plaintiffs capacity did not change from the federal suit. It was, and is, the broker in both lawsuits. Furthermore, the towage fees would have been an element of the Defendant’s damages in the federal case since the costs arose directly from the |sallision which interrupted the first journey. Thus, we find that the Plaintiff should have brought a counterclaim in the federal lawsuit.

Accordingly, the judgment granting the exception of res judicata is affirmed. Costs of the appeal are to be paid by the Appellant.

AFFIRMED.

      . The amount allegedly owed is $46,337.45.