author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Robert LYNN, Appellant
    No. 52,125-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LAW OFFICE OF SAM WINSTON, By: Samuel H. Winston, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, RON C. STAMPS, MONIQUE Y. METOYER, TOMMY JAN JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   GARRETT, J.

The defendant, Robert Earl Lynn, was originally charged with second degree murder. The jury convicted him of manslaughter, and he was sentenced, as a second felony offender, to 40 years at hard labor, without benefit of probation or suspension of sentence. He appeals, asserting three assignments of error through counsel and one pro se assignment of error. For the reasons assigned below, we affirm the defendant's conviction and sentence.

FACTS

The defendant's manslaughter conviction arises from an attempted armed robbery that went awry. The shooting victim, William David Carroll, was the roommate of the intended robbery victim, Harry Luzader. Luzader was targeted when he was observed gambling at a local casino and accompanied home by the female codefendant, Shavez Taylor.

The incident began on July 27, 2014, when Taylor entered the Margaritaville Casino in Bossier City at 11:34 p.m. Her boyfriend, Kinoy Singleton, and the defendant followed her into the casino at 11:35 p.m. Their arrival and subsequent actions were recorded on the casino's video surveillance system. At 12:14 a.m. on July 28, 2014, Luzader walked into a men's restroom. Singleton entered the same restroom at 12:15 a.m. and exited at 12:16 a.m. At 12:17 a.m., the defendant entered the same restroom at about the same time that Luzader exited. Subsequently, the defendant, Singleton, and Taylor were seen together behind a pillar. Shortly thereafter, Taylor walked up to Luzader, who was playing blackjack. After speaking with him, she sat next to him at the blackjack table. A few minutes before 1 a.m., Singleton and the defendant departed the casino. At 1:27 a.m., Luzader and Taylor left the blackjack table. After sitting on a bench outside, they entered a taxi and departed the casino at 2:06 a.m.

Luzader testified that he decided to leave the casino because he was low on money. When he told Taylor he was going home to eat, she said that she was hungry. Luzader invited her to his home to eat. While they were in the taxi, Taylor texted on her cellphone, giving Singleton detailed directions to where they were going. Luzader resided in an upstairs garage apartment, which was located between houses on a secluded, dead-end street in Shreveport. When they arrived at their destination, Luzader had insufficient funds to cover the entire $13 cab fare.

Once in the apartment, Luzader introduced Taylor to his roommate, Carroll, who then retired to his bedroom. He later came back into the living area to tell Luzader that he had seen two guys walking up the driveway. Carroll went downstairs and outside to investigate. He returned and said that the men were at the wrong house. When Luzader asked him if he had locked the door downstairs, he replied affirmatively. Carroll again went to his bedroom while Luzader prepared food in the kitchen. Taylor went downstairs and unlocked the door. She and Luzader were seated with their food when two black males burst into the room. One of the men had a gun and demanded money. Luzader later described him as being about 6'1? and "built like a linebacker," and wearing a white shirt with some kind of print on it. He described the second man as being of medium height and build, with short "spiderweb" dreads that looked like "he had a spider on his head." He wore a dark shirt. According to Luzader, the second man did not have a gun.

Luzader denied having any money and began struggling with the larger robber. He called out to Carroll that the man had a gun. Carroll was still in his bedroom but had begun to open the bedroom door to the living area. The gun discharged, and the bullet penetrated the door, striking Carroll in the chest. After the gunshot, Taylor and the two intruders fled. Upon seeing Carroll's condition, Luzader ran to a neighbor's home for help, and a call was placed to 911. Emergency services were dispatched at 2:59 a.m. Carroll was pronounced dead at the scene.

Thanks in large part to the casino's security surveillance system, the police were able to develop suspects swiftly. They first identified and interviewed Taylor. After obtaining search warrants for phone records and reading the text messages, they determined that she was a willing participant in the robbery and arrested her.

In her version of events, Taylor denied knowing about the robbery plans but admitted Singleton pointed out Luzader to her at the casino. She claimed that she unlocked the front door "for my benefit," so she would "feel safe," and that she was "shocked" when the men entered. She stated that Singleton entered first, wearing a "white stripy turquoise shirt" and white shorts. She identified the second man as the defendant and described him as wearing a grey shirt with black or grey shorts. She stated that both men were armed and that the defendant placed his gun to her head as she pleaded for her life. After she heard the gunshot, she stated that the defendant fled out the door, and that she grabbed her shoes and ran out of the apartment because she feared that Singleton would shoot her. She said that she and Singleton had had an intimate relationship for a year and that she knew him as "KD," "DaDDY" and "the Magnificent." She said she knew the defendant as "Trigger" and "Lu-Lu."

In September 2014, the defendant was indicted for second degree murder. By amended indictment, Taylor, Singleton, and the defendant were charged with second degree murder for killing Carroll during the attempted perpetration of an armed robbery.

In November 2015, the defendant filed a motion in limine to allow the introduction of "the Singleton affidavit." According to the motion, defense counsel had a sworn affidavit from Singleton, dated June 1, 2015, in which he stated the following:

On the night of 7-27-14 Robert Lynn & I hooked up & went to the boat along with Shavez Taylor. Robert & I played the slots for a while & had something to drink after we were done Robert & I left the boat & went to our original destination which was the club. After being in the club for a little while I told Robert that I was leaving & if he was ready & he told me that he was staying & would ride home with his fam. This was the last time I saw & spoke with Robert.

In August 2016, the defendant filed a motion to sever his trial from those of his codefendants. He asserted that severance was necessary due to the state's intention to use Taylor's inculpatory statement against him and his desire to admit Singleton's exculpatory affidavit in his defense.

At a hearing on August 31, 2016, the trial court ruled that it would sever only Taylor's trial due to her inculpatory statement against her codefendants. As to Singleton, the trial court ruled that severance was not warranted because Singleton's affidavit was not an admission, and it did not believe it would be admissible even if Singleton's trial was severed from that of the defendant. In its written ruling, which was issued the same day as the hearing, the trial court gave detailed reasons for granting the motion as to Taylor, but, as to Singleton, stated only that "[t]he Court notes that codefendants Robert Earl Lynn and Kinoy Damon Singleton may still be tried together." The trial court also issued a written ruling denying the defendant's motion in limine, finding that the Singleton affidavit was not admissible under La. C.E. art. 804(B)(3) or the jurisprudence.

The defendant and Singleton were tried together in September 2016. The defendant presented testimony from his barber that he had been cutting the defendant's hair since 1995 and that he had never worn it in the style known as spiderweb dreads. Also testifying for the defendant was a former inmate who had been incarcerated with Taylor and knew members of the defendant's family. She testified that Taylor told her that Singleton left the casino to go drop off the defendant at a club. However, Taylor also said that she did not look at the intruders who burst into the apartment and only heard Singleton's voice. Although the defendant filed a notice of alibi defense listing six potential alibi witnesses, none of them testified. While Singleton was convicted as charged of second degree murder, the jury returned a responsive verdict of manslaughter as to the defendant by a vote of 10 to 2.

The state filed a second felony habitual offender bill of information against the defendant. Following a hearing before a different judge in March 2017, the defendant was adjudicated a second felony offender due to a 2008 conviction for distribution of a Schedule II controlled dangerous substance. In June 2017, the trial judge who presided over the defendant's trial sentenced him to a term of 40 years at hard labor without benefit of probation or suspension of sentence.

The defendant appealed. Defense counsel filed three assignments of error, arguing that the trial court erred in denying the defendant's motion to sever his trial from Singleton's, refusing to allow him to present Singleton's affidavit at trial, and allowing the testimony of the state's expert pertaining to cell phone records. The defendant filed a pro se assignment of error alleging that the state knowingly elicited and used false testimony from Taylor.

MOTION TO SEVER/ADMISSIBILITY OF SINGLETON AFFIDAVIT

In two separate assignments of error, the defendant argues that the trial court erred in denying his motion to sever his trial from Singleton's and in not allowing the admission of the Singleton affidavit.

Because the issues are interconnected, we will consider them together.

Law

Jointly indicted defendants are to be tried jointly unless the court is satisfied that justice requires a severance. La. C. Cr. P. art. 704 ; State v. Webb , 424 So.2d 233 (La. 1982) ; State v. Hodge , 457 So.2d 152 (La. App. 2 Cir. 1984), writ denied , 459 So.2d 545 (La. 1984). The accused is not entitled to a severance as a matter of right, but the decision is one resting in the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. State v. Webb , supra ; State v. Murphy , 463 So.2d 812 (La. App. 2 Cir. 1985), writ denied , 468 So.2d 570 (La. 1985).

Whether justice requires a severance must be determined by the facts of each case. State v. Turner , 365 So.2d 1352 (La. 1978) ; State v. Hodge , supra . A severance is necessary if the defenses of the codefendants are mutually antagonistic to the extent a codefendant attempts to place the blame on the other, causing each defendant to defend against his codefendant, as well as the state. State v. Turner , supra ; State v. Furgerson , 34,344 (La. App. 2 Cir. 3/2/01), 781 So.2d 1268, writ denied , 01-1102 (La. 3/22/02), 811 So.2d 921. Antagonistic defenses do not represent the only instances where denial of a motion to sever will constitute an abuse of discretion. Where the ends of justice will best be served by a severance, it should be granted. State v. Webb , supra ; State v. Murphy , supra ; State v. Hodge , supra .

The burden is on the defendant to satisfy the trial court that justice requires a severance. Mere allegations are insufficient. State v. Williams , 416 So.2d 914 (La. 1982) ; State v. Furgerson , supra ; State v. Dukes , 609 So.2d 1144 (La. App. 2 Cir. 1992), writs denied , 618 So.2d 402 (La. 1993), 93-1421 (La. 12/15/95), 664 So.2d 435.

Where it is clear from the record that a codefendant would give exculpatory testimony if a severance were granted, the denial of a severance is an abuse of discretion. However, the burden is on the movant to establish that the codefendant would, in fact, testify at a separate trial and the exculpatory nature of his proposed testimony. State v. Turner , supra ; State v. Hodge , supra . But even when a codefendant at a severance hearing had indicated willingness to testify and present exculpatory evidence at a separate trial, a trial judge's denial of a motion to sever on the basis that the codefendant would, in fact, be unlikely to testify because his testimony would be highly self-incriminating, has been held not to be an abuse of discretion. State v. Hodge , supra .

If a codefendant asserts his Fifth Amendment privilege and refuses to testify, he is deemed unavailable and his out-of-court statements are hearsay. State v. Coleman , 14-0402 (La. 2/26/16), 188 So.3d 174, cert. denied , --- U.S. ----, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016). Under La. C.E. art. 804(B), there are certain exceptions to hearsay rules when the declarant is unavailable. La. C.E. art. 804(B)(3) provides:

Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The basis for the exclusion of an accomplice's statement, even one which is against the accomplice's penal interest, is the longstanding perception that custodial confessions of non-testifying, unavailable codefendants are inherently suspect and presumptively unreliable as evidence against the defendant. Moreover, the hearsay exception for declarations against penal interest does not allow admission of non-self-inculpatory statements by accomplices, even if they are made within a broader narrative that is generally self-inculpatory. Accordingly, only the self-inculpatory parts of an accomplice's confession should be admitted. State v. Coleman , supra ; State v. Lucky , 96-1687 (La. 4/13/99), 755 So.2d 845, cert. denied , 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000).

Discussion

The defendant contends that the trial court erred in not granting his motion to sever so that he could call Singleton to testify about the portions of the statement that were exculpatory to the defendant.

Based upon our review of the record and the jurisprudence, we find no abuse in the trial court's refusal to sever the defendant's and Singleton's trials or its exclusion of the Singleton affidavit. The defenses of the defendant and Singleton were not antagonistic; both merely claimed to have not participated in the botched armed robbery. Examination of Singleton's affidavit reveals that it was not self-inculpatory. It contained no statement against interest which would allow its admission under La. C.E. art. 804(B)(3). Because it does not inculpate Singleton by placing him at the crime scene, his statement that he last saw the defendant at the club is not exculpatory as to the defendant's whereabouts at the time of the offense.

The record is also devoid of any evidence presented by the defendant to carry his burden of proving that Singleton would testify at a separate trial instead of invoking his Fifth Amendment rights.

The defendant also asserts that the trial court abused its discretion by failing to address his claims in the written ruling on the motion to sever. However, in so arguing, the defendant ignores the fact that the trial court denied the defendant's motion to sever his trial from Singleton's in open court after thoroughly addressing the issue following argument by counsel.

The defendant further contends that the trial court erred in not allowing the jury to weigh the credibility of the Singleton affidavit and that it interfered with his constitutional right to present a defense at his joint trial with Singleton. In support of this argument, the defendant cites State v. Gremillion , 542 So.2d 1074 (La. 1989). In that case, the Louisiana Supreme Court reversed a manslaughter conviction and granted a new trial on the grounds that the trial court impermissibly impaired the defendant's right to present a defense. At issue were two statements by the deceased victim in which he failed to identify the defendant, a close friend, as his attacker. The defendant had punched the victim in the face and then "stomped" him as he lay unconscious. Several hours after regaining consciousness, the victim went to the hospital, where he was diagnosed with traumatic pancreatitis. The victim told the admitting physician that he was attacked by "several others," while recounting to the police that his attackers were "three white males." The former statement was admitted, but the latter one was disallowed. The Court acknowledged that the statement to the police did not fall into any hearsay exceptions, but ruled that "[w]hile hearsay should generally be excluded, if it is reliable and trustworthy and its exclusion would interfere with the defendant's constitutional right to present a defense, it should be admitted." However, the Court has noted that this "fairness exception" to the hearsay rule is unusual and should be sparingly applied. State v. Trahan , 576 So.2d 1 (La. 1990).

In the instant case, there is nothing to indicate that the Singleton affidavit possessed the same "reliability and trustworthy nature" of the two statements in the Gremillion case, which corroborated each other. See State v. Coleman , supra .

These assignments of error are without merit.

CELL PHONE RECORDS

In this assignment of error, the defendant argues that the trial court erred in allowing the state to present expert testimony about the physical location of his cell phone near the time of Carroll's murder.

Motions and Ruling

In November 2015, the defendant filed a motion in limine seeking to prevent the state from presenting cell phone records, which included information from cell phone towers and the location of the defendant's cell phone in the early hours of July 28, 2014. In August 2016, the defendant filed a motion for a Daubert hearing on the same issue. After jury selection and immediately prior to the commencement of testimony, the trial court held a hearing on both motions. Lt. Shannon Mack of the Bossier Parish Sheriff's Office testified as to her training in the field of cell phone technology. She then stated that she had reviewed the Network Event Location Systems (NELOS) records provided by AT & T pertaining to a cell phone number associated with the defendant. She explained the technology involved and how locations of a cell phone could be determined within an accuracy of 25 to 10,000 meters. She stated that in cases where she had an opportunity to evaluate AT & T's range for accuracy, she had found them to be accurate for the most part and, in some instances, more accurate than the numbers actually applied. After reviewing the jurisprudence, including United States v. Brooks , 715 F.3d 1069 (8th Cir. 2013), the trial court held that the historical records for NELOS were admissible through Lt. Mack's testimony, but admonished against commentary on whether accuracy rates were better than what AT & T said. The defense objected to the trial court's ruling.

During the trial, the NELOS report was admitted without objection during the testimony of Franco Bryant, a records custodian for AT & T. He testified that the report provided information using GPS longitude/latitude mapping to show where a cell phone is located at the time used, as well as a mapping accuracy of the location within a distance of meters. During her trial testimony, Lt. Mack was accepted as an expert in historical cell phone analysis without objection after detailing her training and experience in the field. Defense counsel stated that he had no objection to Lt. Mack being tendered as an expert in that specific area as long as she testified only as to her interpretation of the phone records furnished by the carrier. An exhibit showing the NELOS information placed on a map was admitted without objection. During direct examination by the state, Lt. Mack stated that the NELOS records placed the cell phone associated with the defendant within 200 meters of the crime scene at 2:21 a.m. Defense counsel made no objections to her testimony. During his cross-examination, he elicited that she was only testifying about her analysis of the AT & T records and that she did not have access to the actual cell phone.

Discussion

In his brief, the defendant claims that his trial counsel "rightfully objected to the testimony and exhibits that the State sought to present through" Lt. Mack. He asserts that Lt. Mack was not a qualified expert to present the cell phone location data and that the trial court "gave no limiting instructions as to the scope or weight of her potentially incorrect testimony." However, our review of the record reveals that no such objections were made at trial to Lt. Mack's qualification, testimony, or the exhibits. Nor was there a request for any limiting instructions. Furthermore, in his brief, the defendant did not assert error in the trial court's ruling on his motions.

When a defendant fails to object to an issue at trial, he is precluded from urging the issue on appeal. La. C. Cr. P. art. 841(A) ; State v. Goldston , 35,271 (La. App. 2 Cir. 12/5/01), 804 So.2d 141. Because the defendant did not contest Lt. Mack's qualifications at trial, he is barred from raising this issue on appeal.

Even assuming arguendo that the issue was before us, the record reveals no error in the trial court's ruling on the defendant's motions. Nor did the trial court abuse its discretion in accepting Lt. Mack as an expert and in admitting the NELOS report into evidence at trial. Trial courts are vested with great discretion in determining the competence of an expert witness, and rulings on the qualification of a witness as an expert will not be disturbed unless there was a clear abuse of that discretion. State v. Farris , 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877, writ denied , 17-0070 (La. 10/9/17), 227 So.3d 828.

This assignment lacks merit.

TAYLOR'S TESTIMONY

In his pro se assignment of error, the defendant generally complains about the state's use of the testimony of codefendant Taylor. He specifically contends that the state "misled the trial court concerning the cooperation agreement it had" with Taylor and that the state knowingly allowed her to perjure herself. He further alleges that he and his attorney were unaware at trial that Taylor had received a 20-year hard labor cooperation agreement for her testimony. The state denies the defendant's claims that Taylor had a plea deal at the time of the defendant's trial. It requests that this court take judicial notice of the court minutes in Taylor's case which demonstrate that she pled guilty to manslaughter and received a 20-year sentence in November 2016, two months after the defendant's conviction.

At the start of trial, the state and Taylor's attorney informed the court that a plea offer had been made to Taylor, but she had rejected it. When she took the witness stand, Taylor testified that she did not have a plea agreement offer on the table at that time. She admitted that she had been offered a plea of 30 years for manslaughter but stated that she had turned it down. She reiterated the same when cross-examined by the defendant. During closing arguments, the assistant district attorney stated emphatically that no deal had been made with Taylor. At the defendant's June 2017 sentencing hearing, the trial court stated that Taylor had testified "without a firm deal in place," but she ultimately had been given consideration for her testimony by the state and received a hard labor sentence of 20 years as a consequence of her testimony.

La. C. Cr. P. art. 717(B) requires the district attorney to disclose "any inducement offered by the district attorney, or by any law enforcement officer on behalf of the district attorney, to any state witness." Nothing in this record demonstrates that the state failed to comply with that requirement. To the contrary, both the state and Taylor candidly admitted at trial that a plea had been offered and rejected. The bare fact that Taylor subsequently pled guilty to manslaughter and was sentenced to 20 years is not evidence that a plea agreement existed at trial and induced her to testify against the defendant.

As to the defendant's attacks on Taylor's testimony, they do not rise to the level of a claim of insufficiency of evidence. However, even assuming arguendo that they did, as an appellate court, we do not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Mitchell , 50,188 (La. App. 2 Cir. 11/18/15), 181 So.3d 800, writ denied , 15-2356 (La. 1/9/17), 214 So.3d 863. Furthermore, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).

This assignment of error is meritless.

ERRORS PATENT

Failure to advise of rights at habitual offender proceeding

Our error patent review indicates that the defendant was not advised of his rights during his habitual offender proceedings. The failure to inform a defendant of his rights during the habitual offender proceedings is error patent. Nevertheless, under certain circumstances, the error may be harmless. State v. Goosby , 47,772 (La. App. 2 Cir. 3/6/13), 111 So.3d 494, writ denied , 13-0760 (La. 11/1/13), 125 So.3d 418 ; State v. Delaney , 42,990 (La. App. 2 Cir. 2/13/08), 975 So.2d 789 ; State v. Mason , 37,486 (La. App. 2 Cir. 12/10/03), 862 So.2d 1077.

La. R.S. 15:529.1(D)(1)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the state must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent.

State v. Robinson , 46,091 (La. App. 2 Cir. 4/20/11), 63 So.3d 1113, writs denied , 11-0901, 111016 (La. 11/23/11), 76 So.3d 1148, 1149; State v. Delaney , supra .

Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant's habitual offender status is established by competent evidence offered by the state at a hearing rather than by admission of the defendant. However, when the guilt of the defendant is proven by his own stipulation or admission to the habitual offender bill of information, without having been informed of his right to a hearing or his right to remain silent by either the trial court or his attorney, there is reversible error. State v. Goosby , supra ; State v. Robinson , supra ; State v. Delaney , supra .

In this case, the defendant received a full hearing prior to his habitual offender adjudication. Therein, the state presented competent evidence to prove his guilt. Considering these facts, no reversible error occurred.

Error in minute entry regarding benefits

An error patent review reveals a discrepancy between the transcript and the minute entry for the sentencing hearing. The sentencing transcript shows that the trial court sentenced the defendant as a second-felony offender to 40 years at hard labor without the benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1(G). However, the minutes reflect that the sentence is also to be served without benefit of parole.

La. C. Cr. P. art. 871(A) provides that a "[s]entence shall be pronounced orally in open court and recorded in the minutes of the court." When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch , supra ; State v. Bell , supra .

Accordingly, we order that the June 1, 2017 minute entry be amended to reflect that the defendant's sentence is to be served without benefit of probation or suspension of sentence.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

      Taylor continued texting Singleton even after her arrival at Luzader's residence. Although Taylor asserted that she gave Singleton that information as a safety measure so someone would know where she was if misadventure befell her, the actual texts thoroughly refute this claim and reveal their true intentions. From the record, we have compiled the following excerpt of their exchange, complete with typographical imperfections:
      Taylor: "Make a left on holly st the"
      Taylor: "look for the house for rent sign and its the second house once u go in the driveway towards the back"
      Taylor: "u will see 2 blue porch poles and steps"
      Singleton: "K."
      Taylor: "dont go pass the white van uve went too far"
      Singleton: "K."
      Taylor: "K."
      Singleton: "U with him"
      Taylor: "yes"
      Singleton: "Ok can u leave the door unlocked know where the $ is we here."
      Singleton: "He gnt a gun"
      Taylor: "that I dont know i didnt know it was another one but they tink ur looking for the wrong house."
      Singleton: "Ok we need to know when to come without bein seen asap"
      Taylor: "the door should be unlocked and i dont know where the money is"
      Singleton: "Where the other dude"
      Taylor: "be carwfull the door has steps as soon as u come thru the door"
      Taylor: "in theroom with the door closed"
      Singleton: "Who is in the wind6w"
      Taylor: "No one"
      Singleton: "K"
      Taylor: "i unlocked the front door where are u"
      Singleton: "We comin"
      Taylor: "K"

      Our recitation of Taylor's version is compiled from her trial testimony and the testimony of the lead detective who questioned her.

      The affidavit is not included in the appellate record. However, it was quoted in its entirety in the defendant's motion in limine in the trial court, and a copy of the handwritten affidavit was attached to the defendant's motion to supplement the record in this court. We denied the defendant's motion to supplement it into the record, concluding that the trial court was in a better position to decide whether the record should be supplemented.

      The minute entry for September 21, 2016, incorrectly states that "[t]he court ordered the jury polled upon, and twelve (12) jurors answered 'yes' that this was their verdict." The transcript states that the jurors were polled in writing and, after the slips were counted, the court announced, "We have a unanimous verdict as to Mr. Singleton and ten/two as to Mr. Lynn."
      We note that the same minute entry also states, "Evidence of the defense was adduced and closed. The defendant adduced no evidence and all evidence concluded." The transcript shows that the defendant presented three defense witnesses.
      Accordingly, the trial court is instructed to correct these errors in the minutes, as the transcript controls over the minutes when there is a conflict. State v. Lynch , 441 So.2d 732 (La. 1983) ; State v. Bell , 51,312 (La. App. 2 Cir. 5/17/17), 222 So.3d 79.

      Although the trial court had already drafted its written ruling, it invited counsel to argue the matter due to the filing of a supplemental brief. However, the trial court was unpersuaded by the additional arguments.

      In Brooks , supra , the appellate court affirmed the trial court taking judicial notice of the accuracy and reliability of GPS technology. It observed that "[c]ommercial GPS units are widely available, and most modern cell phones have GPS tracking capabilities. Courts routinely rely on GPS technology to supervise individuals on probation or supervised release, and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology's accuracy." The court also affirmed the trial court's action in allowing the GPS evidence to be admitted through the testimony of a lay witness.

      The recent case of Carpenter v. United States , --- U.S. ----, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), which held that the government must generally obtain a search warrant supported by probable cause before acquiring cell-site location information from a wireless carrier, was mentioned at oral argument. However, we note that the record indicates that the cell phone information in the instant case was obtained pursuant to search warrants.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Ismael VALADEZ, Appellant
    No. 52,162-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    JAMES E. STEWART, SR. District Attorney, Counsel for Appellee
    JASON W. WALTMAN, JOSHUA K. WILLIAMS, RACHEL KING, Assistant District Attorneys
    Before PITMAN, GARRETT, and STEPHENS, JJ.
   GARRETT, J.

The defendant, Ismael Valadez, was convicted of operating a vehicle while intoxicated ("DWI"), fourth offense. He was sentenced to serve 15 years at hard labor and to pay a fine of $5,000. Valadez appeals his sentence of incarceration as unconstitutionally excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

In the early morning hours of December 25, 2016, Shreveport Police Detective De'Andre Belle was working off-duty, guarding the Walmart store near Pines Road in Shreveport, which was closed for Christmas. At approximately 12:30 a.m., he saw a pickup truck speed through the parking lot, hit a stop sign, and run into a ditch. Detective Belle made contact with Valadez, who was driving the vehicle. Valadez was alone in the truck and was woozy when he got out of it. As he exited the vehicle, beer cans fell off the driver's seat. Valadez had red eyes, his speech was slurred, and he was unsteady on his feet. Detective Belle called for a DWI unit.

Corporal Nathaniel James of the Shreveport Police Department responded to the call. He immediately noticed the strong smell of alcohol on Valadez's breath. He observed that Valadez had red, glassy eyes, slurred speech, and swayed when he stood up. He initially gave law enforcement officers an incorrect name. Valadez was informed of his rights and was administered field sobriety tests, which he performed poorly. Officer James determined that Valadez was moderately impaired. A tow truck had to be called to the scene to pull Valadez's truck out of the ditch.

Valadez was placed under arrest for DWI and transported to the police station. He agreed to give a sample for the Intoxilyzer breath test, which was collected at 2:11 a.m. Valadez's blood alcohol content ("BAC") was 0.118 percent. According to Officer James, this was a moderate level of intoxication.

In January 2017, Valadez was charged by bill of information with DWI, fourth offense. He was tried by a six-person jury on October 25, 2017. Both Detective Belle and Officer James testified at the trial. Officer James identified videos of Valadez at the scene and being administered the field sobriety tests. Officer James said that Valadez performed poorly on the horizontal gaze nystagmus test. He did not remember how Valadez performed on the one-leg stand test. The video shows that Valadez was unsteady and did not perform well on that test. Videos were also identified of Valadez at the police station, where the walk-and-turn field sobriety test was administered, along with the Intoxilyzer breath test. Valadez also admitted that he had been drinking before driving his vehicle at the time of this offense. These videos were played for the jury.

Shreveport Police Sergeant Danny Duddy fingerprinted Valadez on the day of trial and testified that the fingerprints showed that Valadez was the same person previously convicted of DWI, first offense, on March 11, 2008, in Bossier Parish; DWI, first offense, on June 1, 2010, in Shreveport City Court; and DWI, third offense, on January 27, 2014, in Caddo Parish. On October 25, 2017, the jury found Valadez guilty as charged of DWI, fourth offense.

Valadez filed a motion for post verdict judgment of acquittal, claiming there was insufficient evidence to support his conviction. The motion was denied by the trial court. Sentence was imposed on November 13, 2017.

No presentence investigation was ordered by the trial court. The trial court noted that the penalty for DWI, fourth offense, is a fine of $5,000 and imprisonment, with or without hard labor, for no less than 10 years and no more than 30 years. Two years of the sentence are to be served without benefit of parole, probation, or suspension of sentence. The court set forth on the record the factors under La. C. Cr. P. art. 894.1 which it considered in imposing sentence in this matter. The court found that a sentence of imprisonment was required because there was an undue risk that, during a period of a suspended sentence or probation, Valadez would commit another crime, he was in need of correctional treatment or a custodial environment that could be provided most effectively by commitment to an institution, and a lesser sentence would deprecate the seriousness of the offense.

The court also considered aggravating and mitigating factors. The only aggravating factor it found applicable was that, by driving intoxicated, Valadez knowingly created a risk of death or great bodily harm to more than one person. As mitigating factors, the court noted that Valadez's conduct did not actually cause serious harm, and he had completed substance abuse programs while incarcerated pending trial.

The court sentenced Valadez to serve 15 years at hard labor with credit for time served, and to pay a fine of $5,000. He was also ordered to pay $50 to the Indigent Defender's Office. The court recommended that Valadez participate in all alcohol abuse treatment programs available to him through the Department of Corrections.

On December 11, 2017, Valadez's attorney filed a motion to reconsider and vacate an unconstitutionally excessive sentence, arguing that the trial court gave inadequate and improper aggravating factors to support the severity of the sentence imposed and failed to consider all mitigating circumstances. The trial court denied the motion in a judgment rendered on January 25, 2018. Valadez appealed.

EXCESSIVE SENTENCE

On appeal, Valadez argues that the 15-year hard labor sentence imposed in this case is unconstitutionally excessive. This argument is without merit.

Legal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La.1983) ; State v. Meadows , 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. Egan , 44,879 (La. App. 2 Cir. 12/9/09), 26 So.3d 938. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 2007-0144 (La. 9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Jones , 45,429 (La. App. 2 Cir. 8/11/10), 46 So.3d 756. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 2016-0959 (La. 5/1/17), 219 So.3d 332.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Jiles , 47,366 (La. App. 2 Cir. 8/8/12), 104 So.3d 27. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed. 2d 539 (1996) ;

State v. Fatheree , 46,686 (La. App. 2 Cir. 11/2/11), 77 So.3d 1047 ; State v. Jiles , supra .

Discussion

The record shows that the trial court adequately considered the sentencing criteria set forth in La. C. Cr. P. art. 894.1 in imposing sentence upon Valadez. Although the trial court did not outline at sentencing Valadez's prior offenses, the record before the court clearly showed that he had a lengthy criminal history largely involving DWI and appearing in public in an intoxicated condition. Among the exhibits introduced during the trial were the bills of information and court minutes from the predicate offenses. These documents reflect that Valadez was born on November 13, 1966. Valadez had been afforded leniency in his three prior convictions for DWI. In two of his prior convictions, he was allowed to plead guilty to having a lower blood alcohol level than the amount shown in the breath test. This reduced Valadez's sentencing exposure. In one case, he was originally charged with DWI, second offense, and was allowed to plead guilty to DWI, first offense. Defendants convicted of DWI are routinely ordered to attend substance abuse programs. If Valadez attended the court-ordered substance abuse programs in connection with his prior DWI convictions, he obviously failed to respond favorably, because he continued to reoffend. The trial court did not err in finding that a sentence of incarceration was required in this case, that there was an undue risk that Valadez would commit another offense if given a suspended sentence or probation, that he was in need of commitment to an institution, and that a lesser sentence would deprecate the seriousness of the offense.

Valadez argues that, as an aggravating factor, the trial court should not have considered that his behavior in driving while intoxicated posed a risk of death or great bodily harm to more than one person, because this factor is found in every instance of DWI. The trial court did not err in considering this as an aggravating factor. This court has observed that DWI presents a substantial risk of death or great bodily harm to the public. See State v. Jiles , supra .

Valadez contends that his criminal history demonstrates that he has a substance abuse problem and that the trial court should have applied the alternatives for sentencing in La. C. Cr. P. art. 893 to this case. He claims that this issue was raised in one of the motions to reconsider sentence. The pertinent part of La. C. Cr. P. art. 893, which he argues should have been considered here, was added by Acts 2017, No. 280, § 1, effective November 1, 2017, and provides as follows:

B. (1) Notwithstanding any other provision of law to the contrary, when it appears that the best interest of the public and of the defendant will be served, the court, after a fourth conviction of operating a vehicle while intoxicated pursuant to R.S. 14:98, may suspend, in whole or in part, the imposition or execution of the sentence when the defendant was not offered such alternatives prior to his fourth conviction of operating a vehicle while intoxicated and the following conditions exist:
(a) The district attorney consents to the suspension of the sentence.
(b) The court orders the defendant to do any of the following:
(i) Enter and complete a program provided by the drug division of the district court pursuant to R.S. 13:5301 et seq.
(ii) Enter and complete an established driving while intoxicated court or sobriety court program.
(iii) Reside for a minimum period of one year in a facility which conforms to the Judicial Agency Referral Residential Facility Regulatory Act, R.S. 40:2851 et seq.
(iv) Enter and complete the Swift and Certain Probation Pilot Program established pursuant to R.S. 13:5371 et seq.
(2) When suspension is allowed under this Paragraph, the defendant shall be placed on probation under the supervision of the division of probation and parole. The period of probation shall be specified and shall not be more than three years, except as provided in Paragraph G of this Article. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.

Valadez committed the present offense on December 25, 2016, and he was convicted on October 25, 2017. Both of these dates were prior to the effective date of the amendment. Our courts have consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. A defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense. State v. Sugasti , 2001-3407 (La. 6/21/02), 820 So.2d 518.

The Louisiana Supreme Court found an exception to this rule in State v. Mayeux , 2001-3195 (La. 6/21/02), 820 So.2d 526. The court construed amendments to La. R.S. 14:98 and determined that three specific provisions within the new legislation pointed to an interpretation consistent with applying the new provisions to a defendant who was not convicted of a fourth DWI charge until after the effective date of the statute. In this case, the exception does not apply because the amendment to La. C. Cr. P. 893 does not contain similar language. Further, even if it did, Valadez was convicted before the amendment to La. C. Cr. P. art. 893 became effective. Therefore, the amendment to La. C. Cr. P. art. 893 is not applicable to this case.

We note that, prior to the amendment to La. C. Cr. P. art. 893 cited by Valadez, at the time of the commission of and conviction for this offense, the statute contained a similar provision which provided, in pertinent part:

B. (1)(a) The court may suspend, in whole or in part, the imposition or execution of the sentence when the following conditions exist:
....
(cc) A third conviction of operating a vehicle while intoxicated in violation of R.S. 14:98.
(ii) It appears that suspending the sentence is in the best interest of the public and the defendant.
(iii) The district attorney consents to the suspension of the sentence.
(iv) The court orders the defendant to do any of the following:
(aa) Enter and complete a program provided by the drug division of the district court pursuant to R.S. 13:5301 et seq. When a case is assigned to the drug division probation program pursuant to the provisions of R.S. 13:5301 et seq., with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that successful completion of the program may require that period of probation to exceed the five-year limit. If necessary to assure successful completion of the drug division probation program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.
(bb) Enter and complete an established driving while intoxicated court or sobriety court program, as agreed upon by the trial court and the district attorney. When a case is assigned to an established driving while intoxicated court or sobriety court program, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that successful completion of the program may require that period of probation to exceed the five-year limit. If necessary to assure successful completion of the drug division probation program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.
(cc) Reside for a minimum period of one year in a facility which conforms to the Judicial Agency Referral Residential Facility Regulatory Act, R.S. 40:2852.
(dd) Enter and complete the Swift and Certain Probation Pilot Program established pursuant to R.S. 13:5371 et seq. When a case is assigned to this pilot program, with the consent of the district attorney, the court may place the defendant on probation for a period of not less than one year and not more than eight years if the court determines that successful completion of the program may require that period of probation to exceed the five-year limit. If necessary to ensure successful completion of the program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.
(b) When suspension is allowed under this Paragraph, the defendant shall be placed on probation under the supervision of the division of probation and parole. The period of probation shall be specified and shall not be less than two years nor more than five years, except as provided in Subitems (a)(iv)(aa), (bb), and (dd) of this Subparagraph. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.
(2) Notwithstanding any other provisions of law to the contrary, the sentencing alternatives available in Subparagraph (1) of this Paragraph, shall be made available to offenders convicted of a fourth offense violation of operating a vehicle while intoxicated pursuant to R.S. 14:98, only if the offender had not been offered such alternatives prior to his fourth conviction of operating a vehicle while intoxicated.

The language of the statute provides that the trial court may suspend a sentence for DWI, third or fourth offense, under certain circumstances. It is not required to do so. In this case, the trial court specifically rejected the imposition of a suspended sentence, finding that a sentence of incarceration was required, citing the factors set forth above which were considered in making that decision. Valadez argues that he is in need of treatment for his substance abuse problem. The trial court ordered that he receive all such treatment available. We do not find that the trial court erred in failing to suspend the sentence imposed here.

Based upon this record, the sentence imposed is not excessive. Valadez was exposed to a minimum of ten years and a maximum of 30 years of imprisonment at hard labor. His sentence of 15 years at hard labor was middle range. Valadez had an extensive criminal history involving driving while intoxicated and appearing in public in an intoxicated condition. He had not responded positively to leniency afforded to him in the past. The sentence was not grossly disproportionate to the seriousness of the offense and the sentence does not shock the sense of justice. Also, contrary to Valdez's argument, the sentence was tailored to the offender and the offense. We find that the trial court acted within its discretion in the sentence imposed.

ERROR PATENT

We note as error patent on the face of the record that the trial court erred in failing to specify that two years of Valadez's 15-year sentence be served without parole, probation, or suspension of sentence, as required by La. R.S. 14:98.4. The trial court's failure to state that the sentence is to be served without benefits will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Williams , 2000-1725 (La. 11/28/01), 800 So.2d 790 ; State v. Smith , 50,342 (La. App. 2 Cir. 1/13/16), 184 So.3d 241. Consequently, we order that two years of Valadez's sentence be served without benefit of parole, probation, or suspension of sentence. The trial court minutes should be amended to reflect this adjustment of Valadez's sentence.

CONCLUSION

For the reasons set forth above, we affirm the conviction and sentence of the defendant, Ismael Valadez, to serve 15 years at hard labor, with two years to be served without benefit of parole, probation, or suspension of sentence, for the offense of DWI, fourth offense.

CONVICTION AND SENTENCE AFFIRMED, WITH INSTRUCTIONS FOR CORRECTION OF MINUTES.

      La. R.S. 14:98 sets the BAC for DWI at 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

      Valadez was sentenced pursuant to La. R.S. 14:98.4(A)(1), which does not require confinement at hard labor. Therefore, he was entitled to a six-person jury. See La. C. Cr. P. art. 782.

      The bill of information connected to Valadez's DWI, third offense, shows that he also pled guilty in November 2009, to DWI, first offense, in Shreveport City Court.

      La. C. Cr. P. art. 875 provides, in pertinent part, that if a defendant is convicted of a felony offense, the court may order the Department of Public Safety, division of probation and parole, to make a presentence investigation. See also La. R.S. 15:1132. However, such an investigation is not mandatory. State v. Hall, 42,767 (La. App. 2d Cir. 11/21/07), 969 So.2d 827. Such an investigation is more in the nature of an aid to the court, and not a right of the accused. State v. Houston , 50,126 (La. App. 2 Cir. 11/18/15), 181 So.3d 188 ; State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

      At the time this offense was committed, La. R.S. 14:98.4 provided, in pertinent part:
      A. (1) Except as modified by Subparagraphs (a) and (b) of this Paragraph, or as provided by Subsections B and C of this Section, on a conviction of a fourth or subsequent offense violation of R.S. 14:98, regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be fined five thousand dollars and imprisoned, with or without hard labor, for not less than ten years nor more than thirty years. Two years of the sentence of imprisonment shall be imposed without benefit of parole, probation, or suspension of sentence. Except in compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot be served on home incarceration.

      On January 18, 2018, Valadez filed a pro se motion for reconsideration of sentence, arguing that the trial court should have considered a recent amendment to La. C. Cr. P. art. 893, which would have allowed for the imposition of a suspended sentence and provided for substance abuse treatment. It does not appear that the trial court considered the pro se motion because the record does not contain a ruling on it. However, the failure of the trial court to rule on a motion to reconsider sentence does not preclude the appellate court from reviewing a sentence for excessiveness. See State v. Farris , 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877, writ denied , 2017-0070 (La. 10/9/17), 227 So.3d 828 ; State v. Jackson , 46,963 (La. App. 2 Cir. 2/29/12), 87 So.3d 174.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Andrew D. CRITTON, Appellant
    No. 52,058-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 22, 2018
    LOUISIANA APPELLATE PROJECT, By: Edward K. Bauman, Lake Charles, Counsel for Appellant
    ANDREW D. CRITTON, Pro Se
    DANIEL W. NEWELL, District Attorney, CARY T. BROWN, TERESA C. CARROLL, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, COX, and STEPHENS, JJ.
   WILLIAMS, J.

The defendant, Andrew Critton, was charged by bill of indictment with second degree murder, a violation of La. R.S. 14:30.1. Following a jury trial, the defendant was found guilty as charged. He was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Defendant appeals his conviction. For the following reasons, we affirm defendant's conviction and sentence and remand for correction of the commitment order.

FACTS

The record shows that on the evening of January 10, 2016, the victim, Sulyn Prince, was attacked and bludgeoned to death after she had returned home from work. The victim's body was then buried in a nearby wooded lot. The next day, the victim's daughter called police when she was unable to contact her mother. In responding to the scene, police officers discovered that Prince was missing and found her house in disarray. Through a window, the officer saw garbage bags and cleaning supplies strewn on the kitchen floor. He then walked behind the house and saw drops of blood leading to the apartment out back. In the apartment, there was blood, water, and broken glass from a wine bottle on the floor, blood spatter on the wall, and smears of blood on a barstool. Outside, there was a drag pattern and wheel marks in the frost on the grass and a blood trail leading from the apartment to a wooded area behind the house.

In a creek under a bridge nearby, officers found numerous items that came from the victim's house, including the victim's uniform, a fire extinguisher, and a broken wine bottle. Two latex gloves, a wheelbarrow, and a shovel were also found near the creek in a wooded area. The victim's DNA was found on the fire extinguisher, the wheelbarrow, and the shovel.

The Shreveport Fire Department K-9 search team was contacted and a cadaver dog alerted to an area of disturbed dirt under several tree limbs in the wooded area behind the victim's house. The state police crime scene unit then began digging in that area and discovered the victim's body.

When Prince's body was removed from the ground, police photographed the body and placed paper bags on the victim's hands to preserve any evidence present. On the back of her head, Prince had a 12 by 10 centimeter laceration with an underlying skull fracture, which was likely caused by the fire extinguisher. The forensic pathologist stated that it was one of the worst skull fractures he had seen that did not involve a car crash. Prince also had several lacerations to her face, bruises around her eye and forehead, a rib fracture, bruises on her arms, and defensive wounds on her hands consisting of bruises and skin flaps.

Jermaine Johnson, who lived next door to the victim, was the first suspect in this case. Among other evidence, officers found documents containing the victim's name and blood in a trashcan behind Johnson's house. Johnson was charged with second degree murder. However, through the course of the investigation, defendant was developed as another suspect in the case based on DNA evidence. Defendant's DNA was found on one of the latex gloves recovered from the crime scene, on fingernail clippings from the victim, and in the sperm fraction of an oral swab obtained from the victim.

Defendant was arrested and officers searched his residence, which was a basement apartment in his sister's house. In his bedroom, officers located a newspaper containing a story related to the victim's death along with two notes handwritten by defendant. One of the notes contained a poem in which he refers to himself having just been released from jail against all odds and compares himself to a great white shark on the streets that needs to eat. The other note was a list, which read: (1) ski-mask; (2) gloves; (3) straps; (4) tape and rope; and the words "dress in all black." In a burn pile behind the house, police recovered part of a t-shirt, a shoe with the sole removed, and a paper sack with unused condoms. At trial, defendant's sister, Lashelle Holyfield, testified that on the night of the murder, defendant had come home around 9:00 p.m., wearing all black, but left again around 10:30 p.m. The next morning, around 7:00-8:00 a.m., she saw defendant burning something behind the house and he was not wearing a shirt despite the cold weather.

The victim was a correctional officer at Bayou Dorcheat Correctional Center, where defendant had been incarcerated prior to his release in December 2015. Two of his cellmates from Bayou Dorcheat testified that before his release, defendant had talked about hiding evidence of a crime and asked questions about where Prince lived, if she was married or had a dog, and even stated that he "had to get him some of that."

Defendant was charged with second degree murder. Following a jury trial, he was found guilty as charged. Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. This appeal followed.

DISCUSSION

Defendant contends his trial counsel was ineffective in failing to request a Daubert hearing regarding the DNA evidence. Defendant argues that defense counsel was put on notice that a Daubert hearing should be conducted because of the clerical error in the lab report and the need for a second test of evidence to implicate defendant.

As a general rule, a claim of ineffective assistance is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing under La. C.Cr.P. art. 930. State v. Winzer , 49,316 (La. App. 2 Cir. 10/8/14), 151 So.3d 135, writ denied , 2014-2373 (La. 4/22/16), 191 So.3d 1044. However, when the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Winzer, supra .

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by U.S. Constitution Amendment VI. State v. Wry , 591 So.2d 774 (La. App. 2 Cir. 1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, to establish that his attorney was ineffective, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that counsel's deficient performance prejudiced his defense and that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland v Washington, supra ; State v. Reese , 49,849 (La. App. 2 Cir. 5/20/15), 166 So.3d 1175, writ denied , 2015-1236 (La. 6/3/16), 192 So.3d 760.

A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Smith , 49,356 (La. App. 2 Cir. 11/19/14), 152 So.3d 218, writ denied , 2014-2695 (La. 10/23/15), 179 So.3d 597. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland v. Washington, supra ; State v. Reese, supra .

The filing and pursuit of pretrial motions is squarely within the ambit of the attorney's trial strategy, and counsel is not required to engage in efforts of futility. State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So.3d 235, writ denied , 2014-2631 (La. 9/25/15), 178 So.3d 565.

La. C.E. art. 702 provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and, (4) the expert has reliably applied the principles and methods to the facts of the case.

The standard for accepting expert testimony was set forth in State v. Foret , 628 So.2d 1116 (La. 1993), wherein the supreme court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert , before an expert's testimony is admitted, the trial court is required to perform a "gatekeeping" function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin , 2002-1188 (La. 5/20/03), 846 So.2d 697 ; State v. Haley , 51,256 (La. App. 2 Cir. 5/24/17), 222 So.3d 153, writ denied , 2017-1230 (La. 4/27/18), 241 So.3d 305.

This "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony. The Daubert non-exclusive list of factors by which to assess the reliability of an expert's opinion include: (1) the "testability" of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and, (4) whether the methodology is generally accepted in the scientific community. State v. Haley, supra .

Trial courts are vested with great discretion in determining the competence of an expert witness, and rulings on the qualification of a witness as an expert will not be disturbed unless there was a clear abuse of that discretion.

State v. Farris , 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877, writ denied , 2017-0070 (La. 10/9/17), 227 So.3d 828.

In State v. Celestine , 2011-1403 (La. App. 3 Cir. 5/30/12), 91 So.3d 573, the court rejected the defendant's claim that his attorney was ineffective in failing to request a Daubert hearing on DNA testing that linked the defendant to the crime, as the defendant failed to assert any error in the methodology used by the laboratory that tested the evidence. See State v. Mark , 2013-1110 (La. App. 4 Cir. 7/30/14), 146 So.3d 886, writ denied , 2014-1851 (La. 4/10/15), 163 So.3d 807.

In the present case, Julia Naylor, an expert in forensic DNA analysis with the Louisiana State Police Crime Lab, performed DNA testing on the evidence. Naylor testified that defendant's DNA was found on a latex glove recovered from the crime scene, on fingernail clippings from the victim's right hand, and in the sperm fraction of an oral swab obtained from the victim. However, on cross-examination, Naylor acknowledged that when she initially tested an oral swab, on April 6, 2016, she found a mixture of DNA from two individuals, but could not make a finding relative to defendant because the minor contributor was so low that no comparison could be made. On April 19, 2016, Naylor performed additional testing and found defendant's DNA on the oral swabs. She testified that there were a total of four oral swabs taken from the victim, and that the initial testing was done on one of the four swabs, and the subsequent testing was done on the remaining three swabs. She stated that it was not uncommon for the crime lab to go back and conduct additional testing when there is an indication of a second contributor and there are multiple samples available to test.

Naylor testified that the process of DNA testing is not entirely error free, but her work is reviewed by a quality reviewer, a technical reviewer and an administrative reviewer. She also acknowledged that she submitted a corrected report on March 21, 2017, to correct a clerical error related to an exhibit number.

Based on the evidence presented, defendant failed to prove that his trial attorney was ineffective in failing to request a Daubert hearing as to the DNA evidence. Defendant does not allege any discrepancies or errors in the methodology used by Naylor or the Louisiana State Police Crime Lab. Mere conclusory statements are insufficient to establish a claim of ineffective assistance of counsel. Contrary to defendant's argument, there is no suggestion that the DNA testing in this case was incomplete or suspect in any way. Naylor testified that all of the protocols of the Louisiana State Police Crime Lab were followed in connection with the testing in this case and that she, and the three other people who reviewed her reports, believed the results to be reliable. Also, Naylor testified that the clerical error on the report was merely related to an exhibit number and did not change any of her findings with respect to the DNA profiles that were discovered. In addition, Naylor stated that she did not retest any of the evidence; rather, she went back and tested additional evidence that was available in order to be able to make a comparison. Defense counsel was afforded the opportunity to cross-examine Naylor about the clerical error and the subsequent testing and point out these alleged deficiencies to the jury.

Based upon this record, defendant failed to establish that, even if defense counsel had requested a Daubert hearing, the DNA evidence would have been inadmissible. Thus, there is no showing that counsel's performance was deficient. This assignment of error is without merit.

Defendant contends the trial court erred in admitting prejudicial gruesome photographs. Defendant argues that because the probative value of these photographs did not outweigh their prejudicial effect, the photographs should have been excluded as they could only have inflamed the passion of the jury.

Under La. C.E. art. 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing, or place depicted. State v. Clark , 2012-0508 (La. 12/19/16), 220 So.3d 583 ; State v. Cook , 46,843 (La. App. 2 Cir. 1/25/12), 86 So.3d 672, writ denied , 2012-0640 (La. 6/22/12), 91 So.3d 969. Even when the cause of death is not at issue, the state is entitled to the moral force of its evidence and postmortem photographs of murder victims are admissible to prove corpus delicti , to corroborate other evidence establishing cause of death, location, placement of wounds, as well as to provide positive identification of the victim. State v. Clark, supra ; State v. Magee , 2011-0574 (La. 9/28/12), 103 So.3d 285, cert. denied , 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013). The cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Clark, supra ; State v. Cook, supra .

Thus, photographic evidence will be admitted unless it is so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient evidence (i.e., when the prejudicial effect of the photographs substantially outweighs their probative value). State v. Clark, supra . The admission of gruesome photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect. State v. Magee, supra ; State v. Cook, supra . The trial court has considerable discretion in the admission of photographs, and its ruling will not be disturbed in the absence of an abuse of that discretion. State v. Clark, supra .

During trial in this case, the court admitted into evidence, over defense counsel's objection, nine photographs of the victim's body at the scene of the shallow grave and nine autopsy photographs. The defense first objected to Exhibit S-105, a photograph which depicts the victim's body, from the shoulders up, after she was removed from the shallow grave, and shows blood on the left side of her face, nose, and mouth. The trial court overruled the objection, finding that the state had the right to present its case, and that the photograph was not presented only for inflammatory purposes, but to show the extent of the victim's injuries and where the injuries occurred.

The defense next objected to Exhibits S-141 through S-148, which showed the victim's body at the scene of the shallow grave. Before those photographs were introduced, the trial court reviewed them at a bench conference and the state agreed to withdraw one of the photographs that was repetitive. The trial court found that the remaining photographs were admissible and relevant. At trial, the photographs were identified by Mindy Buratt, an expert in crime scene investigation with the Louisiana State Police Crime Lab. S-141 depicts the victim's arm and hand emerging from the soil in the shallow grave as it was excavated. S-142 is a close-up photograph of the right side of the victim's face partially submerged in the soil during excavation. S-143 is a photograph of the length of the victim's body partially submerged in the soil during excavation. S-144 is a photograph of the victim's naked body lying on top of a body bag after she had been removed from the ground. This photograph also shows that the victim's hands were bagged to preserve evidence on her fingernails. S-145 and S-147 depict different angles of the injuries and blood on the victim's head, face and eye. S-146 is a photograph of the back of the victim's head, showing that her hair was matted with dried blood and dirt. S-148 shows the defensive wounds on the victim's hands.

The defense also objected to the autopsy photographs, Exhibits S-187 through S-195, based on their "graphic nature." At a bench conference before the photographs were introduced, the state agreed to edit two of the photographs (S-191 and S-195) to cover up images in the background from the autopsy itself. The trial court found that the autopsy photographs, although "graphic," were admissible to show the victim's wounds. Dr. Christopher Tape, the forensic pathologist who performed the autopsy in this case, identified the photographs. S-187 is a photograph of the victim's body on the autopsy table, which shows the dirt, injuries to her head, and the brown paper bags around her hands. S-188 depicts the 12 by 10 centimeter laceration to the back of the victim's head; the scalp is separated from the skull. S-189 is a photograph of the injury to the victim's forehead. S-190 and S-194 are photographs showing the bruises on the victim's right hand. S-191 and S-195 depict the skin flap avulsions, defensive wounds, on the victim's left hand. S-192 and S-193 are photographs of the bruises on the victim's arm and wrist.

After reviewing the evidence, we conclude the trial court did not abuse its discretion in admitting the crime scene and autopsy photographs of the victim. We cannot say the trial court erred in finding that the photographs, although somewhat graphic, were not so gruesome as to unfairly prejudice defendant's case. The crime scene photographs show different angles of the victim's body and depict where the police found the body in relation to the surrounding area. Those photographs also corroborate the testimony that bags were placed on the victim's hands to preserve evidence. The autopsy photographs were relevant in showing the nature, location, and severity of the wounds suffered by the victim. The most graphic photograph, Exhibit S-188, depicting the skull fracture at the back of the victim's head, was necessary to establish the extent of the injury and the cause of the victim's death - traumatic brain injury due to blunt force injuries to the head. The state was entitled to show the particularly brutal nature of the murder and the location where the victim's body was recovered. Therefore, the probative value of the photographs is not substantially outweighed by any prejudicial effect they may have had on the jury. Thus, the trial court properly overruled the defense's objection to the admission of the photographs. This assignment lacks merit.

Pro Se Assignments of Error:

In two assignments, defendant contends his attorney was ineffective in failing to object to the state's introduction into evidence of fingernail clippings from the victim. Defendant argues the evidence was inadmissible because: (1) the fingernail clippings were not sufficiently identified; (2) the chain of custody of the fingernail clippings was not established; and (3) he was denied the right to confrontation because the assistant forensic pathologist who processed the sexual assault kit, John Peno, did not testify at trial.

To admit demonstrative evidence at trial, an object must be identified either by testimony that the object is related to the case or by the chain of custody from the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes by a preponderance of the evidence that it is more probable than not that the object is relevant to the case. It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Gay , 48,832 (La. App. 2 Cir. 2/26/14), 136 So.3d 919.

The Confrontation Clause of the Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Sixth Amendment safeguards the defendant's right to confront his accusers and to subject their testimony to rigorous testing in an adversarial proceeding before the trier of fact. California v. Green , 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ; State v. Dukes , 46,029 (La. App. 2 Cir. 1/26/11), 57 So.3d 489, writ denied , 2011-0443 (La. 3/2/12), 83 So.3d 1033.

Confrontation errors are subject to a harmless error analysis. State v. Norman , 51,258 (La. App. 2 Cir. 5/17/17), 222 So.3d 96, writ denied , 2017-1152 (La. 4/20/18), 240 So.3d 926.

Defendant's argument is based on a document from the Louisiana Forensic Center recording the transfer of custody of the fingernail clippings. That document indicates that the "sexual assault evidence collection kit" was collected by John Peno, one of Dr. Tape's pathology assistants, on January 13, 2016, and transferred to Trooper Driskill on February 25, 2016. However, at trial, Dr. Tape testified that he collected the fingernail clippings from the victim and performed the rape kit.

Although Dr. Tape did not specify whether he or his assistant actually collected the fingernail clippings from the victim, the clippings were sufficiently authenticated and the chain of custody was established by witness testimony. The record supports a finding that it is more probable than not that the DNA-tested fingernail clippings were those collected by Dr. Tape and his assistants, and there is no indication of evidence tampering or that the evidence was compromised in any way. Further, any defect in the chain of custody goes to the weight of the evidence, not its admissibility. Any error regarding the denial of defendant's right to confront John Peno about the fingernail clippings is harmless because the remaining evidence presented by the state, including evidence of defendant's DNA on a latex glove and the oral swabs from the victim, was sufficient to prove his guilt. As such, the fingernail clippings, and the DNA evidence derived therefrom, were properly admitted into evidence at trial. Thus, defendant failed to prove that his attorney was ineffective in failing to object to the admissibility of the victim's fingernail clippings. These assignments of error lack merit.

Defendant contends his trial attorney was ineffective in failing to call his sister, Shameka Grider, as an alibi witness. Defendant argues that Grider's statement to police that defendant went to work with her husband early in the morning of January 11, 2016, is favorable to him because the evidence would have corroborated the testimony of his other sister, Lashelle Holyfield, who testified she could not recall the exact date she saw him burn a brush pile outside of her house.

Although counsel is ineffective when he fails to interview known witnesses, the decision to call or not to call a particular witness is a matter of trial strategy and is not, per se, evidence of ineffective assistance. State v. Butler , 41,985 (La. App. 2 Cir. 6/20/07), 960 So.2d 1208, writ denied , 07-1678 (La. 5/9/08), 980 So.2d 685.

The record does not support a finding that defendant's attorney failed to conduct an adequate investigation into the facts of this case. In his brief, defendant claims only that Grider's testimony would have corroborated his other sister's trial testimony. We note that Holyfield testified that although she did not know the date, she had seen defendant burning the brush pile on the morning after the murder. Considering the overwhelming evidence of defendant's guilt presented at trial, he has failed to establish that if Grider had testified then the outcome of his trial would have been different. Thus, there is no showing that trial counsel's performance prejudiced the defense. This assignment of error lacks merit.

Defendant contends his attorney was ineffective in failing to object to the state's closing argument. Defendant complains that during the state's closing argument, the prosecutor improperly (1) read a poem that was written by defendant, (2) referred to the issue of race, (3) expressed a personal opinion about suspect Jermaine Johnson and (4) referred to matters not introduced into evidence.

The closing argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the applicable law. The argument shall not appeal to prejudice. The state's rebuttal shall be confined to answering the defendant's argument. La. C.Cr.P. art. 774.

In this case, the record shows that the poem was seized pursuant to a search warrant of defendant's residence and was admitted into evidence during the testimony of the state's handwriting expert. A review of the state's initial closing argument shows that no mention of race was made. However, in closing, defense counsel stated to the jury: "You can't consider, you should not consider, the fact that this defendant is black and the victim is white." In response, the state mentioned race in rebuttal: "Don't convict on sympathy, or bias, or prejudice. This isn't about black and white. Martin Luther King once said, 'If justice isn't for everyone, then justice really isn't for anyone.' I couldn't agree more. Ms. Sulyn Prince deserves justice, justice for everyone. This isn't about black or white. We can agree on that. It's about right and wrong, and this is wrong, wrong, wrong."

Regarding the alleged personal opinion, we note that evidence had been presented during the trial indicating Johnson's possible involvement in the crime. As to matters defendant claims were not in evidence, a ski mask was referenced in Exhibit S-173, the handwritten list found on defendant's dresser. In addition, the comment about burning referred to the fire behind defendant's residence, not to a fire at the crime scene.

Based upon this record, defendant has failed to show that the comments made by the state during closing argument were improper or had any effect on the proceedings. The poem referred to by the state was admitted into evidence at trial and the court had ruled that the state could introduce evidence of defendant's prior incarceration under La. C.E. art. 404(B). The state's reference to race was in rebuttal to defense counsel's closing argument. The state's reference to Jermaine Johnson was based on the evidence presented and constituted a permissible conclusion of fact, not an improper personal opinion. Also, contrary to defendant's claim, the state's references to a ski mask, defendant's absence from his house, the footprints, and the fire were all drawn from evidence admitted at trial.

Even assuming defense counsel was deficient in failing to object to the state's comments, defendant failed to prove that if counsel had objected, then the result of the proceedings probably would have been different. Thus, this assignment of error is without merit.

Defendant argues that his attorney was ineffective in allowing the state to introduce evidence that was seized from his residence pursuant to a search warrant two months after the crime was committed. Defendant claims that his attorney should have objected to the admission of the handwritten poem and the list found in his house and to the evidence seized from the burn pile in his backyard.

The record shows that all of the above evidence was seized from defendant's residence pursuant to a valid search warrant. The evidence was relevant to show defendant's plan and intent to commit the crime, as well as his actions after the crime. Further, on cross-examination of the officer who executed the search warrant, defense counsel pointed out to the jury that the evidence was seized two months after the crime occurred. In addition, defendant's attorney had objected to admission of the poem and the list at the 404B hearing and at trial. After reviewing the record, we find that defendant has failed to allege any facts which would require suppression of the evidence seized from his house. Therefore, he failed to show that a motion to suppress should have been granted or that his attorney was deficient in failing to file such a motion. This assignment of error is without merit.

Defendant contends his attorney was ineffective in filing the motion for change of venue without his consent. Defendant argues that this violated his right to consult with his counsel and the right to a fair and impartial trial in the parish where the offense occurred.

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. La. C.Cr.P. art. 622.

In this case, defense counsel filed a motion for change of venue in September 2016, based on prejudicial pretrial publicity. Defendant was not present at the hearing on the motion. The state did not object, and the trial court granted the motion. The venue was changed from Claiborne Parish to Bienville Parish.

Although it is unclear from the record whether defense counsel discussed the motion for change of venue with defendant before filing the motion, defendant has not shown any prejudice from his attorney's actions. We note that defendant never raised an objection to the venue change prior to trial. Further, defense counsel's decisions as to which motions to file form a part of trial strategy, to which this Court affords great deference. Thus, this assignment of error lacks merit.

Defendant also argues that his attorney was ineffective in failing to file a motion to suppress the statement he made during his custodial interrogation. Defendant claims that after he was advised of his rights and indicated he did not want to answer any questions, he was coerced into answering questions.

At trial in this case, Louisiana State Trooper Michael Allen testified as follows: in March 2016, defendant was advised of his Miranda rights and signed the form indicating that he understood his rights; at the time, defendant stated that he did not know the victim and he did not want to answer any questions pertaining to murder or rape; defendant later recanted and said he wanted to answer questions; defendant then stated that he knew the victim from when she was employed as a correctional officer; and defendant refused to answer any questions regarding the homicide.

Based upon this record, defendant has failed to establish that he was coerced into answering any questions after he invoked his rights. Trooper Allen specifically testified that defendant refused to answer questions and that the only information obtained from him during the interview was that he knew the victim. The information that defendant was previously incarcerated at the facility where the victim was employed and knew the victim was also introduced into evidence through the testimony of several other witnesses during trial. Thus, defendant has failed to demonstrate a reasonable probability that but for defense counsel's failure to file a motion to suppress his statement, the result of the trial would have been different. Consequently, this assignment of error lacks merit.

Error Patent

A review of the appellate record demonstrates that the Uniform Commitment Order signed by the trial judge does not accurately reflect the sentence imposed. The sentencing transcript shows that defendant's life sentence was properly imposed without the benefit of parole, probation or suspension of sentence. However, the Uniform Commitment Order does not mention the denial of benefits. Accordingly, this matter shall be remanded to the trial court for the sole purpose of correcting the Uniform Commitment Order to reflect that the defendant's sentence was imposed without benefits. See State v. Robertson , 51,225 (La. App. 2 Cir. 4/12/17), 216 So.3d 1137, writ denied , 2017-0937 (La. 4/6/18), 240 So.3d 185.

CONCLUSION

For the foregoing reasons, the defendant's conviction and sentence are affirmed. This matter is remanded to the district court, which is instructed to correct the Uniform Commitment Order to reflect that the defendant's sentence was imposed without the benefit of parole, probation or suspension of sentence.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.