author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    In re Medical Review Panel for the Claim of Verna BARTHELEMY Verna Barthelemy, Wife of/and Martin Barthelemy v. The State of Louisiana Through the Louisiana State University Health Science Center of New Orleans, Doing Business as the Medical Center of Louisiana at New Orleans, and Dr. Timothy Mountcastle.
    Nos. 2009-CA-1198, 2009-CA-1199.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2010.

      James E. Brouillette, Metairie, LA and Joseph R. Ward, Jr., Ward & Condrey, LLC, Covington, LA, for Verna Barthele-my and Martin Barthelemy.
    Dennis J. Phayer, Meredith M. Miceli, Burglass & Tankersley, L.L.C., Metairie, LA, for Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Dr. Mountcastle.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|,Plaintiffs-appellants, Verna Barthele-my, wife of and Martin Barthelemey, appeal a judgment dismissing their medical malpractice claim against the defendants, Dr. Timothy Mountcastle and The State of Louisiana through the Board of Supervisors of Louisiana State University Agricultural and Mechanical College (hereinafter sometimes referred to as “Charity Hospital”). We affirm.

This medical malpractice action arises out of the plaintiff, Mrs. Barthelemy’s, claim that she suffered injury to her left ureter during a cancer-eradicating, lapa-roscopic assisted sigmoid colon resection at Charity Hospital on January 18, 2002.

This is a fact intensive manifest error case.

On January 16, 2002, the plaintiffs initiated a medical review panel proceeding against the staff attending physician, Dr. Michael Boyle, the resident assisting surgeon, Dr. Timothy Mountcastle, and their employer, the State, under the Malpractice Liability for State Services Act, La. R.S. 40:1299.39 et seq. The panel, comprised of general surgeons Dr. Rene Deboisblanc, Dr. Alan Levin, and 12Pr. Ruary O’Connell, found no malpractice, no deviation from the applicable standard of care.

Plaintiffs, thereafter, filed this post-panel civil action against Dr. Mountcastle and the State on February 17, 2005. Although, Dr. Boyle was not named as a defendant in this proceeding, as will be shown hereinafter, he performed the majority of the operation as the lead surgeon.

A jury trial was held on November 17, 18, and 19, 2008. The jury returned a verdict in favor of defendants. On December 3, 2008, the district court rendered and signed a judgment granting the defendants’ motion to make the jury’s verdict the judgment of the court and dismissed the plaintiffs’ claims against the defendants with prejudice. The judgment specifically noted that the jury found, “that defendants did not breach the standard of care under La. R.S. 9:2794”.

Plaintiffs thereafter moved the trial court for a Judgment Notwithstanding the Verdict and/or a New Trial. The court denied the motion.

Informed consent is not an issue in this case. It is uncontested that one of the recognized risks of a sigmoid colon is damage to the ureter. Mrs. Barthelemy signed a consent form and does not challenge the issue of consent. It is also uncontested that the resection surgery on plaintiff was a life-saving measure, the nonoccurrence of which would have resulted in her death from cancer. Finally, it is uncontested that the standard of care requires that the ureter be identified and preserved. The sole malpractice issue before this Court is whether this standard of care was met.

Plaintiffs called the following witnesses: Themselves; their daughter, Nina Miller; the defendant, Dr. Mountcastle; and their retained expert, Dr. Claude Minor, by video deposition. Defendants called the defendant, Dr. Mountcastle; Dr. | ¡¡Michael Boyle by video deposition; medical review panelist Dr. Rene Deboisblanc by video deposition; Dr. Scott Delacroix; and Marshall Carll of the Charity Hospital Forms Department.

No reference is made by the plaintiffs in their appeal to the testimony of Mr. and Mrs. Barthelemy and that of their daughter, Nina Miller. Their testimony bore mostly on the subject of damages which is not an issue raised by the plaintiffs in this appeal. Therefore, we do not find their testimony to be material to the analysis of this appeal.

The defendants offered the video deposition of Dr. Scott Delacroix. However, as he did not testify as an expert and he only became involved in Mrs. Barthelemy’s treatment after the operation that is the subject of this appeal, his testimony is not relevant to the question of whether any malpractice occurred during Mrs. Bartele-my’s surgery.

Mr. Marshall Carll’s testimony related to a controversy raised by the appellants at the trial level over certain inferences to be drawn from the format of certain forms in Mrs. Barthelemey’s medical records. The appellants have not pursued this issue on appeal. Therefore, Mr. Card’s testimony is not relevant to any of the issues raised on this appeal.

The defendant, Dr. Mountcastle, was in the third year of a five year General Surgery residency program at Louisiana State University Medical School at the relevant time. He was still considered a junior resident. The type of laparoscopic-assist-ed procedure in question, on which he had previously assisted, is considered a complex one, reserved for upper-level residents or staff to primarily perform.

Dr. Mountcastle testified that he did not identify and preserve the ureter. The defendants base their malpractice claim on this admission. Moreover, 14defendants also rely on the fact that in his pre-trial deposition, Dr. Mountcastle stated that “we” did not identify and preserve the ureter, the “we” being an implied reference to both himself and Dr. Boyle. He changed his position at trial, explaining that when he gave his deposition he used the term “we” too loosely. He further explained that he was so focused on what he was doing during the operation that he was in no position to attest to what Dr. Boyle may have seen during the course of the operation. The plaintiffs urge this inconsistency between Dr. Mountcastle’s pre-trial testimony and his testimony at trial as a basis for this Court to make a finding that the result reached by the jury and the trial court was manifestly erroneous:

Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Johnson v. Department of Police, 08-0467, pp. 10-11 (La.App. 4 Cir. 12/10/08), 2 So.3d 501, 509.

Therefore, this Court must determine, among other things, whether the inconsistencies in Dr. Mountcastle’s testimony are so significant as to constitute manifest error.

The plaintiffs also point to the fact that Dr. Boyle contradicted Dr. Mountcastle’s assertion that they were not operating in the vicinity of the ureter. This conflicting testimony raises a similar question of possible' manifest error.

|fiHowever, it is the position of the defendants that Dr. Boyle was in charge of the operation and that he identified and preserved the ureter, thereby meeting the standard of care, consistent with the result reached by the medical review panel. As Dr. Mountcastle concedes that he did not identify and preserve the ureter, the malpractice question becomes one of whether it was his responsibility to do so or whether it was Dr. Boyle’s responsibility to do so, and, if so, did he do so.

It is uncontested that Mrs. Barthelemy had the surgery on Friday, January 18, 2002, and that she was discharged to go home on the following Monday. She first noticed pain about nine days later on Wednesday of the following week at which time she reported it during a routine post-op follow-up visit to Charity Hospital. It is also uncontested that the sequelae of her ureter problems have been severe and painful, but this Court has not been asked to quantify her damages as part of this appeal.

Dr. Mountcastle testified that he, “was a third-year level resident, which is considered a junior resident.” Although he testified that he would be what he referred to as the “primary” surgeon on Mrs. Barthe-lemy’s case, he explained that the person ultimately responsible for this surgery was Dr. Boyle. Later, when asked again by plaintiffs’ counsel for the name of the “supervising physician,” he responded: “Dr. Boyle.”

Dr. Mountcastle explained that:

Well, basically when we were doing the internal portion [Dr. Boyle] was directing. He would say burn here, cut here; and I would just follow his instructions.

Dr. Mountcastle explained that the “staff attending physician,” in this case Dr. Boyle, was the “surgeon in the operating room ... [who] determines what gets done by who, and he’s the supervising surgeon in the case.” Dr. Mountcastle next | (-.testified that during the course of the operation he was acting under Dr. Boyle’s “control and supervision”:

A. He was in charge. He was there for the entire case. And as I stated before, he did the majority of the case, especially when we got down into the areas around the ureter.
Q. Can you quantify approximately the division of labor between you and Dr. Boyle?
A. Seventy-five percent for him, 25% for me.
[Dr. Boyle] was directing me. Everything, you know I did, he would say yes. I would say should I cut here? Yes. Where do you want the trocars placed? Put them here, here, and here.

Dr. Mountcastle explained it this way: “[I]t might have been my hand, but he was directing every single maneuver that I did.”

Dr. Mountcastle testified specifically that the ureter was not in any of the areas of the operation where he was performing the surgery. He explained that after a certain point, he could not see what was happening because he was “holding the retractors” while Dr. Boyle was performing the surgery. Later in his testimony he explained again that he could not see or know exactly what Dr. Boyle was doing. He also explained that when he made references to “we” in his pretrial deposition he should have more specifically limited his references to “me” or “I”

Dr. Mountcastle testified that the ureter was in proximity to the surgical work Dr. Boyle was doing, but that Dr. Boyle never mentioned any problems with the ureter. Dr. Mountcastle testified that he had no reason to suspect that there was any damage to the ureter. He testified that the preparation of the operative report is the responsibility of the resident, and that he prepared the report in this case. He testified that although he prepared the report, it would have been signed by another president, a common practice when the resident who prepared the report was unavailable because the residents were frequently rotated to other locations.

The plaintiffs offered the videotape deposition testimony of their expert, Dr. Claude Minor. He never examined the patient. He reviewed medical records and depositions. He concluded that the damage Mrs. Barthelemy sustained to her ureter was likely related to the surgery, and that:

... I think if a surgeon does a colecto-my for a cancer or a colectomy for anything as a matter of fact, there is no question, at some point during his surgery he should identify the ureter and make certain that it is intact and no problem has arose [sic] regarding it. Based on my review of the operative report and review of the deposition, that was not done. Even more so my concerns are, if it is true as stated in the deposition that we did not operate close to the ureter, then I question whether a true cancer operation was done. Because an operation on the colon for cancer is a different operation from benign disease. When you operate on the colon for cancer, you are obligated to go down to the root of the mesentery and take out as many lymph nodes as you can. If you do that, then by definition you’re going to be close to the ureter.

However, Dr. Minor went on to testify that he couldn’t tell what part of the surgery was done by Dr. Mountcastle and what part was done by Dr. Boyle. He further testified that: “I don’t think a uretal injury is necessarily a breach of a standard of care.” His conclusion concerning negligence on the part of Dr. Mountcastle was based on (1) his opinion that the ureter had not been identified and preserved and (2) the assumption that Dr. Mountcastle really did the surgery. This conflicts with the testimony of the defense witnesses and Dr. Boyle’s perioperative report. Moreover, Dr. Minor testified that in rendering his opinion he chose not to consider Dr. Boyle’s perioperative report, the report that Dr. Debloisblanc considered the most significant as it is the report prepared immediately after the operation. In this ease, the timing of the report adds to its ^significance and persuasiveness, as it was written prior to the time there were any symptoms of damage to the ureter.

Thereafter, the defendants introduced the video deposition of Dr. Rene Debois-blanc. He was accepted as an expert in the field of general surgery. He testified that in the four or five years prior to the time of his deposition he had done approximately a dozen operations of the type performed on Mrs. Barthelemy. He was on the medical review panel selected to review Mrs. Barthelemy’s claims of malpractice. He testified that no member of the panel found a breach of the standard of care. He testified that Dr. Boyle’s periop-erative report noted that the left ureter was identified laparoscopically and preserved. He further testified that this established that the standard of care was met. He went on to explain that Dr. Mountcastle could not know what Dr. Boyle may have seen and that, “Dr. Boyle is very definite in his note immediately after the surgery procedure was completed before any of the uretal injury business was an issue because that wasn’t discovered until days later.”

Dr. Deboisblanc testified that part of his training was at Charity. He explained that while he referred to the resident Dr. Mountcastle as the “primary physician,” Dr. Boyle as the staff physician would have been in charge of the operating room. He would have been “running” things in the operating room. He would also supervise the resident physician, in this case, Dr. Mountcastle. Accordingly, he testified that he would have no reason to dispute Dr. Boyle’s assertion that he supervised every maneuver made by Dr. Mountcastle.

Dr. Deboisblanc went on to testify that an injury to the ureter is a well-known complication of this type of colon cancer surgery and that it sometimes happens no matter how careful you are. It was his opinion that the cause of the |ndamage to Mrs. Barthelemy’s ureter, “was probably something that the operation did that affected her ureter.” He explained that:

The common things that can occur during an operation are cutting of a ureter, placing a clip on the ureter, or just being next to the ureter.
The ureter — mobilization required to do the operation appropriately sets up an inflammatory reaction. This inflammatory reaction sometimes can disturb the blood supply to a section of ureter and you can get a stricture from that.
The symptoms that she had didn’t occur immediately as one would expect if the ureter were either cut or clipped, but it occurred later and the way it presented makes me thing that probably it was the inflammatory reaction from just being next to the ereter in doing the operation to remove the sigmoid colon that caused the injury.

Later, on cross-examination, Dr. Debois-blanc testified that:

Even if it’s a ureter that looks perfectly normal when you complete the procedure, can form a stricture later on, if you disrupt the blood supply and that’s a risk of everything you do.

In fact, Dr. Deboisblanc testified that on occasion he had found it safer to perform the operation without identifying the ureter and that it could be done. He explained that it was the standard of care to identify the ureter, unless you encounter a reason not to. He also explained that when Dr. Mountcastle says that he is the primary physician and Dr. Boyle was the attending physician, that, “[t]hat’s just verbiage. Okay. The ultimate responsibility is to the attending physician.”

The plaintiffs’ argument is basically two pronged: That there are inconsistencies between Dr. Mountcastle’s pretrial deposition testimony and his trial testimony; and that we should accept the testimony of his expert, Dr. Minor, | inover that of the defendants’ witnesses. However, the Louisiana Supreme Court has reiterated the long standing rule of manifest error as it applies in such situations:

Indeed, where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Id. at 845. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693.

Adams v. Rhodia, Inc., 07-2110, p. 11 (La.5/21/08), 983 So.2d 798, 807

Dr. Boyle, a fellowship-trained surgical oncologist board certified as a general surgeon was accepted as an expert in the field of general surgery. At the time of this operation he was a full time professor and general surgeon at LSU Medical School. He testified by video deposition at trial as follows:

It is the ultimate responsibility of the staff physician to ensure that the ureter is identified either by the staff physician or the resident under his or her instruction or supervision.

He testified that he had performed hundreds of laparoscopic surgeries in general of which a number were sigmoid colecto-mies.

Dr. Mountcastle is listed on the Operative Report as the “primary” surgeon, but Dr. Boyle explained that the use of the term “primary” was really an issue of semantics. Dr. Boyle also testified that in spite of the fact that residents in the course of their training often were allowed to believe that they were the primary physician, they were, in fact, supervised in everything they did. Therefore, residency records referring to the resident as the primary surgeon, did not change the fact that the resident was operating under supervision. This is consistent with Dr. Mountcastle’s testimony:

|u[P]rimary surgeon is a resident term where you get to count the case toward your number of cases that you’ve done. You’re the only other surgeon in my case with the staff. That doesn’t mean you’re going to be doing the entire surgery yourself, may not be doing anything; but that’s all dependent on what the staff lets you do. So it’s just a technical term.

Dr. Boyle testified that his memory of visualizing and preserving the ureter was unequivocal and that his memory in this regard was not based on a review of medical records, but was direct. He testified that he was operating in the area of the ureter. He testified that the ureter is usually seen more than once during the course of the operation, but he disagreed with Dr. Minor that it necessarily must be identified again at the end of the procedure. He testified that while in his opinion the right thing to do is to visualize and isolate the ureter, that is not a universally held opinion and not necessarily the standard of care. He explained that there are some who do not believe in visualizing and isolating the ureter because there is some risk of damaging the ureter in the process. Therefore, he explained, that although he believed in visualizing and isolating the ureter, he did not believe that it was necessarily the standard of care in general, but that if he failed to do so, it would have “fallen below [his] normal standard of care.” He testified that he thought that Mrs. Barthelemy’s problems with her ureter were most probably related to the surgery, but he couldn’t be sure.

Dr. Boyle prepared a perioperative report as is customary with staff physicians. Drs. Boyle and Deboisblanc confirmed this. When shown the Intraoperative Anesthesia Record, Dr. Boyle testified that he was listed as the attending physician, with Dr. Mountcastle as his “first assistant.”

Both Drs. Boyle and Mountcastle testified as to Dr. Mountcastle’s limited | ^participation in the procedure, as well as the complete absence of any unsupervised, independent actions on his part.

After reviewing the record as a whole as we are required to do, we find no manifest error in the finding of the jury that the standard of care was not breached in this case. We find that the jury could have reasonably believed Dr. Mountcastle when he testified at trial that when he used the term “we” in his testimony prior to trial he should have restricted his comments to “I” or “me” because he was in no position to speak for Dr. Boyle. This is confirmed by the testimony of both Dr. Boyle and Dr. Debloisblanc who both testified that Dr. Mountcastle was in no position to know what Dr. Boyle may have seen and done during much of the operation.

We further find that, based on the testimony of all of the defendants’ medical witnesses, that the jury could reasonably find that Dr. Boyle was in charge of the operation, and that Dr. Mountcastle was acting under his direct supervision at all relevant times. We also find that the jury could reasonably find credible Dr. Boyle’s testimony that he identified and preserved the ureter as supported by the periopera-tive report and the testimony of Dr. Deblo-isblanc. We further find that the jury was also entitled to make this finding in view of the fact that even the plaintiffs’ expert testified that there was always a risk of damaging the ureter even when there was no deviation from the standard of care. This finding is reinforced by Dr. Deblois-blanc’s opinion that the damage to the ureter was merely an inflammatory reaction. This opinion seems particularly reasonable and credible in view of Dr. Deblo-isblanc’s explanation that direct trauma to the ureter would have caused symptoms to appear much sooner than those of Mrs. Barthelemy.

hsWe also find that the jury may have reasonably chosen to credit Dr. Boyle’s and Dr. Debloisblanc’s reliance on Dr. Boyle’s perioperative report in preference to the decision of the plaintiffs’ expert, Dr. Minor, to ignore that report. Additionally, we find that the jury could reasonably have disregarded the conflict between Dr. Mountcastle’s testimony that the surgery was never in the vicinity of the ureter in preference to that of Dr. Boyle who had considerably more experience and was in a better position to observe what was going on as it was he who performed most of the operation.

In sum, after reviewing the record as a whole, we find valid reasons why the jury could reasonably chose to adopt the defense version of the facts in preference to that of the plaintiffs. Accordingly, pursuant to our finding that Dr. Boyle effectively discharged the responsibility necessary to meet the standard care we find no manifest error in the jury finding that defendants did not breach the standard of care.

For the foregoing reasons we affirm the judgment of the trial court, at plaintiffs’ cost.

AFFIRMED.

      . Ureters are muscular tubes propelling urine from the kidneys to the bladder. The failure of a ureter to function properly can, among other things, result in a painful backup of urine into and damage to the kidneys.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Deitray LOMAX.
    No. 2009-KA-1129.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Nisha Sandhu, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appellee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   JAMES F. McKAY III, Judge.

| tThe defendant was charged by bill of information with two Counts; Count 1 possession of heroin pursuant to La. R.S. 40:966(C)(1) and Count 2 felon in possession of a fire arm pursuant to La. R.S. 14:95.1. Following a trial by jury the defendant was found guilty as charged as to Count 1. The district court declared a mistrial as to Court 2. The defendant appeals his conviction and sentence for the possession of heroin pursuant to La. R.S. 40:966(C)(1). After a careful review of the record we affirm the defendant’s conviction and sentence.

STATEMENT OF THE CASE:

On July 12, 2007, the defendant was charged with possession of heroin (count one) and possession of a firearm by a convicted felon (count two), violations of La. R.S. 40:966(0(1) and 14:95.1, respectively. On July 17, 2007, defendant entered pleas of not guilty. On September 13, 2007, defense counsel filed motions to suppress the evidence and the statement. Following a motion hearing, the matter was taken under advisement. On September 21, 2007, the trial court denied the motion to suppress the evidence. On August 12, 2008, defense counsel filed a motion in limine seeking to exclude from trial any reference to the ^defendant’s prior convictions and to force the state to accept the defendant’s stipulation on the prior convictions; the motion was denied.

Trial began on November 17, 2008, and was continued to January 27, 2009. On that date, defendant pleaded guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced on each count to serve ten years at hard labor with credit for time served and concurrent with each other. On February 11, 2009, the district court granted the defendant’s motion to withdraw his pleas of guilty and granted him a new trial. On March 10 and 11, 2009, defense counsel filed a motion to declare La.C.Cr. P. art. 782(A), which allows non-unanimous jury verdicts, unconstitutional, and a motion to sever the counts, respectively; both motions were denied on March 18, 2009. On April 15, 2009, defense counsel filed a motion for jury charges and an oral motion to recuse the district court judge. On April 20, 2009, defense counsel filed a written motion to recuse the district court judge; the motion was denied on April 15, 2009. On May 5, 2009, a twelve person jury was impaneled. The defense counsel moved for a mistrial when evidence of a prior conviction was inadvertently published to the jury; the motion was denied. A supervisory writ was filed in this court; the writ was denied, 2009-K-0596. On that same day, the motion to recuse was withdrawn by defense counsel’s supervisor. On May 7, 2009, following a jury trial, the defendant was convicted on the charge of possession of heroin. The jury was unable to render a verdict on the charge of possession of a firearm by a convicted felon; the trial court declared a mistrial on that charge. On June 4, 2009, the defendant was sentenced to serve ten years at hard labor with credit for time served.

|..STATEMENT OF THE FACTS

On May 11, 2007, Detective Sislo, accompanied by approximately ten detectives and officers, executed a no knock search warrant for the premises located at 8600 Chef Menteur Highway, apartments 10 and 11. Detective Sislo entered apartment 11. Officers Charles Love and Bronson Gettridge entered apartment 10. Officers Love and Gettridge informed Sislo that they had confiscated a nine millimeter handgun and seven packets of a tan substance wrapped in tin foil from the defendant. The handgun and tin foils were placed into evidence and deposited in the New Orleans Police Department’s evidence and property room.

Detective Sislo testified that the search warrant was obtained pursuant to information received from a confidential informant. The informant told police that a man named Ian, and another man called Santa Clause, a.k.a. Norman Clark, were selling drugs from the suspect location. Acting on this information the police conducted an investigation on May 10, 2007 to corroborate the informant’s tip. The informant was observed going to the suspect location and making a narcotics purchase which he turned over to Detective Sislo. Neither the informant nor Detective Sislo had any contact with the defendant. Detective Sislo stated that the targets of the search warrant were Ian and a man named Richard Salazar, Norman Clark’s roommate. He further testified that he had no knowledge if the defendant lived in apartment 10 or 11. Following the search, he inventoried all items seized from both apartments. Detective Sislo testified that the defendant was inside apartment 10 when the search warrant was executed.

On May 11, 2007, Officer Charles Love participated in the execution of a no knock search warrant for the premises located at 8600 Chef Menteur Highway, |4apartment 10. Upon entering the apartment Officer Love observed the defendant sitting at a table. The defendant stood up and began to run towards the back of the apartment. Officer Love and the other officers ordered the defendant to get on the floor. In attempting to handcuff the defendant, Officer Love observed that the defendant’s hands were clenched. The defendant was ordered to relax and stop resisting. While handcuffing the defendant his hand opened and Officer Love observed a clear plastic bag containing tin foil wrapped packets. The defendant was rolled onto his side, and Officer Love’s partner, Officer Get-tridge, conducted a pat down search for weapons. Officer Gettridge discovered a handgun in the defendant’s waistband.

Officer Love testified that two men, a woman and several children were also in the apartment when the search warrant was executed. He stated that the defendant resisted the officers; he and his partner struggled to place the defendant in handcuffs. He denied that the defendant told him that he did not live in the apartment. He stated that the defendant was not the target of the search warrant. Once the defendant was in handcuffs he was taken outside so that other officers could conduct the search of the apartment. No money or drug paraphernalia was found on the defendant.

On May 11, 2007, Officer Bronson Get-tridge participated in the execution of a no knock search warrant for the premises located at 8600 Chef Menteur Highway, apartment 10. Upon entering the apartment Officer Gettridge observed the defendant get up from a table, attempt to run towards the back of the apartment, stumble and fall. The defendant was detained on the floor. The defendant moved his hands underneath his body as if he were concealing a weapon or some other object. The defendant was handcuffed. Officer Gettridge’s partner, Officer Love, IfiObserved several foil wrapped packets in the defendant’s hand. Officer Gettridge searched the defendant and found a handgun in his waistband. The handgun was turned over to Detective Sislo.

Officer Gettridge testified that Ian Ballard and William Jones were also in the apartment when the search warrant was executed. He stated that the defendant did not comply with the officers when they ordered him to stop and get down. The defendant fell as he attempted to run towards the rear of the apartment. He did not remember if the defendant told him that he did not live in the apartment.

Officer Joseph Pollard, latent fingerprint examiner for the New Orleans Police Criminal Records Department, took the defendant’s fingerprints and compared them to a certified arrest register belonging to defendant. He concluded that the defendant’s fingerprints matched those on the arrest register. Officer Pollard testified that he did not participate in the arrest of the defendant or in the execution of the search warrant.

Charell Arnold, an investigator for the Orleans Indigent Defender’s Office, testified that she conducted an investigation of 8600 Chef Menteur Highway, apartments 10 and 11. In the course of her investigation she learned that Ian Ballard lived in apartment 11.

Ms. Arnold testified that on May 11, 2007 she was in Chicago and had no personal knowledge of what occurred at the time the search warrant was executed.

On May 11, 2007, Aneaka Ballard, cousin of the defendant and wife of Ian Ballard, was inside apartment 11 at the time the search warrant was executed; the 16apartment belonged to her husband, Ian. She had gone to the apartment to pick up her five children who were being babysat by their father, Ian, while she was in the hospital with another child. The defendant arrived shortly after she arrived. Another man, Melius, was also in the apartment. On a table she observed a handgun in a bag. Within minutes the police kicked in the door, entered and knocked defendant to the floor. The police were hollering, “where Ian, ... where Ian Ballard, who is Ian Ballard?” The defendant was yelling, “f — k, f — k”. Ms. Ballard testified that she did not see the defendant holding anything in his hands and did not see the police take a gun from him.

Ms. Ballard testified that the defendant was sitting at a table next to Melius when the police entered the apartment. Immediately after entering the apartment the police ordered her and her children to go outside. She admitted that she could not see if the defendant had anything in his hands when he came into the apartment. She admitted to having a prior conviction for forgery.

The defendant testified that he had a conviction for first-degree robbery in 2000 and for simple robbery in 2002. He stated that Ian Ballard is his cousin’s husband. The night before his arrest he slept over at his cousin Randy’s apartment, which was across the court from Ian’s apartment. He and Randy had an argument, and Randy told him to leave. He went to Ian’s apartment to wait for his girlfriend, Katina, to pick him up and take him home. Ian, Melius, Aneaka and Aneaka’s children were inside the apartment. Inside the apartment he observed a handgun and some silver foil packs on a table. He stated that he had nothing to do with those items, and he could not tell Ian what to do in his own home. He was sitting on a stool waiting for his girlfriend to arrive when the police entered the apartment. He was knocked to the floor. One of the officers placed a gun to his face and ^another placed his knee in his back; he was handcuffed. He attempted to turn over to ask what was happening, but the police ordered him to “shut the ¥ up, shut the T up.” The police were yelling, “where’s Ian, who’s Ian.” He denied being in possession of heroin or a handgun.

He denied that he associated with Ian or Melius. He stated that he was sitting at the table with Melius to tell him about the fight he had with Randy. He admitted that it was a bad decision not to leave the apartment when he observed the handgun and drugs on the table. He accused the arresting officers of lying that they found him in possession of heroin and a handgun.

ERRORS PATENT

A review for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

By his first assignment of error, the defendant asserts that the trial court erred by denying his motion to sever the counts. The defendant argues that because the counts were tried together, the jury was unduly influenced by the State suggesting that he was a “dangerous man in possession of a firearm.” He attributes his conviction for possession of heroin to the jury learning of his prior conviction for simple robbery used to support the possession of a firearm by a convicted felon charge.

La.C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting | ¿parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

Nonetheless, La.C.Cr.P. art. 495.1 provides that if the defendant or the State is prejudiced by the joinder of offenses in a bill of information or at trial, “the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.” In State v. Deruise, 98-0541, p. 7 (La.4/3/01), 802 So.2d 1224, 1282, the Court discussed the standard for reviewing a trial court’s ruling on a motion to sever counts:

A motion to sever is addressed to the sound discretion of the trial court, and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. Brooks, 541 So.2d at 804 (citing State v. Williams, 418 So.2d 562, 564 (La.1982)). In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (8) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Id. (quoting State v. Washington, 386 So.2d 1368, 1371 (La.1980)). However, the fact that evidence of one of the charges would not be admissible under State v. Prieur, 277 So.2d 126 (La.1973), in a separate trial on the joined offense, does not per se prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. State v. Davis, 92-1623, p. 9 (La.5/23/94), 637 So.2d 1012, 1019 (citing State v. Celestine, 452 So.2d 676 (1984)). Finally, there is no prejudicial effect from joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Brooks, 541 So.2d at 805.

See also State v. Carter, 99-2234, pp. 34-35 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 145, where this court stated: “Generally, ‘there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime,’ ” citing State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990). A defendant bears a heavy burden of proving prejudicial joinder of offenses, and he must make a clear showing of prejudice. Lewis, supra.

In its written reasons for denying the severance, the trial court cited State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So.2d 908. In Morris, the appellate court considered whether trial of multiple offenses including the charge of possession of a firearm by a convicted felon was prejudicial. The defendant argued that the jury’s exposure to his prior conviction, as predicate to his firearm charge, implied to the jury that he had a criminal disposition. This argument was rejected as conclusory and unsupported by the facts. Furthermore, the appellate court found that the evidence of the defendant’s guilt on the other charges was overwhelming, and any failure to sever was harmless error.

Applying the Washington factors, it does not appear that the trial court abused its discretion by denying the defendant’s motion to sever the counts. The defendant has not shown that the jurors were confused by the presentation of the evidence or that they could not segregate evidence as to the two counts.

In addition, the defendant has not shown either of the last two Washington factors, either that the joinder of these two offenses caused the jury to infer a criminal disposition on his part, or that the joinder made the jury hostile. Indeed, although the jury found him guilty as charged as to the possession of heroin count, it failed to return a verdict on the felon in possession of a firearm count. Officers ImLove and Gettridge testified that the clear plastic bag containing foils of heroin was clenched in the defendant’s hand when he was detained and handcuffed. The evidence of his guilt for possession of heroin was overwhelming. The defendant has failed to show prejudice or that he was hindered in presenting a defense on the possession of heroin charge. Accordingly, the trial court did not abuse its discretion in denying the motion to sever the counts. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2

Before the commencement of the trial, the defendant unsuccessfully filed a motion in limine offering to stipulate that he had been convicted of a felony that was a predicate offense pursuant to La. R.S. 14:95.1 and requesting that the State be precluded from introducing evidence of his prior conviction. The defendant asserts the district court erred by denying the motion.

The law prohibiting certain felons from possessing firearms is codified in La. R.S. 14:95.1 and reads in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony ..., to possess a firearm or carry a concealed weapon.

Possession of a firearm by a convicted felon requires proof of: 1) the possession of a firearm; 2) a previous conviction of an enumerated felony; 3) absence of the ten year period of limitation; and 4) general intent to commit the offense. La. R.S. 14:95.1.

Defendant, citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), argues that his trial was tainted by unfair prejudice because the jury was told the name and nature of his previous felony conviction. In Old Chief, the defendant, who had previously been convicted of assault causing serious bodily injury, was charged with various federal crimes, including being a felon in possession of a firearm pursuant to 18 U.S.C. Section 922(g)(1). In reversing the defendant’s conviction, the United States Supreme Court concluded that in a felony possession of a firearm case pursuant to Section 922(g)(1), the government may not reject the defendant’s offer to stipulate to the prior conviction, and evidence of the name and nature of the prior conviction are inadmissible.

The Louisiana Supreme Court in State v. Ball, 99-0428, (La.11/30/99), 756 So.2d 275, declined to follow Old Chief, first because the United State Supreme Court’s decision was not based on constitutional principles which would be binding on the states, but instead was based on the specific language of 18 U.S.C., Section 922, and second because the Louisiana statute defines the crime by specific enumerated pri- or offenses, contrary to the broad definition in the federal statute which was the subject of Old Chief.

In Ball , the Court stated:

Further, to fully and fairly implement the defendant’s desired result in this case, more would be required than merely accepting the defendant’s stipulation and prohibiting the state from mentioning the name of the prior felony conviction. In addition, the trial court could be required to prohibit the reading of the indictment in its entirety, which in this case contained the name and date of the prior conviction as well as the sentence imposed, and the judge would not be allowed to fully instruct the jury as to the law governing the case, both of which are required under general princi-pies of law ... La.C.Cr.P. art. 483 ... under Louisiana Code of Criminal Procedure article 802, “[t]he court shall charge the jury: (1) As to the law applicable to the case; ... Thus, the trial judge must fully advise the jury as to the law of La. R.S. 14:95.1, and that includes naming the prior felony convictions that disqualify a defendant from firearm possession”.
Lastly, as recognized by the majority in Old Chief, the general rule is that “the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it ... To force the state to accept defendant’s stipulation would frustrate this general rule as well”.

Ball at p. 280.

Accordingly, proof of a prior specifically enumerated felony conviction is an essential element pursuant to La. R.S. 14:95.1, and evidence of name and nature of the defendant’s prior conviction may be presented to the jury by the state. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 3

Prior to trial, defense counsel moved to have the district court declare Louisiana’s statutory scheme which permits non-unanimous jury verdicts unconstitutional; the motion was denied. The district court subsequently charged the jury that it did not need to reach a unanimous verdict to convict the defendant. The defendant asserts that the district court erred in denying the motion.

The defendant relies upon U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

The punishment for possession of heroin is confinement at hard labor. See La. R.S. 40:966(C)(1). Louisiana Constitution article I, § 17(A) and La.C.Cr. P. art. 782(A) provide that in cases where punishment is necessarily at hard labor, the ease shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See State v. Belgard, 410 So.2d 720, 726 (La.1982) and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

The defendant’s reliance on Blakely, Ring, Apprendi, Jones, and Booker, is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a non-unanimous jury verdict; rather, they address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the trial judge, sitting alone. Nothing in these decisions suggests that the jury’s verdict must be unanimous for a defendant’s conviction to be constitutional. Accordingly, La. Const. art. I, § 17(A) and La.C.Cr.P. art. 782(A) are not unconstitutional and, hence, not violative of the defendant’s Sixth Amendment right to trial by jury. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). In addition, this Court rejected this argument in State v. Tillman, 2008-0408 (La.App. 4 Cir. 3/4/09), 7 So.3d 65. Furthermore, in State v. Bow en, 215 Or.App. 199, 168 P.3d 1208 (Or.Ct.App.2007), the court ruled that a defendant was not entitled to request a jury instruction forbidding a conviction upon a less than unanimous jury verdict. The United States Supreme Court denied certiorari in Bowen v. Oregon, — U.S. —, 130 S.Ct. 52, 175 L.Ed.2d 21, (10/05/09). This assignment of error is without merit.

^CONCLUSION

For the above and forgoing reasons we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The defense stipulated to Officer Pollard's expertise in the taking, examination and comparison of fingerprints.

      . Following Officer Pollard's testimony, the state and the defense stipulated to the expertise of Sergeant Harry O’Neil in the identification of narcotics and, that if Sergeant O'Neil testified, he would state that the substance in the foil packs taken from the defendant tested positive for heroin.

      . In Ball, the defendant was arrested for stealing a minivan, a rifle and a shotgun. Upon learning that he had a prior conviction for simple burglary of an inhabited dwelling, defendant was charged and tried as a felon in possession of a firearm.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Johnny KITCHENS State of Louisiana v. Johnny Kitchens.
    Nos. 2009-KA-0834, 2009-KA-0836.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

| Appellant appeals his convictions and sentences on charges of simple criminal damage to property and simple burglary in the Criminal District Court for Orleans Parish. He asserts his statutory and constitutional rights to a speedy trial were violated. Because we find appellant has not shown he suffered any actual prejudice from the state’s failure to timely bring him to court we affirm his convictions and sentences.

STATEMENT OF THE CASE:

The State charged Johnny Kitchens on July 27, 2007 with one count of simple criminal damage to property valued between $500 and $50,000. He pled not guilty. On August 31, 2007, the State charged him with one count of simple burglary. The matters were reset several times due to the fact that Kitchens was incarcerated in St. Bernard Parish . On January 9, 2009, Kitchens filed a motion to quash the charges against him. The court denied the motion. Kitchens then withdrew his prior pleas of not guilty and pled guilty as charged, reserving his right |ato appeal the denial of his motions to quash as per State v. Crosby, 338 So.2d 584 (La.1976).

The matters were reset several times for sentencing on defense motion, and on April 3, Kitchens moved to withdraw his guilty plea. The court denied the motion and sentenced Kitchens to serve two years at hard labor on the simple criminal damage charge and twelve years at hard labor on the simple burglary charge, to be served concurrently with all of his other charges.

FACTS

Because appellant pled guilty in both cases, the facts leading to the charges are unknown. They are not necessary to a review of appellant’s claims in his appeals.

ERRORS PATENT

A review of both records reveals no patent errors in the simple criminal damage case. However, in the simple burglary case we find that the record fails to show that appellant was arraigned in that case. The failure to arraign a defendant is waived if the defendant “enters upon trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” C.Cr.P. art. 555. See State v. Foreman, 2008-0902 (La.App. 4 Cir. 4/29/09), 10 So.3d 1238. Here, Kitchens did not go to trial; nonetheless, before pleading guilty, the court specifically noted that appellant withdrew his prior pleas of “not guilty”. Thus, all of the parties were under the impression that he had formerly pled not guilty in both cases. Therefore, any error that may have occurred by the court’s failure to arraign Kitchens in the simple burglary case was cured when he pled guilty to the bill of information.

There are no other patent errors.

| ^ASSIGNMENT OF ERROR

By his sole assignment of error in both cases, appellant contends that the trial court erred by denying his motion to quash the charges in each case. In these appeals, he argues that both his statutory and constitutional rights to a speedy trial were violated by the delay in bringing him to trial.

STATUTORY RIGHT TO SPEEDY TRIAL:

The motions to quash filed in each case allege only that the appellant’s constitutional right to speedy trial was violated. The transcript of January 9, 2009 reflects that defense counsel did not assert appellant’s statutory right to a speedy trial. Therefore, the statutory claim raised in appellant’s brief is not properly before this court. Even on the merits, this claim fails. The State had two years from the date it filed the bills of information to take appellant to trial. La.C.Cr.P. art. 578(2). Appellant filed his motions to quash within those two years, effectively suspending the time limitations La.C.Cr.P. art. 580. On the same day that the court denied his motions to quash, appellant pled guilty, reserving his right to seek review of the court’s ruling. Therefore, appellant has no viable statutory claim, even had he asserted it in the trial court.

CONSTITUTIONAL RIGHT TO SPEEDY TRIAL:

In State v. Scott, 2006-1610, p. 5 (La.App. 4 Cir. 4/25/07), 958 So.2d 725, 729, this court discussed the standard for evaluating a constitutional speedy trial claim:

l/The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. State v. Batiste, 05-1571, p. 7 (La.10/17/06), 939 So.2d 1245, 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id. (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

The first of the Barker v. Wingo factors, the length of the delay, is the “triggering mechanism,” so if the length of the delay is not “presumptively prejudicial,” the court need not inquire into the remaining Barker factors. See State v. Scott, 2004-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843; State v. Santiago, 2003-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. As noted in State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206: “[bjecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.” See also State v. Harris, 2003-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16.

In order to facilitate a review of the Barker factors, the chronology of the appellant’s cases follows.

SIMPLE CRIMINAL DAMAGE TO PROPERTY:

5/29/07 Kitchens has his first appearance in magistrate court (# 478731), and bond was set. A rule to show cause was set for 7/30/07.
1¡¡7/27/07 The State filed a bill of information charging Kitchens with one count of criminal damage to property.
8/17/07 Kitchens was arraigned and pled not guilty. The court set a status hearing for 9/28/07.
9/28/07 Kitchens did not appear. The court reset the matter without date and issued a capias for Kitchens’ arrest.
10/23/07 The State noted that Kitchens was incarcerated in St. Bernard Parish. The court set a status hearing for 11/19/07, with the State to file a writ to have Kitchens brought to Orleans Parish.
11/19/07 Kitchens did not appear. The court reset the status hearing for 11/30/07, with the notation to place the defendant on the jail list.
11/26/07 The State filed a writ to have Kitchens brought to Orleans Parish.
11/27/07 Kitchens filed a pro se motion for speedy trial.
11/30/07 Kitchens did not appear because he was not brought from St. Bernard Parish. The court reset a status hearing for 1/11/08, with the notation to place the defendant on the jail list.
12/4/07 The State filed a writ to have Kitchens brought to Orleans Parish.
12/6/07 The court set a status hearing for 12/14/07; Kitchens’ presence was not required.
12/11/07 The minute entry indicated that the status hearing for 12/14/07 was cancelled and a new status hearing was set for 12/20/07; Kitchens’ presence was not required.
12/19/07 Kitchens filed pro se motions for bill of particulars, discovery, and inspection.
12/20/07 The minute entry merely stated that matter had been previously set.
1/11/08 Kitchens was not present because he was not brought from St. Bernard Parish. The court reset the status hearing for 1/18/08, with the State to file a writ to have him transported.
1/15/08 The State filed a writ to have Kitchens transported to Orleans Parish.
1/18/08 When Kitchens did not appear, the court issued a capias; the court then realized that Kitchens had not been brought from St. Bernard and recalled the capias.
lfil/22/08 The court set a status hearing for 2/1/08, with the notation to place Kitchens on the jail list.
2/1/08 Kitchens did not appear; the court reset the status hearing to 2/18/08, and the State was to have Kitchens transported to Orleans Parish.
2/11/08 The court set a status hearing for 3/7/08, with the notation to place Kitchens on the jail list.
2/12/08 The State filed a writ to have Kitchens transported.
2/28/09 The court appointed new counsel for Kitchens, then allowed counsel to withdraw.
3/7/08 Kitchens appeared, but he had no counsel. The court set a status hearing for 3/24/08, notifying Kitchens in open court.
3/19/08 The court appointed new counsel, then allowed counsel to withdraw.
3/24/08 Kitchens appeared, but again he had no counsel. The court set a status hearing for 4/15/08, with Kitchens being notified in open court.
4/15/08 Kitchens did not appear because apparently he was still incarcerated in St. Bernard Parish. The court set a status hearing for 5/1/08, with the State to have him transported.
4/15/08 Kitchens filed a pro se letter to the court.
5/1/08 Kitchens did not appear because he was still in St. Bernard Parish. The court set a status hearing for 5/20/08, with the State to file a writ to have him transported.
5/20/08 Kitchens did not appear; he was still in St. Bernard Parish. The court set a status hearing for 6/23/08 [sic], with the State to file a writ to have him transported.
6/16/08 The State filed a writ to have Kitchens transported.
6/25/08 Kitchen's did not appear. The court reset the matter for determination of counsel and status for 7/21/08, with the notation to place Kitchens on the jail list.
6/30/08 The State filed a writ to have Kitchens transported.
7/21/08 Kitchens did not appear. The minute entry notes that the court reset the matter to 8/1/08, with notices to go to Kitchens and his surety.
178/l/08 Kitchens did not appear. The minute entry notes that the court reset the matter to 8/15/08, with notice to be mailed to Kitchens and a further note to place Kitchens on the jail list.
8/15/08 Kitchens appeared, and the matter of counsel was referred to the Orleans Defender Program. The court set the matter for determination of counsel for 9/4/08, with the notation to place Kitchens on the jail list.
9/4/08 The court was closed due to Hurricane Gustav. The matter was reset to 10/8/08.
10/8/08 Kitchens appeared with counsel from OPD. The court set a hearing on motions for 10/24/08, with the notation to place Kitchens on the jail list.
10/24/08 After stating that court was closed that day, the minute entry notes that Kitchens was in the custody of the sheriff but not brought to court. Counsel was present, and the court reset the matter to 11/6/08, with the notation to place Kitchens on the jail list.
11/6/08 On the State’s motion, the court continued the matter to 12/5/08, with the notation to place Kitchens on the jail list.
12/5/08 Kitchens and counsel appeared, and the court reset the matter to 1/9/09, with the notation to place Kitchens on the jail list.
1/9/09 Kitchens filed a motion to quash the bill of information. The court denied the motion. Kitchens withdrew his prior plea of not guilty and pled guilty as charged, reserving his right to appeal the denial of his motion to quash as per State v. Crosby. The court set sentencing for 1/23/09
1/28/09 On defense motion, the court reset sentencing to 2/6/09.
2/6/09 On defense motion, the court reset sentencing to 2/20/09.
2/19/09 On defense motion, the court reset sentencing to 3/16/09.
3/16/09 The court continued the matter (the minute entry did not specify upon whose motion) to 4/3/09.
4/3/09 Kitchens moved to withdraw his guilty plea, and counsel moved to withdraw from representation. The court denied both motions. The court sentenced Kitchens to serve two years at hard labor, to be served concurrently with any other sentence. The court then appointed new counsel for appeal.
4/6/09 Kitchens filed a motion for appeal, which the court granted.

\ SIMPLE BURGLARY:

11/3/06 Kitchens made his first appearance in magistrate court (# 471357) for his arrest for looting. Bond was set, and the court set a rule to show cause for 1/5/07.
1/5/07 The court reset the rule to show cause to 4/3/07.
4/3/07 The court ordered Kitchens released under C.Cr.P. art. 701.
8/31/07 The State filed a bill of information charging Kitchens with one count of simple burglary.
9/4/07 The case was allotted to Section “G,” and arraignment was set for 9/19/07.
9/19/07 The case was transferred to Section “K” to follow case # 471-949.
10/2/07 The court reset the matter for a status hearing on 10/16/07.
10/16/07 Kitchens failed to appear. The court issued a capias and reset the matter without date.

The minute entries from this point basically mirror those set forth above in the Simple Criminal Damage case. There are two minute entries, April 22, 2008 and May 19, 2008, which indicate that counsel was appointed and then withdrew. Also, there is a minute entry from June 23, 2008 which indicated that court was closed that day due the lack of air conditioning. The minute entry of April 3, 2009 noted that in this case the court sentenced Kitchens to serve twelve years at hard labor, to be served concurrently with any other sentence.

Considering the first factor in Barker, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), the appellant was incarcerated on the simple burglary charge since at least November 3, 2006, and on the criminal damage charge since at least May 29, 2007. He filed his motions to quash these charges on January 9, 2009, more than twenty-six months after his first arrest and over nineteen months after being held on the criminal damage charge. Similar time delays have been found to be presumptively prejudicial. See State v. Firshing, 624 So.2d 921 (La.App. 4 Cir.1993) (seventeen-month delay was presumptively prejudicial); State v. Leban, 611 So.2d 165 (La.App. 4 Cir.1992) (sixteen-month delay was presumptively prejudicial). Because the time delays here have been deemed presumptively prejudicial in other cases, we will look to the other Barker factors.

With respect to the second factor, the chronology shows that almost all of the delays in this case were caused by the State’s failure to have appellant transported to Orleans Parish from St. Bernard Parish, where he was incarcerated a large portion of the time. The minute entries indicate that the State was aware that appellant was incarcerated there as early as October 2007, and there are notations that the State filed many writs to get the appellant transported to Orleans Parish, but on most occasions he was not transported. The only continuances requested by the defense occurred after appellant pled guilty in each case, and were to continue sentencing. There were at least two instances where counsel was appointed and then withdrew, but in any event these occurred during the time period the State was unable to secure appellant’s presence.

As to the third factor, the invocation of his right to a speedy trial, we note appellant filed a pro se motion for speedy trial in November 2007.

Turning now to the prejudice, if any, he suffered from the delay, the appellant merely noted in his motions that his ability to investigate the cases was diminished because of his incarceration. He does not specify what evidence he may have discovered or preserved had he been brought to court in a more timely manner; he admits that “the defense cannot say what it might have found had it |1flcanvassed the witnesses in the Spring of 2007.” Indeed, considering that the burglary count was alleged to have been committed at a Lake-view school it is unlikely that there were many witnesses around to witness the crime. It must be noted, too, that the appellant was incarcerated in St. Bernard Parish during most of this time due to other charges there as well as federal charges. Even had the State been able to get him into court in Orleans Parish earlier than it did, he still would have been incarcerated on those charges.

Thus, the failure to bring appellant into court in these cases was not the only reason that he was not able to investigate his cases; his other state and federal charges kept him incarcerated in St. Bernard Parish. His allegation of prejudice is at best speculation that he lost exculpatory evidence. Because he was unable to show actual prejudice from the delay in bringing him to court, we cannot find that the trial court abused its discretion by denying his motions to quash the bills of information in these cases.

CONCLUSION

Because appellant failed to show actual prejudice from the State’s failure to bring him to court, the trial court did not abuse its discretion by denying his motion to quash the bill of information in either case. Accordingly, we affirm appellant’s convictions and sentences.

AFFIRMED.

      . We take judicial notice that appellant filed a writ application with this Court, Louisiana v. Johnny Kitchens, 2006-K-0631 in which it was revealed he was arrested on the St. Bernard charges on September 8, 2005 and that he was released from that custody on May 11, 2006 pursuant to a La.C.Cr.P. art. 701(B) motion.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Egerald EVERY.
    No. 2009-KA-0721.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Mr. Every.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   PATRICIA RIVET MURRAY, Judge.

|,In this criminal case, the defendant, Egerald Every, appeals his conviction and sentence on a drug-related offense. We affirm his conviction, but amend his sixty-year sentence on the cocaine offense to delete the prohibition against probation or parole eligibility and affirm his sentence as amended.

STATEMENT OF THE CASE

On March 27, 2008, the State filed a bill of information charging Mr. Every with possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A)(2); and with possession of between two hundred and four hundred grams of cocaine, a violation of La. R.S. 40:967(F)(l)(b). On April 10, 2008, Mr. Every failed to appear for his arraignment, and a capias was issued for his arrest. On May 30, 2008, he was arrested. On June 4, 2008, he entered a not guilty plea. On July 24, 2008, Mr. Every’s retained counsel filed a motion to withdraw, which was granted. On August 1, 2008, Mr. Every was appointed counsel. On August 20 and 21, 2008, a motions hearing was held. The district court found Improbable cause and denied Mr. Every’s motions to suppress the evidence and his statement. On October 28, 2008, a jury trial was held. The jury found Mr. Every guilty of possession of marijuana, first offense, and guilty as charged as to count two, possession of between two hundred and four hundred grams of cocaine. The State then filed a multiple bill charging Mr. Every as a quadruple offender under La. R.S. 15:529.1.

On October 29, 2008, a multiple bill hearing was held as to count two, the cocaine offense. On October 30, 2008, the district court found Mr. Every a third felony offender and sentenced him on the cocaine offense to the maximum sentence of sixty years at hard labor without benefit of probation or parole. Additionally, the district court imposed a fine of $100,000 and ordered the money seized from Mr. Every at the time of his arrest ($2,760) be applied to the payment of the fine. On the marijuana offense, the district court sentenced Mr. Every to six months in parish prison and ordered that the sentences were to run concurrently. This appeal followed.

STATEMENT OF THE FACTS

In October 2007, Mr. Every became the target of a narcotics investigation. According to a reliable confidential informant, Mr. Every was selling cocaine from his apartment located at 3517½ Tulane Avenue, making his deliveries using a black Mercedes with a Texas license plate, and storing the bulk of his cocaine at a storage facility on South Carrollton Avenue. Based on this information, a surveillance was conducted of Mr. Every’s apartment. New Orleans Police |sDepartment (“NOPD”) Detective Andrew Roccaforte, who was the lead investigator on this case, received the information from the informant and participated in the surveillance.

The surveillance began on October 31, 2007. On that day at about 1:50 p.m. the officers observed Mr. Every and Rochelle Mathew exiting the apartment and getting into a black Mercedes with a Texas license plate. At that point, Detective Roccaforte and several other officers in unmarked vehicles began a mobile surveillance. Mr. Every, who was driving the Mercedes, first dropped Ms. Mathew off at a house on the corner of South Solomon and Iberville Streets. He then proceeded to a storage facility located on South Car-rollton Avenue. After entering the security gate that surrounded the storage facility, Mr. Every entered building number 1100, which contained a number of units. After about five minutes, Mr. Every exited the facility and returned to the Mercedes. Mr. Every then drove to a motel/apartment complex in Jefferson Parish. The officers observed Mr. Every enter the motel parking lot and an unknown black male exit one of the motel rooms and approach the Mercedes. The detectives then observed the unknown male hand Mr. Every some currency in exchange for a small object. Mr. Every then left the motel and returned to his apartment on Tulane Avenue. At that point, the surveillance was ended for the day.

The next day, November 1, 2007, the officers resumed the surveillance. Based on the results of the surveillance, the officers obtained a search warrant for |4Mr. Every’s apartment. On November 2, 2007, a pre-warrant surveillance was set up in front of the apartment. A short time later, Mr. Every exited the apartment and got into the Mercedes with Ms. Mathew. A take-down team, riding in a fully marked police vehicle, followed the Mercedes for a short distance before stopping it. Sergeant Sandoz, who was a member of the take-down team, advised Mr. Every and Ms. Mathew that they were under investigation. He also advised them of their rights and brought them back to the apartment. They were kept in the police vehicle while the search of the apartment was conducted. At that location, Detective Rome, who was a member of the surveillance team, recovered from Mr. Every’s person keys to the apartment and $760 in cash.

Using the keys Detective Rome confiscated from Mr. Every to open the door, Detective Roccaforte entered the apartment. Inside the apartment, Detective Roccaforte found, in a dresser drawer, a clear plastic bag that held four plastic bags containing a white-like substance that appeared to be cocaine. Also inside the drawer were two bags of a substance that appeared to be marijuana, a digital scale, sandwich baggies, $2,000 in cash, a plate containing residue with a credit card on top, a birth certificate in Mr. Every’s name, rental receipts for the apartment in Mr. Every’s name, and a rental receipt for storage unit number 1129 at the South Carrollton storage facility in Ms. Mathew’s name.

Based upon his findings, Detective Roc-caforte returned to the police vehicle, arrested Mr. Every, and advised him of his Miranda rights. After indicating that he understood his rights and being questioned about Unit 1129 at the storage facility, | ¡¡Mr. Every admitted that he had about a quarter kilogram of cocaine stored at the storage facility. Mr. Every also informed Detective Roccaforte that the keys to the storage unit were kept in the console of the Mercedes. After obtaining a search warrant for Unit 1129, Detective Rocca-forte used the keys he found in the console in the Mercedes to enter the storage facility, where he found a black cloth bag containing 366.5 grams of cocaine.

Criminalist William Giblin, who was declared an expert in the analysis and identification of controlled and dangerous substances, testified that the substances seized tested positive for marijuana and cocaine. He further testified that the cocaine at issue weighed 366.5 grams.

Although Ms. Mathew was the registered owner of the Mercedes and rented the storage unit in which the cocaine was found, she was not charged. The reason she was not charged, but rather released, was because Detective Roccaforte did not see her do anything related to the drug activity.

ERRORS PATENT

A review of the record shows one errors patent. Neither La. R.S. 40:967 nor La. R.S. 15:529.1 mandates the prohibition against probation or parole that was included in Mr. Every’s sixty-year sentence for the cocaine offense. We, therefore, amend his sixty-year sentence to delete the prohibition against probation or parole as an error patent. La.C.Cr.P. art. 882 (providing that an illegal sentence may be corrected at any time “by an appellate court on review”); State v. Green, 93-1432 (La.App. 4 Cir. 4/17/96), 673 So.2d 262 (reviewing and amending defendant’s sentence for attempted manslaughter to delete the requirement that sentence be served without benefit of parole, probation, or suspension of sentence as an error patent).

COUNSELED ASSIGNMENTS OF ERROR NUMBERS 1 AND 2

Because Mr. Every’s first two counseled assignments of error both challenge his sentence, we find it appropriate to consider them together. Simply stated, Mr. Every contends that the sixty-year sentence he received is both excessive (Error Number 1) and vindictive (Error Number 2). This court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. State v. Rodriguez, 00-0519 (La.App. 4 Cir. 2/14/01), 781 So.2d 640; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767. Although Mr. Every failed to do either, the district court immediately after sentencing him noted an objection, stating: “Objection is noted. All motions for reconsideration of sentence is [ (sic) ] made. It is denied.” After adding the mandatory penalty to the sentence, the district court again noted: “All objections are re-noted as to the sentence originally imposed, including the imposition of the fine of $100,000.”

Under similar circumstances, this court in State v. Dunbar, 06-1030, p. 3 (La.App. 4 Cir. 3/19/08), 981 So.2d 51, 53, found the district court’s actions in sua sponte making an objection for the defendant and denying it served to preserve |7the defendant’s right to raise on appeal the issue of unconstitutional excessiveness. We stated: “[t]he trial court pronounced sentence and immediately noted an objection — obviously, as to the length of the sentence — on behalf of Dunbar, thus preserving his right to raise on appeal the issue of unconstitutional excessiveness.” Likewise, the district court’s actions in this case in twice noting an objection and then denying it were sufficient to preserve Mr. Every’s right on appeal to raise the constitutional sentencing issues of excessiveness and vindictiveness.

Excessiveness of sentence

Pursuant to La. R.S. 15:529.1, Mr. Every was sentenced as a third-felony offender to sixty years at hard labor. Pursuant to La. R.S. 15:529.1(A)(b)(i), the sixty-year sentence that was imposed on him was the maximum sentence allowed by law. He contends that the maximum sentence he received is excessive. In State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court set forth the following standards for reviewing a claim of excessive sentence:

Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the |8severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.

Id. (Internal citations omitted). The reviewing court must determine whether the district court adequately complied with the sentencing guidelines set forth in La. C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). If the reviewing court finds adequate compliance with Article 894.1, it must determine whether the sentence the district court imposed is too severe in light of the particular defendant as well as the particular circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239; see also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184. When the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even when there has not been full compliance with Article 894.1. State v. Egana, 97-0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223.

At the sentencing hearing, the district court articulated several factors it considered in sentencing Mr. Every including the following:

• He had an extensive criminal record that included three prior convictions for possession of cocaine. The arrest register that related to one of those prior convictions indicates twenty-eight packages of cocaine were involved. Another arrest register showed an original arrest for possession with intent to distribute cocaine. The plea of guilty was accepted to the lesser offense.
fl* While Mr. Every was sentenced as a third offender, the district court noted that it had before it evidence that he had at least three prior convictions for possession of cocaine.
• While out on bond, Mr. Every failed to appear on two occasions, and he was found within blocks of the courthouse and arrested on similar drug charges.
• The relatively large amount of cocaine involved in this case — 366.5 grams, which is over thirteen ounces — was clearly not for Mr. Every’s personal consumption but rather was intended for distribution to innocent third parties.
• Mr. Every’s activities had a negative impact on the recovering neighborhoods along Tulane Avenue following Hurricane Katrina. The district court expressed its sentiments that the impact on the neighborhood where the crime occurred was unduly harsh.
• Mr. Every was offered by the state, with the district court’s agreement, a plea bargain of ten years, but he refused the offer.

Given the detailed reasons for sentencing that were provided, we find the district court adequately complied with La.C.Cr.P. art. 894.1. We further find the record supports the sentence imposed. As the district court noted, Mr. Every had three prior drug-related convictions and was arrested on similar charges while out on bond. The district court thus apparently concluded that Mr. Every could not be rehabilitated. We still further find that Mr. Every’s sentence is not excessive when compared to the sentences imposed and upheld in similar cases. State v. Harvey, 08-0217 (La.App. 4 Cir. 5/13/09), 12 So.3d 496; State v. Calway, 98-2061 (La.App. 4 Cir. 11/17/99), 748 So.2d 1205.

In Harvey, supra, this court upheld a maximum sixty-year sentence imposed on a defendant convicted of distribution of cocaine and sentenced as a second felony offender. The factors considered by the court before imposing the | inmaximum sentence included the defendant’s three prior convictions, the impact on the neighborhood, and the fact that while the defendant was out on bond he was arrested for a remarkably similar narcotics offense. The defendant also lied to the court about missing his trial date due to his attorney telling him to leave the building before he was arrested. The attorney denied telling him to do so. The defendant offered no mitigating factors at the sentencing hearing.

In Calway, supra, this court affirmed a maximum sixty-year sentence imposed on a second-felony offender convicted of possession of cocaine with the intent to distribute. The defendant was found to be in possession of twenty-three rocks of cocaine. The defendant had prior convictions for theft, burglary, possession of narcotics paraphernalia, and possession of marijuana.

Mr. Every argues that his sixty-year sentence is excessive when compared to State v. Bentley, 02-1564 (La.App. 4 Cir. 3/12/03), 844 So.2d 149, which he contends involved an offense similar in terms of seriousness. In Bentley, as in this case, the defendant was convicted of distribution of cocaine, and he was adjudicated a third felony offender based on two prior convictions for possession of cocaine. The defendant in Bentley was sentenced to the minimum sentence of twenty years under La. R.S. 15:529.1(A)(b)(i). The issue the defendant raised on appeal in Bentley was whether given the relatively small amount of drugs involved — two pieces of cocaine that the defendant removed from his mouth to sell to an undercover officer— and the defendant’s non-violent history, the trial court should have deviated from the mandatory minimum sentence. Finding no error in the trial court’s refusal to deviate and impose a lesser sentence, we affirmed.

Mr. Every’s reliance on Bentley, supra, is misplaced, legally and factually. Legally, this case, unlike Bentley, supra, involves a maximum sentence and thus Indoes not present an issue regarding deviating from the statutorily mandated sentencing range. Factually, this case, unlike Bentley, supra, involves a relatively large amount of drugs — 366.5 grams, which is over thirteen ounces.

Vindictiveness of sentence

Mr. Ever/s second counseled assignment of error is that the district court acted vindictively when it imposed a sentence in excess of that which was offered in a plea agreement. Stated otherwise, he contends that the district court imposed the maximum possible sentence to punish him for exercising his right to stand trial. In support, he quotes the district court’s two statements at the sentencing hearing regarding his arrogance in refusing to plead guilty and to accept the plea bargain. First, before sentencing Mr. Every, the district court stated:

He was offered ten years. The State of Louisiana saw fit, despite all of this, to offer him ten years. I publicly tell you that I agreed to give him a chance with a ten year sentence. His arrogance, and that’s the only word — I’ve been seeking a word to describe what it would be to motivate someone like you not to at least admit your guilt.

Second, after sentencing Mr. Every, the district court stated, “[i]n the end you are to be pitied because your arrogance got in the way.” Based on these statements, Mr. Every contends that this is the rare case in which the defendant can prove vindictiveness.

In Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the United States Supreme Court stated:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutor’s offer....
112While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of this trial right, the imposition of these difficult choices [is] an inevitable”-and permissible-“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

Id. (Internal citations omitted.)

The “mere imposition of a longer sentence than the defendant would have received had he pled guilty does not automatically constitute such punishment” for exercising the defendant’s right to stand trial. State v. Pittman, 604 So.2d 172, 176 (La.App. 4th Cir.1992)(citing Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980)). Moreover, the Louisiana Supreme Court has noted that a district court’s pre-conviction offer of a lenient sentence should not be viewed as setting a limit for the justifiable sentence following conviction. State v. Barkley, 412 So.2d 1380, 1383 (La.1982).

In this case, Mr. Every neither alleged nor established that he was not free to accept or reject the State’s plea offer. Mr. Every simply exercised his right not to accept the offer and to go to trial. After Mr. Every was tried and convicted, the state exercised its right to file a multiple bill. At the multiple bill hearing, the district court was presented with evidence that Mr. Every had multiple prior drug related convictions. In sentencing Mr. Every, the district court, as discussed earlier, considered multiple factors. Among those factors was Mr. Every’s extensive prior criminal history. The district court also mentioned at the sentencing hearing that it took the opportunity at the trial outside the presence of the jury to hold the evidence — the bag of cocaine — and that it took into account the relatively large amount of drugs contained in that bag— over thirteen ounces — in arriving at [lsan appropriate sentence. The district court’s sentencing decision was thus influenced by the evidence introduced at trial as well as at the multiple bill hearing. The district court’s references in sentencing to Mr. Every’s refusal of the plea bargain, when viewed in context, thus do not establish vindictiveness.

COUNSELED ASSIGNMENT OF ERROR NUMBER 3

Mr. Every’s third counseled assignment of error is that La.C.Cr.P. art. 782(A) is unconstitutional insofar as it allows for non-unanimous verdicts in non-capitol felony cases. We find this assignment unpersuasive.

As Mr. Every acknowledges, the appellate courts that have addressed this issue, including this court, have rejected it. State v. Tillman, 08-0408, p. 27 (La.App. 4 Cir. 3/4/09), 7 So.3d 65, State v. Smith, 09-100, pp. 13-14 (La.App. 5 Cir. 8/23/09), 20 So.3d 501, 507-08 (collecting cases from all the circuits). He argues, nonetheless, that an application for certiorari is pending before the United States Supreme Court in an Oregon case, State v. Bowen, 215 Or.App. 199, 168 P.3d 1208 (2007), in which the court held that the defendant was not entitled to a jury instruction forbidding a conviction upon less than a unanimous jury verdict. However, on October 5, 2009, the United States Supreme Court denied certiorari in that case. Bowen v. Oregon, — U.S. —, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009).

The Louisiana Supreme Court in State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738, reversed a trial court ruling declaring La.C.Cr.P. art. 782 unconstitutional. In so doing, the Court reasoned:

| uDue to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

Bertrand, 08-2215, 08-2311 at p. 8, 6 So.3d at 743.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

Mr. Every contends that the evidence was insufficient to convict him of the cocaine offense — possession with intent to distribute of between two hundred and four hundred grams of cocaine. He notes that the Unit 1129 at the storage facility in which the cocaine was found was rented to Ms. Mathew. He further notes that the Mercedes in which the keys to the storage unit were found was registered to Ms. Mathew. He still further notes that there was no evidence establishing he actually entered Unit 1129 at the storage facility.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Louisiana Supreme Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.”
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Ultimately, all 1^¡¡evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury.

Id. (Internal citations omitted).

To support a conviction for possession of a controlled dangerous substance in violation of La. R.S. 40:967, the state must prove that the defendant knowingly and intentionally possessed the drug. State v. Perron, 01-0214, p. 6 (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. The state need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. Id. A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. Id. Determination of whether a defendant had constructive possession depends on the circumstances of each case. Id. In determining whether a defendant exercised the requisite dominion and control, factors which may be considered are his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users. Perron, 01-0214 at pp. 6-7, 806 So.2d at 928.

In this case, the state established that Mr. Every constructively possessed the cocaine found in Unit 1129 of the storage facility. The officers’ testimony established that Mr. Every visited the storage unit alone and that he entered building 1100, which contained unit 1129. After leaving the storage facility, the officers observed a hand-to-hand transaction between Mr. Every and an unknown male in a motel parking lot. After he was arrested, Mr. Every admitted that he had 1 if,stored approximately a quarter kilogram of cocaine at the storage facility and that the keys to the storage facility were located inside the console of the Mercedes. Although, as Mr. Every points out, the storage unit was rented by Ms. Mathew and she was the registered owner of the Mercedes in which the keys to the storage unit were kept, the evidence established that Mr. Every exercised dominion and control of the cocaine found in the storage facility.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

Mr. Everts final contention is that the district court erred in admitting his statement regarding the cocaine in the storage facility. He urges that the statement should have been excluded since the state failed to prove that he was given his Miranda rights and that he waived those rights. He further urges that the state failed to present a signed form, and he denies ever making a statement.

Before what purports to be a confession can be introduced in evidence, “it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” La. R.S. 15:451; see State v. Gradley, 97-0641 (La.5/19/98), 745 So.2d 1160; State v. Butler, 04-0880 (La.App. 4 Cir. 1/12/05), 894 So.2d 415. Before a confession may be introduced, the state also must establish that the accused was advised of his constitutional rights. State v. Simmons, 443 So.2d 512 (La.1988); see also State v. James, 04-0878 (La.App. 4 Cir. 2/23/05), 897 So.2d 821. A trial judge’s ruling on whether or not a statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Thornton, 351 So.2d 480, 484 (La.1977). The testimony of police officers alone can be sufficient to prove the defendant’s statements were freely and voluntarily given. State v. Jones, 97-2217, p. 11 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 396.

At the motion hearing and at trial, Detective Roccaforte testified that he advised Mr. Every of his constitutional rights and, on both occasions, he recited those rights in open court. He further testified that Mr. Every verbally acknowledged that he understood his rights. He still further testified that after being informed of his rights and realizing that the officers knew about the storage facility, Mr. Every voluntarily admitted that approximately a quarter kilogram of cocaine was stored at the facility. The district court apparently found Detective Roccaforte’s testimony credible. Despite the lack of a completed written form, we find the district court did not abuse its discretion when it denied the motion to suppress Mr. Every’s statement.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed. The defendant’s sixty-year sentence is amended to delete the prohibition against probation or parole eligibility and his sentence is affirmed as amended.

SENTENCE AFFIRMED, CONVICTION AMENDED AND AFFIRMED AS AMENDED.

      . Although Mr. Every was convicted and sentenced on two drug-related offenses, he challenges on appeal only one of them, the cocaine offense.

      . At the motion hearing, Ms. Mathew’s name was spelled out as "Ronschell Maihieu.” In this opinion, we use her name as it appears in the trial transcript, “Rochelle Mathew.”

      . The cocaine found in the apartment in a dresser drawer was not the basis on which Mr. Every was charged. Rather, the cocaine charge in this case was based solely on the 366.5 grams of cocaine found in the storage unit.

      . Ms. Mathew was not subpoenaed to testify at trial. Although defense counsel spoke with her on the eve of trial about testifying, she declined. When this issue was raised by the defense at trial, the district court pointed out that even had Ms. Mathew testified she most likely would have invoked the Fifth Amendment.

      . See also State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810 (noting under similar circumstances thát it was unclear if the defendant had preserved the issue for review, but addressing issue as part of ineffective assistance of counsel claim that was asserted); State v. Lee, 09-37 (La.App. 5 Cir. 5/12/09), 15 So.3d 229 (addressing question of vindictiveness in sentencing despite the defendant’s failure to raise the issue before the district court); State v. Aleman, 01-743, pp. 12-13 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066 (same).

      . La. R.S. 15:529.l(A)(b)(i) provides that if the third or subsequent conviction is such that the offender would be punishable by imprisonment for any term less than his natural life, he shall be sentenced to imprisonment for the third or subsequent felony for a determinate term "not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” Mr. Every’s conviction in the instant case was for possession of between two hundred and four hundred grams of cocaine, a violation of La. R.S. 40:967(F). He was subject to a sentence under La. R.S. 40:967(F)(1)(b) of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fine of not less than one hundred thousand dollars, nor more than three hundred fifty thousand dollars. As noted, the trial court imposed the minimum fine of $100,000.

      . The State points out that had Mr. Every been sentenced as a quadruple offender he would have been subject to a mandatory life sentence.

      . As discussed elsewhere, the district court's reference to the plea bargain at the sentencing hearing is the basis for Mr. Every’s claim of vindictiveness in sentencing.

      . At the end of the sentencing hearing Mr. Every's counsel preserved this issue for appeal by requesting that the district court put on the record that one of the grounds for his appeal would be the constitutionality of a non-unanimous jury verdict.

      . The record on appeal does not indicate that the jury was polled. Nor does the record show the actual jury vote. However, according to Mr. Every's appellate counsel, his trial counsel represented that the jury vote was ten to two, and the state has not challenged that representation of the vote.