Opinion
2014 KA 0777
03-06-2015
STATE OF LOUISIANA v. DWIGHT A. BRIDGES, JR.
Walter P. Reed District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana Kathryn W. Landry Attorney for the State Baton Rouge, Louisiana Sheila C. Myers New Orleans, Louisiana Counsel for Defendant/Appellant Dwight A. Bridges, Jr.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 531565"H"
Honorable Allison H. Penzato, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
Counsel for Appellee
State of Louisiana
Kathryn W. Landry
Attorney for the State
Baton Rouge, Louisiana
Sheila C. Myers
New Orleans, Louisiana
Counsel for Defendant/Appellant
Dwight A. Bridges, Jr.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. McCLENDON, J.
Defendant, Dwight A. Bridges, Jr., was charged by bill of information with possession of marijuana, third offense, a violation of Louisiana Revised Statutes section 40:966E(3). He pled not guilty and, following a jury trial, was found guilty as charged. He filed a motion for new trial, which was denied. The State filed a habitual offender bill of information, and defendant was adjudicated a second-felony habitual offender. He was sentenced to fifteen years at hard labor without the benefit of probation or suspension of sentence. Defendant filed a motion to reconsider sentence, which was denied. He now appeals, alleging six assignments of error. For the following reasons, we affirm defendant's conviction, habitual offender adjudication, and sentence.
The bill of information lists defendant's predicate offenses as: (1) a June 22, 2011 conviction for possession of marijuana and/or synthetic cannabinoids under 22nd Judicial District Court (JDC) docket number 507,000; and (2) a February 28, 2007 conviction for possession of marijuana and/or synthetic cannabinoids under 22nd JDC docket number 390,848.
The habitual offender bill of information lists defendant's predicate offense as an October 12, 2004, conviction for sexual battery in 22nd JDC docket number 374,066.
FACTS
On January 5, 2013, around 9:30 p.m., St. Tammany Parish Sheriff's Office Deputy Edward Stone was traveling westbound on Bayou Liberty Road in Slidell, Louisiana, with his partner, Deputy Mike Ripoll, who he was training. Deputy Stone observed a blue vehicle traveling eastbound at a high rate of speed. Using his radar, he "clocked" the vehicle's speed at sixty-three miles per hour. Because the posted speed limit was forty-five miles per hour, Deputy Stone turned his vehicle around and conducted a traffic stop. Both deputies approached the vehicle, with Deputy Ripoll approaching the driver's side, where the window was rolled down, and Deputy Stone approaching the passenger's side, where the window was up. Deputy Stone could smell an odor of marijuana. He asked the driver, later identified as defendant, to exit. When Deputy Stone requested permission to search the vehicle, defendant declined, so the deputy called a K-9 unit to the scene. While the deputies waited for the K-9 unit to arrive, Deputy Ripoll conducted a pat-down search of defendant as well as field sobriety tests. Deputy Ripoll did not locate any weapons or illegal contraband on defendant, and defendant passed the tests.
St. Tammany Parish Sheriff's Office Deputy Ronald Olivier arrived at the scene shortly thereafter and conducted a search with his K-9, Thor. Thor gave a narcotic odor response as soon as he approached the rolled-down driver's window. Deputy Olivier, unleashed Thor and allowed him to enter the vehicle, and Thor indicated that he detected narcotics in the passenger glove compartment, which was open. Deputy Olivier searched the glove compartment and located a "balled up" piece of paper containing suspected marijuana. He also located a "blunt." After the search, Deputy Olivier gave Deputy Stone the items he recovered. The contents of both tested positive for marijuana.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant contends that the State exercised challenges to jurors based on race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, he objects to the State's challenges to three black female potential jurors.
The Supreme Court in Batson held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person's race. Batson, 476 U.S. at 89, 106 S.Ct. at 1719. See also LSA-C.Cr.P. art. 795C-E. If a defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the State to offer racially neutral explanations for the challenged members. The neutral explanation must be one which is clear, reasonable, specific, legitimate, and related to the particular case at bar. If the race-neutral explanation is tendered, the district court must decide whether the defendant' has proven purposeful discrimination. A reviewing court owes the district court judge's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. State v. Elie, 05-1569 (La. 7/10/06), 936 So.2d 791, 795.
The Batson explanation does not need to be persuasive, and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral. The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination. Elie, 936 So.2d at 795-96. To establish a prima facie case of purposeful discrimination as required by Batson, a moving party need only produce "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Batson's admonition to consider all relevant circumstances in addressing the question of discriminatory intent requires close scrutiny of the challenged strikes when compared with the treatment of panel members who expressed similar views or shared similar circumstances in their backgrounds. The one relevant circumstance for a district court judge to consider is whether the State articulated "verifiable and legitimate" explanations for striking other minority jurors. The failure of one or more of the State's articulated reasons for striking a prospective juror does not compel a district court judge to find that the State's remaining articulated race-neutral reasons necessarily cloaked discriminatory intent. Id ., 936 So.2d at 796.
In the instant case, defendant raised a Batson objection to the State's peremptory challenges to three black female prospective jurors—Mary White, Alice Cousin, and Shannon Doughty.
The State used its first peremptory challenge on potential juror, Mary White. During voir dire, White indicated that she was a receiving associate at Wal-Mart and was married with three children. She also indicated that she previously served on two juries.
After a jury of six was selected, the State exercised a backstrike on previously selected juror, Alice Cousin. During voir dire, Cousin stated that she was a retired teacher's aide, a widow, and that she had two adult children. She previously served on a jury for a rape trial that resulted in a guilty verdict. After the State exercised the backstrike, defendant objected, arguing that the State cut two of the three black potential jurors. The court asked the State to demonstrate race-neutral reasons for striking jurors White and Cousin.
According to the State, White previously served on two juries, and both resulted in verdicts in favor of the defense. Cousin was a retired teacher's aide, and the prosecutor explained that he "never had any luck with teacher's aides." He indicated that he also considered backstrikîng another teacher's assistant who was previously selected to serve. Defense counsel argued that although White served on two juries, one civil and one criminal, she did not vote on the criminal jury trial. The court responded, "But she did indicate that there was a verdict, I believe, in a medical malpractice case for the defendant." Defense counsel also pointed out that the State did not strike a Caucasian teacher's assistant that was in the jury pool. The State responded that it planned to backstrike that juror, Erin Worrel, but was unable to because of the interruption due to the Batson objection.
When asked about prior jury service, White stated, "Yes, I served on two juries-well, two juries. One was a medical malpractice. Excuse me. And one was a criminal case, and they ended up settling before we actually went to trial. The medicai malpractice, the verdict came back for the defendant, not guilty,"
The State subsequently exercised a backstrike on Worrel.
The district court overruled the Batson challenge as to White, finding a sufficient explanation for the State's strike. As to Cousin, the court did not allow the State to exercise a backstrike, and she remained on the jury. Defense counsel made a partial objection.
The court allowed each party one strike for the alternate juror. The State challenged potential alternate juror Doughty. The defendant raised a second Batson objection, arguing that Doughty was one of the three black females. The State explained that Doughty indicated during voir dire that she felt that marijuana should be legalized and should not be a felony offense. The court found the State's explanation to be racially neutral and allowed the challenge on Doughty as an alternate juror. The defendant objected.
Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the district court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). In the instant case, defendant failed to produce evidence sufficient to permit the district court to draw an inference that discrimination occurred. Further, the State articulated legitimate race-neutral explanations for striking the minority jurors at issue. Accordingly, we find no abuse of discretion by the district court in its denial of defendant's Batson challenges regarding the prospective jurors White and Doughty. Thus, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant argues that the district court violated his right to present a defense. At trial, defendant requested that the jury be allowed to view defendant's vehicle and stand next to it with the passenger's-side window rolled up and the marijuana located in the same place it was on the night of the incident inside the glove compartment. Defendant argues that the district court's denial of his request violated his right to present a defense because this was the only "direct, dramatic and [definitive] proof he had that the testimony given by St. Tammany Parish Deputies called as State [witnesses] was incredible." Defendant contends that, contrary to his testimony, Deputy Stone could not have smelled the odor of marijuana from outside of the passenger's side of the vehicle with the window rolled up. At trial, he argued that he was attempting to impeach the testimony of Deputy Stone with his request.
The State objected to defendant's request, arguing that opening the driver's-side car window in a parking lot would not accurately depict the scene on the highway on the night of the incident. The State noted that the marijuana was, at the time of trial, eight months old and had been opened and analyzed. The State also pointed out that there was not a way to ensure the vehicle was in the same condition as it was on the night of the incident, and defendant would be unable to recreate the conditions that existed to which three officers testified.
The district court agreed that a significant amount of time had passed from the date of the incident to trial, and how the vehicle was handled in the interim was unknown. It also agreed that the parties would be unable to recreate the condition of the vehicle and the condition of the marijuana on the night of the incident. The court noted that there was no indication that any of the jurors had experience smelling marijuana. Concluding that the prejudicial nature of the request would outweigh its probative value, the court sustained the State's objection.
A criminal defendant has the constitutional right to present a defense pursuant to United States Constitution Amendments VI and XIV and Louisiana Constitution Article 1, Section 16. A defendant should therefore be allowed to present evidence on any relevant matter. This right is not without limitation, and unreliable evidence may be barred from criminal trials. State v. Blank, 04-0204 (La. 4/11/07), 955 So.2d 90, 130-31, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 LEd.2d 346 (2007). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. Ultimately, questions of relevancy and admissibility are discretion calls for the district court and its determination should not be overturned absent a clear abuse of discretion. State v. Duncan, 98-1730 (La.App. 1 Cir. 6/25/99), 738 So.2d 706, 712-13.
The district court did not abuse its discretion in denying defendant's request to allow the jury to stand outside of defendant's car. The concerns expressed by the court, including the passage of time, inability to recreate the conditions existing on the night of the incident, and the possibility that jury members would not be able to identify the scent of marijuana, were reasonable. Based on our review of the record, there is no reason to disturb the finding of the district court. Accordingly, we do not find a denial of defendant's right to present a defense.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, defendant argues that the district court erred by allowing the State to elicit testimony related to defendant's invocation of his Fourth Amendment right Specifically, defendant argues that the State questioned Deputy Ripoll regarding defendant's refusal to consent to a search of his vehicle. Defendant also complains that the State commented on defendant's refusal to consent during its closing argument.
While Deputy Ripoll was being questioned on cross-examination, defense counsel highlighted defendant's cooperation with the officers' requests before and during the stop. According to Deputy Ripoll's testimony, defendant immediately pulled over when the officers activated the police unit's lights and siren. He produced his driver's license, registration, and proof of insurance. Defendant exited the vehicle when asked and complied with the request for a field sobriety test.
On redirect examination, the State said, "Now, I heard a lot of cooperation by the defendant. He cooperated with this; he cooperated with that; he cooperated with this. Is there anything he failed to cooperate with?" Deputy Ripoll responded, "He--when we asked if we could search the vehicle, when Deputy Stone asked if we could search it." Defense counsel objected, arguing that commenting on defendant's choice to exercise his rights under the Fourth Amendment was improper. In response, the State argued that defense counsel opened the door by eliciting testimony regarding how cooperative defendant was with the stop. The State contended that it could show that defendant was not completely cooperative. Agreeing with the State, the court stated, "But you opened the door with all your other questioning." The State proceeded to question Deputy Ripoll, asking, "And as a result of the defendant's failure to let you search his car, what did you and the deputy do to remedy that situation?" Deputy Ripoll answered that Deputy Stone requested the assistance of the K-9 unit.
Defense counsel was allowed to re-cross Deputy Ripoll, and the following exchange occurred:
[Defense counsel]: Deputy Ripoll, when [the prosecutor] asked you whether or not [defendant] was cooperative and everything, you indicated that he wasn't cooperative in your opinion on the thing, on the request to search his car; is that correct?
[Deputy Ripoll]: Correct.
[Defense counsel]: You regard someone exercising their Constitutional right to have a search done legally as noncooperative?
[Deputy Ripoll]: It wasn't a yes answer, yes, ma'am.
[Defense counsel]: So because he said no, he wanted his Constitutional rights, you said that was uncooperative?
[Deputy Ripoll]: Yes, ma'am.
Defendant acknowledges in his appellate brief that Louisiana jurisprudence does not address prosecutorial questions and comments related to a defendant's exercise of his right to refuse consent to search and cites United States v. Cooper, 714 F.3d 873 (5th Cir.), cert. denied, ___ U.S.___, 134 S.Ct. 313, 187 L.Ed.2d 222 (2013), in support of his argument. However, the federal jurisprudence appears to hold that reference to a defendant's refusal to consent may be admissible for purposes other than to support an inference of guilt. See United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (finding such evidence admissible to establish the defendant's dominion and control over the property subject to the search). Additionally, at least one court has also held that such testimony may be admissible under certain circumstances if "invited" by the defendant's trial strategy. See United States v. McNatt, 931 F.2d 251, 256-58 (4th Cir. 1991), cert. denied, 502 U.S. 1035, 112 S.Ct. 879, 116 L.Ed.2d 783 (1992) (finding that testimony regarding the defendant's refusal to consent to a search of his vehicle was "invited" by his suggestion at trial that the arresting officer "framed" him by planting drugs in the defendant's truck). See United States v. Runyan, 290 F.3d 223, 250 n.18 (5th Cir.), cert. denied, 537 U.S. 888, 123 S.Ct. 137, 154 L.Ed.2d 149 (2002). In the instant case, the State elicited the testimony in response to defendant's suggestion that he was entirely cooperative. Additionally, reference to the fact that defendant did not consent to a search of his vehicle was part of the narrative explanation as to why officers called a K-9 unit to the scene.
Moreover, the officers did not need to obtain defendant's consent in order to search his vehicle. The testimony established that the officers detected the odor of marijuana emanating from the rolled-down window of the vehicle. This provided the officers with probable cause to search pursuant to the automobile exception to the warrant requirement. See State v. Arnold, 11-0626 (La. 4/27/11), 60 So.3d 599, 600 (per curiam). With regard to defendant's complaint as to the State's comments during closing argument, defendant did not lodge an objection to those comments. Thus, he did not preserve the issue for review. See LSA-C.Cr.P. art. 841.
During rebuttal closing argument, the State stated:
Now, following the logic that the defense seeks to try to confuse you, defense says he didn't run. Any time--if you run, you are guilty. So running from the police is guilty. Yet, refusing to let the police search your car, shouldn't that indicate he knows he's guilty? Knowingly and intentionally?
How can they justify that statement to you that fleeing indicates guilt, but not permitting a search of the area where the dope is should not indicate guilt? They are trying to confuse you. They are trying to insult your intelligence. They are trying to get you off of the evidence in this case with this--just as straightforward as it can be.
ASSIGNMENT OF ERROR NUMBER FOUR
In his fourth assignment of error, defendant argues that the district court erred in refusing to conduct a Daubert hearing on the ability of the officers to detect the odor of raw marijuana.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony. Prior to amendment by 2014 La. Acts No. 630, §1, it provided, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1239, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The supreme court has placed limitations on this codal provision in that, "expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men." State v. Stucke, 419 So.2d 939, 945 (La. 1982).
In State v. Foret, 628 So.2d 1116 (La. 1993), the Louisiana Supreme Court adopted the test set forth in Daubert regarding proper standards for the admissibility of expert testimony which requires the district court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La. 5/20/03), 846 So.2d 697, 700-01. Thus, Louisiana has adopted Daubert's requirement that in order for technical or scientific expert testimony to be admissible under Article 702, the scientific evidence must rise to a threshold level of reliability. Daubert's general "gatekeeping" applies not only to testimony based upon scientific knowledge, but also to testimony based on "technical" and "other specialized knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 234. The purpose of a Daubert hearing is to determine the reliability of an expert's methodology, not whether the expert has the proper qualifications to testify. Cheairs v. State ex rel. Dep't of Transp. & Dev., 03-0680 (La. 12/3/03), 861 So.2d 536, 541. See State v. Vidrine, 08-1059 (La.App. 3 Cir. 4/29/09), 9 So.3d 1095, 1106-07, writ denied, 09-1179 (La. 2/26/10), 28 So.3d 268.
At a preliminary examination and hearing on defendant's motion to suppress, Deputy Stone testified that he detected a strong odor of raw marijuana while standing next to the passenger side of defendant's vehicle. Defense counsel objected and requested a Daubert hearing. The court allowed the testimony, and stated a Daubert hearing could be held prior to trial.
Prior to trial, the court asked if there were any outstanding motions. When defense counsel responded that the Daubert issue related to the smell of raw marijuana had not yet been addressed, the court responded that a motion was never filed. Defense counsel explained that she raised the issue in another case and made an oral motion in the instant case during the hearing on the motion to suppress. The State argued testimony on the smell of marijuana was not required to be presented in the form of an expert opinion for which Daubert would apply. The court agreed, noting that an officer can testify as to the smell of marijuana based on his training and experience.
A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. See State v. Waldrop, 11-2363 (La.App. 1 Cir. 6/8/12), 93 So.3d 780, 784. Deputy Stone testified that he had training in identifying and smelling smoked and unsmoked marijuana. Accordingly, no Daubert hearing was required, and the district court's ruling was correct.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER FIVE
In his fifth assignment of error, defendant argues that the district court erred in ruling that he was a second-felony habitual offender. Specifically, defendant contends that the guilty plea entered to his predicate offense was not valid because it was part of a group guilty plea, he was not advised of his post-conviction rights, and hr was not advised that his guilty plea could be used to enhance a subsequent felony offense.
Defendant filed a motion to quash the multiple offender bill of information, and a hearing on the motion was held. The State argued that failure to advise a defendant of a future multiple offender bill of information did not render the Boykinization defective. The district court agreed, and before denying the motion to quash, explained that the group guilty plea also did not render the Boykinization defective and that the post-conviction relief issue was not relevant.
See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
For a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the district court must inform a defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. State v. Henry, 2000-2250 (La.App. 1 Cir. 5/11/01), 788 So.2d 535, 541, writ denied, 01-2299 (La. 6/21/02), 818 So.2d 791. The court must also ascertain that the accused understands what the plea connotes and its consequences. If the defendant denies the allegations set forth in the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, i.e., either the transcript of the plea or the minute entry. Everything that appears in the entire record concerning the predicate, as well as the district court judge's opportunity to observe the defendant's appearance, demeanor, and responses in court, should be considered in determining whether a knowing and intelligent waiver of rights occurred. Boykin only requires that a defendant be informed of the three rights enumerated above. The jurisprudence has been unwilling to extend the scope of Boykin to include advising the defendant of any other rights that he may have. Henry, 788 So.2d at 541.
Moreover, while a personal colloquy between the district court and the defendant is preferred, group guilty pleas are not automatically invalid. See State v. Filer, 2000-0073 (La. 6/30/00), 762 So.2d 1080, 1081 (per curiam); State v. Verdin, 02-2671 (La.App. 1 Cir. 2/3/03), 845 So.2d 372, 376-77 (per curiam).
The transcript of the Boykin hearing indicates that defendant was represented by counsel. At the time of the hearing, defendant was eighteen years old and had completed the eleventh grade. The court individually addressed defendant and explained that he was entering a guilty plea in Docket Number 374,066 for a sexual battery charge. The court defined the offense and possible punishment and asked defendant if he understood. Defendant answered affirmatively. The district court explained to the group that they were waiving constitutional rights including the right to an attorney, right to a trial, right against self-incrimination, right to confront their accusers, right to compulsory process of the court, and the right to appeal. When the court asked defendant whether he i understood that by entering a guilty plea, he was admitting that he committed the crime and waiving those rights, defendant answered that he did. The district court also asked defendant whether he was satisfied with his attorney's services and whether his attorney explained the elements of the crime, his constitutional rights, and the ramifications of the guilty plea and possible sentences he could receive. Defendant responded affirmatively and entered his guilty plea. After the district court judge sentenced each of the defendants in the group, he informed them that they had two years from the time their sentences became final to file for post-conviction relief.
First, defendant Claims that the prior guilty plea was improperly entered because the district court did not advise him of his post-conviction rights. The transcript refutes defendant's allegation that the court did not advise him of his post-conviction rights. The court advised the group entering guilty pleas that they had two years from the time their sentences became final to file for post-conviction relief.
Defendant also claims that he was not advised that his guilty plea could be used to enhance a subsequent felony offense. Although advice with respect to a defendant's sentencing exposure and the possibility of enhancement may facilitate the taking of a voluntary guilty plea, such advice has never formed part of the Supreme Court's core Boykin requirements for the entry of a presumptively valid guilty plea. See State v. Guzman, 99-1528, 99-1753 (La. 5/16/00), 769 So.2d 1153, 1164; State v. Underdonk, 11-1598 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, 378, writ denied, 12-0910 (La. 10/8/12), 98 So.3d 848. Therefore, this contention is not fatal to defendant's predicate guilty plea.
Finally, defendant argues that the group Boykinization rendered his predicate guilty plea defective. As noted above, although a personal colloquy between a district court and a defendant is preferred, group guilty pleas are not automatically invalid. See Filer, 762 So.2d at 1081; Verdin, 845 So.2d at 376-77; see also State v. Richard, 2000-0659 (La. 9/29/00), 769 So.2d 1177, 1178 (per curiam); State v. Marler, 2000-0493 (La.App. 1 Cir. 2/16/01), 797 So.2d 706, 711. The personal and individual portions of the Boykin colloquy between defendant and the district court judge placed the judge in a position to determine the knowing and voluntary nature of defendant's waiver of constitutional rights as a condition precedent to the judge's acceptance of the plea. After a thorough review of the record, we find that the State met its initial burden and that defendant failed to produce affirmative evidence to show an infringement of his rights or a procedural irregularity in the taking of his plea. Therefore, we find that the record establishes that the challenged predicate guilty plea was validly entered with a knowing and voluntary waiver of Boykin rights; and, thus, the district court correctly denied defendant's motion to quash as related to this plea.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER SIX
In his last assignment of error, defendant argues that the sentence imposed was constitutionally excessive. Specifically, he contends that by summarily denying his motion to reconsider sentence, the district court prevented him from demonstrating that the imposition of prison sentences for possession of marijuana in St. Tammany Parish is affected by race. He also contends that a fifteen-year sentence for "the third possession of a small amount of marijuana meets the test for excessiveness."
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. State v. Reed, 409 So.2d 266, 267 (La. 1982).
Louisiana Code of Criminal Procedure Article 894.1 sets forth the factors for the district court to consider when imposing sentences. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03). 849 So.2d 566, 569. A district court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). On appellate review of a sentence, the relevant question is whether the district court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
Pursuant to Louisiana Revised Statutes 4O:966E(3), on a third or subsequent conviction for a violation of possession of marijuana, the offender shall be sentenced to imprisonment with or without hard labor for not more than twenty years, and may, in addition, be sentenced to pay a fine of not more than five thousand dollars. However, because defendant was adjudicated a second-felony habitual offender, he was exposed to a sentence of imprisonment for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. See LSA-R.S. l5:529.lA(l). Thus, defendant was exposed to a minimum term of imprisonment of ten years and maximum term of imprisonment of forty years. The district court sentenced defendant to a lower-range sentence of fifteen years at hard labor without the benefit of probation of suspension of sentence.
At sentencing, the district court stated that it reviewed the sentencing factors listed in Article 894.1. The court found that there was an undue risk that defendant would commit, another crime during a period of suspended sentence or probation and that defendant was in need of correctional treatment that could most effectively be provided by his commitment to an institution. The court also took judicial notice of defendant's February 2007 guilty plea to possession with intent to distribute cocaine, which was not used in the multiple offender bill of information.
Defendant complains that the district court summarily denied his motion to reconsider sentence, preventing him from demonstrating that the imposition of prison sentences for possession of marijuana in St. Tammany Parish is affected by race. In the motion to reconsider, defense counsel argued that a 2013 national study of marijuana prosecutions documented that marijuana laws are disproportionately enforced against persons of color and that she had a "good faith belief" based on her "professional experience in representing individuals who have been charged with possession of small amounts of marijuana and the study that there is a corresponding disparity in the sentences imposed between St. Tammany and Orleans Parishes. The report from the 2013 national study was attached to the motion.
Louisiana Code of Criminal Procedure article 881.1D provides authority for the district court to deny a motion to reconsider sentence without a hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion. Defendant does not indicate what additional evidence he would have submitted at a hearing on the motion, nor did he proffer any evidence in support of his motion to reconsider.
We find no abuse of discretion by the district court. There is ample justification in the record for the fifteen-year sentence imposed on defendant, and a hearing on the motion to reconsider was not required. Accordingly, the sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not excessive.
This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm defendant's conviction, habitual offender adjudication, and sentence.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED. WHIPPLE, C.J., concurring.
In the discussion of the defendant's Assignment of Error Number Three, concerning the State's reference to the defendant's refusal to consent to a search of his vehicle, the majority discusses several cases. However, in each of the cited cases (and unlike the instant matter), the court specifically noted that there was only a brief mention of "refusal to consent." In this case, the State's improper comments on defendant's refusal to consent to a search of his vehicle were a significant part of the State's main argument in closing arguments. Nonetheless, while the defendant did object to the State's earlier inquiry and comments during the State's questioning of the witnesses regarding his refusal to consent to the search, he did not contemporaneously or timely object to the comments made by the State during closing arguments. Thus, I agree with the majority's ultimate holding, as this issue was not properly preserved for review.
Accordingly, I concur in the result.