Opinion
NO. 2012 KA 1792
07-25-2013
STATE OF LOUISIANA v. CALVIN ANDREW ROUSSELL, JR.
Martin E. Regan John H. Thomas Nisha Sandhu New Orleans, Louisiana Attorneys for Defendant/Appellant Calvin Andrew Roussell, Jr. Joseph Waitz, District Attorney Juan Pickett, Assistant District Attorney Houma, Louisiana Attorneys for Plaintiff/Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
32nd Judicial District Court,
In and for the Parish of Terrebonne,
State of Louisiana
Trial Court No. 573,881
The Honorable George Larke, Judge Presiding
Martin E. Regan
John H. Thomas
Nisha Sandhu
New Orleans, Louisiana
Attorneys for Defendant/Appellant
Calvin Andrew Roussell, Jr.
Joseph Waitz,
District Attorney
Juan Pickett,
Assistant District Attorney
Houma, Louisiana
Attorneys for Plaintiff/Appellee
State of Louisiana
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
CRAIN, J .
A unanimous jury found the defendant, Calvin Andrew Roussell, Jr., guilty as charged of aggravated burglary, a violation of Louisiana Revised Statute 14:60. The trial court sentenced him to twenty-five years imprisonment at hard labor. We affirm.
BACKGROUND
During the early morning hours of May 10, 2010 in Houma, Louisiana, intruders broke into a house occupied by Francisco Gonzales, Elmer Gomez, and Lester Escortia Herrera. Herrera was awakened between 1:00 a.m. and 2:00 a.m. with one intruder pressing a knife to his neck and another standing in his bedroom. After taking approximately $430 to $450 from Herrera's discarded pants, and $70 and a set of car keys from Gomez's shorts, the intruders left the house. The victims subsequently identified the defendant as one of the perpetrators, and he was arrested and charged with aggravated burglary.
Following a four day jury trial, the defendant was convicted as charged. He now appeals alleging several assignments of error. The defendant asserts that the trial court erroneously denied several motions, including: (1) motions to suppress the victims' identification of the defendant as one of the perpetrators and to suppress statements made by the defendant to an arresting officer, (2) motions for mistrial based upon statements made by the prosecutor during voir dire and upon allegedly improper evidence of other crimes, and (3) a motion to continue due to the State's alleged failure to produce exculpatory evidence. The defendant also argues that the evidence was insufficient to support the conviction, the sentence was excessive, and several pro se assignments of error.
MOTIONS TO SUPPRESS
The defendant filed a motion to suppress identifications arguing that the procedures used to identify him were "clearly suggestive" and that his identification was tainted by police suggestion, and a motion to suppress statements arguing the State failed to produce a written waiver of rights form signed by him and that he was not properly given his Miranda rights. The trial court denied both motions.
Miranda v. Arizona, 384 U.S. 436 (1966).
When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, that is, unless such ruling is not supported by the evidence. See, State v. Green, 94-0887 (La. 5/22/95), 655 So. 2d 272, 280-81. Legal findings, however, are subject to a de novo review. See, State v. Welch, 11-0274 (La. 4/29/11), 60 So. 3d 603; State v. Hunt, 09-1589 (La. 12/1/09), 25 So. 3d 746, 751.
A. Motion to Suppress Identification
To suppress an identification, the defendant must prove the identification procedure was suggestive and that the totality of circumstances presented a likelihood of misidentification. State v. Sparks, 88-0017 (La. 5/11/11), 68 So. 3d 435, 477, cert. denied, El-Mumit v. Louisiana, ___ U.S. ___ (2012). An identification procedure is suggestive if, during the procedure, the witness's attention is unduly focused on the defendant. For this reason, identifications using single-photograph displays are generally viewed with suspicion. Sparks, 68 So. 3d at 477. However, the suggestive nature of an identification does not per se preclude admissibility unless the identification is untrustworthy under the totality of the circumstances. The central question in determining admissibility of an identification is whether the actual identification was reliable. Sparks, 68 So. 3d at 477.
In determining whether the reliability of an identification outweighs the suggestiveness of the identification procedure, the court is directed to look to several factors: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the perpetrator; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Sparks, 68 So. 3d at 477.
The circumstances leading to the identification of the defendant were described at the suppression hearing. After speaking to the victims and obtaining descriptions, the investigating officers began searching for the suspects and visited a nearby gas station where the clerks indicated they had seen two men matching the suspects' descriptions. Officer Matthew Nethery reviewed the store's surveillance tape from 2:30 a.m. and saw persons in the tape that matched the suspects' descriptions. Officer Mike Toups was at the gas station and used his cell phone to take photographs of the surveillance tape showing the men. He separately showed the victims the photographs, and each victim identified the subjects in the photos as the men who robbed them. Officer Nethery testified that they made no threats or promises to the victims to influence their identifications, nor did the officers suggest that the persons in the photographs were the intruders.
Looking at the photos in evidence, the trial court also identified the defendant as the person in one of the video surveillance film photographs shown to the victims.
Detective Dexter Detiveaux testified that he viewed the surveillance video and later determined the name of the defendant in the video. He then obtained a photograph of the defendant from either a prior arrest or from a driver's license photograph. According to Detective Detiveaux, there was a "very, very strong resemblance" between the photograph and one of the men in the surveillance video. He then prepared a six-photograph display, including photographs of the defendant and five men of similar age, weight, and race, using software which searched previous arrest photographs and driver's license photographs to identify individuals with similar physical characteristics. As with the surveillance video identifications, the victims each separately viewed the photograph display and identified the defendant as one of the perpetrators.
The defendant argues that presenting the victims with the officer's cell phone photographs of the surveillance video "lent credibility to the idea" that the person viewed in the photographs was the guilty party. The defendant also argues that the six-photograph display was unduly suggestive because the defendant was the only person in the display with facial tattoos.
At trial, Gomez described one of the intruders as having a "teardrop" tattoo.
We find no error or clear abuse of discretion in the trial court's determination that both identification procedures were fair and not unduly suggestive. The out-of-court identifications through the surveillance video photographs were close in time to the commission of a violent crime and were necessary to timely identify and apprehend the suspects. The out-of-court identification through the six-photograph display used photographs of men of similar size and features of the defendant so as to require the victims to discern the perpetrator. The photographs of persons other than the suspect are sufficiently similar so as not to unduly focus attention on the suspect. Although the defendant was the only person in the photograph display with a facial tattoo, all had facial hair or other facial characteristics that resembled the defendant's description. From the defendant's photo, the mark below his eye is not distinguishable as a "teardrop tattoo." To require that the photographic display include other persons who look similar to the defendant and have a "teardrop tattoo" is unreasonable. We find that the photographic display was not unduly suggestive.
Even if the out-of-court identifications were unduly suggestive, which we find they were not, the identifications were reliable under the totality of the circumstances. The photographs of the video surveillance tape were shown to the victims approximately thirty minutes after the offense and produced separate, positive identifications of the defendant from each of the three victims. During the offense, the victims viewed the intruders from close range, with a light on inside the home, and for an extended period. They had good reason to pay careful attention because one of the perpetrators was armed with a knife that he held to the throat of one of the victims. The high degree of attention given by the victims was demonstrated by the fact that, although challenged by speaking a different language, they gave detailed descriptions of their assailants.
From the initial description given to officers immediately after the crime, to the identification through the surveillance video photographs, to the identifications from the photographic display, and finally to the in-court identification, the victims never wavered from their identification of the defendant as one of the perpetrators. Considering the totality of the circumstances, we find the out-of-court identifications were reliable, and the defendant failed to show a substantial likelihood of misidentification. This assignment of error is without merit.
B. Motion to Suppress Statements
The State has the burden of proving the admissibility of a purported confession or statement by the defendant. La. Code Crim. Pro. art. 703D. The State must affirmatively prove that the confession or statement was given free and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451. The State must also establish that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. A signed waiver of rights form is not required, and another officer need not substantiate that such rights were given to the defendant. The State need only prove that the defendant was given the Miranda rights. State v. Thomas, 504 So. 2d 907, 915-16 (La. App. 1 Cir.), writ denied, 507 So. 2d 225 (La. 1987).
The trial court's conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession are accorded great weight and will not be overturned unless they are not supported by the evidence. Whether or not a showing of voluntariness has been made depends-on the facts and circumstances of each case and is analyzed on a case-by-case basis. The trial court must consider the totality of the circumstances in deciding whether or not a confession is admissible. State v. Plain, 99-1112 (La. App. 1 Cir. 2/18/00), 752 So. 2d 337, 342.
Mark Arceneaux, a former deputy with the Terrebonne Parish Sheriff's Office, testified at the hearing that he and Deputy Leeann Fitch executed an outstanding arrest warrant for the defendant on June 27, 2010, at 9:19 p.m. Deputy Fitch read the defendant his Miranda rights from a card, and the defendant indicated that he understood those rights. According to Deputy Arceneaux, the defendant then spoke to him freely and voluntarily, and without any force, coercion, or threats and without any promises made to the defendant.
When questioned, the defendant denied committing the offense but stated that he had been with "Matt" that night and that Matt had a knife. The defendant positively identified a photograph of Matt Elderton as "Matt," and Elderton was eventually charged with committing this crime along with the defendant.
On appeal, the defense argues that the circumstances do not demonstrate that the defendant understood the rights he was foregoing because "the statements were not taken with the formalities of a custodial investigation." For support, the defense relies upon the lack of a written Miranda waiver form and Deputy Arceneaux's characterization of the exchange as "talking" as opposed to an "interrogation."
We find no clear abuse of discretion in the trial court's denial of the motion to suppress statements. The State established that the defendant's statements were free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises, It also established the defendant was advised of and waived his Miranda rights prior to making the statements. This assignment of error is without merit.
MOTIONS FOR MISTRIAL
The defendant argues that the trial court erred in denying a motion for mistrial based upon statements made by the State during the voir dire examination concerning a defendant's failure to testify. The defendant also contends that a mistrial should have been granted because of references by a witness to the criminal history of the defendant and a co-defendant. We find no merit to either of these arguments.
The defendant additionally argues that in its closing argument, the State impermissibly implied guilt from the defendant's choice to exercise his right not to take the stand and testify. However, we do not consider that issue because the defendant failed to preserve the issue for review. See, La. Code Crim Pro. art. 841 A.
A. Statements During Voir Dire
The prosecutor informed a panel of prospective jurors during voir dire that one of the defendant's rights that had to be protected to ensure a fair trial was his constitutional right to "not have to take the stand and testify if he or she chooses not to." The prosecutor explained that a defendant cannot be compelled to testify against himself or herself and that it is solely the defendant's choice whether to testify, adding that "there may be a thousand reasons why a person may choose not to testify." He then offered "a couple of examples," including a defendant who feels he is not guilty but believes he would be a bad witness, or a case where the State has not proved guilt beyond a reasonable doubt. The prosecutor then added, "Also, a lot of times . . . in criminal cases they cannot produce or give to this jury a defendant's criminal history, if they have ever been arrested or convicted of anything before unless they take the stand."
Defense counsel asked to approach the bench and an unrecorded bench conference took place. When questioning of the jurors resumed, the prosecutor stated, "Like I was saying, there's thousands of reasons why a defendant may choose not to testify. . . [b]ut the law says that a defendant in a criminal case does not have to take the stand and testify." This line of questioning concluded by the prosecutor asking:
When defense counsel moved for a mistrial at the conclusion of the questioning of this jury panel, counsel for the defendant noted for the record that objection to this line of questioning was raised during this bench conference.
Can each and every one of you follow the law and promise me that you will not hold it against the defendant if he chooses not to testify? I don't know if he's going to testify or not. But can you at least promise me that you will not hold it against him?The record reflects that no one raised their hand in response to this question, and the prosecutor conveyed his approval of their responses.
These comments by the prosecutor to the panel were preceded and followed by detailed explanations from the trial court and defense counsel of a defendant's right not to testify and the presumption of innocence. The trial court first informed the prospective jurors that "the defendant need prove nothing and that the burden is on the State to prove his guilt, the defendant has the right to remain silent." It then stated that the defendant need not testify if he does not wish to do so, and the jury may make no inference of guilt or exercise any prejudice against him if he chooses not to testify.
Defense counsel emphasized that the burden of proof never shifts to the defense to do anything and offered the following about his client's right not to testify:
It's his right. Not mine. I can't tell him to sit down and shut up. Okay? He has that obligation. And you've all told the judge and you've all told the D.A. that you would not hold it against him. And you all will be under oath to not do it.No one responded negatively to defense counsel's question.
This is - This is a - This is a critical part of, of a case the defense lawyer's concerned about because they're really afraid that if they don't put their client on somebody in the jury room's going to say: Well, you know, he didn't take the stand. Hell, I'd have taken the stand. All right?
That would be so improper as to invalidate everything that goes on in here. And you and your fellow jurors, if you're sworn in, you would have a responsibility to report that to the Court. That's how - That's how important that particular aspect of, of his rights are.
Does everybody agree with that?
Before exercising challenges, and outside the presence of the jurors, defense counsel moved for a mistrial arguing that the prosecutor gave too many examples of why the defendant may not testify and had "planted a seed" that the defendant may have a criminal record. The State countered that it had given several examples of why a defendant might decide not to testify and sought a commitment from the jurors not to hold it against the defendant if he exercised that right. The trial court denied the motion.
After the jury was selected, and before any evidence was taken, the trial court gave preliminary instructions on the law which included the following:
After the opening statement by the State and the defendant, the State will present its evidence to you. When the State finishes, the defendant will have an opportunity to present his evidence to you, if any. Remember, the defendant has the right not to testify and you are not permitted to draw any conclusions or inference against him if he chooses not to testify.
The defendant asserts on appeal that the trial court erred in refusing to grant a mistrial. The determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for a mistrial will not be disturbed on appeal without abuse of that discretion. State v. Berry, 95-1610 (La. App. 1 Cir. 11/8/96), 684 So, 2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So. 2d 603.
Louisiana Code of Criminal Procedure article 770(3) provides, in relevant part:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official during the trial or in argument, refers directly or indirectly to. . .
(3) The failure of the defendant, to testify in his own defense . . . .
Generally, Article 770(3) prohibits both direct and indirect references to a defendant's failure to testify. This prohibition protects a defendant from unfavorable inferences that may otherwise be drawn from his silence and, therefore, helps implement a defendant's Fifth Amendment right against self-incrimination. State v. Johnson. 541 So. 2d 818, 822 (La. 1988). If the reference to defendant's failure to testify is direct, a mistrial must be granted; however, an indirect reference requires a mistrial only if the court determines that the comment was intended to draw the jury's attention to the failure to testify. State v. Hamilton, 92-1919 (La. 9/5/96), 681 So. 2d 1217, 1225.
Violations of Article 770(3) occurring during voir dire do not constitute error when the remarks merely reference the defendant's privilege not to take the stand, address the weight to be accorded the defendant's testimony if he chooses to testify, or inform the jurors that the state bears the burden to prove guilt beyond a reasonable doubt regardless of whether the defendant presents any evidence. State v. Shea, 421 So, 2d 200, 206 (La. 1982), reversed on other grounds, Shea v. Louisiana, 470 U.S. 51 (1985); State v. Willie, 410 So. 2d 1019, 1026 (La. 1982).
We must first determine whether the prosecutor's comments were a reference to the defendant's failure to testify or merely an acknowledgment of the defendant's right not to testify. We find that the prosecutor made neither a direct nor indirect reference to the defendant's failure to testify. Rather, the prosecutor's comments were general statements which acknowledged a defendant's right not to testify. The prosecutor's comments cannot be construed as a reference to this defendant's refusal to testify, particularly in light of the fact that the statements were made during voir dire, well before the defendant had even exercised the right. The prosecutor also did not directly or indirectly suggest to the prospective jurors that they should infer guilt from a defendant's failure to testify should he invoke that right. While the prosecutor did state that a defendant may invoke the right not to testify in order to prevent the disclosure of a prior criminal conviction, that statement was offered as one of several reasons why a defendant may choose to exercise the right. The prosecutor's comments did not imply that this defendant had committed any other crimes. Accordingly, we find no direct or indirect reference to the defendant's failure to testify.
The record also fails to establish that the statements were intended to emphasize or focus attention on the defendant's failure to testify. As previously noted, the comments were made during voir dire before the defendant had exercised the right. When the statements were made, the trial court had already instructed the jurors of the defendant's right not to testify and the presumption of innocence. Counsel for the State and defense reinforced that the jurors could not infer prejudice from the defendant's decision not to testify if he chose to exercise that right. Considering the entirety of the voir dire, we find that the trial court did not abuse its discretion in denying the motion for mistrial. See, State v. Kenner, 336 So. 2d 824, 828 (La. 1976); State v. Lewis, 97-2854 (La App. 4 Cir. 5/19/99), 736 So. 2d 1004, 1016-17, writ denied, 99-2694 (La. 3/17/00), 756 So. 2d 325.
This argument is without merit.
B. Evidence of Other Crimes
The defendant argues that the trial court erred in refusing to grant a mistrial, and later a motion for new trial because Detective Detiveaux made a reference to a prior arrest of the defendant. We find no error in the trial court's ruling.
Louisiana Code of Criminal Procedure article 770(2) prohibits the judge, district attorney, or a court official from directly or indirectly referring to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible and sanctions a violation with a mandatory mistrial. However, when the comment is made by a witness, Article 771 permits the trial court, upon request of the defendant or the State, to admonish the jury to disregard the comment if the comment is irrelevant or immaterial or of such a nature that it might create prejudice against the defendant or the state in the mind of the jury. In such cases, and on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. La. Code of Crim, Pro. art. 771.
During the direct examination of Detective Detiveaux, he described the sequence of events that led to the identification of the defendant, including the receipt of anonymous tips naming the defendant as one of the individuals in the photographs. Detective Detiveaux continued:
Once we got that information, I did a database search through our, our - We have various criminal databases we can access. And a photo was pulled up from a previous arrest. We can use previous arrests.
Defense counsel objected and moved for a mistrial, arguing the State had elicited other crimes evidence from the witness. The State countered by arguing that the statement was harmless because no information was given about the offense or whether the defendant was convicted. The trial court denied the motion for mistrial and admonished the jury to disregard and not to use the "remark about arrests" during deliberations.
After the defendant was convicted, the defense moved for a new trial, arguing that the court's ruling denying a mistrial shows prejudicial error. See, La. Code Crim. Pro. art. 851(2), The trial court denied the motion. The trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. State v. Maize, 94-0736 (La. App. 1 Cir. 5/5/95), 655 So. 2d 500, 517, writ denied, 95-1894 (La. 12/15/95), 664 So. 2d 451.
The trial court did not abuse its discretion in denying both the motion for mistrial and the motion for new trial. The comment was not solicited by the prosecutor. Furthermore, the information was provided as part of the narrative of events leading to the defendant's identification and arrest. It did not refer to a specific previous crime and the cause for the prior arrest was not given. We find that the reference did not substantially prejudice the defendant such that he was deprived of any reasonable expectation of a fair trial, and the admonition given by the trial court was sufficient to assure the defendant a fair trial. This assignment of error is without merit.
The defendant also contends that a mistrial should have been granted because the State referred to unrelated arrest warrants for a codefendant. When asked if Elderton was arrested on the same charge as the defendant, Detective Detiveaux testified, "Well, he was originally - He also had previous warrants for his arrest."
Defense counsel objected and moved for a mistrial, which the trial court denied. We find no error in that denial. The Louisiana Code of Criminal Procedure articles relating to mistrials do not contain a specific prohibition against a reference to a codefendant's prior criminal acts. Under Article 771, if a remark is irrelevant or immaterial and might create prejudice against the defendant, the trial court has the discretion to either grant a mistrial or admonish the jury. The trial court neither granted a mistrial nor admonished the jury, apparently determining that the remark did not prejudice the defendant. The victims described at least two people involved in the crime. The identification of the second suspect was part of the process of solving this crime in which the defendant was a suspect. Any connection between the defendant's guilt and his association with a person subject to outstanding arrest warrants, where no description of the bases for those warrants is provided, is so attenuated as to be of no prejudice to the defendant. This argument is without merit.
MOTION TO CONTINUE
The defendant argues the trial court abused its discretion in denying him a continuance due to violations of Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514 U.S. 419 (1995).
We note the defense initially moved for a continuance on the basis that the severance of defendants would require a change in trial strategy, not to address Brady material.
On the first day of trial, defense counsel moved for production of Brady and/or Kyles material. At a hearing on the motion, defense counsel indicated he had learned the previous day that two other men were also interrogated relative to this crime and that they could be produced at trial. The State responded that the only material in its possession was in the police report that had been provided to the defense. The State also represented that upon learning of defense counsel's contention, Detective Detiveaux was contacted and stated that he was unaware of any other suspects. The trial court denied the request for a continuance but ordered the State to turn over any Brady or Kyles material.
After resumption of the trial, the defense cross-examined Detective Detiveaux about whether two men, Joseph LeBoeuf and Douglas Trahan, "had their doors knocked on and . . . were taken outside for questioning." Detective Detiveaux confirmed that he just learned that information the previous day. On direct examination, Officer Nethery testified that LeBoeuf and Trahan were "people of interest" in the investigation because they lived in the same area as the victims, both had a criminal history, and one had a tattoo on his neck. When the police brought the victim, Elmer Gomez, to view LeBoeuf and, Trahan for possible identification, Gomez said he knew the men, identified them by their street nicknames, and said they were not the intruders.
The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S.. at 87. Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that witness may be determinative of the defendant's guilt or innocence, or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972). In Kyles, the Supreme Court explained:
Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."Kyles, 514 U.S. at 433-434.
. . .
Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial understood as a trial resulting in. a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial" (Citations omitted.)
We find that the questioning of LeBoeuf and Trahan and their elimination as suspects by a victim constitutes neither Brady nor Kyles. material. The fact that the officers questioned two people who they thereafter learned one of the victims knew, identified and excluded as being, the perpetrators is neither exculpatory nor favorable to the defendant. Furthermore, there is no reasonable probability that the result of the proceeding would have been different if this information had been disclosed to the defense any sooner. The State did not withhold the identity of the men from the defendant, and defense counsel cross-examined the lead detective at trial about the two men. The jury was fully informed why the men were initially "people of interest" in the investigation and why they were quickly eliminated as suspects.
This assignment of error is without merit.
SUFFICIENCY OF THE EVIDENCE
The defendant argues the evidence was insufficient to support the conviction because it failed to exclude his hypothesis mat he was innocent and misidentified. He claims that he did not match the description given by the victims in regard to height and build and that he has prominent and distinctive tattoos on his face and neck, but the victims described their assailant as only having tattoos on his arms.
In reviewing claims challenging the sufficiency of the evidence, this court must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). See also, La. Code Crim. Pro. art, 821B; State v. Mussall 523 So. 2d 1305, 1308-09 (La. 1988). Aggravated burglary is "the unauthorized entering of any inhabited dwelling ... where a person is present, with the intent to commit a felony or any theft therein, if the offender ... is armed with a dangerous weapon ... or commits a battery upon any person while in such place, or in entering or leaving such place." La. R.S. 14:60. The defendant's claim that he did not match the description given by the victims in regard to height and build is based on the initial offense report that says the victims described the suspect alleged to be the defendant (who was 6'3" tall and 275 lbs. at booking), as the slimmer of the two suspects and standing 5'6" to 5'10" tall.
Officer Nethery, the reporting officer, testified that he does not speak Spanish and had difficulty communicating with the victims, who are natives of Mexico and Nicaragua and speak limited English. He used hand gestures to approximate the height and build of the suspects. Officer Nethery recorded only a range for the suspect's height because the reporting equipment he used required it.
Regarding the defendant's face and neck tattoos, Officer Nethery testified he pointed to his own tattoos to ask the victims if the intruders had tattoos. Gomez said the word "tattoo" and, according to Officer Nethery, "kept running his hand on the side of his face." Officer Nethery testified it was clear Gomez was describing a neck tattoo, but it was not clear whether he was also indicating a facial tattoo. Detective Detiveaux testified that the victims stated the suspect had tattoos on his neck and face.
As previously described, all three victims made positive out-of-court and in-court identifications of the defendant, After a thorough review of the record, we are convinced that any rational trier of fact viewing the evidence in the light most favorable to the State could have found beyond a reasonable doubt that the defendant was guilty of aggravated burglary. The verdict indicates the jury accepted the testimony of witnesses presented by the State and rejected the defendant's attempts to discredit those witnesses. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Lofton, 96-1429 (La. App. 1 Cir. 3/27/97), 691 So. 2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So. 2d 1331. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). In reviewing the evidence, we cannot say the jury's determination was not rational based upon the facts and circumstances presented.
This assignment of error is without merit.
EXCESSIVE SENTENCE
The defendant argues the trial court imposed an unconstitutionally excessive sentence because the record does not establish his sentence was individualized and not a needless imposition of pain and suffering. The defendant was sentenced to twenty-five years at hard labor. Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years. La. RS. 14:60.
The Louisiana Code of Criminal Procedure sets forth criteria which must be considered by the trial court before imposing sentence. La. Code Crim. Pro. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Harper, 07-0299 (La. App. 1 Cir. 9/5/07), 970 So. 2d 592, 602, writ denied, 07-1921 (La. 2/15/08), 976 So.2d 173. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. Harper, 970 So. 2d at 602.
Louisiana Constitution Article I, Section 20 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). A trial judge 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); State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So. 2d 75, 83 , writ denied, 00-3053 (La. 10/5/01), 798 So. 2d 962.
Prior to sentencing, the trial court carefully studied the offense involved, the defendant's record of prior offenses, and the criteria set forth in Article 894.1. At sentencing, the trial court noted that the defendant had prior felony convictions for simple robbery, second degree battery, and possession of ecstasy. The trial court found an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime; the defendant was in need of correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution; and any lesser sentence than that imposed would deprecate the seriousness of the defendant's crime. The trial court also found numerous aggravating circumstances: the offender's conduct during the commission of the offense manifested deliberate cruelty to the victims; the offender knowingly created a risk of death or great bodily harm to more than one person; the offender used threats of or actual violence in the commission of the offense; a dangerous weapon was used in the commission of the offense by a principal; and the offense involved multiple victims. The court found no mitigating circumstances.
A thorough review of the record reveals the trial court adequately" considered the criteria of Article 894.1 and did not abuse its discretion in imposing the sentence herein. See, La. Code Crim Pro art. 894.1 A(1)-(3), B(1), (5), (6), (10), and (11). The sentence was not grossly disproportionate to. the severity of the offense, and thus was not unconstitutionally excessive.
This assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR
In pro se assignment of error number 1, the defendant argues the trial court erred in allowing the State to present the surveillance video and a cell phone photograph of that video without proper certification and authentication. In pro se assignment of error number 2, he argues his trial counsel was ineffective for: failing to object to the admissibility of the video and ceil phone photographs; failing to call the witnesses who prepared the video and ceil phone photographs; and failing to object to the State's failure to provide notice of its intent to use the video and ceil phone photographs. In pro se assignment, of error number 3, the defendant argues the trial court erred in allowing a biased person who had a substantial interest in the proceedings to be called as an interpreter for the proceedings.
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La. Code Evid. art. 901 A. For admission, it suffices if the custodial evidence establishes that it was more probable man not that the object is the one connected to the case. Moreover, any lack of positive identification or a defect, m the chain of custody goes to the weight of the evidence rather than its admissibility. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter to be determined by the jury. State v. Berry, 95-1610 (La. App, 1 Cir. 11/8/96), 684 So, 2d 439, 455, writ denied, 97-0278 (La. 10/10/97), 703 So: 2d 603.
The surveillance video and the photographs of that video were properly authenticated at trial. Officer Nethery identified the surveillance video as the same one he viewed at the gas station. He testified he stood with Officer Toups when Toups showed the victims the cell phone photographs of the surveillance video and he then identified the photographs Additionally, Gonzalez testified that the photographs of the surveillance video were the same photographs he was shown. Pro se assignment of error number 1 is without merit
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192 (La. 9/6/00), 776 So. 2d 396, 411, cert. denied, 531 U.S. 1194 (2001). However, where the claim is raised as an assignment of error on direct review and where the record on appeal is adequate to resolve the matter, the claims should be addressed in the interest of judicial economy. State v. Calhoun, 96-0786 (La. 5/20/97), 694 So. 2d 909, 914.
A claim of ineffectiveness of counsel Is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant, must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that defendant was deprived of a fair trial. The defendant must prove actual prejudice before relief will be granted. It is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So. 2d 857, 859-60 (La. App. 1 Cir. 1992), writ denied, 614 So. 2d 1263 (La. 1993).
We have previously determined that the challenged exhibits were sufficiently authenticated at trial. Consequently, defense counsel did not perform deficiently in failing to object to their introduction into evidence. See, State ex rel. Roper v. Cain, 99-2173 (La. App. 1 Cir. 10/26/99), 763 So. 2d 1, 5 (per curiam), writ denied, 00-0975 (La. 11/17/00), 773 So. 2d 733 ("If the substantive issue an attorney failed to raise has no merit, then the claim the attorney was ineffective for failing to raise the issue also has no merit.").
Defense counsel's decisions concerning which witnesses to subpoena for trial and whether to object to the sufficiency of notice concerning evidence were matters of trial strategy. The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. State v. Allen, 94-1941 (La. App. 1 Cir. 11/9/95), 664 So. 2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So. 2d 433. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Folse, 623 So. 2d 59, 71 (La. App. 1 Cir. 1993). Pro se assignment of error number 2 is without merit or otherwise not subject to appellate review.
The defendant would have to satisfy the requirements of Louisiana Code of Criminal Procedure article 924, et seq., to receive such a hearing.
With respect to the translator, a hearing was held at the request of the defense during trial but outside the presence of the jury "as to the translator and what he's reporting." Ricardo Aldape testified that he had been translating in the "tri-parish" area for approximately fifteen years. He had done work for the Houma Police Department, the Terrebonne Parish Sheriff's Office, the District Attorney's Office, and the Office of the Public Defender. Defense counsel asked Aldape if he was summarizing testimony while translating rather than reporting it word-for-word. Aldape denied summarizing testimony and stated that he was interpreting "their language versus mine, which is still Spanish but they have a difference on it." The trial court ordered Aldape "to translate as literal as possible" and allowed defense counsel the opportunity to re-question witnesses to clear up two non-literal translations.
The trial court did not abuse its discretion by allowing Aldape to translate testimony. The trial court held a hearing on the accuracy of the translations, allowed the defense to explore Aldape's qualifications and possible bias, and ordered Aldape "to translate as literal as possible." Pro se assignment of error number 3 is without merit.
REVIEW FOR ERROR
The defendant's request that this court examine the record for error under Louisiana Code of Criminal Procedure article 920(2) is unnecessary because we routinely conduct such a review. Under Article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors.
CONVICTION AND SENTENCE AFFIRMED.