Opinion
NO. 2013 KA 2224
06-06-2014
STATE OF LOUISIANA v. BRYAN P. RUCKER
Walter P. Reed District Attorney Covington, LA Kathryn W. Landry Baton Rouge, LA Attorneys for Appellee, State of Louisiana Bruce G. Whittaker New Orleans, LA Attorney for Defendant-Appellant, New Orleans, LA Bryan Paul Rucker Angola, LA Defendant-Appellant, In Proper Person
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 534150
Honorable Peter J. Garcia, Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Kathryn W. Landry
Baton Rouge, LA
Attorneys for Appellee,
State of Louisiana
Bruce G. Whittaker
New Orleans, LA
Attorney for Defendant-Appellant,
New Orleans, LA
Bryan Paul Rucker
Angola, LA
Defendant-Appellant,
In Proper Person
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J.
The defendant, Bryan P. Rucker, was charged by bill of information with aggravated flight from an officer (count 1), a violation of La. R.S. 14:108.1, and aggravated obstruction of a highway of commerce (count 2), a violation of La. R.S. 14:96. He pled not guilty and, following a jury trial, was found guilty as charged on both counts. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The State filed a habitual offender bill of information and, following a hearing on the matter, the defendant was adjudicated a fourth-felony habitual offender. Based on the sentencing enhancement for the aggravated flight from an officer conviction, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. For the aggravated obstruction of a highway of commerce conviction, he was sentenced to two years imprisonment at hard labor. The sentences were ordered to run concurrently. The defendant filed a motion to reconsider his life sentence, which was denied. The defendant now appeals, designating two counseled assignments of error and several pro se assignments of error. We affirm the convictions, habitual offender adjudication, and sentences.
FACTS
On April 24, 2013, Louisiana State Trooper Kevin Barnes was in Lacombe conducting a seatbelt checkpoint on La. Hwy. 434, just south of U.S. Hwy. 190. Trooper Barnes observed the defendant, driving a minivan, not wearing his seatbelt. He stopped the defendant in the road and asked for his license. After checking his license, Trooper Barnes informed the defendant he was not wearing a seatbelt and asked him to pull his vehicle to the shoulder of the road. The defendant sped away. Trooper Barnes ran back to his police unit and gave chase. Trooper Barnes activated his lights and siren, and the pursuit was captured on the dashboard-mounted camera in Trooper Barnes's unit. The defendant turned left onto U.S. Hwy. 190. headed east for about a mile and then turned left off of the highway onto a one-lane road. After a short distance, the defendant turned off of this road onto a dirt driveway on someone's property. The defendant then drove off of the driveway, continued through the homeowner's yard, and crashed into a thicket of shrubbery. The defendant jumped from the vehicle and ran into the marshy, wooded area. A woman and child, who remained in the minivan, were unharmed. Later that day, the defendant was apprehended by a St. Tammany Parish Sheriff's Office deputy.
COUNSELED ASSIGNMENT OF ERROR NO. 1
In his first counseled assignment of error, the defendant argues the evidence was insufficient to support the aggravated flight from an officer conviction. Specifically, the defendant contends the State failed to prove several elements of the statute. The defendant does not challenge his conviction for aggravated obstruction of a highway of commerce.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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, 99 S.Ct 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
La. R.S. 14:108.1 provides in pertinent part:
C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop . . . under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle[.]
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic . . . or in a reckless manner in violation of R.S. 14:99.
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.
Louisiana Revised Statutes 14:99 provides that reckless operation of a vehicle is the operation of any motor vehicle in a criminally negligent or reckless .manner.
Louisiana Revised Statutes 14:99 provides that reckless operation of a vehicle is the operation of any motor vehicle in a criminally negligent or reckless .manner.
Louisiana Revised Statutes 14:99 provides that reckless operation of a vehicle is the operation of any motor vehicle in a criminally negligent or reckless .manner.
In his brief, the defendant advances several reasons why the evidence was insufficient to support the conviction for aggravated flight from an officer. The defendant asserts there was no evidence to support that Trooper Barnes had his emergency lights and siren on while chasing him and, further, there was no evidence the defendant knew he had been given a visual and audible signal to stop. Trooper Barnes had noted that when the defendant took off after being stopped, he was "way ahead" of him. Thus, according to the defendant, there was no evidence he (the defendant) could see flashing lights if he looked. Further, Trooper Barnes's dash-cam (his unit's mounted video camera) did not record sound during the first minute or so of the chase. Thus, according to the defendant, there is no proof the siren was activated by Trooper Barnes. The defendant also argues in his brief that the State did not prove Trooper Barnes was in a marked police vehicle. When Trooper Barnes described the scene of the checkpoint, he noted that the vehicle was on the shoulder of the roadway and that it was "clearly marked." The defendant suggests that what Trooper Barnes was referring to about being clearly marked was the "over all [sic] scene" of the checkpoint. Furthermore, the defendant avers, Trooper Barnes never stated that his vehicle was clearly marked.
The issue regarding the lights and siren is groundless. Trooper Barnes testified that when pursuing the defendant, he had both his lights and siren on. The jury chose to believe Trooper Barnes, and there was nothing in the record to contradict his testimony. The video of the chase revealed that for a few minutes, there was no audio. When the defendant had crashed into the thick shrubbery and fled on foot, the audio on the camera began working. When asked on cross-examination about the initial lack of audio on his dash-cam, Trooper Barnes stated, "All I can tell you is that [sic] sometimes they work and sometimes they don't. They're not failsafe." Regarding what the defendant knew, the jury could have reasonably concluded that given his initial flight, his refusal to stop, and ultimately his crashing into shrubbery and fleeing on foot, the defendant clearly knew he was being pursued by Trooper Barnes. The video of the chase, played for the jury, clearly showed the defendant within sight of Trooper Barnes as he followed the defendant on a straight stretch of U.S. Hwy. 190. Thus, a jury could have reasonably concluded that with the trooper's lights and siren on during this part of the chase, the defendant knew that he had been given a visual and an audible signal to stop by a police officer. We further note that neither the defendant nor his female passenger testified at trial, so there was no testimony that the defendant did not hear a siren or see flashing lights. This issue is raised for the first time in the defendant's brief. Cf. State v. Hendricks, 37,045 (La. App. 2nd Cir. 7/16/03), 850 So.2d 1096, 1098-99 (where the State, after presenting evidence through the testimony of three witnesses that the pursuing police officer activated his siren, was allowed to present rebuttal testimony of radio transmission of a siren only after defense presented "new evidence" of defense witness testimony of not hearing a siren during the chase).
Testimony also established Trooper Barnes was in a marked unit. In describing how the checkpoint was set up, Trooper Barnes explained:
Basically, what we do is we choose an area to where it's safe for us to exit our vehicle. I'm sure you guys have come across them at some point in time. What we do is we put our vehicle on the shoulder of the roadway. It's clearly marked. We are in full uniform, and you can see us. We stand almost to the line if there is a centerline.
In the foregoing description, Trooper Barnes referenced where his vehicle was placed and immediately explained that it was clearly marked. Trooper Barnes later testified that when the defendant began to flee, the trooper had to run back to his "unit vehicle" before giving chase. Thus, despite the defendant's assertion, the jury could have reasonably concluded that Trooper Barnes's vehicle, described as clearly marked, and equipped with lights and a siren, was a marked police unit.
Regarding the "human life is endangered" element of the aggravated flight from an officer statute, the defendant asserts the State failed to prove that he left the roadway or traveled against the flow of traffic. Accordingly, the defendant argues the State did not prove the requisite minimum of two acts that endangered human life. This assertion is unfounded. Based on the testimony of Trooper Barnes and our review of the video of the defendant's flight, the State established three of the six acts, namely that the defendant traveled against the flow of traffic; failed to obey a stop sign; and left the roadway.
According to Trooper Barnes, as he began chasing the defendant, the road (La. Hwy. 434) made a small turn to the right. As the trooper came around the turn, he observed the defendant (who was driving a blue minivan) travel on the roadway in the opposite direction, or against the flow of traffic, and then run a stop sign as he turned left onto U.S. Hwy. 190. As he followed the defendant, Trooper Barnes saw him turn left off of U.S. Hwy. 190 onto a small, one-lane road, possibly Dogwood. When Trooper Barnes turned down that road, he did not see the defendant. He turned off his lights and siren and rolled down his windows. Seconds later, he heard a loud crash to his right. He looked in that direction and saw that the defendant had crashed next to a house into "big shrubbery" bushes. When he approached the moded area.
The dash-cam mouinivan, the defendant jumped from the driver's seat and fled on foot through the wonted on Trooper Barnes's police unit captured the chase; however, because Trooper Barnes lost a few seconds running back to his unit after the defendant fled, it is not clear from our review of the video that the camera recorded the defendant turning left onto U.S. Hwy. 190. It appears that when Trooper Barnes's unit straightened out after the initial right curve in the road, the defendant had just made his left turn. Trooper Barnes testified that the camera was not set at a particularly wide angle, but rather at a standard setting, and that he had seen the angle wider (at other times). In any event, the jury could have reasonably concluded that Trooper Barnes was able to observe more than what his camera captured. Moreover, Trooper Barnes testified that he observed the defendant drive against the flow of traffic and run a stop sign, and the jury found the testimony credible.
The road (La. Hwy. 434) the defendant was on just before it meets U.S. Hwy. 190 fans out, similar to a delta. The road splits to the right and left, with seven orange traffic cones marking the split. If continuing onto U.S. Hwy. 190 from La. Hwy. 434; the driver must keep to his right before reaching a stop sign, where he can then turn left or right onto U.S. Hwy. 190. If the driver proceeds left of the cones, then he is driving against the traffic flow, since that lane is for traffic coming off of U.S. Hwy. 190 and turning right. It is through this traffic lane (the one to the left of the traffic cones) that Trooper Barnes testified he saw the defendant drive.
Our review of the video further indicates, as described by Trooper Barnes, that the defendant crashed just to the right side of a house into dense underbrush and shrubbery. Between the road and the crash site, there was a large grassy yard with a dirt driveway. The defendant turned onto this driveway. Instead of staying on the driveway, which curved to the left in front of the house, the defendant drove off of the driveway and into the bushes. Lengthy tire marks in the muddy terrain indicate the defendant skidded for several yards before crashing. Based on the foregoing, the jury could have reasonably concluded the defendant left the roadway.
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record may contain evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. See State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
The jury heard all of the testimony and viewed the documentary evidence presented to it at trial and found the defendant guilty. The jury's verdict reflected the reasonable conclusion that based on the evidence, the defendant knowingly fled from Trooper Barnes and that, during such flight, he drove against the flow of traffic, ran a stop sign, and left the roadway before crashing. In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence. Neither the defendant nor any defense witness testified at trial. See Moten, 510 So.2d at 61.
After a thorough review of the record, we are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of any hypothesis of innocence, that the defendant was guilty of aggravated flight from an officer. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).
This counseled assignment of error is without merit.
COUNSELED ASSIGNMENT OF ERROR NO. 2
In his second counseled assignment of error, the defendant argues the trial court abused its discretion in denying the motion for mistrial. Specifically, the defendant contends his motion for mistrial should have been granted because of an inadmissible reference to other crimes evidence.
Deputy Sam Hyneman, with the St. Tammany Parish Sheriff's Office, testified at trial that, based on an anonymous call, he located the defendant. When asked about his condition, Deputy Hyneman stated the defendant was soaking wet and very dirty. The complained of colloquy took place on the redirect examination of Deputy Hyneman by the State, as follows:
Q. Did he offer you any explanation as to why he did this?
A. No, sir, I didn't ask.
Q. Did he mention anything to you?
A. Just that he didn't want to go back to jail.
At this point, the defendant moved for a mistrial because the last statement carried the "inference of a prior felony." The trial court found the remark innocuous and unprompted, and denied the motion for mistrial.
In his brief, the defendant argues that the remark about jail was an impermissible reference to other crimes in violation of La. Code Evid. art. 404(B). The defendant also asserts that the comment was neither innocuous nor unprompted. According to the defendant, by inviting the jury to speculate on the cause of the prior incarceration, the State set up the defendant for the jury to suspect the worst with an insidious reference to unspecified prior criminal activity.
We find no reason to disturb the trial court's denial of the motion for mistrial. Under La. Code Crim. P. art. 770(2), 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 trial or argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. An impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State and would mandate a mistrial. See State v. Boudreaux, 503 So.2d 27, 31 (La. App. 1st Cir. 1986). Article 770 is inapplicable in this case because the alleged prejudicial comment was not made by the judge, district attorney, or court official, but rather by Deputy Hyneman. The Louisiana Supreme Court has generally recognized that a police officer's unsolicited, unresponsive reference to another crime by the defendant is not the comment of a court official under Article 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police officer, such comments would not fall within the purview of Article 770. See State v. Watson, 449 So.2d 1321, 1328 (La. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985); State v. Johnson, 2006-1235 (La. App. 1st Cir. 12/28/06), 951 So.2d 294, 301.
The controlling provision is La. Code Crim. P. art. 771(2), which provides in pertinent part:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant . . . in the mind of the jury:
* * *
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official . . ..
In such cases, 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.
Here, the defendant objected to a remark and moved for a mistrial, rather than an admonition. Because Deputy Hyneman's remark fell within the scope of Article 771, the granting of a mistrial was within the broad discretion of the trial court. La. Code Crim. P. art. 775 provides in part that "[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771." As a general matter, mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. In addition, the trial court has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Smith, 418 So.2d 515, 522 (La. 1982). See State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. A reviewing court in Louisiana should not reverse a defendant's conviction and sentence unless the error has affected the substantial rights of the accused. See La. Code Crim. P. art. 921.
There is no showing of clear prejudice to the defendant since Deputy Hyneman's remark was vague and too generalized to have made any substantial impact in the mind of the jury, The officer's oblique comment of "he didn't want to go back to jail" did not directly refer to any crime committed or alleged to have been committed by the defendant. Moreover, Deputy Hyneman's comment was unsolicited. Unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. See State v. Thompson, 597 So.2d 43, 46 (La. App. 1st Cir.), writ denied, 600 So.2d 661 (La. 1992). See also State v. Harrison, 32,643 (La. App. 2nd Cir. 10/27/99), 743 So.2d 883, 888-89, writ denied, 99-3352 (La. 6/30/00), 765 So.2d 327 (where, in upholding the trial court's denial of a motion for mistrial based on a prospective juror's comment that the only thing he heard about the defendant was that he was back in jail, the Second Circuit found the comment was "not only unrelated to other crimes evidence but was an unsolicited response to an intended yes or no question by the state.").
On cross-examination, defense counsel had asked Deputy Hyneman if the defendant appeared remorseful to him when he came into contact with the defendant. When the deputy stated he believed the defendant seemed upset, defense counsel then asked, "About the situation that he found himself in?" Deputy Hyneman replied in the affirmative. Because defense counsel asked no questions of Deputy Hyneman about what the defendant might have told him about why he fled, it appears on redirect examination that the prosecutor simply wanted to follow up on this line of questioning to explore whether the defendant had an explanation for his actions.
In any case, Deputy Hyneman's single, vague comment did not require a mistrial. See State v. Jackson, 2000-191 (La. App. 5th Cir. 7/25/00), 767 So.2d 833, 835-36. There has been no showing of any prejudice tending to deprive the defendant of the reasonable expectation of a fair trial, and the trial court did not abuse its discretion in denying the motion for mistrial See Berry., 684 So.2d at 449.
This counseled assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR
In his pro se assignments of error, the defendant advances several arguments regarding the habitual offender hearing. The defendant further alleges that his sentence is excessive.
Habitual Offender Hearing
The defendant argues the State did not prove he was a fourth-felony habitual offender at the habitual offender hearing. Specifically, the defendant contends the State used imperfect records, minute entries, and other similar documentation that "were not true depictions of the occurrences in those proceedings." Further, according to the defendant, his prior guilty pleas were not knowingly and voluntarily made. The defendant also argued that the State's admission at the habitual offender hearing of the documentary evidence establishing the defendant was a habitual offender violated the hearsay rule.
In order 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 trial court must inform the 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. The trial court must also ascertain that the accused understands what the plea connotes and its consequences. State v. Henry, 2000-2250 (La. App. 1st Cir. 5/11/01), 788 So.2d 535, 541, writ denied, 2001-2299 (La. 6/21/02), 818 So.2d 791. If the defendant denies the allegations of 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. Id.
While a colloquy between the trial court and the defendant is the preferred method of proof of a free and voluntary waiver, the colloquy is not indispensable when the record contains some other affirmative showing of proper waiver. State v. Carson, 527 So.2d 1018, 1020 (La. App. 1st Cir. 1988). See State v. Shelton, 621 So.2d 769, 775 (La. 1993). Everything that appears in the entire record concerning the predicate, as well as the trial court's opportunity to observe the defendant's appearance, demeanor, and responses in court, should be considered in determining whether or not 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 which he may have. Henry, 788 So.2d at 541.
Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).
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In order to obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. In attempting to do so, the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical driver's license number, sex, race, and date of birth. State v. Payton, 2000-2899 (La. 3/15/02), 810 So.2d 1127, 1130. The Habitual Offender Act does not require the State to use a specific type of evidence, including fingerprints, to cany its burden at an habitual offender hearing and prior convictions may be proved by any competent evidence. See Payton, 810 So.2d at 1132.
At the habitual offender hearing, the State introduced evidence that included the defendant's fingerprint card, certified copies of bills of information, minute entries, and a Boykin hearing transcript of the predicate convictions alleged in the habitual offender bill of information. For the defendant's March 7, 2006 guilty plea to simple burglary (22nd JDC, St. Tammany Parish, docket number 396344), the State submitted the guilty plea minute entry, which indicates that the defendant was represented by counsel, that the court advised the defendant of his right to a trial, his right to confront his accusers, and his right against self-incrimination, and that the defendant waived these rights.
For the defendant's (other) March 7, 2006 guilty plea to simple burglary (22nd JDC, St. Tammany Parish, docket number 396345), the State submitted the guilty plea minute entry, which indicates that the defendant was represented by-counsel, that the court advised the defendant of his right to a trial, his right to confront his accusers, and his right against self-incrimination, and that the defendant waived these rights.
For the defendant's May 7, 2007 guilty pleas to simple burglary of an inhabited dwelling, simple burglary, and possession of cocaine (22nd JDC, St. Tammany Parish, docket number 412859). the State submitted the guilty plea minute entry, which indicates that the defendant was represented by counsel, that the court advised the defendant of his right to a trial, his right to confront his accusers, and his right against self-incrimination. Along with this minute entry, the State also submitted a transcript of the Boykin hearing, wherein the defendant was informed of each crime he was charged with, his rights, and a waiver of those rights.
On the three above-mentioned bills of information, the defendant's date of birth, social security number, and home address are identical. Also, according to the fingerprint expert who testified at the habitual offender hearing, the defendant's fingerprints on the backs of each of the bills of information matched the defendant's prints on the fingerprint card.
In Shelton, the Supreme Court held that once the State carries its initial burden at an habitual offender hearing of proving the existence of a defendant's prior guilty pleas and his representation by counsel or waiver of counsel, the burden shifts to the defendant "to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea." Shelton, 621 So.2d at 779. See State y. Clesi, 2007-0564 (La. 11/2/07), 967 So.2d 488, 489-90 (per curiam). The State in the instant matter clearly carried its burden of proving the existence of the defendant's guilty pleas, that they were freely and voluntarily given, and that the defendant was represented by counsel. The defendant offered no evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas. See Clesi, 967 So.2d at 490. Accordingly, the State proved the defendant's predicate convictions, and the trial court correctly adjudicated the defendant a fourth-felony habitual offender.
We further find that the evidence submitted at the habitual offender hearing to prove the defendant's predicate convictions did not violate the hearsay rule. The properly authenticated exhibits were admissible under the public records exception to the hearsay rule. See La. Code Evid. art. 803(8)(a)(i) & (ii); State v. Kennerson, 96-1518 (La. App. 3rd Cir. 5/7/97), 695 So.2d 1367, 1376-77. Moreover, La. R.S. 15:529.1(F) creates a statutory exception to the hearsay rule by making certain certified copies of prior conviction records prima facie evidence of the imprisonment and discharge of the individual.
The defendant contends in his brief that the State failed to provide him with discovery for the habitual offender proceeding despite his specific request for such discovery. Under La. R.S. 15:529.1, there is no requirement that the State submit its documentation to the defense prior to the multiple bill hearing. State v. Dozier, 2006-0621 (La. App. 4th Cir. 12/20/06), 949 So.2d 502, 505, writ denied, 2007-0140 (La. 9/28/07), 964 So.2d 350. Moreover, there is no due process violation of the burden-shifting under Shelton, wherein the burden of production in the form of affirmative evidence is on the recidivist defendant who challenges the validity of a prior conviction under Boykin. See Parke v. Raley, 506 U.S. 20, 34, 113 S.Ct. 517, 525-26, .121 L.Ed.2d 391 (1992); State v. Denomes, 95-1201 (La. App. 1st Cir. 5/10/96), 674 So.2d 465, 468-69, writ denied, 96-1455 (La. 11/8/96), 683 So.2d 266.
The defendant also asserts in his brief that he was not allowed an expert witness at the habitual offender hearing. According to the defendant, this expert would have testified that the defendant did not "fully grasp the consequences of the previous guilty pleas," and, as such, the pleas were not made voluntarily and knowingly. This assertion is baseless. At the habitual offender hearing, the defendant was effectively represented by defense counsel, who reviewed the State's documentary evidence, lodged appropriate objections, and filed his own (along with the defendant's pro se motion) motion to quash the habitual offender bill of information. Furthermore, it is not some defense "expert" but rather the trial court that determines the constitutionality of predicate guilty pleas. Thus, when the State produces anything less than a perfect transcript, i.e., a minute entry or a guilty plea form, the trial court (in its capacity as a legal expert) must weigh the evidence to determine whether the defendant's prior guilty pleas were knowingly and voluntarily made. See Shelton, 621 So.2d at 780,
The defendant also asserts in his brief that he was not afforded effective assistance of counsel,. While not clear from the brief, it appears the defendant is alleging that all defense counsel who represented him in his prior guilty pleas, as well as defense counsel who represented him at the instant habitual offender proceeding, were ineffective.
The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. 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, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (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 the counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. State v. Serigny, 610 So.2d 857, 859 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993). Even if the defendant satisfied both prongs under Strickland, he would still have to show that there was a reasonable probability that, but for counsel's error(s), he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the trial court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence needed to decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1st Cir. 11/8/96), 684 So.2d 432, 438.
The defendant's only claims to ineffective assistance of counsel are the following: "Counsel failed to fulfill his constitutional obligations by objecting and contesting these issues. Counsel did not compel the production of the records rendering the appellate process also incomplete to be decided upon less than a full record." The defendant has set forth unsupported claims that cannot be verified by review of the appellate record. Two of the defendant's prior guilty pleas were established with bills of information and minute entries; as such, we have no information on the defendant's representation (other than defense counsel's name) at those guilty pleas.
Claims of ineffective assistance of counsel, by their very nature, are highly fact-sensitive. Henry, 788 So.2d at 540. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel that led to the claim; general statements and conclusory charges will not suffice. State v. Jordan, 35,643 (La. App. 2nd Cir. 4/3/02), 813 So.2d 1123, 1134, writ denied, 2002-1570 (La. 5/30/03), 845 So,2d 1067. Moreover, 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 the accused and his attorney, and 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. 1st Cir. 1993).
In any event, the defendant has made no showing of deficient performance of any defense counsel, past or instant. As applied to his habitual offender proceedings by Shelton, 621 So.2d at 780, the presumption of regularity that attached to the minutes of his prior guilty pleas meant that the trial court could assume the defendant received advice with respect to each of his Boykin rights until he proved otherwise. Clesi, 967 So.2d at 490. The defendant made no showing at the habitual offender hearing that his prior guilty pleas were not knowingly and voluntarily made.
If the defendant feels there is evidence to present beyond what is contained in the instant record, such evidence must be adduced in an evidentiary hearing in the district court. The defendant would have to satisfy the requirements of La. Code Crim. P. art. 924, et seq., in order to receive such a hearing. See State v. Albert, 96-1991 (La. App. 1st Cir. 6/20/97), 697 So.2d 1355, 1363-64. See also Johnson, 951 So.2d at 304.
The defendant also asserts in his brief that the habitual offender scheme violates double jeopardy. According to the defendant, his adjudication as an habitual offender violates the prohibition against double jeopardy because it exposes him to multiple punishments for the same criminal conduct. This assertion is groundless. The habitual offender hearing is not a trial, and legal principles such as res judicata, double jeopardy, the right to a jury trial and the like do not apply. Louisiana's habitual offender statute is simply an enhancement of punishment provision. It does not punish status and does not on its face impose cruel and unusual punishment. State v. Richardson, 91-2339 (La. App. 1st Cir. 5/20/94), 637 So.2d 709, 715.
The defendant further asserts that he was not advised of his rights at the habitual offender hearing. There is no merit to this assertion. A minute entry contained in the instant appellate record indicates that about one month prior to the habitual offender hearing, after the State filed its habitual offender bill, the court at a hearing advised the defendant of His rights relating to the "Multiple Offender Bill." Moreover, even if the defendant had not been specifically advised of these rights, any such error would have been harmless, because the defendant did not plead guilty or stipulate to the charges in the habitual offender bill. Instead, an habitual offender hearing was conducted, wherein the defendant was represented by counsel and did not testify. The State presented evidence at the hearing to establish the habitual offender allegations and the defendant's identity. Thus, any error that could have occurred in failing to inform the defendant of the specific allegations in the habitual offender bill, of his right, to be tried as to the truth thereof, and his right to be silent, would have constituted harmless error. See La. Code Crim. P. art. 92.1; Denomes, 674 So.2d at 472.
Finally, the defendant claims that the use of a bill of information to charge an ancillary non-felony crime is not constitutional. Specifically, the defendant contends that since a bill of information is used to charge a felony, then the charging of a "non-felony" by an habitual offender bill of information constitutes a "jurisdictional defect." Having conflated two distinct types of bills of information, the defendant's claim is untenable. An habitual offender bill of information charging that a defendant has previously been convicted of one or more felonies does not charge a substantive crime. Such a proceeding is merely part of sentencing and allows enhanced penalties for repeat offenders. See State v. Langendorfer, 389 So.2d 1271, 1276-77 (La. 1980).
Louisiana Revised Statutes 15:529.1(D)(1) provides that a district attorney may file an information charging a defendant as a multiple offender following his felony conviction for the instant crime if that defendant has prior felony convictions. However, this additional bill of information does not charge a new crime, but is merely a method of informing the court of the circumstances and of requesting an enhancement of the penalty to be imposed. See State v. Banks, 612 So.2d 822, 825 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1254 (La. 1993). See also State v. Walker, 416 So.2d 534, 535-36 (La. 1982).
Based on the foregoing, all of the arguments/pro se assignments of error asserted by the defendant regarding the habitual offender hearing are without merit.
Sentencing
In this pro se assignment of error, the defendant argues that his life sentence is excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454, The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988).
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569. The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial 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).
In his brief, citing State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 677, the defendant notes that if the trial court finds clear and convincing evidence that justifies a sentence below the mandatory minimum sentence, the trial court must impose the longest term that is not constitutionally excessive. In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial court were to find that the punishment mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime[,]" he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.
In Johnson, 709 So.2d at 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence, although specifically within the framework of the Habitual Offender Law. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676-77.
In sentencing the defendant as an habitual offender under La. R.S. 15:529.1(A)(4)(b), it is clear the trial court considered Dorthey and Johnson in determining that life imprisonment was an appropriate sentence:
Mr, Rucker, I've also considered the letter that you've written to the Court. I've considered the pro se motion that you had filed, and I have given very very much thought to this case. I want to tell you that I've also taken into consideration the language in State versus Dorthey (phonetic) and State versus Johnson where, first of all, there's a presumption that the sentence of mandatory life is constitutional, but that under these cases where a Court is clearly and firmly convinced that the minimum sentence, which is a life sentence in this case, is excessive, that I have the power to declare it excessive is a violation of the Louisiana Constitution even though it falls within the statutory limits established by the legislature.
I have to start with the presumption that the mandatory minimum sentence under the habitual offender law is constitutional, and I have given very very much thought to the nature of your offense and what is seemingly a very very serious penalty for that offense.
On its face, where you are charged with, in the multiple bill, for aggravated flight from an officer, and then the predicate offenses are used to create this minimum mandatory that seems so egregious, what I have to look to is your history.
That's the whole nature of a multiple offender hearing and the whole philosophy behind the legislature being able to impose these harsh sentences. You have been given so many chances. You have been put on probation, on probation, on probation, on probation, and have never ever decided to take advantage of the privileges extended to you as someone on probation.
At some point, somebody has to say this is enough, and I have, believe me, wrestled with this case in trying to decide whether this serious of a sentence is appropriate under these circumstances, and it is. It is. At some point, it's got to stop. I am very very conscious of the jail situation and the number of people incarcerated in Louisiana and in our particular parish, but I think it's an appropriate sentence for me to impose the mandatory minimum of life.
Given the defendant's repeated criminality and total disregard for the law, we find no abuse of discretion by the trial court. The trial court provided sufficient justification for imposing a life sentence. To the extent the defendant is suggesting he is exceptional, he has not proven by clear and convincing evidence that he is exceptional such that the sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive.
This pro se assignment of error is without merit.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.