Opinion
2012 KA 0752
04-10-2013
STATE OF LOUISIANA v. RON A. BROWN
Walter P. Reed District Attorney Covington, Louisiana and Kathryn W. Landry Special Appeals Counsel Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Holli Herrle-Castillo Louisiana Appellate Project Marrero, Louisiana Counsel for Defendant/Appellant Ron A. Brown Ron A. Brown Tallulah, Louisiana Defendant, Pro Se
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 22nd Judicial District Court
In and For the Parish of St. Tammany
Trial Court Numbers 503,846 and 503,932
The Honorable Peter J. Garcia, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
and
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Holli Herrle-Castillo
Louisiana Appellate Project
Marrero, Louisiana
Counsel for Defendant/Appellant
Ron A. Brown
Ron A. Brown
Tallulah, Louisiana
Defendant, Pro Se
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
Justice Jefferson D. Hughes III is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
HUGHES , J.
The defendant, Ron A. Brown, was charged by bill of information with two counts of theft of a value of five hundred dollars or more, but less than one thousand five hundred dollars, violations of LSA-R.S. 14:67(B)(2). The defendant pled not guilty, and, after a trial by jury, he was found guilty as charged on both counts. The defendant was originally sentenced to five years imprisonment at hard labor on each count, to be served concurrently. Subsequently, the State filed a habitual offender bill of information. After a hearing, the defendant was adjudicated a fourth felony habitual offender, and the trial court imposed an enhanced sentence of twenty-five years imprisonment at hard labor.
The two counts of theft were charged in two separate bills of information (under 22nd Judicial District Court docket numbers 503,846 and 503,932), and the two cases were consolidated for purposes of the trial.
The State sought to enhance the sentence, in Case Number 503,932, based on: (1) a plea of guilty on November 6, 1991, in Orleans Parish, to illegal possession of stolen things; (2) a conviction of aggravated battery in Orleans Parish, on September 12, 1994 (for which the defendant served a prison sentence and was released on March 15, 2004); (3) a plea of guilty on September 20, 1994, in the 24th Judicial District Court, Jefferson Parish, to possession of cocaine; (4) a plea of guilty on November 16, 2010, in the 24th Judicial District Court, Jefferson Parish, to theft of goods of a value over five hundred dollars (committed March 30, 2010); and (5) a plea of guilty on November 16, 2010, in the 24th Judicial District Court, Jefferson Parish, to theft of goods of a value over five hundred dollars (committed August 8, 2010).
The defendant now appeals, assigning error to: the sufficiency of the evidence in support of the convictions; the trial court's failure to vacate the original sentence imposed, before resentencing on the enhanced count; and the constitutionality of the enhanced sentence. The defendant also notes that, based on the record, it appears that the trial court failed to inform him of the prescriptive period for filing an application for post-conviction relief. Furthermore, the defendant filed a pro se brief that raises: claims of ineffective assistance of counsel; trial court error in the denial of a continuance of the trial and a competency hearing; and violation of the rules of discovery. For the following reasons, we: affirm the convictions; affirm the sentence in Case Number 503,846; affirm the habitual offender adjudication and the enhanced sentence in Case Number 503,932; vacate the original sentence imposed in Case Number 503,932; and remand with instructions.
STATEMENT OF FACTS
On February 22, 2011, at about 4:30 p.m., Walmart asset protection associate Jason Pittman observed the defendant in the electronics section of a Walmart store in Covington, pushing a shopping cart draped with bathrobes that concealed any other contents. Pittman continued to observe the defendant as he selected a computer from a shelf and walked about one hundred feet away from the electronics section, to the fitting room area. The defendant then looked around, observing his surroundings, before pulling out a box cutter from his pocket and using it to cut the computer's packaging box to remove the attached electronic security device. The defendant walked back to the electronics section, placed the computer back on the shelf, removed another computer of the same or similar model, and placed it in a shopping cart being pushed by a female companion. They purchased the computer and exited the store. Following the couple out of the store, Pittman observed the female companion give the defendant the receipt for the purchased computer, as she pushed the computer towards a maroon or red SUV. As the defendant reentered the store, Pittman summoned police backup and continued to follow and observe the defendant as he walked back to the electronics section of the store, holding the receipt for the purchased computer in his hand. The defendant reselected the computer packaged in the box from which he had previously removed the electronic security device, placed the computer in his shopping cart, proceeded toward the front of the store without going through a checkout lane, and exited the store with the computer.
Pittman approached the defendant outside of the store, identified himself, and requested to see a receipt for the store merchandise. According to Pittman, the defendant flashed a receipt, but maintained possession of it. Pittman informed the defendant that he had been following him and instructed him to come back into the store with him, but the defendant attempted to flee. Deputies of the St. Tammany Parish Sheriff's Office apprehended the defendant, while Pittman monitored the merchandise. After being escorted back into the store to the loss prevention office for questioning and processing, the defendant signed a waiver of rights form and a notice restricting him from entering Walmart properties, and he gave an oral statement. The defendant refused to provide the identity of the female companion who gave him the receipt for the purchased computer.
Exhibit S-3 consists of store video surveillance footage, without audio, of the February offense, apparently depicting: the stop of the defendant, outside the store, with the shopping cart containing the merchandise in question; and the defendant being escorted back into the store to the loss prevention office.
On March 5, 2011, at about 1:30 p.m., Walmart asset protection associate Brandon Brown observed the defendant in the electronics section of a Walmart store in Slidell and immediately recognized him as a theft offender included on the company's ban and watch list. Brandon observed the defendant select a forty-inch flat-screen television and place it in a shopping cart. The defendant ultimately made two separate purchases, the forty-inch flat-screen television and a Hewlett Packard desktop computer, and he received two receipts. The defendant exited the store with the items and loaded them into a maroon or red SUV. When the defendant reentered the store, Brandon notified the Slidell Police Department of a suspected theft in progress, commonly referred to as "double dipping."
To distinguish Brandon Brown from the defendant Ron Brown, we will refer to him herein as "Brandon."
The defendant met a female companion in the store and gave her one of his receipts. The defendant then went to the electronics section and selected a desktop computer of the same or similar model as the one he had just purchased, while the female companion selected a similar forty-inch flat-screen television and placed it in her shopping cart. Both bypassed the checkout lanes. The female companion exited the store with the shopping cart containing the second television and loaded the television into the SUV. One or two minutes later, the defendant exited the store with a shopping cart containing the second desktop computer. As the defendant was attempting to load the computer into the SUV, the police pulled up to the vehicle. As two officers approached from different directions, the defendant threw the computer and attempted to flee, but was apprehended along with the female subject, identified as Anika Butler The stolen television and computer were retrieved, returned to the store, and scanned through a cash register to ascertain the retail value of the merchandise.
Butler was named as a codefendant in the bill of information for the March 5, 2011 offense. Since the defendant was tried alone, Butler's charge was apparently severed.
SUFFICIENCY OF THE EVIDENCE
In his first counseled assignment of error, the defendant contends that the evidence presented at trial was insufficient to support the convictions for theft. While the defendant does not deny stealing a computer on both of the dates in question, he contends that the State failed to prove the requisite value element in both offenses. As to the February offense, the defendant argues that Pittman had no independent knowledge of the value of the stolen computer. The defendant notes that there was no printout showing the retail price obtained with the UPC code or any other documentation of the value of the computer. As to the March offense, the defendant contends that the State only proved that he took the computer that had an uncontested value of less than five hundred dollars, but that there was no evidence that he knew his girlfriend was going to take the television. The defendant further notes that there was no video footage to show him interacting with his girlfriend before she stole the television,
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and adopted by the Louisiana Legislature in enacting LSA-C.Cr.P. art. 821, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that, in order to convict, the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Delco, 2006-0504 (La. App. 1 Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160; State v. Graham, 2002-1492 (La. App. 1 Cir. 2/14/03), 845 So.2d 416, 420. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty, unless there is another hypothesis that raises a reasonable doubt. State v. Marrero, 2011-1285 (La. App. 1. Cir. 2/10/12), 92 So.3d 21, 29, writ denied, 2012-0563 (La. 6/15/12), 90 So.3d 1060 (citing State v. Captville, 448 So.2d 676, 680 (La. 1984)). See also State v. Sosa, 2005-0213 (La. 1/19/06), 921 So.2d 94, 99.
Theft is the misappropriation or taking of anything of value that belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. LSA-R.S. 14:67(A). In all cases involving shoplifting, the term "value" is the actual retail price of the property at the time of the offense. LSA-R.S. 14:2(A)(2). Theft is a specific intent crime. Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the factfinder. State v. Bean, 2004-1527 (La. App. 1 Cir. 3/24/05), 899 So.2d 702, 707, writ granted on other grounds, 2005-1106 (La. 3/8/06), 925 So.2d 489, writ denied, 2005-1106 (La. 11/3/06), 940 So.2d 652.
All persons concerned in the commission of a crime are principals, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. See LSA-R.S. 14:24. Mere presence at the scene of a crime does not make one a principal to the crime. Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. Therefore, the mental state of one defendant may not be imputed to another defendant. State v. Bean, 899 So.2d at 707 (citing State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam)).
As noted, in this case the defendant was convicted of theft, on both counts, of a value of five hundred dollars or more, but less than a value of one thousand five hundred dollars, under LSA-R.S. 14:67(B)(2). As further noted, the defendant does not contest stealing the computers in question, but does, however, challenge the evidence of the value of the computer stolen in February and his involvement in the theft of the television in March.
Regarding the February offense, Pittman testified that as an asset protection associate, he routinely conducted investigations when a theft occurred and wrote reports. As a part of his investigations, Pittman used the system universal product code (UPC/bar code) to determine the value of stolen items, As to his investigation in this case, Pittman testified that, once he entered the bar code for the item in question (the Hewlett-Packard desktop computer stolen by the defendant), the system prompted a retail price value of six hundred eighty-nine dollars. A photograph of the packaging with the bar code and Pittman's report were admitted into evidence. Although Pittman documented the retail price and bar code, he did not retain the register slip for the bar code entry and was unable to obtain the receipt the defendant flashed when he stopped him outside of the store. Pittman observed a store associate scan the stolen computer and noted that the register indicated the same retail price that he retrieved with the bar code. Pittman testified that he was certain of the value of the stolen computer.
Captain Douglas Sharp of the St. Tammany Parish Sheriffs Office was in the Covington Walmart parking lot, on February 22, 2011, when the defendant exited the store with the stolen computer, and he assisted in the apprehension of the defendant. Captain Sharp also documented the value of the stolen computer, and he testified that it was valued at six hundred eighty-nine dollars, recalling that he also observed it being scanned. His report indicated that the defendant gave Pittman the receipt for the purchased computer, while Pittman's testimony indicated that the defendant never transferred, but only flashed the receipt, maintaining possession of it. Captain Sharp searched the defendant after he was arrested, but did not locate the receipt.
Regarding the March 5, 2011 offense, Brandon testified that they retrieved only the stolen television and computer, as the similar items had been paid for with cash and were no longer store property. Brandon wrote an investigation report for the incident, wherein he documented the bar codes for the stolen items and their retail price. Brandon testified that, as documented in his report, the retail price for the computer was four hundred forty-eight dollars and the television had a retail price of six hundred ninety-eight dollars. The receipt that Brandon obtained after scanning the items was also admitted into evidence. The total for both items, including sales tax, was twelve hundred forty-six dollars and twenty-eight cents. Brandon reiterated that he specifically observed the defendant giving Butler a receipt, when he reentered the store, after purchasing a television and computer like the ones that were subsequently stolen. Brandon and the police did not recover the receipts for the purchased items.
The defendant testified at the trial that Butler was his girlfriend and that they committed the thefts to obtain money for unpaid bills. The defendant further testified that he planned to commit only misdemeanors, as opposed to felonies, specifically stating, "I would never go over five hundred." The defendant argued that the stolen computer in the February offense had the same value as the stolen computer in the March offense, i.e., four hundred forty-eight dollars. The defendant stated that, in both cases, he had the receipts for the purchased computers at the time of his arrests, but no longer had possession of them at the time of the trial, contending that he had given them to an attorney who he considered hiring for representation but ultimately did not retain.
Further, regarding the March offense, the defendant contended that Butler stole the television without his knowledge. He reiterated that he did not want his theft to amount to a value of five hundred dollars. He further contended that the items were separately valued at less than five hundred dollars, and he planned to come back the next day with the second receipt. He also denied giving the receipt to Butler in the store, specifically testifying that he left the receipt in the SUV. The defendant testified that video surveillance would have shown that he and Butler were never together in the store and that he was unaware of the fact that she entered the store and left with the stolen television.
In State v. Council, 97-1221 (La. App. 5 Cir. 3/25/98), 708 So.2d 1283, the defendant challenged his conviction for theft of goods of a value over five hundred dollars from a K-Mart store, contending that the State had failed to prove the value of the items on the day of the offense. The store's security officer testified at the trial therein that, on the date of the incident, she personally compiled a list of the stolen merchandise, and the respective retail prices, and that the total value of the items was five hundred forty-two dollars and ninety-two cents. The K-Mart security officer explained that she had arrived at this total by using a device that scans the bar codes of merchandise and provides the appropriate retail prices, The security officer also verified the prices with a store manager. On review, the court of appeal found the security officer's testimony sufficient to prove the value of the items on the day they were taken. State v. Council, 708 So.2d at 1284-85.
In State v. Coleman, 2002-0345 (La. App. 5 Cir. 9/18/02), 829 So.2d 468, the appellate court concluded that the evidence in the case was sufficient to support a finding that the defendant had specific intent to commit theft and that he actively participated in the commission of the theft. Thus, the court upheld the defendant's conviction as a principal to the offense of theft of goods of a value between one hundred and five hundred dollars. The loss prevention officer had testified that the defendant handed various men's clothing items to the co-perpetrator, who then proceeded to another section of the store to conceal the items under her dress. The process of the defendant handing clothes to the co-perpetrator occurred several times. The defendant and the co-perpetrator engaged in several conversations with each other during the process. Regarding the defendant's argument that the value of a child's clothing item should not have been included in the total value of the merchandise taken, since he did not hand this clothing item to his co-perpetrator, the court noted mat a principal to the crime of theft is held culpable for the entire value of the merchandise taken. State v. Coleman, 829 So.2d at 471-72.
In reviewing the evidence herein, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. State v. Craddock, 2010-1473 (La. App: 1 Cir. 3/25/11), 62 So.3d 791, 795, writ denied, 2011-0862 (La. 10/21/11), 73 So.3d 380 (citing State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662). As to the February offense, the testimony presented by Pittman and Captain Sharp clearly showed that the value of the computer in question exceeded five hundred dollars. Pittman maintained a view of the defendant during the entire transaction. Pittman gained control over the stolen computer when the defendant was apprehended. Pittman, as observed by Captain Sharp, obtained and documented the value of the computer using the bar code. Pittman's report was admitted into evidence, and he was certain that the computer had a retail value of six hundred eighty-nine dollars. Regarding the March offense, as noted, the defendant challenges his involvement in the theft of the television, while conceding that he stole the computer. Just prior to the theft of the television and computer, the defendant alone purchased similar items in separate transactions, allowing him to maintain one receipt (presumably to use in the event a store employee requested to see a receipt as he exited the store with the second computer), while passing on the other receipt to Butler before she exited the store with the stolen television. The defendant exited the store moments after Butler and attempted to load the stolen computer into the same vehicle in which Butler had just loaded the stolen television.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Morris, 2009-0422 (La. App. 1 Cir. 9/11/09), 22 So.3d 1002, 1009 (citing State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam)). Considering the evidence presented in the light most favorable to the prosecution, we conclude that a rational juror could have found that the State established, beyond a reasonable doubt, that, the evidence was sufficient to establish that the defendant was a principal to the theft of the television and was guilty of theft of a value of five hundred dollars or more, but less than one thousand five hundred dollars, on both counts. The first counseled assignment of error lacks merit.
FAILURE TO VACATE THE ORIGINAL SENTENCE
In his second counseled assignment of error, the defendant contends that the trial court failed to vacate the sentence originally imposed in Case Number 503,932 before sentencing him as a fourth felony habitual offender. The State does not deny this assertion in its appellate brief. The defendant further states that, while the minute entry indicates that the original sentence was vacated, the sentencing transcript reflects otherwise, The defendant asks that the original sentence be "set aside."
We agree with the defendant's contention that the transcript for the enhanced sentence shows that the trial court failed to vacate the original sentence before sentencing him as a habitual offender, although the minutes indicate that the original sentence was vacated. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Morgan, 2006-0506 (La. App. 1 Cir. 9/15/06), 943 So.2d 500, 500 n.2 (citing State v. Lynch, 441 So.2d 732, 734 (La. 1983)). It is apparent from the trial court's actions that it intended to vacate the original sentence. Therefore, we hereby vacate the defendant's original sentence in Case Number 503,932 to conform to the requirements of LSA-R.S. 15:529.1(D)(3), and remand for correction of the commitment order, if necessary, to reflect that the original sentence has been vacated. See State v. Jackson, 2000-0717 (La. App. 1 Cir. 2/16/01), 814 So.2d 6, 11 (en banc), writ denied, 2001-0673 (La. 3/15/02), 811 So.2d 895.
Paragraph (D)(3) of LSA-R.S. 15:529.1 provides, in pertinent part, that when the trial judge finds that the defendant has been convicted of a prior felony or felonies, or if the defendant acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in LSA-R.S. 15:529.1, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated.
EXCESSIVE SENTENCE
In his third counseled assignment of error, the defendant contends that the enhanced sentence imposed in Case Number 503,932 is unduly harsh and constitutionally excessive. The defendant notes that the trial court did not state the reasons for the sentence prior to its imposition, and he submits that the societal cost of his incarceration for twenty-five years, for theft, outweighs the cost to society for the loss associated with the theft offense. The defendant further contends that the sentence is disproportionate when considering, as a mitigating factor, the financial burdens occasioned by his inability to find a job, which he was attempting to meet in committing the offense.
The defendant does not contest the non-enhanced, five-year sentence imposed in Case Number 503,846.
The record before this court does not contain a copy of a motion to reconsider sentence or evidence that the defendant orally moved for reconsideration of the sentence. After the enhanced sentence was imposed, the defendant's trial counsel simply stated, "Please note our objection for the record, Your Honor," without stating any ground for the objection. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. LSA-C.Cr.P. art. 881.1(E). Thus, the defendant is barred, procedurally, from having the third counseled assignment of error reviewed. See State v. Duncan, 94-1563 (La. App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam); State v. Myles, 616 So.2d 754, 758-59 (La. App. 1 Cir.), writ denied, 629 So.2d 369 (La. 1993).
INEFFECTIVE ASSISTANCE OF COUNSEL
In his pro se brief, the defendant raises several claims of ineffective assistance of counsel. He argues that his trial counsel was ineffective in failing to object to codefendant Butler's severance and guilty plea to a less severe offense. The defendant also notes that his trial counsel did not request an opportunity to examine Butler's statements. The defendant further complains that his trial counsel allowed the State to consolidate the theft charges for purposes of the trial and failed to subpoena Butler. The defendant also argues that his trial counsel's failure to pursue a subpoena duces tecum, for video footage and a Walmart receipt for the actual dollar amount of the computer stolen in February, allowed the State to fabricate the retail value of the computer. The defendant further argues that his trial counsel failed to conduct a complete investigation and that his trial counsel's trial strategy was inferior, inept, and deficient. Finally, the defendant contends that his trial counsel was ineffective in not moving for a mistrial regarding ambiguity in the jury's verdict. The defendant further asserts that an error in the verdict would be discoverable by a mere inspection of the pleadings and proceedings pursuant to LSA-C.Cr.P. art. 920(2). Thus, the defendant argues that his constitutional right to effective assistance of counsel was violated.
We note that the record before us does not include information regarding the referenced plea bargain or statements by Butler,
A defendant is entitled to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, Section 13, of the Louisiana Constitution. State v. Berry, 430 So.2d 1005, 1007 (La. 1983), Effective assistance of counsel does not mean errorless counsel or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La. 1983). When a defendant seeks reversal of a conviction based on ineffective assistance of counsel, he must establish two separate elements to succeed. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See also State v. Castaneda, 94-1118 (La. App. 1 Cir. 6/23/95), 658 So.2d 297, 304. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for a defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for his counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it Is unnecessary to address the issues of both the counsel's performance and the prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
When a claim of ineffective assistance of counsel is raised on appeal, the issue is generally referred to post-conviction proceedings in which both sides can introduce evidence and the validity of the claim can be properly determined. State v. Wille, 559 So.2d 1321, 1339 (La. 1990), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992). See also State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). However, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy, State v. Bourgeois, 451 So.2d 172, 174 (La. App. 1 Cir.), writ denied, 457 So.2d 18 (La. 1984). Decisions relating to investigation, preparation, and strategy cannot possibly be evaluated on appeal, because an evidentiary hearing was not held on this issue. See State v. Eames, 97-0767 (La. App. 1 Cir. 5/15/98), 714 So.2d 210, 216, writ denied, 98-1640 (La. 11/6/98), 726 So.2d 922; State v. Lockhart, 629 So.2d 1195, 1208 (La. App. 1 Cir, 1993), writ denied, 94-0050 (La. 4/7/94), 635 So.2d 1132. 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. Patton, 2010-1841 (La. App. 1 Cir. 6/10/11), 68 So.3d 1209, 1218; State v. Folse, 623 So.2d 59, 71 (La. App. 1 Cir. 1993).
The defendant would have to satisfy the requirements of LSA-C.Cr.P, art. 924 et seq. in order to receive such a hearing.
Herein, the defendant's claims (regarding his trial counsel's failure to: fully investigate, obtain surveillance video footage, obtain a receipt for the stolen computer, and subpoena Butler) address decisions related to investigation and trial preparation, which require an evidentiary hearing and are, therefore, relegated to post-conviction relief. As to the defendant's arguments regarding Butler's severance and plea bargain, we find that the defendant has failed to show any counsel error. It was well within the State's discretion to request a severance of the defendant's and Butler's cases, and the defendant has failed to show how he was prejudiced in this regard.
As to the consolidation of the charges against the defendant for trial, we note that, for purposes of appellate review, whether the claim involves misjoinder of offenses, prejudicial joinder, or improper consolidation, the defendant must show prejudice to establish that trial of two or more crimes in a single proceeding affected his substantial rights. State v. Jarrell, 2007-1720 (La. App. 1 Cir. 9/12/08), 994 So.2d 620, 632 (citing State v. Crochet, 2005-0123 (La. 6/23/06), 931 So.2d 1083, 1086 (per curiam)). See also LSA-C.Cr.P. art. 921. Factors to determine if prejudice resulted from consolidation include whether the factfinder would be confused by the various charges; whether the factfinder would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the factfinder to infer a criminal disposition; and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the factfinder hostile. See State v. Jarrell, 994 So.2d at 632; State v. Crochet, 931 So.2d at 1087. Herein, the evidence was not presented in a confusing manner, and the evidence clearly allowed the jury to easily segregate the offenses. Further, the defendant admitted to stealing the computer in both cases and only contested the dollar amount of the thefts. Noting that the State presented a receipt to show that the value of the computer stolen on March 5th was less than five hundred dollars, the defendant testified that the computer stolen on February 22nd was of equal value. Thus, the defendant used the evidence of one offense to bolster his defense for the other offense. Consideration of the factors in this matter convinces us the defendant was not prejudiced by the consolidation of the offenses. Thus, the defendant has failed to present a claim of ineffective assistance of counsel in failing to object to the consolidation of the offenses.
Finally, the defendant contends that his trial counsel was ineffective in not moving for a mistrial because of ambiguity in the jury's verdict, During the trial of this matter, after jury foreperson James Pierce informed the trial judge that the jury had reached a verdict, the clerk was instructed to read the verdict in open court. As initially provided, the verdicts were stated as guilty of the responsive offenses of attempted theft. Immediately after the reading of the verdicts, Pierce indicated that he may have written them incorrectly, and the trial judge, without objection, sent the jury back to the jury room with a new verdict sheet. When the jury returned, the trial court noted that the jury indicated that the initial verdict sheet was not their verdict. The clerk read the new verdict sheet, which indicated that the jury found the defendant guilty as charged as to each offense. The trial judge conducted a written polling of the jury and found that the polling supported the verdicts. The defense counsel then stated that the original verdict sheet was clear, included the word "attempt," and was signed by the foreperson. The defense counsel suggested that the jury may have subsequently gone back to the jury room to "re-decide the case." While the trial judge noted that he was convinced that the second verdict sheet reflected the jury's actual verdict, out of an abundance of caution, an oral polling of the jury on both the original and subsequent verdict sheet was conducted. Each member of the jury indicated that the attempted theft verdict was not their verdict, and each member of the jury subsequently indicated that their original verdict was "guilty" of theft as charged. During this process, the foreperson explained his error on the original verdict sheet as follows, "As when we were deliberating, no. I did write it down, but wrote down the wrong one according to what we had agreed it was going to be."
If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal. LSA-C.Cr.P. art. 813. As noted in Comment (a) to Article 813, former LSA-R.S. 15:402 and the jurisprudence make it clear that until a verdict is received and recorded, it is not a verdict, and the jury has the right to alter it. See State v. Owens, 193 La. 505, 518, 190 So, 660, 664 (1939). In this case, the foreperson and the other members of the jury made it abundantly clear that the original verdict sheet was in error and that the amended sheet was a reflection of their original verdicts. After the defense counsel questioned the validity of the guilty as charged verdicts, the trial judge took painstaking measures to make certain that the jury's original verdicts were reflected in the convictions. The defense counsel subsequently filed a motion for new trial on this basis, which was denied by the trial court. We find that there was no attempt on the part of the trial judge to influence the verdicts. The defendant has failed to establish trial counsel's ineffectiveness in not moving for a mistrial as to the verdicts. We find no merit in the defendant's ineffective assistance of counsel claims.
COMPETENCY TO PROCEED
In his pro se brief, the defendant additionally contends that the trial court erred in failing to delay the trial and in failing to hold a competency hearing based on his observable condition. The defendant specifically maintains that, on the second day of the trial, he was incoherent due to his use of pain medication. The defendant contends that he was having difficulty comprehending statements and that the trial judge should have noticed his unusual behavior.
A criminal defendant has a constitutional right not to be tried while legally incompetent. State v. Carmouche, 2001-0405 (La. 5/14/02), 872 So.2d 1020, 1041. Nonetheless, a defendant does not have an absolute right to the appointment of a sanity commission. See State ex rel. Seals v. State, 2000-2738 (La. 10/25/02), 831 So.2d 828, 832. In Louisiana, "[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." LSA-C.Cr.P. art. 641. Our law also imposes a legal presumption that a defendant is sane and competent to proceed State v. Carmouche, 872 So.2d at 1041. See also LSA-R.S. 15:432. A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant's mental capacity to proceed. State ex rel. Seals v. State, 831 So.2d at 832. See also LSA-C.Cr.P. art. 643. It is well established that "reasonable grounds" exist where one should reasonably doubt the defendant's capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. To determine a defendant's capacity, we are first guided by LSA-C.Cr.P. arts. 642, 643, and 647. State ex rel. Seals v. State, 831 So.2d at 832.
As a general matter, LSA-C.Cr.P. art. 642 allows "[t]he defendant's mental incapacity to proceed [to] be raised at. any time by the defense, the district attorney, or the court." Article 642 additionally requires that "[w]hen the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution . . . until the defendant is found to have the mental capacity to proceed." Next, LSA-C.Cr.P. art. 643 provides, in pertinent part: "The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity ' to proceed." Lastly, if a defendant's mental incapacity has been properly raised, the proceedings can only continue, pursuant to LSA-C.Cr.P art. 647, after the court holds a contradictory hearing and decides the issue of the defendant's mental capacity to proceed. Where there is a bona fide question raised regarding a defendant's capacity, the failure to observe procedures, to protect a defendant's right not to be tried or convicted while incompetent to stand trial, deprives him of his due process right to a fair trial. State ex rel. Seals, 831 So.2d at 832-33. The ordering of a sanity commission to inquire into the defendant's present capacity to proceed rests in the sound discretion of the trial court. State v. Robinson, 92-1057 (La, App. 1 Cir. 5/5/95), 655 So.2d 517, 519; State v. Folse, 623 So.2d at 66.
During the second day of the trial, just before the State rested, the trial court took a brief break at the request of the defendant. During the break the defendant stated, "Your Honor, I didn't think I was going to court this morning because they called. I get medicine, Ultran [sic]. My wrist got broke and I'm not feeling well, and I'm feeling like I'm starting to pass out." The defendant further explained that he thought the trial was going to be rescheduled for another day, so he took his medication, and he would not have done so had he known the trial would actually resume that day. The defendant further stated that he was "getting dizzy." The trial judge noted that the defendant seemed fine, and the recess was extended for a conference in the judge's office, which was not placed on the record. After the recess, the jury was brought back in and the trial resumed. After publishing the evidence, the State rested, and the defendant testified as the sole defense witness.
The defense counsel did not move either orally or in writing for a sanity hearing. The trial judge apparently observed nothing to suggest that the defendant was not competent at trial, nor does the record indicate that the defendant was not competent. During his trial testimony, the defendant's answers were articulate, cogent, comprehensive, and indicated that he fully understood the proceedings. The defendant has failed to show that there was reasonable ground to doubt his mental capacity to proceed. Accordingly, we find no abuse of discretion by the court in resuming the trial.
DISCLOSURE OF BRADY MATERIAL
In his pro se brief, the defendant also claims that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in not disclosing Butler's guilty plea. The defendant claims that Butler's guilty plea constituted exculpatory evidence. The defendant specifically contends that Butler pled guilty to the theft of the television only, despite the fact that they were charged with the theft of a television and computer. The defendant contends that the State withheld Butler's statements, including a confession to the theft The defendant concludes that he is entitled to a reversal of the conviction on the March 5, 2011 offense and for a remand for a new trial on the matter.
The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Herron, 2003-2304 (La. App. 1 Cir. 5/14/04), 879 So.2d 778, 787 (citing State v. Mitchell, 412 So.2d 1042, 1044 (La. 1982)). Discovery procedures enable a defendant to properly assess the strength of the State's case against him in order to prepare his defense. State v. Herron, 879 So.2d at 787; State v. Roy, 496 So.2d 583, 590 (La. App. 1 Cir. 1986), writ denied, 501 So.2d 228 (La. 1987). The State's failure to comply with discovery procedures will not automatically demand a reversal. State v. Gaudet, 93-1641 (La. App 1 Cir. 6/24/94), 638 So.2d 1216, 1220, writ denied, 94-1926 (La. 12/16/94), 648 So.2d 386; State v. Burge, 486 So.2d 855, 866 (La. App. 1 Cir.), writ denied, 493 So.2d 1204 (La. 1986). If a defendant is lulled into a misapprehension of the strength of the State's case by the State's failure to fully disclose, such a prejudice may constitute reversible error. State v. Herron, 879 So.2d at 787; State v. Roy, 496 So.2d at 590.
The defendant has no general constitutional right to unlimited discovery in a criminal case. State v. Lynch, 94-0543 (La. App. 1 Cir. 5/5/95), 655 So.2d 470, 478, writ denied, 95-1441 (La. 11/13/95), 662 So.2.d 466. Under the United States Supreme Court decision in Brady v. Maryland, the State, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. See State v. Hawkins, 96-0766 (La. 1/14/97), 688 So.2d 473, 476. This rule has been expanded to include evidence that impeaches the testimony of a witness, when the reliability or credibility of that witness may be determinative of guilt or innocence. State v. Davis, 2009-1061 (La. App. 3 Cir. 4/7/10), 36 So.3d 351, 365, writ denied, 2011-1908 (La. 4/27/12), 86 So.3d 623 (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)). The test for determining materiality was firmly established in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and has been applied by the Louisiana Supreme Court. The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. State v. Rosiere, 488 So.2d 965, 970-71 (La. 1986) (citing United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383).
Louisiana Code of Criminal Procedure Article 722 mandates that the prosecution allow a defendant access to confessions and other inculpatory statements by a codefendant that are intended for use at trial. Only when such statements are used at trial is the State obligated to submit it to discovery. However, when such statements are exculpatory in nature, LSA-C.Cr.P. art. 722 and Brady v. Maryland require the State to produce them, regardless of its intent to use them at trial. The failure of the State to produce exculpatory evidence constitutes reversible error when the evidence would create a reasonable doubt, which would otherwise not exist in the context of the whole record. State v. Guillory, 544 So.2d 643, 647 (La. App. 3 Cir.), writ denied, 551 So.2d 1334 (La. 1989); State v. Hamilton, 470 So.2d 604, 607 (La. App. 1 Cir. 1985).
We find that the defendant has failed to show that the State suppressed any evidence in this case. We further note that even if a discovery or Brady violation did occur, it would not constitute reversible error without actual prejudice to the defendant's case. State v. Taylor, 96-1043 (La. App. 3 Cir. 2/5/97), 688 So.2d 1262, 1272. See also State v. Francis, 2000-2800 (La. App. 1 Cir. 9/28/01), 809 So.2d 1029, 1033. Herein, the defendant has failed to show how he was prejudiced or denied a fair trial. Moreover, the record does not reflect any manner in which the defendant might have been lulled into a misapprehension of the strength of the State's case. The evidence of the defendant's guilt in both offenses was overwhelming. While the defendant now contends that Butler only admitted to stealing the television, the defendant admitted in his own trial testimony that he and Butler stole the computer, and he does not contest that fact on appeal. The defendant has failed to raise any substantial claim, of suppression of evidence by the State that would create a reasonable doubt, which would otherwise not exist in the context of the whole record. Thus, the defendant has not shown any substantial prejudice such that he was deprived of any reasonable expectation of a fair trial. We find no merit in the arguments raised concerning alleged Brady violations.
POST-CONVICTION RELIEF NOTICE
In his counseled appellate brief, the defendant notes that, based on the record, it appears that the trial court did not advise him of the two-year period for filing an application for post-conviction relief. Louisiana Code of Criminal Procedure article 930.8(C) provides that, at the time of sentencing, the trial court shall inform the defendant of the prescriptive period for applying for post-conviction relief. However, this article contains merely precatory language and does not bestow an enforceable right upon an individual defendant. State v. Godbolt, 2006-0609 (La. App. 1 Cir 11/3/06), 950 So.2d 727, 732. While the defendant is correct, in that the record herein does not reflect that he was given such notice by the trial court, as the issue has been raised herein, it is apparent that the defendant has notice of the correct limitation period and/or has an attorney who is in the position to provide him with such notice. Although we have done so in the past, we decline to remand for the trial court to provide such notice. Instead, out of an abundance of caution and in the interest of judicial economy, we note that LSA-C.Cr.P, art. 930.8(A) generally provides that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.
CONVICTIONS AFFIRMED; SENTENCE IN 22ND JUDICIAL DISTRICT COURT DOCKET NUMBER 503,846 AFFIRMED; HABITUAL OFFENDER ADJUDICATION AND ENHANCED SENTENCE IN 22ND JUDICIAL DISTRICT COURT DOCKET NUMBER 503,932 AFFIRMED; ORIGINAL SENTENCE IMPOSED IN 22ND JUDICIAL DISTRICT COURT DOCKET NUMBER 503,932 VACATED; REMANDED WITH INSTRUCTIONS.