Opinion
NUMBER 2014 KA 1364
03-09-2015
STATE OF LOUISIANA v. APRIL T. HATCHER
Walter P. Reed District Attorney Covington, LA Counsel for Appellee State of Louisiana Kathryn W, Landry Special Appeals Counsel Baton Rouge, LA Counsel for Appellee State of Louisiana Martin E. Regan, Jr. New Orleans, LA Counsel for Defendant/Appellant April T. Hatcher
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Docket Number 541611
Honorable Peter J. Garcia, Presiding Walter P. Reed
District Attorney
Covington, LA
Counsel for Appellee
State of Louisiana
Kathryn W, Landry
Special Appeals Counsel
Baton Rouge, LA
Counsel for Appellee
State of Louisiana
Martin E. Regan, Jr.
New Orleans, LA
Counsel for Defendant/Appellant
April T. Hatcher
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. GUIDRY, J.
The defendant, April T Hatcher, was charged by bill of information with theft of goods (value between $500 and $1,500), a violation of La. R.S. 14:67.10. She pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal, which was denied. The defendant was sentenced to two years imprisonment at hard labor. 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. The trial court vacated the two-year sentence and resentenced the defendant to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant filed a motion to reconsider sentence. The trial court granted the motion and resentenced the defendant to twelve years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction and habitual offender adjudication. We amend the sentence and affirm it as amended.
Co-Defendant Tomlando Hatcher was charged with the same crime, tried together with the defendant, and found guilty as charged.
FACTS
On the afternoon of October 12, 2013, the defendant and Tomlando Hatcher entered Kohl's Department Store on Pinnacle Parkway in Covington. They used a Kohl's buggy, a small square-shaped, mesh container on wheels. They went into the men's clothing section and began looking at Levi's 501 jeans. Kohl's has about thirty-five video security cameras that record. Chijiojk Kanu, Kohl's loss prevention supervisor, walked near the couple and observed the defendant and Tomlando place several pairs of jeans in the buggy, as well as other items, and enter the men's dressing room area with a full buggy. The defendant had placed her purse inside the buggy. There are no security cameras in the actual fitting rooms, so Kanu did not see which room Tomlando (or the defendant, or both) went into. Kanu went to his office to monitor the pair's actions. Minutes later, on one of the four screens in his office, Kanu saw the couple leave the dressing room area with the buggy and saw Tomlando hang up a shirt that the defendant had taken to the fitting room. Kanu did not see any jeans in the buggy, but he noticed that the defendant's purse, which had gone in the fitting room flat, was now very big.
Kanu went to the dressing room area the defendant and Tomlando had just been in and, in one of the fitting rooms, found nine security or sensor tags that had been broken off of items of clothing. Kanu did not see any jeans in that or any other fitting room. Kanu found the defendant and Tomlando walking in the store and continued to follow them. Store policy prohibited Kanu from physically apprehending them. When the couple headed into the juniors area, Kanu walked past them. He looked in their buggy, which contained the defendant's partially zipped-up purse. Kanu saw Kohl's jeans stuffed inside the purse. The price tags were still on the jeans. The defendant and Tomlando then headed toward a store exit. When the defendant grabbed her purse from the buggy and put it on her shoulder, Kanu introduced himself to the couple. He told them he was with loss prevention and asked for the return of the merchandise. The defendant put her purse back in the buggy, and she and Tomlando ran with the buggy into a fitting room in the juniors area and closed the door. Kanu approached and asked them to come out and to come to the office with him. A few seconds later, the couple dashed out of the fitting room and left the store. The defendant had her purse with her. Kanu saw nine pairs of Levi jeans without security tags on the floor of the fitting room that the couple had just left. Kanu locked the door to the room and followed the pair outside the store. He called the police as he followed them. When he caught up to them, he asked them to return to the store with him, but they ignored Kanu and kept moving. When they crossed Pinnacle Parkway, Kanu stopped following them but continued to tell dispatch where they were heading. Finally, the defendant and Tomlando hopped a wire fence and crossed the interstate before Kanu lost sight of them.
Minutes later, Deputy Kathy Maki and a trainee, Deputy Daniel Brady, both with the St. Tammany Parish Sheriff's Office, found two people behind the Hollywood Theater, fitting the description of the suspects. They were sweaty and had muddy shoes, and when the deputies approached them and asked what they were doing, Tomlando said they were exercising. Neither of them had any identification and both gave the police false names. Kanu was brought to the scene, where he immediately identified them as the pair who had just been in Kohl's and had taken new pairs of jeans. They were arrested for theft of goods and brought to the police station, where their true identity was eventually ascertained.
Kanu drafted an itemized list of the items taken by the defendant and Tomlando. The defendant and Tomlando took nine pairs of Levi's Jeans (eight men's/young men's and one misses/women's) and one scarf (misses/women's). The merchandise totaled $612.
ASSIGNMENT OF ERROR NO. 1
In her first assignment of error, the defendant argues the evidence was insufficient to support the conviction.
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. C. Cr. P. art. 821(B); State v. Ordodi, 06-0207, p. 10 (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, 01-2585, p. 5 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144.
Louisiana Revised Statute 14:67.10 provides, in pertinent part:
A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred when a person:
(1) Intentionally conceals, on his person or otherwise, goods held for sale.
(2) Alters or transfers any price marking reflecting the actual retail price of the goods.
(3) Transfers goods from one container or package to another or places goods in any container, package, or wrapping in a manner to avoid detection.
(4) Willfully causes the cash register or other sales recording device to reflect less than the actual retail price of the goods.
(5) Removes any price marking with the intent to deceive the merchant as to the actual retail price of the goods.
(6) Damages or consumes goods or property so as to render it unmerchantable.
Thus, theft of goods consists of three elements: (a) the "misappropriation or taking of anything of value which is held for sale by a merchant," (b) either "without the consent of the merchant ... or by means of fraudulent conduct," and (c) with "intent to deprive the merchant permanently of ... the subject of the misappropriation or taking." State v. Bean, 04-1527, p. 6 (La. App. 1st Cir. 3/24/05), 899 So. 2d 702, 707, writ granted on other grounds, 05-1106 (La. 3/8/06), 925 So. 2d 489, writ denied, 05-1106 (La. 11/3/06), 940 So. 2d 652. Theft is a specific intent crime. See State v. Albert, 96-1991, p. 8 (La. App. 1st Cir. 6/20/97), 697 So. 2d 1355, 1362. Specific 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. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La. 11/25/96), 684 So. 2d 382, 390. Specific intent need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So. 2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So. 2d 889, 892 (La. App. 1st Cir. 1986).
The parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23. Principals are all persons concerned in the commission of a crime, 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. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So. 2d 427, 428 (per curiam). The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Arnold, 07-0362, p. 7 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1067, 1072, writ denied, 07-2088 (La. 3/7/08), 977 So. 2d 904. Thus, a general principle of accessorial liability is that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other. State v. Smith, 07-2028, p. 8 (La. 10/20/09), 23 So. 3d 291, 296 (per curiam).
In her brief, the defendant raises several issues. She argues the State failed to prove she took goods valued at a total of $500 or more but less than $1,500. Specifically, she contends that the State did not produce evidence to support that she removed the security tags and took the clothing, or that she intended to permanently deprive Kohl's of the merchandise. The defendant suggests the record did not establish who removed the tags. The defendant further argues that the State did not prove she had the requisite intent to commit a theft of the alleged merchandise. Specifically, she contends that, even assuming she possessed any amount of merchandise, it is unclear whether she was in possession of the clothing alleged. The defendant also argues that it was not proved that $612 was the amount of merchandise taken. Again, the defendant suggests specific intent to commit theft was not proven, and that she did not carry the goods outside of the store. Also, whether the amount of merchandise totaled $612 "reflects accurately the actual cost for the alleged merchandise at the time of the incident or an inflated retail amount," according to the defendant, was not established. Finally, the defendant argues that the State did not negate the defense theory that someone else had been involved in the alleged theft, namely a woman in a light blue shirt who had been observed speaking to the couple.
Testimony and physical evidence introduced at the trial established that the defendant took nine pairs of jeans without the consent of Kohl's. Kanu testified that the defendant and her partner (co-defendant Tomlando Hatcher) were in the men's clothing section looking at Levi's 501 jeans, which is a high-theft item at Kohl's. The defendant and Tomlando filled a store buggy with pairs of jeans and other items and went to the men's dressing room area. Tomlando, and possibly the defendant, went into a fitting room with the buggy. There are no store cameras in the fitting rooms. Therefore, Kanu did not know, from his video surveillance, which of the six fitting rooms Tomlando (or both of them) was in. The defendant's purse was inside the buggy. Kanu left the area and went to his office to monitor their activity on a store security camera. When the defendant and Tomlando exited the dressing room area, Tomlando had a store shirt with him that he hung back up; however, neither he nor the defendant ever brought any jeans out of the dressing room with them. Kanu had observed that when the defendant's purse was first brought into the fitting room (inside the buggy), the purse was flat. When both the defendant and Tomlando left the men's dressing room area, they had the buggy with them and the defendant's purse was in the buggy. The purse had become "very big," according to Kanu.
Immediately, Kanu left his office and went to the section of fitting rooms that the defendant and Tomlando had just been in and found, in one of the fitting rooms, nine security tags that had been broken off of the clothing they were attached to. There were no jeans in the fitting room. Kanu followed the defendant and Tomlando, who had just left the jewelry counter and had passed up two cash registers. The pair then made their way to the juniors area. Kanu walked past them to get a better look at the defendant's purse in the buggy. Kanu was dressed in casual clothes and did not wear identification so that he appeared to customers as just another shopper. The defendant's purse was not fully zipped up, and Kanu testified, "I could see my items right there." Kanu stated that he saw the big purse and the jeans inside the purse. The couple then approached the store exit. The defendant removed her purse from the buggy and put it on her shoulder. By the time the defendant had gotten this far, she had passed several more cash registers. Just prior to the defendant and Tomlando walking out of the store, Kanu approached them, introduced himself as Kohl's loss prevention supervisor, told them he had observed them and that he needed his merchandise back, and requested that they come to the office with him. The defendant put her purse back inside the buggy, and she and Tomlando ran with the buggy into a juniors fitting room and closed the door. Kanu spoke with them through the door, telling them to return the merchandise and to come to the office with him. They ignored Kanu. Seconds later, they burst out of the fitting room, went through the men's section and exited the store. Kanu saw pairs of jeans on the floor of the juniors fitting room the couple had just left. Kanu locked the fitting room door to secure the items. He then followed the couple out of the store, and when he got near them, he asked them to return to the store with him. They ignored him. As Kanu continued to follow them, he called the sheriff's department dispatch and gave a description of the defendant and Tomlando. Kanu followed them as far as Pinnacle Parkway Road. When he returned to the store and went back to the locked juniors fitting room, he unlocked the door and found nine pairs of Levi's jeans and a scarf. He loaded up the jeans (and scarf) into a cart and took them to his office. The jeans still had price tags on them. Kanu testified that he added up the price of each of the nine pairs of jeans, and the scarf, and that the total cost of the merchandise was $612.
Based on the foregoing, it is clear the defendant had the specific intent to commit a theft of the nine pairs of jeans and a scarf. The jeans were placed in the defendant's purse, either by her personally or through her accomplice, Tomlando. Further, she or Tomlando removed the security tags from each pair of jeans. Kanu explained at trial that the store uses a tool to remove the security tags and that, in the absence of such a tool, the tags could be removed by hand if the person was strong enough. Under the law of principles, it is irrelevant as to who, specifically, placed the jeans in the purse, or whether the defendant or Tomlando removed the security tags. See La. R.S. 14:24. The couple never once approached a cash register, and the defendant, with her purse full of the stolen jeans, was only feet from exiting the store before being stopped by Kanu. The defendant suggests there was no theft because she never left the store with the jeans. Leaving the premises, however, is not required for the completion of the crime of theft of goods. See Bean, 04-1527 at pp. 9-11, 899 So. 2d at 709-710 (it is not necessary for goods to actually be removed from the store in order to form the basis of a conviction for theft). Under La. R.S. 14:67.10, any one of the six actions listed by a defendant constitutes theft of goods, or an intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking. In this case, the jury could have inferred the taking based on two of the six actions, namely when the defendant (and Tomlando) intentionally concealed, on her person or otherwise, goods held for sale, or transferred goods from one container or package to another or placed goods in any container, package, or wrapping in a manner to avoid detection. See La. R.S. 14:67.10(1) & (3).
The defendant's contention that it was unclear whether she had actually been in possession of the nine pairs of jeans, as alleged, is also groundless, based on the evidence. Kanu saw the jeans in the defendant's purse. While he could not see the entire nine pairs in her purse, he found the nine pairs of jeans on the floor of the fitting room immediately following the defendant's emptying of her purse in that same room and then fleeing from it. Those nine pairs of jeans were also each missing a security tag, and those nine tags had been found in the fitting room that Tomlando (and possibly the defendant) had just minutes before been in. Kanu testified that he had been in the men's fitting area a few minutes before the defendant and Tomlando were in there and that the area was cleaned.
Further, the defendant's contention that the total amount of items stolen had not been established is baseless. The jeans still had the price tags on them when Kanu retrieved them, and he testified that he made an itemized list of each pair of jeans, including the UPC number and price of each item of clothing. The list also contains a description of each pair of jeans taken. One pair of jeans costs $46; three pairs cost $68; and five pairs cost $64. The scarf costs $42. (The total amount of the jeans alone was $570). A copy of this list was introduced into evidence, and a copy was given to the police investigating the case. Also, pictures of the nine security tags and nine pairs of jeans were taken by the police and introduced into evidence at trial.
Finally, the defendant's contention that the State failed to negate the theory that another person had been involved in the theft is groundless. According to Kanu, there had been a third person, a woman in a light blue shirt, who had been talking to the defendant and Tomlando. Aside from this woman having conversations with the couple, Kanu did not observe her having any involvement in the theft of the merchandise. Kanu testified that the woman never selected any merchandise, so he did not consider her as having taken anything. Also, she was not with the defendant and Tomlando as they walked to the store exit to leave. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. The mental state of one defendant may not be imputed to another defendant. Thus, mere presence at the scene of a crime does not make one a principal to the crime. Bean, 04-1527 at p. 7, 899 So. 2d at 707. See Pierre, 631 So.2d at 428. Moreover, even if the woman had been involved with the theft, the defendant's own culpability as a principal in the commission of the crime would not be diminished in any way.
When a case involves circumstantial evidence and the trier of fact 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). 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, 03-1980, p. 6 (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). Moreover, 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, p. 5 (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, p. 8 (La. 10/17/00), 772 So. 2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So. 2d 592, 596 (La. App. 1st Cir. 1985).
The jury's verdict reflected the reasonable conclusion that based on the physical evidence and the eyewitness testimony, the defendant and Tomlando, working as accomplices, entered Kohl's, removed security tags from nine pairs of jeans, placed the jeans in the defendant's purse, and tried to walk out of the store without paying for the secreted merchandise. We note as well that a finding of purposeful misrepresentation reasonably raises the inference of a "guilty mind," as in the case of material misrepresentation of facts by the defendant following an offense. Lying has been recognized as indicative of an awareness of wrongdoing. State v. Captville, 448 So. 2d 676, 680 n.5 (La. 1984). Further, flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. See State v. Fuller, 418 So. 2d 591, 593 (La. 1982). The evidence at trial clearly established that the defendant fled Kohl's to avoid apprehension and, soon thereafter, lied to the police about her identity.
After a thorough review of the record, we find that the evidence supports the jury's guilty verdict. 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 every reasonable hypothesis of innocence, that the defendant was guilty of theft of goods (value between $500 and $1,500). See State v. Calloway, 07-2306, p. 10 (La. 1/21/09), 1 So. 3d 417, 422 (per curiam).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In her second assignment of error, the defendant argues the trial court erred in denying her Batson challenge during voir dire. Specifically, the defendant contends the prosecutor improperly used peremptory- strikes on two prospective jurors on the basis of race.
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L. Ed. 2d 69 (1986), the Supreme Court adopted a three-step analysis to determine whether or not the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, if a race-neutral explanation is tendered, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The second step of this process does not demand an explanation that is persuasive or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam). See also La. C. Cr. P. art. 795(C), (D), & (E).
During voir dire, when the six-person jury had been picked, both the prosecutor and defense counsel had accepted two black jurors, Manual Graves and Shawanna Jackson. The prosecutor then used back strikes to remove Graves and Jackson. Defense counsel objected. He noted that the defendant(s) were black and that, with his back strikes, the prosecutor had just removed all of the black jurors. The following exchange then took place:
The Court: You have to give me some specific reasons for objecting.
Mr. Greenland [defense counsel]: I think race plays an important part in the jury makeup, and they're not their peers, per se, but they're a different race.
The Court: Is there a name for your objection by any chance? Give me some justification.
Mr. Oubre [prosecutor]: First off, I don't believe that Mr. Greenland has shown a pattern, and again, this is just visual, but it appears that Ms. Gary is also an African American, and I did not strike her.
But my basis for Mr. Graves is that for some reason he gave me an eight and Richard [Greenland] a nine [out of ten] in credibility and he knows neither of us. In fact, Richard had said less. That caused me pause with him.
Ms. Jackson, I just didn't feel like was paying attention or I could relate to.
The Court: Your objection is noted and overruled. I think there are other -- what's your basis on Ms. Jackson?
Mr. Oubre: Just in communicating with her, Judge, I didn't feel like she responded well to me [sic] eye contact, totally subjective in looking at her. I did not -- I am not attempting to eliminate African Americans on this jury.
Mr. Greenland: Four out of five have been eliminated, and plus I thought --
The Court: I don't understand that statement.
Mr. Greenland: Four out of five blacks.
Mr. Oubre: You eliminated Treva Hackett. I didn't. She was accepted on my sheet. Ms. Treva Hackett is the other African American. The state did not, the defense cut her.
Mr. Geenland: I'm sorry. I'm sorry. You're right.
Mr. Oubre: She was acceptable.
The Court: I don't think that there's been a racial basis.
When the trial court said "Give me some justification," it is not clear if it was speaking to defense counsel or the prosecutor. Based on the exchange just before the trial court made this statement, it appears the trial court wanted defense counsel to be clearer as to the subject of his objection. In any event, the prosecutor responded to the trial court and offered race-neutral reasons why he struck Graves and Jackson.
Because the prosecutor offered race-neutral reasons for his use of peremptory challenges, the preliminary issue of whether the defendant made a prima facie showing is moot. See Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991); State v. Jacobs, 99-0991, p. 8 (La. 5/15/01), 803 So. 2d 933, 941, cert. denied, 534 U.S. 1087, 122 S. Ct. 826, 151 L. Ed. 2d 707 (2002). At this point, the trial court may "effectively collapse the first two stages of the Batson procedure, whether or not the defendant established a prima facie case of purposeful discrimination, and may then perform the critical third step of weighing the defendant's proof and the prosecutor's race-neutral reasons to determine discriminatory intent." Jacobs, 99-0991 at p. 8, 803 So. 2d at 941.
In this case, the inference of the trial court's denial of the Batson challenges was that the defendant did not meet his burden of proving purposeful discrimination. It would seem, moreover, that the trial court's ruling that there has not even been a "racial basis" to defense counsel's objection suggests the court found defense counsel had not even established a prima facie case of purposeful discrimination. At any rate, we consider the third step of the Batson challenge. The inquiry, thus, is whether the trial court erred in determining there was no discriminatory intent when weighing the defendant's proof and prosecutor's race-neutral reasons. See Jacobs, 99-0991 at p. 8, 803 So. 2d at 941.
A reviewing court owes the trial court's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. The Batson explanation does not need to be persuasive, and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral. The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination. See State v. Elie, 05-1569, pp. 5-6 (La. 7/10/06), 936 So. 2d 791, 795-96
Our review of the State's explanations for the peremptory challenges against Graves and Jackson reflect race-neutral justifications. The explanations were not unreasonable and had some basis in trial strategy. See State v. Handon, 06-0131, p. 7 (La. App. 1st Cir. 12/28/06), 952 So. 2d 53, 59. Louisiana courts have found a myriad of explanations to qualify as race-neutral reasons. See State v. Parker, 04-1017, p. 14 (La. App. 5th Cir. 3/29/05), 901 So. 2d 513, 523, writ denied, 05-1451 (La. 1/13/06), 920 So. 2d 235 (When accepted by the trial judge, the lodging of a peremptory challenge based on a juror's body language does not violate Batson); State v. Woods, 97-0800, p. 5 (La. App. 1st Cir. 6/29/98), 713 So. 2d 1231, 1234-35, writ denied, 98-3041 (La. 4/1/99), 741 So. 2d 1281 (Prospective juror's mistaken belief that prosecutor had represented prospective juror in a lawsuit was a legitimate, race-neutral justification for state's peremptory strike). See State v. Nelson, 10-1724, p. 14 (La. 3/13/12), 85 So. 3d 21, 32.
The prosecutor struck Graves because, on a credibility rating out of ten, Graves gave the prosecutor an eight, but gave defense counsel a nine, although Graves knew neither of them, and where defense counsel had said even less. The defendant notes in her brief that, by comparison, the jurors who were chosen gave scores between five and nine for both attorneys.
Under Batson, the trial court is to consider all relevant circumstances in addressing the question of discriminatory intent, which requires close scrutiny of the challenged strikes when compared with the treatment of panel members who expressed similar views or shared similar circumstances in their backgrounds. See Miller-El v. Dretke, 545 U.S. 231, 252, 125 S. Ct. 2317, 2332, 162 L. Ed. 2d 196 (2005); Elie, 05-1569 at p. 6, 936 So. 2d at 796. Graves's very high mark of credibility regarding defense counsel may have suggested to the prosecutor that Graves was predisposed to lean favorably toward the defendant, which "caused [the prosecutor] pause with" Graves. Our review of the voir dire record reveals that five of the six jurors who served on the jury had all given the prosecutor and defense counsel equal scores regarding credibility. The remaining sixth juror gave the prosecutor a score of eight and defense counsel a score of six regarding credibility. The prosecutor, thus, may not have wanted any jurors who felt that a defense counsel was inherently more credible than an assistant district attorney. But, even if Graves gave similar responses (scores) as the other jurors, the fact that other jurors were accepted by the State and Graves was excused by the State does not in itself show that the explanation for excusing Graves was a pretext for discrimination. The accepted jurors may have exhibited traits that the prosecutor reasonably could have believed would have made them desirable as jurors. See State v. Collier, 553 So.2d 815, 822 (La. 1989); State v. Leagea, 95-1210, pp. 3-4 (La. App. 1st Cir. 5/10/96), 673 So. 2d 646, 650, writ denied, 96-1507 (La. 11/22/96), 683 So. 2d 287.
The defendant offered no facts or circumstances supporting an inference that the State exercised its strikes in a racially discriminatory manner. In fact, the defendant offered no evidence at all. Thus, the defendant's proof, when weighed against the prosecutor's offered race-neutral reasons, was not sufficient to prove the existence of discriminatory intent. See State v. Green, 94-0887, pp. 27-28 (La. 5/22/95), 655 So. 2d 272, 289-90. Moreover, a review of the entire voir dire transcript fails to reveal any evidence that the use of peremptory strikes by the prosecutor was motivated by impermissible considerations. See Handon, 06-0131 at p. 7, 952 So. 2d at 59.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In her third assignment of error, the defendant argues the State did not prove she was a fourth-felony habitual offender at the habitual offender hearing. Specifically, the defendant contends that her October 17, 2001 conviction for theft over $500 was not proven because the name and social security listed in the bill of information did not match those of the defendant. Further, according to the defendant, her prior guilty pleas were not knowingly and voluntarily made.
To prove a defendant a habitual offender, the State must prove, among other things, that the defendant was convicted of a prior felony. Prima facie proof of a prior felony conviction may be established by compliance with La. R.S. 15:529.1(F). However, La. R.S. 15:529.1(F) is not the exclusive method of proving a prior felony conviction; any other competent evidence may be used to establish such proof. Moten, 510 So. 2d at 63.
In order to obtain a habitual 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, 00-2899, p. 6 (La. 3/15/02), 810 So. 2d 1127, 1130. The Habitual Offender Act, La. R.S. 15:529.1-15:529.2, does not require the State to use a specific type of evidence, including fingerprints, to carry its burden at a habitual offender hearing, and prior convictions may be proved by any competent evidence. See Payton, 00-2899 at p. 8, 810 So. 2d at 1132.
At the habitual offender hearing, the State introduced into evidence exhibits one through six, which included the defendant's fingerprint card and certified copies of bills of information and minute entries of the defendant's predicate convictions, which included the following: a September 25, 2000 guilty plea to theft over $500 (22nd JDC, Washington Parish, docket number 00CR3078557); an October 17, 2001 guilty plea to theft over $500 (22nd JDC, St. Tammany Parish, docket number 336607); and a January 14, 2004 guilty pleas to two counts of theft of goods (22nd JDC, St. Tammany Parish, docket number 360673).
Defense counsel's argument at the habitual offender hearing, as well as the defendant's argument here on appeal, attacks only the October 17, 2001 conviction. The bill of information for that conviction lists the defendant's name as April Whittine. On appeal, the defendant argues that the name does not match; however, at the habitual offender hearing, defense counsel did not raise that issue because the defendant at the hearing admitted, in proper person, that she was also known as April Whittine. All parties agreed that she was also known as April Fields or April Fields Hatcher. On appeal, the defendant argues that the social security number on the bill of information was not hers, and at the habitual offender hearing, defense counsel argued that both the social security number and date of birth were incorrect. The bill of information lists the social security number as 438-41-1525, and the date of birth as July 30, 1980. Deputy First Class Scott Powers, an expert in fingerprint analysis and identification with the St. Tammany Parish Sheriffs Office Crime Lab, testified at the habitual offender hearing. During the cross-examination of Deputy Powers, defense counsel asked the defendant about her date of birth and social security number. Without taking the stand or being sworn in, the defendant replied that her date of birth was July 3, 1980, and her social security number was 438-41-5358.
It is not clear if the defendant was being truthful regarding her social security number and date of birth. The bill of information for the September 25, 2000 conviction lists the defendant as April T. Fields, her social security number as 438-41-5357, and her date of birth as July 3, 1984. The year of birth is 1984 instead of 1980. The bill of information for the January 14, 2004 conviction lists the defendant as April T. Fields, her social security number as 438-41-5358, and her date of birth as July 3, 1980. The social security numbers in both these bills of information are the same except for the last number. At the habitual offender hearing, the prosecutor introduced into evidence State's Exhibit 3, which contains the bills of information and minute entries of the defendant's three predicate convictions, as well as an investigative report containing a list of, what appears to be, all of the defendant's arrests and convictions. (This information collectively is also known as a pen pack). More importantly, this report lists all of the aliases the defendant has used, as well as the different social security numbers she has indicated as her own. Her several aliases are April Fields, April L. Fields, and April T. Fields. Her social security numbers are listed as 438-41-5357 and 538-41-5358. Of the eight different times her social security number is listed, the 438-41-5357 appears seven times and the 538-41-5358 number appears once. Recall, however, that the defendant stated at the habitual offender hearing that her social security number was 438-41-5358. Thus, the number she testified that was hers does not match either of the social security numbers on the investigative report; however, the 438-41-5357 number (listed seven times) matches the social security number on the bill of information for the defendant's September 25, 2000 conviction.
The top of the investigative report (State's Exhibit 3) contains the defendant's State Identification (SID) number, as well as her physical characteristics, such as that she is a 5' 6" black female with black hair and brown eyes. It lists her weight as 140 pounds and date of birth as July 30, 1980. Attached to the back of the investigative report is a copy of the defendant's fingerprints and a "Suspect Rap Sheet." The rap sheet also lists the defendant's SID number, apparently to cross-references the SID number listed in the investigative report. In both the rap sheet and investigative report, the defendant's SID number is the same: 001750972. Her rap sheet, unlike the investigative report, lists the defendant's weight as 200 pounds and her date of birth as July 3, 1984. All her other vital statistics are the same. The date of birth in the investigative report appears as "07/30/1980," while the date of birth in the rap sheet appears as "07/03/1984." It is possible, thus, that the "03" got mistakenly transposed to "30."
In any event, despite the several differences with the social security numbers and the dates of birth listed in the bills of information, the investigative report, and the rap sheet, we find that the State introduced sufficient evidence to establish that the defendant is the same person convicted of the three prior felonies, as indicated by State's Exhibits 4, 5, and 6. What most convinces us of the defendant's identity are her fingerprints. Deputy Powers testified at the habitual offender hearing that he fingerprinted the defendant the day prior to the hearing. All ten of her prints were placed on a single exhibit known as a fingerprint card. Each of the bills of information introduced into evidence contained the defendant's fingerprints (either on the front or back of the bills). Deputy Powers testified that he evaluated the fingerprints on each of the bills of information and that each set of prints on the three bills matched the defendant's fingerprints on the fingerprint card. The final exchange between the prosecutor and Deputy Powers was as follows:
Q. So the prints that you lifted from State's Exhibit 2, you compared them to State's Exhibit 4, State's Exhibit 5 and 6, and they are all one and the same?
A. Yes, sir.
Q. From the same individual?
A. That's correct.
We note that because the defendant is the same person as the defendant identified in each of three bills of information introduced into evidence at the habitual offender hearing, the inconsistent information found in the bills and other documentation is the result of the defendant having been less than forthcoming in providing her personal information to authorities, or because of poor record keeping, or both. In the instant matter, the defendant did not have identification or a driver's license when she was stopped by the police. There is no driver's license number for the defendant on any of the documentary evidence (including the bills of information) introduced at the habitual offender hearing. Thus, aside from a driver's license or perhaps a birth certificate, there would be few resources to confirm what the defendant asserts as her birthday.
The defendant also argues in brief that the constitutional validity of the predicate pleas were not established. Defense counsel did not file a written objection to the bill of information. See La. R.S. 15:529.1(D)(1)(b). Further, at the habitual offender hearing, defense counsel never raised this issue or lodged any objections regarding the validity of the guilty pleas. The State proved the existence of the prior guilty pleas with minute entries. Because the defendant did not object to the guilty pleas or produce any affirmative evidence showing an infringement of her rights, the State had no burden to prove the constitutionality of the predicate at issue by "perfect" transcript or otherwise. See State v. Shelton, 621 So. 2d 769, 779-780 (La. 1993). Moreover, the minute entries of the guilty pleas for each of the defendant's three predicate convictions indicate the defendant was represented by counsel, that the court advised the defendant of her right to a trial, her right to confront her accusers, and her right against self-incrimination, and that the defendant waived these rights. See State v. Clesi, 07-0564, pp. 1-2 (La. 11/2/07), 967 So. 2d 488, 489-90 (per curiam); State v. Henry, 00-2250, p. 8 (La. App. 1st Cir. 5/11/01), 788 So. 2d 535, 541, writ denied, 01-2299 (La. 6/21/02), 818 So. 2d 791; State v. Carson, 527 So. 2d 1018, 1020 (La. App. 1st Cir. 1988).
Based on the foregoing, we find the trial court did not err in adjudicating the defendant a fourth-felony habitual offender. Accordingly, this assignment of error is without merit.
SENTENCING ERROR
In her brief, the defendant asks this court to examine the record for error under La. C. Cr. P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under La. C. Cr. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found a sentencing error. The defendant's sentencing exposure for the underlying crime of theft of goods was imprisonment, with or without hard labor, for not more than five years. See La. R.S. 14:67.10(B)(2). The sentence contains no parole restriction. Accordingly, the defendant's enhanced sentence as a habitual offender should not have contained a parole restriction. See La. R.S. 15:529.1(A)(4)(a). In the record before us, there is no transcript of the defendant's resentencing following the granting of the motion to reconsider sentence. There is only a minute entry, which indicates the sentence is to be served "without benefit of probation, parole or suspension of sentence." If this is indeed the sentence imposed by the trial court, then it is illegally harsh because it contains the parole restriction. Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, La. C. Cr. P. art. 920(2) authorizes consideration of such an error on appeal. Further, La. C. Cr. P. art. 882(A) authorizes correction by the appellate court. Accordingly, we amend the sentence by removing the parole restriction and affirm as amended. We remand for correction of the minutes and commitment order, if necessary.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882(A).
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE TO REMOVE THE PAROLE RESTRICTION AMENDED AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF MINUTES AND COMMITMENT ORDER, IF NECESSARY.