Opinion
No. 2007 KA 1090.
June 6, 2008.
ON APPEAL FROM THE 21ST JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF LIVINGSTON STATE OF LOUISIANA, DISTRICT COURT NO. 18997, THE HONORABLE ELIZABETH P. WOLFE, JUDGE PRESIDING.
Scott M. Perrilloux, District Attorney, Leanne Malner, Livingston, La., Patricia Parker Amite, La., Assistant District Attorneys, Counsel for Plaintiff/Appellee, State of Louisiana.
J. Christopher Alexander, Sr., Baton Rouge, La., Counsel for Defendant/Appellant, Michael J. Sopczak.
BEFORE: CARTER, C.J., PETTIGREW AND WELCH, JJ.
The defendant, Michael J. Sopczak, was charged by bill of information with simple burglary, a violation of La.R.S. 14:62. The defendant entered a plea of not guilty and, after a trial by jury, was found guilty as charged. After denying the defendant's motion for new trial and motion in arrest of judgment, the trial court sentenced the defendant to twelve years imprisonment at hard labor. The defendant's motion to reconsider sentence was denied. The defendant now appeals, raising ten assignments of error:
1. The trial court erred in proceeding with a trial of this matter in light of its failure to provide the defendant with written notice of the trial date.
2. The trial court erred in denying the defendant's motion to continue.
3. The trial court erred in denying the defendant's motion to enroll counsel.
4. The trial court erred in presenting the defendant with the untenable option of either proceeding to trial without his retained counsel or pleading guilty.
5. The trial court erred in granting the State's oral motion to exclude evidence of a medical condition pursuant to La. Code Crim. P. arts. 725— 726.
6. The trial court erred in failing to hold a Prieur hearing.
7. The trial court erred in sua sponte choosing to compel the defendant's witness to testify in camera.
8. The trial court erred in failing to allow the jury to hear the testimony of Elizabeth Amberg.
9. The trial court erred in failing to ensure the defendant was afforded effective assistance of counsel.
10. The State did not meet its requisite burden of proof as to the charge of simple burglary.
For the following reasons, we affirm the conviction and the sentence.
STATEMENT OF FACTS
On or about September 5, 2004, Deputy Walter McMorris of the Livingston Parish Sheriff's Office was dispatched to a burglary in progress at the Hungarian Settlement Cultural Association Building (HSCA) (a nonprofit organization) in Albany, Louisiana. When Deputy McMorris arrived at the scene, the defendant was sitting on the floor, held at gunpoint by Louis Monic. Monic advised that the defendant had broken into the building. Monic discovered the defendant while he was still in the building and detained him. As Deputy McMorris approached the defendant, he instructed him to display his hands. The defendant did not comply. When Deputy McMorris attempted to grab the defendant, the defendant pulled out a butcher knife. Deputy McMorris drew his weapon and commanded the defendant to drop the knife. After the defendant complied, he was handcuffed behind his back and read his Miranda rights. According to Deputy McMorris, the defendant appeared to be under the influence of an unknown substance at the time of his arrest.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).
Doors located on the south end of the building and on a storage room had been kicked in. A window was broken, and a safe had been pried open. The interior of the building was ransacked. Large bags filled with stereo equipment, cans of beer, and other items were stacked near the door of the building. Two HSCA checkbooks were seized from the defendant's left rear pants pocket.
ASSIGNMENT OF ERROR NUMBER ONE
In the first assignment of error, the defendant argues that the trial court erred in proceeding with the trial without providing the defendant written notice of the June 20, 2006, trial date. The defendant notes that in denying his motion for a continuance, the trial court verbally gave him the option of proceeding to trial or pleading guilty. The defendant contends that, as a result of the inadequate notice of trial, he was wholly unprepared to proceed with presenting a defense.
An accused must be permitted a reasonable amount of time in which to prepare his case before he is brought to trial. State v. Jones, 94-1142, p. 3 (La.App. 3 Cir. 4/5/95), 653 So.2d 109, 111, writ denied, 95-1055 (La. 9/29/95), 660 So.2d 856. In Louisiana, a defendant must be given notice of trial sufficiently in advance thereof to enable him to summon witnesses. La. Code Crim. P. art. 702. The Louisiana Supreme Court has held that four days' notice of trial was sufficient when a defendant was able to summon his witnesses, his counsel was not otherwise indisposed on the date of the trial, and there was no evidence that he was not prepared for trial. State v. Wiggins, 188 La. 64, 67, 175 So. 751, 752 (1937). No law requires written notice of trial.
The defendant cites State v. Dawson, 316 So.2d 109 (La. 1975) in support of his argument that he was denied due process. In Dawson, the defendants were not given notice that they were to stand trial on October 31, 1974. On that date, the defendants were located driving on a highway and told by the officer who stopped them that they were to proceed immediately to the courthouse for trial on the charges against them. When the defendants arrived, the court appointed Robert Palmer, who was then present in court, to defend them. Palmer testified that he was unprepared to defend them on that date and that he proceeded under duress. The trial commenced, and defendants were found guilty as charged. The Supreme Court reversed and remanded for a new trial, concluding that the lack of notice of trial and absence of retained counsel on the date of trial denied the defendants due process of law as guaranteed under both state and federal constitutions. Dawson, 316 So.2d at 110-111.
According to the record herein, on June 20, 2005, in the presence of the defendant and retained counsel, the trial court set August 11, 2005, for pretrial conference and October 11, 2005, for trial. On October 11, 2005, on the State's motion for continuance, the trial was reset to March 13, 2006. On March 13, 2006, the defendant appeared for pretrial purposes and was given oral notice in open court that trial would begin on March 14, 2006. The defendant did not appear for trial on March 14, 2006, and an attachment was issued on that date. Another attachment was issued on May 8, 2006. The defendant was present on June 19, 2006, when the trial court appointed standby counsel and set the trial for the next day. Herein, the defendant was given ample time to prepare a defense and was notified of the trial date that had to be rescheduled due to his absence. This assignment of error lacks merit.
ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, FOUR, AND NINE
The arguments raised in the following assignments of error are closely related. In the second assignment of error, the defendant contends that the trial court erred in denying the defendant's motion to continue. The defendant contends that private counsel was retained the Friday before the Tuesday, June 20, 2006, trial date and that he did not have adequate time to prepare for the trial. Thus, the defendant argues that a short continuance to provide the retained counsel additional time to prepare would have been in the interest of justice. In assignment of error number three, the defendant contends that the trial court erred in denying his motion to enroll counsel. Correspondingly, in the fourth assignment of error, the defendant argues that the trial court erred in presenting him with the option of either proceeding to trial on June 20, 2006, without his newly retained counsel, or pleading guilty. In the ninth assignment of error, the defendant argues that he was not afforded effective assistance of counsel. The defendant notes the standby counsel's concession that he was not prepared to represent the defendant. The defendant argues that the deficient performance of the standby counsel severely prejudiced his defense.
A motion for continuance, if timely filed, may be granted, at the discretion of the court, in any case if there is good ground therefore. La. Code Crim. P. art. 712. A motion for continuance shall be filed at least seven days prior to the commencement of trial. La. Code Crim. P. art. 707. Upon written motion at any time, the trial court may grant a motion for continuance after a contradictory hearing but only upon a showing that such motion is in the interest of justice. La. Code Crim. P. art. 707. The trial court's ruling on the motion to continue will not be disturbed on appeal absent a clear abuse of discretion. Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. Convictions will not be reversed absent a showing of specific prejudice caused by the denial of a continuance. State v. Sensley, 460 So.2d 692, 698 (La.App. 1st Cir. 1984), writ denied, 464 So.2d 1374 (La. 1985).
At each stage of the proceedings, every person is entitled to assistance of counsel of his choice or to counsel appointed by the court if he is indigent and charged with an offense punishable by imprisonment. La.Const. art. I, § 13. The Sixth Amendment to the United States Constitution likewise carries such a guarantee. Although the Sixth Amendment primarily guarantees the right to effective counsel, it also includes the right to select and be represented by counsel of choice. However, a criminal defendant's right to the counsel of his choice is not absolute. State v. Brown, 2003-0897, pp. 10-11 (La. 4/12/05), 907 So.2d 1, 11-12. A defendant's right to counsel of his choice cannot be manipulated "to obstruct orderly court procedure or to interfere with the fair administration of justice." State v. Bridgewater, 2000-1529, p. 20 (La. 1/15/02), 823 So.2d 877, 896, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). Thus, a defendant "must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings." State v. Seiss, 428 So.2d 444, 447 (La. 1983); Sensley, 460 So.2d at 699.
When a defendant elects to represent himself pro se, the trial court may appoint standby counsel to explain and enforce basic rules of courtroom protocol. State v. Bonit, 2005-0795, p. 6 (La.App. 1 Cir. 2/10/06), 928 So.2d 633, 638, writ denied, 2006-1211 (La. 3/16/07), 952 So.2d 688 (quoting McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984)). Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced. McKaskle, 465 U.S. at 183, 104 S.Ct. at 953.
The Sixth Amendment to the United States Constitution and Article I, § 13, of the Louisiana Constitution entitle a defendant to effective assistance of counsel. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that: (1) his attorney's performance was deficient; and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or "a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to show prejudice, the defendant must demonstrate that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Felder, 2000-2887, pp. 10-11 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 369-370, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173. A claim of ineffectiveness is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (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).
Herein, the defendant pled not guilty on October 14, 2004, in the presence of private counsel, Wayne Stewart. During pretrial proceedings, on August 11, 2005, the defendant waived counsel and asked the trial court to appoint standby counsel. The motion to continue at issue on appeal was filed on June 19, 2006, one day before the trial and notes the filing of a motion to enroll as counsel of record on June 16, 2006. The motion further notes that the defendant's counsel would not be available for trial on the week of June 19, 2006. In the midst of the trial, the trial court noted the filing of the motion to enroll and motion for continuance and its denial of said motions. The trial court further noted that the defendant fired Stewart, the colloquy in the record of the defendant's waiver of counsel, and the trial court's appointment of a public defender as standby counsel.
In the instant case, we find no abuse of discretion in the trial court's denial of the motion to continue, and there is no specific showing that the defendant was prejudiced. Further, we find that the trial court did not err in denying the motion to enroll private counsel. At the time of the filing, it was too late in the proceedings for the defendant to assert his right to hire private counsel. Granting of the motion would have obstructed the orderly procedure of the trial court. The appointed, standby counsel made numerous objections during the State's direct examination of witnesses and thoroughly cross-examined the State's witnesses. The defendant has failed to make a showing of any deficiency or prejudice. These assignments of error are without merit.
ASSIGNMENTS OF ERROR NUMBERS FIVE, SEVEN, AND EIGHT
In the fifth assignment of error, the defendant contends that the trial court erred in granting the State's oral motion to exclude evidence of medical disease/defect pursuant to La. Code Crim. P. arts. 725 and 726. The defendant notes that he also was charged with two counts of simple burglary in a Jefferson Parish case wherein he utilized the defense of intoxication and mental defect/impairment. After being convicted in that case, the defendant proceeded on appeal before the Louisiana Fifth Circuit Court of Appeal. State v. Sopczak, 02-235 (La.App. 5 Cir. 6/26/02), 823 So.2d 978, writ denied, 2002-2471 (La. 3/21/03), 840 So.2d 548. The defendant contends that the State had full knowledge of that prior case and the defenses raised therein, and the trial court took judicial notice of the proceedings in that case. Thus, the defendant argues that the notification time limitation of La. Code Crim. P. art. 726 should not be strictly mandated in this case. The defendant contends that the State would not have suffered any prejudice and the interest of justice would have prevailed had the trial court permitted the introduction of the defendant's medical disease/defect.
In assignments of error numbers seven and eight, the defendant argues that the trial court erred in requiring that the testimony of his mother, Elizabeth Amberg, be proffered instead of allowing her to testify in the presence of the jury. The defendant argues that there was no prior indication as to the substance of Amberg's testimony in order for the trial court to make a fair determination of the admissibility of her testimony.
Louisiana Code of Criminal Procedure article 726 provides:
A. If a defendant intends to introduce testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall not later than ten days prior to trial or such reasonable time as the court may permit, notify the district attorney in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other orders as may be appropriate.
B. If there is a failure to give notice as required by Subsection A of this Article, the court may exclude the testimony of any witness offered by the defendant on the issue of mental condition.
The purpose of Article 726 and the other discovery rules in the Code of Criminal Procedure is to eliminate unwarranted prejudice that could arise from surprise testimony. State v. Toomer, 395 So.2d 1320, 1329 (La. 1981). Intoxication is an "other condition" bearing on the issue of whether the defendant had the mental state for the offense charged. See State v. Quinn, 479 So.2d 592, 596-597 (La.App. 1st Cir. 1985).
After the State rested its case-in-chief, the standby counsel asked the defendant if he wished to call his mother to the stand. The defendant responded positively. The trial court noted that it had read the defendant's prior case that included testimony by his mother regarding the defendant's intoxication defense therein. The trial court further stated that such testimony would not be admissible in the instant case, as the defendant failed to give notice of it ten days in advance of the trial. The trial court offered a proffer of the testimony outside of the jury's presence, and the defendant accepted the offer. The defendant responded "Yes, Judge," when specifically asked if he wanted to have the testimony proffered. The defendant elected to have the standby counsel question his mother. The defendant never argued that the witness would be presenting any testimony not related to the mental defect defense. The proffered testimony of the defendant's mother regarded work-related injuries sustained by the defendant in 1988, prescribed medication, and the effects thereof.
The defendant concedes lack of notice and the record contains no evidence that the defendant gave the required notice to the State under Article 726. Without such notice, the State had no way to prepare expert testimony to show that the specific criminal intent could have been present despite any mental defect. As noted by the State in its appeal brief, there was no reason to assume that the defendant would attempt the unsuccessful defense that was utilized in a prior case. Moreover, the defendant's mother did not present any testimony regarding the defendant's mental state at the time of the instant offense. We find the trial court properly exercised its discretion under Article 726 and excluded the evidence. This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER SIX
In the sixth assignment of error, the defendant contends that the trial court erred in allowing the State to introduce other crimes evidence without a hearing pursuant to State v. Prieur, 277 So.2d 126 (La. 1973). As support of his argument that a hearing was required, the defendant cites La. Code of Evid. art. 1104. The defendant specifically argues that the lack of a hearing prevented him from determining if the evidence was relevant, an exception to La. Code Evid. art. 404B, or whether the probative value of the evidence outweighed its prejudicial effect pursuant to La. Code Evid. art. 403. Finally, the defendant argues that the State failed to satisfy its burden of proving that the alleged prior acts were admissible under Article 404B, which provides:
Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Herein, the evidence of other crimes to which defendant refers includes testimony by sheriff's deputies that the defendant committed burglary of a church on or about December 4, 1997, and burglary of a small business on or about December 25, 1997. In conjunction with the testimony, the State introduced the minutes of a December 19, 2001, guilty plea to simple burglary.
While the deputy estimated that the simple burglary of a church offense occurred on December 4, 1997, the bill of information introduced by the State indicates that a simple burglary of the church occurred on or about October 4, 1997.
The testimony presented clear and complete facts of the prior offenses. As to the early December offense, testimony showed that Deputy Zeagler responded to a burglary of a church and discovered the defendant in a second church about four blocks away. The entry of the second church was forced as the glass of the double front doors and a window was shattered. The defendant was in the back of the church with a screwdriver attempting to open another door. The defendant had property from the first church in his pockets. As to the late December offense, testimony showed that Deputy Marion responded to the burglary of a pool repair business and discovered the defendant sleeping behind a desk. The defendant smelled of alcohol. Entry of the building was forced as the door was busted. Since the defendant's state of mind was at issue in the instant case, the evidence of the other offenses was presented as proof of intent and motive to commit the instant offense. The State filed notice of intent to use evidence of other crimes on March 16, 2005, and again on September 7, 2005, substantially before the June 20, 2006, trial.
At any rate, not every Prieur violation mandates reversal. Before a defendant can complain of a Prieur violation, he must first show prejudice. State v. Sanders, 93-0001, p. 14 (La. 11/30/94), 648 So.2d 1272, 1284, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194. In State v. Lee, 25,917, p. 7 (La.App. 2 Cir. 5/4/94), 637 So.2d 656, 662, writ denied, 94-1451 (La. 10/7/94), 644 So.2d 631, the second circuit explained that "[t]he rules of Prieur were not meant to be used as additional, technical procedures sacramental to a valid conviction" (quoting State v. Banks, 307 So.2d 594, 597 (La. 1975)) and noted that substantial compliance with Prieur is all that is required.
In the present case, the defendant failed to show prejudice. Despite the defendant's inference otherwise, a pretrial hearing is not required by the mandates of Prieur, and the trial judge indicated that the defendant did not request a hearing. State v. Davis, 2005-543, p. 17 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, 1197, writ denied, 2006-0587 (La. 10/13/06), 939 So.2d 372. Further, while La. Code Evid. art. 1104 governs the burden of proof in a pretrial hearing held in accordance with Prieur, the article does not mandate such a hearing. The trial court correctly determined that the evidence was admissible to show the element of intent. The probative value of the evidence clearly outweighed any prejudicial effect. Accordingly, this assignment of error also lacks merit.
ASSIGNMENT OF ERROR NUMBER TEN
In the tenth and final assignment of error, the defendant contends that the evidence was insufficient to support a guilty verdict. The defendant concedes that he was discovered in the building, but argues there are issues as to whether his entry was unauthorized and whether he possessed the requisite intent to commit a felony or any theft therein. The defendant contends that there was ample evidence of his impaired condition and insufficient evidence that he possessed the requisite mental intent to commit simple burglary. The defendant concludes that the State failed to negate the defense of intoxication.
In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard of appellate review, adopted by the Legislature in enacting La. Code Crim. P. art. 821, is whether the evidence, when viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18. When analyzing circumstantial evidence, La.R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 420.
As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir. 1984). Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Richardson, 459 So.2d at 38. When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La. 1992). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Thomas, 2005-2210, p. 8 (La.App. 1 Cir. 6/9/06), 938 So.2d 168, 174, writ denied, 2006-2403 (La. 4/27/07), 955 So.2d 683.
The defendant was convicted of simple burglary, which is defined by La.R.S. 14:62A as "the unauthorized entering of any . . . structure . . . with the intent to commit a felony or any theft therein. . . ." Simple burglary is a specific intent crime. Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal intent. La.R.S. 14:15(2); State v. Guidry, 476 So.2d 500, 503 (La.App. 1st Cir. 1985), writ denied, 480 So.2d 739 (La. 1986). The defendant has the burden of proving the existence of that condition at the time of the offense. State v. Carter, 96-0337, p. 6 (La.App. 1 Cir. 11/8/96), 684 So.2d 432, 436. The specific legal question is not when the requisite specific intent was formed but, rather, whether at the time the unauthorized entry occurred, the defendant was so intoxicated as to preclude the existence of any specific intent on his part to commit a theft or felony therein. State v. Lentz, 306 So.2d 683, 686 (La. 1975).
Louis Monic, the president of HSCA at the time of the trial, discovered the defendant in the building. The defendant was not an HSCA member, and Monic did not know the defendant before the offense. Suzanne Martin, an HSCA worker and member, was present when the defendant was discovered. No one else was observed in the area by the witnesses. The interior of the building was usually organized and tidy. When she entered the building, Martin noticed the disarray. She stated that all of the kitchen drawers were open and the contents had been pulled out. She assumed that someone had broken into the building and informed Monic, who was still outside of the building. Monic noticed that several items were stacked by the side door and that doors were busted. Monic decided to check near the bar and saw someone's "legs laying on the floor." Monic instructed Martin to exit the building and use his cell phone to dial 911. Monic retrieved his gun from his truck and reentered the building. The defendant was asleep when he was discovered, and there were several empty or partially consumed cans of beer in the building. Monic held the defendant at gunpoint until Deputy McMorris arrived. Detective Brian Smith of the Livingston Parish Sheriff's Office also responded to the scene. Deputy McMorris and Detective Smith noted that the defendant was under the influence of a substance but was coherent, cognizant, and able to answer questions. The defendant told Detective Smith he was walking down the street before entering the building, and two male subjects asked him if he wanted to drink a beer. The defendant added that he entered the building and drank beer before his arrest. The defendant did not provide any information regarding the identity of the male subjects. The defendant did not testify during the trial.
The checkbooks and knife that were in the defendant's possession were HSCA property. Monic and Martin testified that the defendant was found inside of the building without permission. The condition of the doors and windows of the building indicated forced entry. The State clearly proved unauthorized entry of the building. The State showed, through the testimony of James King, the HSCA president in 2004 who assessed the damage to the facility, that defendant did over $1,600.00 worth of damage to the building. King specifically noted the double-doors on the side of the building were damaged, the door of the storage compartment for the amplifying system was vandalized, the lock of a filing cabinet was broken and all of the items removed, the doors of two storage rooms were broken, and a safe was damaged. Louisiana Revised Statutes 14:56B provides that criminal damage to property amounting to more than five hundred dollars is punishable as a felony. Pieces of equipment and other items were piled near an exit as if someone were preparing to leave with them. Displacement of items may be indicative of the specific intent to commit a theft under La.R.S. 14:62. State v. Vortisch, 00-67, p. 6 (La.App. 5 Cir. 5/30/00), 763 So.2d 765,768.
Viewing the foregoing evidence in the light most favorable to the State, the State proved the elements of simple burglary beyond a reasonable doubt. While testimony was elicited in an effort to prove that the defendant was intoxicated at the time of the offense, the defendant failed to prove that his alleged intoxication precluded the presence of specific criminal intent to commit a felony or theft. Furthermore, the jury reasonably rejected the defendant's hypothesis of innocence. For the above reasons, this assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.
PETTIGREW, J., CONCURS, AND ASSIGNS REASONS.
I concur with the majority for the following reasons.
Louisiana Code of Criminal Procedure article 702 provides "[t]he defendant shall be given notice of trial sufficiently in advance thereof so that he may summon his witnesses." This matter was set for trial on at least seven occasions. It is noteworthy that according to the record, most of the continuances were granted at the request of the defendant. Moreover, on March 14, 2006, the defendant failed to appear for trial after having received notice of his trial date in open court on March 13, 2006, resulting in the trial court issuing attachments for his arrest.
The defendant contends he did not receive notice of the June 20, 2006 trial date until the June 19, 2006 pretrial conference. This position is belied by his own statement that he was aware of the June 20, 2006 trial date, the week before June 19, 2006. Further contradicting the defendant's position is a request by his newly-retained counsel for a continuance on June 16, 2006, acknowledging the trial date of June 20, 2006. During the June 19, 2006 pretrial conference, the trial court made reference to the following conversation:
On Friday, June 16, 2006 at three p.m. I got a call from Mr. Dean Lucius at my office saying, Mr. Lucius had spoken with the defendant's mother who wanted to hire him. And I said, That's fine. But you're going to trial on Monday." Mr. Lucius said, "I'm going out of town on Monday and I want a continuance." And I said, "No." And that is the situation we find ourselves in.
Considering the unique procedural history of this case, I, like the majority, am of the opinion that the defendant was given notice of trial sufficiently in advance thereof so that he may summon his witnesses.