Opinion
NO. 2012 KA 0666
12-21-2012
STATE OF LOUISIANA v. HORACE TOPPINS
Hillar C. Moore, III Leila Braswell Allison Miller Rutzen Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Prentice L. White Baton Rouge, Loui Attorney for Appellant Horace Toppins
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 04-10-0422
The Honorable Donald R. Johnson, Judge Presiding
Hillar C. Moore, III
Leila Braswell
Allison Miller Rutzen
Baton Rouge, Louisiana
Attorneys for Appellee
State of Louisiana
Prentice L. White
Baton Rouge, Loui
Attorney for Appellant
Horace Toppins
BEFORE: CARTER, C.J., GUIDRY AND GAIDRY, JJ.
CARTER, C.J.
The defendant, Horace Toppins, was charged by bill of information with one count of monetary instrument abuse, a violation of Louisiana Revised Statutes Annotated Section 14:72.2(A), and pled not guilty. He waived his right to a jury trial and, following a bench trial, was found guilty as charged. Thereafter, the State filed a habitual offender bill of information against the defendant, alleging he was a third-felony habitual offender. Following a hearing, he was adjudged a third-felony habitual offender, and was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, filing a counseled and a pro se brief, asserting the following claims:
Predicate #1 was set forth as the defendant's August 26, 1987 conviction, under Twenty-fourth Judicial District Court Docket #87-0010, for manslaughter. Predicate #2 was set forth as the defendant's March 6, 1989 conviction, under Fortieth Judicial District Court Docket #87-0135, for attempted second degree murder.
Some of the pro se assignments of error contain multiple claims for relief.
Counseled
1. The State used hearsay evidence to establish the defendant possessed counterfeit money and to establish his intent to deceive.
2. The sentence imposed was "grossly inappropriate" because hearsay was used to obtain the conviction and because of the defendant's age.
Pro se
1. The trial court erred in not granting the motion for a post-verdict judgment of acquittal and for a new trial due to insufficient evidence of the defendant's intent to deceive and because the hypothesis that he did not know the money was counterfeit was not excluded.
2. The trial court erred in not granting the motion for a post-verdict judgment of acquittal and for a new trial due to Officer Salamoni's statement that the defendant attempted to purchase wireless headphones at Wal-Mart with counterfeit money.
3. The trial court erred in admitting the counterfeit money into evidence due to a broken chain of custody.
4. The State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose exculpatory material, i.e. "the Wal-Mart receipt, verification of authenticity of the currency, that the State had alleged statement or confession from the defendant that was used at trial."
5. The State violated the defendant's right to confrontation of his accuser by not presenting testimony from the Dillard's sales clerk, the Wal-Mart sales clerk, and the Wal-Mart manager.
6. The trial court erred in allowing the defendant's statements to be introduced into evidence because they were given in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
7. The State failed to comply with discovery and violated Brady by failing to disclose test results on the counterfeit notes.
8. The trial court imposed an excessive sentence because the defendant is sixty years old and no threat to society.
9. The sentence is indeterminate because Section 14:72.2(A) does not specify whether or not it is to be served with or without hard labor.
10. The trial court erred in adjudicating the defendant a third-felony habitual offender because the State failed to present transcripts of the predicate offenses and failed to establish his identity with fingerprint evidence.
11. The State committed prosecutorial misconduct by firing defense counsel Garron Johnson.
For the following reasons, we affirm the conviction; affirm the habitual offender adjudication; vacate the sentence; and remand for resentencing.
FACTS
On March 22, 2010, Baton Rouge Police Department Officer Noel Salamoni was working extra duty at Dillard's department store. He received a call from a sales clerk that a black male, later identified as the defendant, had attempted to make a purchase with two counterfeit one hundred dollar bills. Using the store's security cameras, Officer Salamoni saw the defendant "almost running down" the down escalator.
The defendant testified the sales clerk walked away from him after he gave her his money, and he repeatedly tried to call out to her. He claimed he followed the clerk "all the way back to the back of the store." He indicated his eye problems could have affected his ability to identify counterfeit money. He denied any intent to transfer counterfeit money.
SUFFICIENCY OF THE EVIDENCE
In counseled assignment of error number 1, the defendant argues the State used hearsay evidence to establish his possession of the counterfeit money and his intent to deceive. In pro se claim number 1, the defendant argues the trial court erred in not granting the motion for a post-verdict judgment of acquittal and for a new trial due to insufficient evidence of his intent to deceive and because the hypothesis that he did not know the bills were counterfeit was not excluded.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," in order to convict, every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601 (La. App. 1 Cir. 2/19/99), 730 So. 2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157, 00-0895 (La. 11/17/00), 773 So. 2d 732 (quoting La. Rev. Stat Ann. § 15:438).
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.
Prior to amendment by 2012 La. Acts No. 735, § 1, La. Rev. Stat. Ann. § 14:72.2, in pertinent part, provided:
A. Whoever makes, issues, possesses, ... or otherwise transfers a counterfeit ... monetary instrument of a state ... with intent to deceive another person, shall be fined not more than one million dollars but not less than five thousand dollars and imprisoned, with or without hard labor, for not more than ten years but not less than six months, or both.
. . .
C. For purposes of this Section:
(1) "Counterfeit" means a document or writing that purports to be genuine but is not, because it has been falsely made, manufactured, or composed.
. . .
(3) "Monetary instrument" means:
(a) A note[.]
. . .
(5) "State" includes a state of the United States, ... and any other territory or possession of the United States.
The defendant complains about hearsay testimony from Baton Rouge Police Department Officer Noel Salamoni. At trial, Officer Salamoni was asked to describe what happened on the day of the incident. He responded, "[he] was sitting in the security office, watching the cameras over the store, when [he] received a phone call from a clerk from upstairs in the housewares department that a black male subject had just attempted to purchase some housewares with two counterfeit hundred dollar bills." The defendant, however, failed to object to the hearsay. Hearsay evidence not objected to constitutes substantive evidence and may be used by the trier of fact to the extent of any probative or persuasive powers that it might have. State v. Harris, 444 So. 2d 257, 262 (La. App. 1st Cir. 1983), writ denied, 445 So. 2d 1234 (La. 1984).
In regard to the defendant's intent to deceive, Officer Salamoni testified, after the defendant gave the counterfeit notes to the clerk and she realized they were counterfeit, the defendant "took off," at "a very quick pace," leaving two one hundred dollar bills in counterfeit money with the clerk. The clerk called Officer Salamoni, who was in the security office of the store and was able to observe the defendant on the video screen "almost running down" the down escalator. Officer Salamoni intercepted the defendant a few hundred feet from the escalators and handcuffed him. When questioned about the counterfeit notes, the defendant first claimed he had no idea where they had come from. Thereafter, he claimed he had received them from a bank, but was unable to identify the bank or the city in which it was located. Additionally, he had the "parent note," which had been used to make one of the counterfeit notes, in his shirt pocket.
United States Secret Service Agent Kevin Bodden verified that the notes passed by the defendant were counterfeit. They were five-dollar Federal Reserve notes that had been washed with bleach. They bore an Abraham Lincoln, rather than a Benjamin Franklin, watermark. Their Federal Reserve seals and serial numbers were still visible. Additionally, they had been printed with an ink-jet printer. Secret Service records indicated the counterfeit notes were the only two counterfeit one hundred dollar Federal Reserve notes with their particular serial numbers that had ever been reported to the Secret Service.
The defendant testified the sales clerk walked away from him after he gave her his money, and he repeatedly tried to call out to her. He claimed he followed the clerk "all the way back to the back of the store."
The trial court found the defendant would have to be "pretty unlucky" to have been given the original one hundred dollar bill and the copies. The court also referenced the defendant's "incidental actions regarding the store."
After a thorough review of the record, we are convinced any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find the evidence proved beyond a reasonable doubt, and to the exclusion of those hypotheses of innocence raised by the defendant, that the defendant transferred a counterfeit monetary instrument with intent to deceive. When a case involves circumstantial evidence and the fact finder 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 which raises a reasonable doubt. State v. Captville, 448 So. 2d 676, 680 (La. 1984). No such hypothesis exists in the instant case. The conviction also indicates the fact finder accepted the testimony implicating the defendant and rejected his claims of innocence. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. State v. Lofton, 96-1429 (La. App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. Additionally, in reviewing the evidence, we cannot say that the tact finder's determination was irrational under the facts and circumstances presented. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So. 2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the fact finder. State v. Calloway, 07-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
Counseled assignment of error number 1 and pro se claim number 1 are without merit.
OTHER CRIMES EVIDENCE
In pro se claim number 2, the defendant argues the trial court erred in not granting the motion for a post-verdict judgment of acquittal and for a new trial due to Officer Salamoni's statement that the defendant attempted to purchase wireless headphones at Wal-Mart with counterfeit money.
At trial, the defendant made a hearsay objection after Officer Salamoni testified he had called Wal-Mart and asked if anyone had tried to pass counterfeit money there. The trial court sustained the objection, stating it would give the hearsay "no weight." Thereafter, in its reasons for sentencing, the court stated, "I don't have any adverse facts to draw from Wal-Mart incident, because it appears to be a lawful transaction."
There was no basis to grant the defendant relief due to consideration by the trier of fact of "other crimes evidence." The trial court did not consider any such evidence concerning the defendant's transaction at Wal-Mart prior to the incident. See La. Code Crim. Proc. Ann. art. 921.
Pro se claim number 2 is without merit.
CHAIN OF CUSTODY
In pro se claim number 3, the defendant argues the trial court erred in admitting the counterfeit money into evidence due to a broken chain of custody.
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La. Code Evid. Ann. art. 901(A). For admission, it suffices if the custodial evidence establishes that it was more probable than not that the object is the one connected to the case. A preponderance of the evidence is sufficient. Moreover, any lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than its admissibility. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter to be determined by the fact finder. State v. Berry, 95-1610 (La. App. 1 Cir. 11/8/96), 684 So. 2d 439, 455, writ denied, 97-0278 (La. 10/10/97), 703 So. 2d 603.
On the day of trial, defense counsel indicated he had examined the counterfeit money, but requested a continuance to have it "tested." The State objected, noting the matter had already been continued on the grounds asserted by defense counsel. Additionally, the State pointed out former defense attorney, Garron Johnson, had an opportunity to inspect the counterfeit money at the last trial setting and, thereafter, had made an appointment to inspect the money, but had withdrawn. The trial court denied the motion to continue, but granted the defense a recess to produce any additional expert witnesses and "further examine at a subsequent date." The defense objected to the evidence the State "attempts to put on that we have already asked for in discovery."
Officer Salamoni testified that after he was alerted to the defendant attempting to pass the counterfeit notes, he took possession of them from a store manager. Officer Salamoni indicated the counterfeit notes "appeared, readily, that they were counterfeit." He identified State Exhibit A as the evidence bag he prepared, labeled with the defendant's name, labeled with a description of the evidence, i.e., "1 Wal-Mart receipt, counterfeit $100 bill serial #HB04939193F, counterfeit $100 bill serial #AG44887845B, $100 bill serial #HB04939193F," and placed into the evidence box at the police station. Officer Salamoni identified State Exhibits B and C as the counterfeit money and the parent note, respectively. The serial numbers matched the serial numbers he had listed on the evidence description.
The trial court did not abuse its discretion in admitting the challenged evidence. The State established it was more probable than not the evidence was the evidence seized in the case.
Pro se claim number 3 is without merit.
FAILURE TO DISCLOSE EXCULPATORY MATERIAL
In pro se claim number 4, the defendant argues the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose "[t]he Wal-Mart receipt, verification of authenticity of the currency, that the State had alleged statement or confession from defendant that was used at trial." In pro se claim number 7, he argues the State failed to comply with discovery and violated Brady by failing to disclose test results on the counterfeit notes.
The prosecution's suppression of favorable evidence violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that witness may be determinative of the defendant's guilt or innocence, or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at3381.
In the instant case, even assuming, arguendo, the alleged nondisclosed evidence was Brady material, there is no reasonable probability sufficient to undermine confidence in the outcome that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Regarding the complaint that test results were not provided, there was no evidence the counterfeit notes were actually genuine. The defense theory at trial was that the defendant innocently passed counterfeit money, and thus, had no intent to deceive. The defendant's prior transaction at Wal-Mart was not at issue. In regard to statements from the defendant, we note the defense failed to object that it was surprised by these statements at trial, and the record indicates the State provided open-file discovery to the defense.
See discussion of pro se claim number 2, supra.
Pro se claims number 4 and 7 are without merit.
CONFRONTATION OF ACCUSERS
In pro se claim number 5, the defendant argues the State violated the defendant's right to confrontation of his accuser by not presenting testimony from the Dillard's sales clerk, the Wal-Mart sales clerk, and the Wal-Mart manager.
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).
Initially, we note the defendant's transaction at Wal-Mart was not at issue in this case. Thus, there were no accusers from Wal-Mart to confront. Further, the State did not directly present any testimony from the Dillard's sales clerk. Rather, the State relied upon the testimony of Officer Salamoni and the defendant's actions after he passed the counterfeit money to establish the elements of the offense. The defense cross-examined Officer Salamoni, but failed to call the Dillard's sales clerk as a witness. Additionally, defendant failed to object to Officer Salamoni's testimony concerning what the Dillard's sales clerk had told him.
See discussion of pro se claim number 2, supra.
See discussion of counseled assignment of error number 1, supra.
Pro se claim #5 is without merit.
RIGHT TO COUNSEL
In pro se claim number 6, the defendant argues the trial court erred in allowing the defendant's statements to be introduced into evidence because they were given in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
In Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the Supreme Court found that if a suspect indicates "in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Edwards, 451 U.S. at 481-85, 101 S.Ct. at 1883-85, reconfirmed these views and, to lend them substance, held that when an accused either before or during interrogation asks for counsel, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated, custodial interrogation, even if he has been advised of his rights. The accused is not subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85; see Maryland v. Shatzer, ___ U.S. ___, ___, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010).
The defendant failed to move to suppress any statements in this case. Accordingly, he failed to preserve the issue of an Edwards violation, if any, for review. See La. Code Evid. Ann. art. 103(A)(1) ("Error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection ... appears of record, stating the specific ground of objection"); La. Code Crim. Proc. Ann. art. 841(A) ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"); La. Code Crim. Proc. Ann. art. 703(F) ("Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress").
Pro se claim number 6 is without merit.
EXCESSIVE SENTENCE
In counseled assignment of error number 2 and pro se claim number 8, the defendant argues his sentence is unconstitutionally excessive. We note error under Louisiana Code of Criminal Procedure Annotated article 920(2), which causes us to pretermit consideration of these claims.
Our review for error is pursuant to Article 920(2), which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. Code Crim. Proc. Ann. art. 920(2).
Initially, we note the trial court failed to impose the mandatory fine of not less than five thousand dollars nor more than one million dollars. See La. Rev. Stat. Ann. § 14:72.2(A) (prior to amendment by 2012 La. Acts No. 735, § 1). Additionally, the trial court imposed the sentence without benefit of parole. However, neither Louisiana Revised Statutes Annotated Section 14:72.2(A) nor Louisiana Revised Statutes Annotated Section 15:529.1(G) restrict parole eligibility. If the trial court had been aware it could not restrict the defendant's parole eligibility, it may have imposed a different term in this matter. When the amendment of a defendant's sentence entails more than a ministerial correction of a sentencing error, the decision in State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, does not sanction sua sponte correction by the court of appeal on the defendant's appeal of his conviction and sentence. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So. 2d 224 (per curiam). Thus, we must vacate the sentence and remand for resentencing.
INDETERMINATE SENTENCE
In pro se claim number 9, the defendant argues the sentence is indeterminate because La. Rev. Stat. Ann. § 14:72.2(A) does not specify whether or not it is to be served with or without hard labor.
If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence. La. Code Crim. Proc. Ann. art. 879. The trial court sentenced the defendant to ten years at hard labor without benefit of probation, parole, or suspension of sentence. Although we have vacated the sentence due to the illegal parole restriction and remanded for resentencing, we note the sentence was determinate. The fact that La. Rev. Stat. Ann. § 14:72.2(A) provides for a sentence "with or without hard labor" does not render any sentence imposed thereunder indeterminate.
Pro se claim number 9 is without merit.
HABITUAL OFFENDER ADJUDICATION
In pro se claim number 10, the defendant argues the trial court erred in adjudicating him a third-felony habitual offender because the State failed to present transcripts of the predicate offenses and failed to establish his identity with fingerprint evidence.
The State may, but is not required to, introduce transcripts concerning predicate offenses in a habitual offender proceeding. If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a "perfect" transcript of the taking of the guilty plea, one which reflects a colloquy between the judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a "perfect" transcript, for example, a guilty plea form, a minute entry, an "imperfect" transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. State v. Shelton, 621 So. 2d 769, 779-80 (La. 1993). The purpose of the rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea, in which the appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction used in a subsequent recidivist proceeding, as to which a presumption of regularity attaches to promote the interests of finality. See State v. Deville, 04-1401 (La. 7/2/04), 879 So. 2d 689, 691 (per curiam).
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court reversed five robbery convictions founded upon guilty pleas because the court accepting the pleas had not ascertained that the defendant voluntarily and intelligently waived his right against compulsory self-incrimination, right to trial by jury, and right to confront his accusers. Boykin only requires a defendant be informed of these three rights. "Its scope has not been expanded to include advising the defendant of any other rights which he may have, nor of the possible consequences of his actions." State v. Smith, 97-2849 (La. App. 1 Cir. 11/6/98), 722 So.2d 1048.
The habitual offender hearing was not transcribed for the record. The minutes and documents contained in the record indicate the State presented expert testimony from Barbara Mason concerning fingerprint analysis. Additionally, the State introduced into evidence the defendant's penitentiary packet and documents indicating the defendant was on "good-time parole" between August 17, 2003 and January 2, 2017, following convictions for manslaughter and attempted second degree murder. (State Exhibits #2 and #3). In regard to predicate #1, on August 26, 1987, with benefit of counsel, the defendant pled guilty to manslaughter (on an original charge of first degree murder), after being advised of and waiving his right to trial by jury, right to confront his accusers, and his right against self-incrimination, and was sentenced to twenty-one years at hard labor. In regard to predicate #2, on March 6, 1989, with benefit of counsel, and after "Boykin [was] given," the defendant pled guilty to attempted second degree murder (on an original charge of attempted first degree murder), and was sentenced to thirty years at hard labor to run concurrently with his sentence in predicate #1.
There was no error. In connection with the challenged predicates, the State met its initial burden of proof under Shelton. Thereafter, the defendant failed to produce any affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas. Accordingly, the State had no burden to prove the constitutionality of the challenged predicates by "perfect" transcripts or otherwise.
Pro se claim number 10 is without merit.
In pro se claim number 11, the defendant argues the State committed prosecutorial misconduct by firing defense counsel Garron Johnson. This argument is not supported by the record. Defense counsel Johnson moved to withdraw, citing the fact that the defendant had hired new counsel.
Pro se claim number 11 is without merit.
CONVICTION AFFIRMED; HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.