State of Louisiana v. Derrick Dewayne Moore

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1409

STATE OF LOUISIANA

VERSUS

DERRICK DEWAYNE MOORE

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 10-103
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Derrick Dewayne Moore

James Patrick Lemoine
District Attorney, Thirty-fifth Judicial District Court
P. O. Box 309
Colfax, LA 71417-0309
(318) 627-3205
Counsel for Plaintiff/Appellee:
State of Louisiana

Renee W. Dugas
Assistant District Attorney, Thirty-fifth Judicial District Court
P. O. Box 309
Colfax, LA 71417
(318) 627-2971
Counsel for Plaintiff/Appellee:
State of Louisiana

Derrick Dewayne Moore
Catahoula Correction Center
499 Columbia Rd.
Harrisonburg, LA 71340
Counsel for Defendant/Appellant:
Derrick Dewayne Moore

EZELL, Judge.

The Defendant, Derrick Dwayne Moore, was charged by bill of information

filed on February 9, 2010, with theft of property having a value of more than $500.

The Defendant entered a plea of not guilty on February 18, 2010. Trial by jury

commenced on May 18, 2010, and the Defendant was subsequently found guilty. On

August 13, 2010, the Defendant was sentenced to serve four years at hard labor and to

pay a fine of $1,500. A motion to reconsider sentence was filed on August 13, 2010,

and was subsequently denied. A motion for appeal was filed on September 2, 2010,

and was subsequently granted.

A bill of information charging the Defendant as a habitual offender was filed on

November 9, 2010. He entered a plea of not guilty on November 12, 2010. The

Defendant was subsequently adjudicated a fourth felony offender and sentenced to

serve twenty years at hard labor.

The Defendant is now before this court asserting one assignment of error

contending the trial court erred in granting the State’s pre-trial motion in limine to

prohibit the use at trial of any out-of-court statements by Patrick Cotten. The trial

court did not grant the State’s motion; thus, there is nothing for this court to review.

FACTS

The Defendant removed junk cars and scrap metal from Barbara Lonidier’s

property. This included a 1988 Toyota Tercel, which the Defendant sold to Cenla

Recycling, and a 1947 International pickup truck.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, the Court finds there is

one error patent.

The record does not indicate that the Defendant was advised of his right to

remain silent, his right to a hearing, and his right to have the State prove its case

against him. Although the trial court stated in its habitual offender judgment and

written reasons, “[h]aving been advised of his right to remain silent, the Defendant

testified in the presentation of his case,” we have reviewed the transcript of the

habitual offender proceeding and did not find such an advisement of the right to

silence. Nevertheless, the failure to apprise the Defendant of his rights was harmless;

the Defendant received a fundamentally fair hearing.

In State v. Gobert, 09-607, 09-608, pp. 2-5 (La.App. 3 Cir. 12/9/09), 24 So.3d

1013, 1014-16, writ denied, 09-2830 (La. 6/18/10), 38 So.3d 321(footnote

omitted)(alterations in original), this court faced a similar situation:

The record in this case does not indicate that the Defendant was
advised of his right to remain silent, his right to a hearing, and his right to
have the State prove its case against him. In State v. Coleman, 96-525,
pp. 12-13 (La.App. 3 Cir. 10/7/98), 720 So.2d 381, 387, this court
explained in pertinent part:

Although the right to remain silent is not specifically set
forth in La. R.S. 15:529.1, in State v. Johnson, 432 So.2d
815 (La.1983), writ granted on other grounds, 438 So.2d
1113 (La.1983); appeal after remand, 457 So.2d 1251
(La.App. 1 Cir.1984), appeal after remand, 471 So.2d 1041
(La.App. 1 Cir.1985), the Louisiana Supreme Court held
this statute clearly recognizes the defendant has the right to
remain silent, and the statute implicitly provided defendant
should be advised by the court of his right to remain silent.
The court in Johnson, relying on State v. Martin, 427 So.2d
1182 (La.1983) further stated La. R.S. 15:529.1(D)
specifically provides defendant shall be advised of his right
to a formal hearing and to demand that the state prove its
case.

This court has found that the failure to advise a defendant of the
right to remain silent and to have the State prove its case against him is
harmless when the defendant is adjudicated a habitual offender after a
full hearing, and the defendant does not testify or acknowledge his status
as a habitual offender. See State v. Alexander, 05-276, 05-277 (La.App.
3 Cir. 11/2/05), 916 So.2d 303. However, in the present case, defense
counsel stipulated as to the Defendant’s identity for the prior convictions.

In State v. Harris, 95-900, pp. 1-2 (La.5/19/95), 654 So.2d 680, the
supreme court, reviewing the grant of an application for post-conviction
relief, stated:

Admissions of identity at a multiple offender hearing
implicate the defendant’s Fifth Amendment privilege

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against self-incrimination. State v. Johnson, 432 So.2d 815
(La.1983). Nevertheless, multiple offender proceedings
“simply should not be equated (at least for purposes of
determining the validity of an admission) to trials of guilt or
innocence.” State v. Martin, 427 So.2d 1182, 1185
(La.1983). This Court has therefore declined to adopt as a
constitutional prerequisite to a valid admission of identity at
a multiple offender proceeding a procedure analogous to the
Boykin colloquy which must accompany a valid plea of
guilty. Id., 427 So.2d at 1185, n. 7. In the absence of any
allegation or showing that the admission was involuntary,
compare State v. Johnson, supra, the availability of post-
conviction relief turns on whether the proceedings as a
whole accorded the petitioner fundamental fairness and due
process of law. See, Holloway v. Lynaugh, 838 F.2d 792
(5th Cir.), [cert. denied ], 488 U.S. 838, 109 S.Ct. 104, 102
L.Ed.2d 80 (1988); State v. Firmin, 522 So.2d 1181
(La.App. 4th Cir.), [writ denied], 532 So.2d 759 (La.1988).

In this case, the prosecution introduced and filed into
evidence a sworn affidavit from the Department of
Corrections to prove that petitioner, Roy Harris, was the
same person who was previously convicted of the predicate
felonies which led to the multiple bill. Defense counsel
made his stipulation in open court and in the presence of the
petitioner. A complete review of the transcript reveals that
the petitioner was given a fundamentally fair hearing
wherein the state proved the prior felony convictions.

In State v. Samuel, 08-100 (La.App. 3 Cir. 5/28/08), 984 So.2d 256,
writ denied, 08-1419 (La.2/20/09), 1 So.3d 493, writ denied, 08-1487
(La.2/20/09), 1 So.3d 495, this court dealt with an issue similar to that
presented in this case. At defendant Samuel’s habitual offender hearing,
he testified, acknowledging his prior convictions, without being advised
of his right to remain silent. This court found that the defendant’s
testimony was voluntary, the defendant was represented by counsel, and
a full habitual offender hearing was held. Accordingly, it held that the
trial court’s failure to advise the defendant of his right to remain silent
was harmless and that the defendant was afforded a fair hearing.

In the present case, the State presented documentary evidence to
prove the existence of the prior convictions. To prove identity, it
presented the testimony of Mr. Douglas Edney, with the Louisiana
Division of Probation and Parole, who testified that he had supervised the
Defendant upon his release for “good time parole supervision” for his
prior conviction of distribution of counterfeit cocaine. He identified the
Defendant as the person that he had previously supervised. The State
then presented evidence of the Defendant’s identity for the prior
convictions through an expert in fingerprint analysis and through
documentary evidence. According to the record, the Defendant
stipulated as to his identity on the three prior convictions and also
stipulated as to the fingerprint evidence presented by the State.
Subsequent to the presentation of this evidence, the trial court found that

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the State bore its burden of proof regarding identity, and it ultimately
found the Defendant to be a fourth felony offender.

Although the record before this court does not reflect that the
Defendant was advised of his rights, there is no indication in the record
that the stipulation was involuntary. The Defendant was represented by
counsel, and he was adjudicated an habitual offender after a full hearing
at which the State presented evidence to prove his habitual offender
status. Therefore, we find that the Defendant was afforded a
fundamentally fair hearing and that the error was harmless.

In the present case, the State presented its case to prove the Defendant’s

habitual offender status, after which the Defendant took the stand and testified. The

Defendant was represented by counsel, and there is no indication his testimony was

involuntary. As noted in the trial court’s written reasons, “The Defendant’s testimony

did not serve to rebut any of the State’s evidence of convictions. However, on cross-

examination the Defendant confirmed several of his convictions which were both

mentioned in Mr. Gralapp’s testimony and indicated in State’s Exhibit 1.” The

Defendant was adjudicated a habitual offender after a full hearing at which the State

proved his habitual offender status. Accordingly, the Defendant was afforded a

fundamentally fair hearing and that the error was harmless.

ASSIGNMENT OF ERROR

In his only assignment of error, the Defendant contends the trial court erred in

granting the State’s pre-trial motion in limine to prohibit the use of any out-of-court

statements by Patrick Cotten.

Prior to calling its first witness, the State filed a Motion in Limine to exclude

any reference to statements made by Patrick Cotten to the Defendant and by Patrick

Cotten’s uncle to Patrick Cotten. The trial court denied the State’s motion, stating the

following: “I’m going to deny your motion at this time. I think it’s good that you

brought it, so that we are on the lookout for those type of statements, and I will try to

cut them off before any prejudicial comments might be made.”

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Defense counsel later called Patrick Cotten to testify. At that time, Cotten

invoked his Fifth Amendment right against self-incrimination.

An exchange regarding statements by Cotten followed:

BY THE COURT: Counsel, in light of the fact that the state filed a
Motion in Limine with respect to hearsay, I would like to go ahead and
address that before the jury comes in. Do you anticipate trying to elicit
testimony regarding statements made by Mr. Cotten?

BY MR. SLAUGHTER: Yes, sir.

BY THE COURT: And does the state intend to object?

BY MRS. DUGAS: Absolutely.

BY THE COURT: And, Mr. Slaughter, on what basis do you think that
you can elicit the testimony, the statements made by Mr. Cotten?

BY MR. SLAUGHTER: Basically, I, would ask Mr. Moore by [whose]
authority he was there to clean up the property and to remove the, some
of the items that were removed.

BY THE COURT: And, I’m assuming that that authority would have,
allegedly be[en] coming from statements made by Patrick Cotten?

BY MR. SLAUGHTER: Yes, sir.

BY THE COURT: I understand you[r] reasoning for wanting to
introduce the evidence, I’m asking under what hearsay exception do you
feel that that falls?

BY MR. SLAUGHTER: I don’t know if it falls under one. Judge, the
defense is not going to call anybody at this time.

BY MR. WHITE: Your Honor, and the state would inquire in the
interest of down the road that Mr. Moore knows he does also have a right
to testify. I don’t know if Mr. Slaughter is advising him to or advising
him not to, and I’m not asking for any confidential information, but . . .

BY MR. SLAUGHTER: In light of the situation that the whole reason to
call Mr. Moore would be to elicit the testimony of, the statements made
by Mr. Cotten. And since that’s no longer feasible or a possibility, it
would be to Mr. Moore’s advantage not to take the stand and submit
himself to injurious questions from the prosecution. I’ve explained that
to Mr. Moore several times throughout the hearing and before, and we
find ourselves in the unenviable position of not being able to get to Mr.
Cotten, as bad as I’d like to. The bottom line, any good we could have
done is no longer viable.

BY THE COURT: And, Mr. Moore, you understand that you do have
the right to testify?

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BY MR. MOORE: Yes, sir.

BY THE COURT: And at this juncture, your decision is?

BY MR. MOORE: I mean, it ain’t no reason to. I mean, if - - I mean, I
never knew this woman, I mean, that’s how I [got] entangled in all this
here, was through him. I mean, if I can’t, you know, ask him, the man
that got me in here, I mean, I’m, I mean, I got no purpose of . . .

The trial court initially denied the State’s motion in limine. The admissibility

of Cotten’s statements was again raised. At that time, defense counsel was questioned

by the trial court about what hearsay exception would allow the Defendant to testify

regarding Cotten’s statements. Defense counsel made no argument about applicable

hearsay exceptions and chose not to call the Defendant to testify. The trial court did

not grant the State’s motion in limine and did not explicitly deny the Defendant the

right to testify about statements made by Cotten. Accordingly, there is no ruling for

this court to review.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-
Courts of Appeal. Rule 2-16.3.

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