State of Louisiana v. Tyrone Mitchell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-426

STATE OF LOUISIANA

VERSUS

TYRONE MITCHELL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 53423-B
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

CONVICTION AFFIRMED. REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney, Fifteenth Judicial District
F. Stanton Hardee, III
Assistant District Attorney
100 Borth State Street, Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

Teresa Culpepper Carroll
Bobby L. Culpepper & Assoc.
525 East Court Ave.
Jonesboro, LA 71251-3497
(318) 259-4184
COUNSEL FOR DEFENDANT-APPELLANT:
Tyrone Mitchell

Tyrone Mitchell
Hickory 2
Louisiana State Prison
Angola, LA 70712
PRO SE

PICKETT, Judge.

FACTS

The defendant, Tyrone Mitchell, allegedly sold two rocks of crack cocaine to

an undercover police officer during a weekend long undercover operation. He was

charged in a bill of information filed on January 4, 2011, with distribution of

cocaine, a violation of La.R.S. 40:967. The defendant was arraigned and entered a

plea of not guilty on February 16, 2012. Trial by jury commenced on July 17,

2012, and the defendant was found guilty the following day.

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

on July 24, 2012, and amended on August 1, 2012. The defendant was arraigned

on August 16, 2012, and chose to remain silent. He was adjudicated a third felony

offender on December 20, 2012, and was sentenced to life imprisonment, without

benefit of probation, parole, or suspension of sentence. A motion for appeal was

subsequently filed and granted.

ASSIGNMENTS OF ERROR

The defendant is now before this court asserting the following assignments

of error:

1. The jury erred in convicting him of distribution of cocaine.

2. The trial court erred in failing to grant a mistrial or at least give a
contemporaneous instruction due to inappropriate questioning by
the prosecutor of the prospective jury pool.

3. The trial court erred in allowing the state to use a stopwatch
demonstration during rebuttal closing argument.

4. The trial court erred in failing to grant a mistrial after the state
made inappropriate statements during its rebuttal closing argument.

5. The trial court erred in failing to instruct the jury to disregard
inappropriate statements made by the state during its rebuttal
closing statement.

6. The trial court erred in denying his request for a judge trial.

In a pro se brief, the defendant contends he was denied effective assistance

of counsel when trial counsel failed to file pre-trial motions to suppress

identification and evidence.

ERRORS PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

we find there is one error patent.

The record does not indicate that the trial court advised the defendant of the

prescriptive period for filing an application for post-conviction relief as required by

La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the defendant

of the provisions of article 930.8 by sending appropriate written notice to the

defendant within ten days of the rendition of this opinion and to file written proof

in the record that the defendant received the notice. State v. Roe, 05-116 (La.App.

3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant contends the jury erred, as a

matter of law, in convicting him of distribution of cocaine based on insufficient

evidence to support the conviction.

The supreme court explained an appellate court‟s function in reviewing

sufficiency of the evidence claims in State v. Spears, 05-964, p. 2 (La. 4/4/06), 929

So.2d 1219, 1222:

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When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are 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). See State v.
Captville, 448 So.2d 676, 678 (La.1984). That standard dictates that
to affirm the conviction the appellate court must determine that the
evidence, viewed in the light most favorable to the prosecution, was
sufficient to convince a rational trier of fact that the State proved all
elements of the crime beyond a reasonable doubt. State v. Johnson,
03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998; Captville, 448 So.2d
at 678.

Agent Jackie Boddie testified that on October 9, 2010, she was working

undercover for the Vermilion Parish Sheriff‟s Office. At approximately 8:45 p.m.

on the date in question, Agent Boddie and Deputy Debbie Picou were flagged

down by a man outside the Tiki Club. The man, who was wearing an orange shirt,

orange shorts, and an orange headband, asked if they needed anything. Agent

Boddie told the man she was looking for “forty hard,” which meant forty dollars‟

worth of crack cocaine. Agent Boddie said the man, who was about one to two

feet away at that time, told her to wait there and went back inside the club. Agent

Boddie testified their interaction lasted approximately fifteen to twenty seconds.

Agent Boddie testified that another man subsequently approached the car

and asked if Agent Boddie needed anything. Agent Boddie indicated she did not.

The man, however, said he had twenty with him, and Agent Boddie then purchased

drugs from him. Agent Boddie testified that she placed the drugs in a pocket in the

door of the car.

The man who went back inside the club eventually returned, and Agent

Boddie purchased two rocks of crack from him. Agent Boddie indicated the man

got close enough to her to hand her the crack, the transaction took approximately

forty-five seconds to a minute, and she focused on the man‟s features for future

identification purposes. Agent Boddie further testified that it was “pretty dark”

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that night, and the light inside the car was not on. She did not, however, see

anyone else dressed in all orange. Agent Boddie subsequently gave Agent Travin

Moore a description of the man. Agent Boddie testified that she took the two

rocks, placed them in an envelope, and gave the envelope to Agent Moore

approximately ten minutes later.

Agent Boddie testified the chain of custody indicated she gave the envelope

to Agent Moore on October 9, 2010. When shown the rocks of crack and asked

whether they appeared to be those sold to her by the man in orange, Agent Boddie

stated: “As far as I can tell, yes.” She was subsequently asked if she was

absolutely certain that the crack cocaine shown to her in court was what the man

sold to her and she transferred Agent Moore. Agent Boddie responded, “Yes.”

Agent Boddie made an in-court identification of the defendant as the person who

sold her crack on October 9, 2010. She then indicated she was absolutely certain

he was the person who sold her the crack.

Agent Boddie was presented with a photographic lineup two to four weeks

after the transaction. She selected photograph five as the person who sold crack to

her. Agent Boddie testified that she was sure the person in photograph five sold

her crack, and the defendant was the person shown in photograph five.

Deputy Picou was working for the Vermilion Parish Sheriff‟s Office on

October 9, 2010, as an undercover agent. Deputy Picou was with Agent Boddie

outside the Tiki Club at 8:45 p.m. when a man approached the vehicle and asked if

they were looking for “some hard,” which meant cocaine. Deputy Picou testified

the man was dressed in orange. She then made an in-court identification of the

defendant as the person who approached her and Agent Boddie and indicated she

was positive it was the defendant she saw. Deputy Picou testified the defendant

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spoke with Agent Boddie for approximately ten to twenty seconds. During that

time, Deputy Picou had a clear view of the defendant‟s face. The defendant then

left the vehicle and returned to the club.

While Deputy Picou and Agent Boddie were waiting for the defendant to

return, a black male approached the car and sold drugs to Agent Boddie. The

defendant subsequently returned and put two white rocks of what Deputy Picou

believed were crack cocaine in Agent Boddie‟s hand, and Agent Boddie gave him

forty dollars. Deputy Picou testified that the transaction took five to ten seconds.

Deputy Picou testified that it was dark outside, and the vehicle‟s interior light was

on during the transaction.

Deputy Picou was further questioned about the transactions that occurred

that night as follows:

Q Now, before that evening, had you ever seen the individual who
made the first sale? Had you ever seen that person before that
evening?

A On the first buy that we made?

Q Uh-huh (affirmative response).

A Yes, ma‟am; I did.

Q And that‟s the same one you‟re talking about now, right? Or are
you talking about a different one?

A The one we bought the first dope from, the person that came to
the truck first?

Q Uh-huh (affirmative response).

A I had seen him before; yes, ma‟am.

Q And the second person who came up, did he sell to you or did
he sell to Ms. Boddie?

A He sold to Ms. Jackie.

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Q And what did she do with the item that she got from that second
person?

A She held onto it in her hand until we drove off.

Q That‟s from the second person?

A Yes, ma‟am.

Q And what did she do with the items that she bought from the
first person?

A She placed it in a brown envelope.

Q And are you sure of those two things?

A Yes, ma‟am.

Deputy Picou subsequently agreed that she saw Agent Boddie place the crack the

defendant sold to her in an envelope. Additionally, the crack sold by the defendant

was kept separate from the cocaine sold by the second individual. Deputy Picou

testified that Agent Boddie spoke to Agent Moore and Sergeant Jerath Bessard ten

to fifteen minutes later, and Agent Boddie gave the envelope to Agent Moore.

Agent Moore, an employee of the Vermilion Parish Sheriff‟s Office,

testified that the defendant was his third or fourth cousin. Agent Moore prepared a

report regarding the instant case. On the date in question, Agent Moore was in a

rental vehicle in the area surrounding the club. Agent Moore confirmed that Agent

Boddie bought drugs from two individuals on that date, as Agent Moore could hear

the transactions over a cell phone. Agent Boddie described the person from whom

she bought forty dollars‟ worth of crack as wearing orange shorts, an orange shirt,

and an orange headband. Agent Moore, along with others, subsequently passed

through the area and could not find the defendant. When passing the club a second

time, Sergeant Bessard saw someone walking out of the club and identified him as

the defendant. Agent Moore then identified the defendant as the person he saw

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walking out of the club on the night in question. Agent Moore did not see any

other individuals wearing all orange on October 9, 2010, outside the Tiki Club.

Agent Moore testified that Agent Boddie gave him the envelope containing

the crack cocaine she purchased. He then placed the crack in an evidence bag,

which was separate from the cocaine sold to Agent Boddie by the second man that

approached her. Agent Moore identified the crack shown to him as that he

received from Agent Boddie, indicating he was certain about the identification.

Two to four weeks after the transaction, Agent Moore showed Agent Boddie

a photographic lineup. Agent Moore testified that Agent Boddie selected

photograph five, which was a photograph of the defendant, as the person from

whom she bought drugs.

Agent Moore testified that he wrote “Case Number VTF-09-268” on the

report regarding the instant case, which was the incorrect number. Agent Moore

described the mistake as human error and gave the correct case number as 2010-

268. The charge was listed as distribution of crack in the report, and that was

correct. Agent Moore was asked why he listed the evidence in his report as a

handmade pipe, green vegetable matter, and a hand rolled cigarette and replied,

“Once again, it was human mistake. We worked so many cases that night – that

weekend, probably fatigue set in at the time I tagged it, did the report. Just a

mistake.” Agent Moore worked fifteen cases that weekend but testified he was one

hundred percent certain the instant case involved State‟s Exhibit Number 1, the

crack cocaine sold by the defendant to Agent Boddie on October 9, 2010.

Agent Moore testified the defendant was not arrested on the night in

question, as police were running an undercover operation all weekend and could

not risk the safety of the purchasing agents.

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Sergeant Bessard, an employee of the Vermilion Parish Sheriff‟s Office,

testified that he was working on October 9, 2010. Approximately two to three

minutes after Agent Boddie gave a description of the man who sold her crack,

Sergeant Bessard saw the defendant outside the Tiki Club dressed in orange.

Sergeant Bessard testified that he did not see anyone else wearing all orange that

evening. He then testified he was absolutely certain the defendant was the person

he saw outside the Tiki Club that night.

Officer Reginald Reed, an employee of the Vermilion Parish Sheriff‟s

Office, testified that he was the evidence custodian. He testified that the collected

evidence was placed in a vault in his office, and only he and Lieutenant Jo Ann

Matthieu had access to the evidence. Officer Reed received suspected crack from

Agent Moore on October 29, 2010. That evidence was logged as 10-609 and

eventually submitted to the crime lab on November 5, 2010.

Amanda Hebert, an employee of the Acadiana Crime Lab, was accepted as

an expert in forensic chemistry. Hebert testified that the two white rocks submitted

by police were determined to be crack having a weight of 0.28 grams.

Identification of the defendant

The defendant contends the state failed to prove beyond a reasonable doubt

that he was the person that sold crack to police on October 9, 2010. The defendant

argues that this court must examine the reliability of the identification according to

the factors set out in Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977),

which include the following: 1) the opportunity of the witness to view the criminal

at the time of the crime; 2) the witness‟s degree of attention; 3) the accuracy of his

or her prior description of the criminal; 4) the level of certainty demonstrated at the

confrontation; and 5) the length of time between the crime and the confrontation.

8

The defendant contends a victim‟s or witness‟s testimony alone is sufficient to

support a verdict if the Manson factors are satisfied. In support of this claim, the

defendant cites State v. Paul, 11-252 (La.App. 4 Cir. 4/18/12), 90 So.3d 1191, writ

denied, 12-1103 (La. 11/2/12), 99 So.3d 662.

The defendant asserts that Agent Boddie‟s description was not detailed, as

she merely stated the suspect was a black male dressed in orange shorts, an orange

shirt, and an orange headband. The defendant argues that Agent Boddie‟s

interaction with the suspect lasted no more than two minutes, it was “pretty dark”

at the time of the transaction, she viewed the lineup two to four weeks after the

transaction, and, although Agent Boddie testified she focused on the suspect‟s

features, she stated the light in her vehicle was not on.

The defendant asserts that Deputy Picou estimated the transaction lasted less

than a minute. The defendant notes that Deputy Picou made an in-court

identification of him but testified the light in the vehicle was on during the

transaction, which was contrary to Agent Boddie‟s testimony. The defendant avers

Deputy Picou testified there were numerous buys that night.

The defendant then points out that no video, audio, or photographs were

taken during the transaction, and no photographs of the money used by police

during the transaction were taken.

In State v. Thomas, 10-792, pp. 7-8 (La.App. 3 Cir. 2/2/11), 54 So.3d 1268,

1272-73, writ denied, 11-473 (La. 9/23/11), 69 So.3d 1157, this court discussed

jurisprudence regarding the sufficiency of the evidence concerning identification as

follows:

In State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d
437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553, the
defendant asserted his convictions were based on insufficient

9

evidence, particularly the witness‟ identification of him as the person
who committed the robberies. He questioned the witness‟
identification because she allegedly told her son that the police
identified the robber. The defendant asserted that this court had to
determine whether there was a suggestive identification and if it
presented a substantial likelihood of misidentification.

This court held:

“A defendant who does not file a motion to
suppress an identification, and who fails to
contemporaneously object to the admission of the
identification testimony at trial, fails to preserve the issue
of its admissibility as an error on appeal.” State v.
Johnson, 95-711, pp. 3-4 (La.App. 3 Cir. 12/6/95), 664
So.2d 766, 769, writ denied, 96-0082 (La.3/29/96), 670
So.2d 1236. See also La.Code Crim.P. arts. 703(F) and
841(A). The record reveals that the defendant did not file
a pre-trial motion to suppress the witnesses‟
identifications or object to its admissibility at trial.
Consequently, as the defendant failed to preserve this
issue, we do not review it on appeal.

Id. at 440.

The State relies on Boyance and further contends that while a
motion to suppress would not have been possible because of the in-
court identification, Defendant did not contemporaneously object to it
at trial. Thus, the error was not preserved for review.

In State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660,
cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999),
the defendant contended that the court should not have admitted the
testimony of the store manager who survived a shooting because her
recollection of the crime and her identification of one of the assailants
occurred only after she had been hypnotized by the police. At trial,
there was no objection to the testimony or the identification. The
supreme court found the defendant waived any claim based on the
erroneous admission of this evidence.

Here, we find that Defendant waived review of the issue of
improper in-court identification because he failed to
contemporaneously object at trial. Further, even if Defendant had not
waived his objection, the evidence in the record was sufficient to
support the finding that he was the man who shot Perioux.

10

See also State v. Cyriak, 10-591 (La.App. 3 Cir. 12/8/10), 52 So.3d 324; State v.

Landry, 03-1632 (La.App. 4 Cir. 5/19/04), 876 So.2d 146, writ denied, 04-1586

(La. 11/15/04), 887 So.2d 474.

The defendant did not file a motion to suppress the identification by Agent

Boddie or object to any identification testimony at trial. Thus, the defendant

waived review of this assignment of error. However, even if the defendant had not

waived review of his claim, the evidence in the record is sufficient to support the

finding that the defendant sold crack to Agent Boddie.

As a general matter, when the key issue is the defendant‟s
identity as the perpetrator, rather than whether the crime was
committed, the state is required to negate any reasonable probability
of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983);
State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408
So.2d 1221, 1227 (La.1982). However, positive identification by only
one witness is sufficient to support a conviction. See State v. Mussall,
523 So.2d 1305, 1311 (La.1988) (generally, one witness‟s positive
identification is sufficient to support the conviction); State v. Ford,
28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, 849-50, writ denied,
99-0210 (La.5/14/99), 745 So.2d 12.

State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535

U.S. 940, 122 S.Ct. 1323 (2002).

Two to four weeks after the transaction, Agent Boddie selected the

defendant from a photographic lineup. She additionally made an in-court

identification of the defendant as the person who sold her crack on October 9,

2010. Deputy Picou also made an in-court identification of the defendant as the

person who sold crack to Agent Boddie. After the transaction, Agent Moore saw

the defendant walking out of the Tiki Club. Sergeant Bessard testified that he

heard the description given by Agent Boddie, and he saw the defendant walking

out of the Tiki Club dressed in the same manner as that described by Agent

Boddie. The jury heard this testimony and chose to believe the defendant was the

11

person who sold crack to Agent Boddie. We will not second guess that credibility

determination. Viewing the evidence in the light most favorable to the state, the

state negated any possibility of misidentification in this matter.

Chain of custody of physical evidence

The defendant contends the evidence regarding the chain of custody of the

alleged drugs purchased was sketchy at best. The defendant alleges that Agent

Boddie testified the crack shown to her appeared to be the crack she purchased

from the defendant. The defendant asserts that Agent Boddie made two drug

purchases during the same time, and the three rocks of crack were not packaged.

The defendant then asserts there was a major issue with the reasonableness of the

jury verdict, as there was a problematic chain of custody and errors in the police

report. The defendant notes that Agent Moore did not turn the crack in to the

evidence custodian until approximately three weeks after the transaction, and he

incorrectly listed the evidence on his report as a homemade pipe containing a green

vegetable substance and a rolled cigarette containing a green vegetable substance

and wrote the wrong case number on the report. The defendant then lists the

following chronological breakdown of the chain of custody:

10/9/10 - Undercover Agent Jackie Boddie purchased three rocks of
crack cocaine outside the Tiki club in Abbeville, Louisiana. The rock
from the transaction that occurred during the middle of the one with
orange suspect was allegedly placed in the car door pocket when the
orange suspect approached with his two rocks according to Boddie.
However, Picou testified that she was sure that Boddie held the rock
from the second suspect in her hand until they drove off and then put
the rocks from the orange suspect in a brown envelope. Boddie left
area, put the rocks of cocaine from defendant into an envelope and
gave to Sgt. Moore approximately ten to fifteen minutes later. Boddie
admitted that the handwriting on the envelope was not hers.
Importantly, neither Boddie or Picou testify as to what happened with
the other rock from the second suspect. Sgt. Moore testified that he
transferred the envelope with the two rocks of cocaine to an evidence

12

bag which he sealed and signed and kept separate from other drugs
but doesn‟t say how.

10/11/10 - Sgt. Moore testified that he actually didn‟t seal the drugs
on the night of the transaction due to working eighteen hour days
throughout the weekend but was locked in his office in a “secure
place” until sealed two days later and locked in his desk at his office
with ten to twelve other evidence items. Sgt. Moore claimed to have
only key to the desk used.

10/29/10 - Almost three weeks later, Sgt. Moore transfers drugs to the
Vermilion Parish Sheriff‟s Office evidence custodian, Sgt. Reed. Sgt.
Reed testified that he maintains a vault in his office to hold evidence
until used in court or taken to crime lab and that only himself and Lt.
Jo Ann Matthieu, chief of detectives, have access to the vault which is
an old bank vault with a combination lock.

11/5/10 - Another week later, Sgt. Reed takes evidence to crime lab
where it is signed for by Wynette Haycock, the crime lab evidence
custodian.

11/5/10-12/15/10 - Rocks of alleged crack cocaine analyzed by crime
lab. Amanda Hebert testified that she recognized the signature of Ms.
Haycock on the evidence envelope and that the evidence would have
been held in the crime lab vault until tested.

(Citations to the record omitted.)

In State v. Todd, 03-1230 (La.App. 3 Cir. 2/4/04), 866 So.2d 1040, writ

denied, 04-588 (La. 7/2/04), 877 So.2d 143, the defendant argued the evidence was

insufficient to support his conviction for distribution of a controlled dangerous

substance because the trial court allowed the admission of drugs and a video tape

of the drug transaction even though the chain of custody of the items was not

properly established prior to their admission. This court found the defendant did

not object to the admission of the drugs or the video tape. Therefore, this court did

not address the issue of whether the trial court improperly admitted the items into

evidence.

In State v. Guillory, 95-383 (La.App. 3 Cir. 1/31/96), 670 So.2d 301, the

defendant argued the trial court erred in allowing the introduction of bullets for

13

several reasons, including his claim that there was a break in the chain of custody.

This court found there was no contemporaneous objection to the admission of the

bullets; therefore, the issue could not be raised on appeal.

There was no objection by defense counsel when the crack sold to Agent

Boddie was admitted into evidence as State‟s Exhibit Number 1. Therefore, the

defendant waived review of this claim. For these reasons, the defendant‟s first

assignment of error lacks merit.

QUESTIONING DURING VOIR DIRE

In his second assignment of error, the defendant contends the trial court

erred, as a matter of law, in failing to grant a mistrial or at least give a

contemporaneous instruction due to inappropriate questioning by the prosecutor of

the prospective jury pool.

[T]he purpose of voir dire is to discover grounds for challenges for
cause and to secure information for the intelligent exercise of
peremptory challenges. State v. Stacy, 96–0221 (La.10/15/96), 680
So.2d 1175, 1178. A party interviewing a prospective juror may not
ask a question or pose a hypothetical which would demand a
commitment or prejudgment from the juror or which would pry into
the juror‟s opinions about issues to be resolved in the case. State v.
Thibodeaux, 98–1673 (La.9/8/99), 750 So.2d 916 State v. Williams, 230 La. 1059, 89 So.2d 898, 905 (1956). See also, State v. Square, 257 La. 743, 244 So.2d 200, 226 (1971), judgment vacated in part,
408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), mandate
conformed to, 263 La. 291, 268 So.2d 229 (1972) (“Voir dire
examination is designed to test the competence and impartiality of
prospective jurors and may not serve to pry into their opinions
concerning evidence to be offered at trial.”). However, voir dire
examination which goes to the determination of the qualifications of
prospective jurors by testing their competency and impartiality is
proper. State v. Stacy, supra, 680 So.2d at 1178; State v. Hall, 616
So.2d 664, 668 (La.1993). This Court in State v. St. Amant, 413 So.2d
1312, 1319 (La.1981) held that “because of the difficulty of the
concepts and values which must be understood and applied by each
juror in his deliberations, counsel for each side is entitled to an
opportunity to assess the personality and comprehension of each
prospect as a unique human being before accepting him as a juror or
challenging him for cause or peremptorily.” See also State v. Dixon,

14

365 So.2d 1310 (La.1978). The proper scope of examination lies
within the discretion of the trial court, and its ruling will not be
disturbed on appeal in the absence of a clear abuse of discretion. State
v. Stacy, supra, 680 So.2d at 1178; State v. Hall, supra, 616 So.2d at
668.

State v. Tilley, 99-569, pp. 14-15 (La. 7/6/00), 767 So.2d 6, 19, cert. denied, 532

U.S. 959, 121 S.Ct. 1488 (2001).

During voir dire in the instant case, the state said the following:

Under the statute, the State is not required to prove, you know,
on - - like CSI, you have DNA, fingerprints, video. The statute doesn‟t
say the State has to prove by DNA, fingerprints or video. That statute
says the State has to prove the defendant intentionally distributed
cocaine. And that‟s what the State has to prove.

If the State proves all the elements of the crime -- if the State
proves all the elements beyond a reasonable doubt, but it‟s without
DNA, fingerprints or video, through eyewitness testimony of officers,
how would you vote, Ms. Hebert?

This question was answered by thirteen prospective jurors. The state then asked:

“Now, once you hear the witnesses, this is -- you hear the witnesses and if you

believe them, would you be able to return a guilty verdict if you believe the state

had proved its case?” Defense counsel objected and, in a side bar conference,

asked for a contemporaneous instruction because he felt the state gave the wrong

instruction regarding what the jury had to do in order to find the defendant guilty.

Defense counsel argued the State was misleading the jury into believing it could

return a guilty verdict “when they [were] not necessarily finding somebody guilty

beyond a reasonable doubt.” Defense counsel then asserted a contemporaneous

instruction regarding what the law actually was should be given. The state asserted

it was asking the prospective jurors if they could follow the law. The trial court

informed the state that it could not ask how the prospective jurors would vote

given any certain set of facts. The state subsequently argued it was asking the

15

prospective jurors whether they could convict if the state proved its case beyond a

reasonable doubt based on eyewitness testimony. The trial court stated it believed

three things the state said were probably impermissible, but an instruction to the

jury was not required. The state subsequently asked the trial court if the trial court

would permit it to ask the prospective jurors: “Could you convict if the state proves

the case beyond a reasonable doubt all the elements based on eyewitness

testimony?” Defense counsel objected, arguing the question called for a

hypothetical, and asked for a contemporaneous instruction. The trial court stated it

would not call the question a hypothetical. Defense counsel then stated it was up

to the jurors to evaluate the testimony of each witness. Defense counsel

subsequently asked the trial court to instruct the prospective jurors that “they are

the judges of the law and of the facts under the law as given by the Court.” The

trial court denied the request for a contemporaneous instruction. Defense counsel

then moved for a mistrial, which was denied. The trial court subsequently stated it

would allow the state to ask the prospective jurors if they would convict based on

eyewitness testimony, and defense counsel objected.

The defendant contends the state was focused on eyewitness testimony only

and trying to get the prospective jurors to commit to vote guilty based solely on

such testimony, which was improper, and a mistrial should have been granted.

In State v. Schouest, 351 So.2d 462 (La.1977), the prosecutor asked

prospective jurors: “After you sit through this trial and after you listen to all of the

evidence, and if after that we convince you beyond a reasonable doubt that Nolan

Schouest is guilty, would you vote guilty in this case?” The defendant‟s objection

to the question was based upon his contention that the question sought a

commitment and a promise from the jurors. The prosecutor argued the question

16

was a correct statement of the law, which presented a legitimate inquiry into the

jurors‟ qualifications. The prosecutor further argued that he could ascertain, during

voir dire, whether the prospective jurors would obey their solemn duty under the

law to convict when they were convinced beyond a reasonable doubt of the

defendant‟s guilty. The supreme court cited State v. Young, 337 So.2d 1196

(La.1976), and found the defendant‟s claim lacked merit.

In Young, the prosecutor, during his closing argument, made reference to a

“promise” of the jurors during voir dire examination that they would return a

verdict of guilty if such a verdict was warranted by the facts. The supreme court

held that “mere use of the word „promise‟ by the prosecutor in reminding the jury

of its sworn duty was not prejudicial to the accused.” Id. at 1200.

As in Schouest, 351 So.2d 462, we find that the state‟s questions were not

prohibited but were an attempt by the state to determine whether the prospective

jurors could follow jurisprudence that a positive identification by a single witness

is sufficient to support a conviction. It was an attempt to determine if the

prospective jurors could follow the law. For these reasons, we find this assignment

of error lacks merit.

USE OF STOPWATCH DEMONSTRATION

In his third assignment of error, the defendant contends the trial court erred,

as a matter of law, in allowing the state to use a stopwatch demonstration during its

rebuttal closing argument.

During its rebuttal closing argument, the state noted that identity was an

issue in the instant case and stated that Agent Boddie testified the defendant was a

foot from her for fifteen to twenty seconds. The state then said it had a stopwatch

which it was starting. Defense counsel objected and told the trial court the state

17

was “not to demonstrate,” the demonstration was to be done with a witness, not in

argument. The trial court stated it did not think the “stopwatch issue” was

objectionable. The trial court subsequently stated: “I think we can do it.”

Louisiana Code of Criminal Procedure Article 774 provides, in pertinent

part: “The argument shall be confined to evidence admitted, to the lack of

evidence, to conclusions of fact that the state or defendant may draw therefrom,

and to the law applicable to the case.”

In State v. Hendricks, 38,945 (La.App. 2 Cir. 9/22/04), 882 So.2d 1212, writ

denied, 04-2833 (La. 3/18/05), 896 So.2d 1000, the defendant argued the state

improperly introduced new evidence during closing argument in violation of

La.Code Crim.P. art. 774. The defendant argued that the state‟s use of a clock to

demonstrate the passage of one minute, the state‟s theory of the estimated time

period necessary for death by strangulation, constituted the improper introduction

of demonstrative evidence during its closing argument.

The second circuit found the state‟s use of a clock to display the lapse of one

minute was not new evidence, as the defense cross-examined an expert witness

with regard to whether death by strangulation could result in one minute or less,

and the coroner responded that it was possible. A review of the record revealed

that the state incorporated the issue into its closing argument, adding its description

of the victim‟s death during the passing minute. Thus, the state‟s use of the clock

to illustrate the lapse of one minute was within the scope of the evidence

previously admitted during the trial.

Agent Boddie testified that her initial interaction with the defendant lasted

from fifteen to twenty seconds, and her ability to identify the defendant was at

issue at trial. We agree with the second circuit ruling in Hendricks. The state‟s

18

use of the stopwatch was not improper. Accordingly, the defendant‟s third

assignment of error lacks merit.

STATEMENTS DURING REBUTTAL CLOSING ARGUMENTS

In his fourth assignment of error, the defendant contends the trial court

erred, as a matter of law, in failing to grant a mistrial after the prosecutor made

inappropriate statements during its rebuttal closing argument. In his fifth

assignment of error, the defendant contends the trial court erred, as a matter of law,

in failing to instruct the jury to disregard inappropriate statements made by the

state during its rebuttal closing argument.

LSA-C.Cr.P. art. 774 requires that closing arguments at trial be
confined “to evidence admitted, to the lack of evidence, to
conclusions of fact that the state or defendant may draw therefrom,
and to the law applicable to the case.” State v. Smallwood, 09-86, p.
15 (La.App. 5 Cir. 7/28/09), 20 So.3d 479, 489; State v. Robertson,
08-297, p. 12 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, writ
denied, 08-2962 (La.10/9/09), 18 So.3d 1279. Closing arguments
shall not appeal to prejudice. Robertson, 08-297 at 12, 995 So.2d at
659 (citing LSA-C.Cr.P. art. 774). A prosecutor has considerable
latitude in making closing arguments. State v. Jackson, 04-293, p. 5
(La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232
(La.5/6/05), 901 So.2d 1094. However, prosecutors may not resort to
personal experience or turn their arguments into a plebiscite on crime.
Robertson, 08-297 at 12-13, 995 So.2d at 659-60 (citing State v.
Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716, cert.
denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998)).

The trial judge has broad discretion in controlling the scope of
closing arguments. Robertson, 08-297 at 13, 995 So.2d at 660 (citing
State v. Taylor, 07-93, p. 31 (La.App. 5 Cir. 11/27/07), 973 So.2d 83,
103, writ denied, 07-2454 (La.5/9/08), 980 So.2d 688). A conviction
will not be reversed due to improper remarks during closing argument
unless the reviewing court is thoroughly convinced that the remarks
influenced the jury and contributed to the verdict. Id. (citing Jackson,
04-293 at 5-6, 880 So.2d 69 at 73). In making its determination, the
appellate court should give credit to the good sense and fair-
mindedness of the jury that has seen the evidence and heard the
argument, and has been instructed that the arguments of counsel are
not evidence. Id.

19

LSA-C.Cr.P. arts. 770 and 771 govern improper comments
made during closing arguments and authorize the trial court to correct
a prosecutor‟s prejudicial remarks by ordering a mistrial or
admonishing the jury, at the defendant's request. Smallwood, 09-86 at
16, 20 So.3d at 489-90. LSA-C.Cr.P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered
when a remark or comment, made within the hearing of
the jury by the judge, district attorney, or a court official,
during the trial or in argument, refers directly or
indirectly to:

(1) Race, religion, color or national origin, if the
remark or comment is not material and relevant and
might create prejudice against the defendant in the mind
of the jury;

(2) Another crime committed or alleged to have
been committed by the defendant as to which evidence is
not admissible;

(3) The failure of the defendant to testify in his
own defense; or

(4) The refusal of the judge to direct a verdict.

LSA-C.Cr.P. art. 771 provides:

In the following cases, upon the request of the
defendant or the state, the court shall promptly admonish
the jury to disregard a remark or comment made during
the trial, or in argument within the hearing of the jury,
when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the
defendant, or the state, in the mind of the jury:

(1) When the remark or comment is made by the
judge, the district attorney, or a court official, and the
remark is not within the scope of Article 770; or

(2) When the remark or comment is made by a
witness or person other than the judge, district attorney,
or a court official, regardless of whether the remark or
comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may
grant a mistrial if it is satisfied that an admonition is not
sufficient to assure the defendant a fair trial.

20

A mistrial is a drastic remedy and, except in instances in which
a mistrial is mandatory, is warranted only when trial error results in
substantial prejudice to defendant, depriving him of a reasonable
expectation of a fair trial. Smallwood, 09-86 at 16-17, 20 So.3d at 490
(citing State v. Lagarde, 07-123, pp. 10-11 (La.App. 5 Cir. 5/29/07),
960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980
So.2d 684). Whether a mistrial should be granted is within the sound
discretion of the trial court, and the denial of a motion for mistrial will
not be disturbed absent an abuse of discretion. Id. In addition,
assuming the prosecutor‟s argument was improper, reversal is not
required when such error was limited and did not show significant
impact on the outcome of the case. State v. Huckabay, 00-1082, p. 29
(La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1110, writ denied, 02-0703
(La.11/1/02), 828 So.2d 564; State v. Francis, 95-194, pp. 12-14
(La.App. 5 Cir. 11/28/95), 665 So.2d 596, 604.

State v. Foster, 09-837, pp. 13-15 (La.App. 5 Cir. 6/29/10), 44 So.3d 733, 741-43,

writ denied, 01-1775 (La. 4/25/11), 62 So.3d 84.

In the instant case, the state made the following comments during its rebuttal

closing argument:

These officers here, in the courtroom and the ones testifying, you
know, they risk their lives everyday [sic] for us. They go undercover
in doing roles. They‟re not going to make up something, okay.
They‟re not going to make up something. They do their duty and
when they see a crime committed, they have to act on it. That‟s what
was done in this case.

The defendant does not get rewarded because he did not
commit a crime on video because that‟s not the law in Louisiana.
That‟s not what the statute says. Most of you own your own homes
and drugs in areas cause property values to drop.

Defense counsel objected at that time, and the objection was sustained. The state

subsequently commented: “Ladies and gentlemen, hold him accountable. Bring

back a verdict truth dictates and justice demands. Protect neighborhoods and find

him guilty.” Defense counsel then moved for a mistrial, arguing that his prior

objection was sustained and that the state‟s argument regarding protecting

neighborhoods was prosecutorial misconduct. The trial court found the state‟s

21

comments were improper but would not declare a mistrial, choosing instead to

instruct the jury to disregard the state‟s comments.

The trial court subsequently made the following remarks to the jury:

Ladies and gentlemen, the last remarks made by Mr. Hardee,
the Assistant DA, about home values in high crime neighborhoods is
to be disregarded by you, please. That is not the proper subject of any
kind of argument in a criminal case. So please put it out of your mind.
Can all of you do that?

In its final instructions to the jury, the trial court stated: “You must consider

only evidence which was admitted during trial. You may not consider evidence

which you were instructed to disregard or to which an objection was sustained.”

The trial court further instructed the jury as follows:

The statements and arguments made by the attorneys are not
evidence. In the opening statements, the attorneys were permitted to
tell you the facts they expected to be proven. In closing arguments, the
attorneys were permitted to present for your consideration their
contentions regarding what the evidence has shown or not shown and
what conclusions they think may be drawn from the evidence.

The opening statements and the closing statements are not to be
considered as evidence.

As jurors, you are not to be influenced by sympathy, passion,
prejudice or public opinion. You are expected to reach a just verdict.

The defendant contends the state‟s remarks were clearly an overt reference

to the consequences to society should he be acquitted. The defendant further

contends that a mistrial was warranted in the instant matter particularly when one

considers the questionable nature of the identification of him, the errors in the

police report, and the problematic chain of custody. In support of his argument,

the defendant cites State v. Kaufman, 304 So.2d 300 (La.1974), and State v.

Jackson, 568 So.2d 599 (La.App. 4 Cir. 1990).

22

During closing arguments in Kaufman, 304 So.2d at 307 (emphasis added),

the prosecutor stated:

Gentlemen, my argument, when I speak in a personal way, my
argument is based on the evidence, and believe me, that‟s right, I
personally feel from the evidence that I have a case; otherwise, I
wouldn’t be here, because it's within my power to be here or not be
here.

The supreme court found the prosecutor‟s argument went beyond the permissible

bounds, was an attack on the presumption of innocence afforded all accused before

the courts, and emphasized the function of the prosecutor as an officer of

government and tended to exploit it. The supreme court found, taking into

consideration the other prejudicial errors in the matter, the improper and

prejudicial argument was an additional reason for reversal. The instant case is

distinguishable from Kaufman, as there were no improper comments regarding the

presumption of innocence.

In Jackson, 568 So.2d at 603, the defendant complained about the following

remarks made by the prosecutor during rebuttal closing argument:

Or how Officer Landry has cast that constitution to the wind.
[Defense counsel] urges you to send a message, suggest that you send
a message to the police department and to [the District Attorney] that
this is notyou won‟tyou won‟t stand for this. I urge you to send
another kind of message. I urge you to send a message to Mr. Jackson
[sic] we won’t have this anymore in our neighborhoods. We won’t
have this anymore right down the street from here, that’s the kind of
message that I am urging you to send. . . .

The prosecutor also stated: “„[Defense counsel] wants you to feel sorry for Melvin

Jackson because he‟s in an O.P.P. uniform. I say direct your sympathies to Paul

Landry who was in no uniform of any kind protecting the people of this city from

people like Melvin Jackson.‟” Id. The prosecutor further stated:

Direct your sympathies to the people [defendant] could have
sold that dosage unit [of heroin] to and direct your sympathies to

23

Paul Landry for what he went through for those six months. The man
sold heroin in the city of New Orleans. [Defense counsel] wants you
to send a message. I would suggest you send the message to Melvin
Jackson no more heroin on the streets of New Orleans, not by you.
You are guilty, you are guilty as charged. You distributed heroin in
the city of New Orleans, do not do it again, you will not do it again. I
ask you to return a verdict of guilty as charged.

Id. (All emphases in original). The supreme court found the societal statements

were directed to sending a message specifically to the defendant by convicting

him, and there was no overt reference to the consequences to society should the

defendant be acquitted. Moreover, the supreme court was not thoroughly

convinced that the statements by the prosecutor influenced the jury or contributed

to the verdict. The defendant asserts Jackson is distinguishable from the instant

case in that the prosecutor in the instant case clearly made an overt reference to the

consequences to society should he be acquitted.

In State v. Messer, 408 So.2d 1354, 1356 (La.1982), the prosecutor, during

rebuttal argument, stated: “Lets [sic] send that message loud and clear that the

Parish of St. Martin is not going to have those kind of people in this parish.” The

supreme court found the remarks amounted to a “community call to arms,” which

was clearly improper and designed to personalize crimes for the jury and make it

appear that the defendant‟s gunshots at troopers were somehow directed at the

parish as a whole. However, the supreme court concluded the error did not require

reversal in view of the substantial evidence of the defendant‟s guilt.

In State v. Francis, 95-194, p. 13 (La.App. 5 Cir. 11/28/95), 665 So.2d 596,

604, the prosecutor stated the following:

Maybe five years from now somebody else will have jury duty and
you‟ll tell them, “Yeah, I served on jury duty, and I did the right thing.
I helped protect our Parish. I supported our Police Officers in their-in
their efforts to stop crime. And I came back guilty as charged with a
man who had a gun when he know [sic] he wasn‟t supposed to have a

24

gun.” And you‟ll feel good about it, because it‟s the only thing that
you can do and live up to your oath as a-as a juror. Please do the right
thing. Send out a message. He wants you to send a message. You send
a message. Send a message to her and to her follow officers that we
support you, and we support your efforts, not the efforts of robbers,
not the efforts of liars.

I know there‟s been a lot of talk that you don‟t live in there, but
little kids do. You make that area safe for them.

The fifth circuit found that, even assuming the prosecutor‟s comments were

improper, it was not an error that would require reversal.

In State v. Toups, 00-1944, p. 10 (La.App. 4 Cir. 10/8/03), 859 So.2d 768,

775, the state made the following remarks during rebuttal: “You know, maybe you

want to cut her a break. Maybe you want to just cut her a break. I ask that [sic]

don‟t cut her a break by finding her not guilty. You‟d be doing a disservice to the

community.” The trial court sustained defense counsel‟s objection to the state‟s

comments but refused to grant a mistrial. The fourth circuit found the trial court

did not abuse its discretion in implicitly determining that the state‟s plea to the jury

did not make it impossible for defendant to obtain a fair trial. Thus, a mistrial was

not warranted.

In Foster, 44 So.3d at 743, the state made the following remarks during

closing argument:

You know what? You‟re the collective voice of the community.
You‟re the jurors. You‟re representing the people of Jefferson Parish.
And you saw the amount of dope in this case, cocaine and marijuana.
You‟ve heard the elements. You‟ve heard the testimony. Everybody
agreed that drugs are terrible. They cause a lot of problems.
Everybody heard it.

The fifth circuit found that, although arguably improper, the state‟s comments fell

within the purview of La.Code Crim.P. art. 771. The fifth circuit noted that an

admonishment had been given and that the defendant received an adequate remedy

25

under Article 771, as the trial court instructed the jury not to be influenced by

sympathy, passion, prejudice, or public opinion. The fifth circuit further found a

mistrial was not warranted, as there was no indication the state‟s comments so

inflamed the jury that they influenced the jury. Additionally, the fifth circuit noted

there was ample evidence of the defendant‟s guilt.

The objectionable comments in the instant case do not refer directly or

indirectly to race, religion, color, or national origin; another crime committed or

alleged to have been committed by the defendant; the failure of the defendant to

testify in his own defense; or the refusal of the judge to direct a verdict. Instead,

the state‟s remarks fall within the ambit of La.Code Crim.P. art. 771. Thus, an

admonishment was called for unless an admonishment was not sufficient to assure

the defendant a fair trial.

In light of the trial court‟s admonition and instruction to the jury that it was

not to be influenced by sympathy, passion, prejudice, or public opinion, a mistrial

was not warranted, and the admonishment was an adequate remedy. Accordingly,

assignment of error number four lacks merit.

Because the trial court instructed the jury to disregard the inappropriate

statements made by the state during its rebuttal argument, the defendant‟s claim

that the trial court failed to admonish the jury is incorrect. Accordingly,

assignment of error number five lacks merit.

REQUEST FOR A BENCH TRIAL

In his sixth assignment of error, the defendant contends the trial court erred,

as a matter of law, in denying his request for a judge trial.

In his motion for post verdict judgment of acquittal, the defendant alleged he

requested a bench trial on July 16, 2012, and his request was denied by the trial

26

court. The state also referenced the defendant‟s request in its memorandum in

opposition to the defendant‟s motion for post verdict judgment of acquittal. The

matter was addressed by the parties at the hearing on the defendant‟s motion.

Because the request for a bench trial was not referenced in the minutes of court or

the transcript of the defendant‟s trial, appellate counsel requested that the record be

supplemented and that both parties be allowed to file a supplemental brief to

address the issue.

This court received a supplemental record on May 29, 2013. Therein, court

reporter Debra Hebert signed an affidavit in which she asserted she was unable to

provide a transcript of a hearing in which the defendant requested a bench trial

and/or waived his right to a jury trial, as she had reviewed all of her notes and

audio recordings of proceedings on July 16, 2012, and could find no reference to

said request.

Counsel for the state and the defendant were notified via letter dated May

29, 2013, that a supplemental record had been lodged with this court. To date, no

supplemental briefs have been filed by the parties. Thus, nothing has been

presented in this assignment of error for this court to review, and this assignment

of error is considered waived.

INNEFECTIVE ASSISTANCE OF COUNSEL

In his only pro se assignment of error, the defendant contends he was denied

effective assistance of counsel when defense counsel failed to file pre-trial motions

to suppress identification and evidence.

A claim for ineffective assistance of counsel is properly raised
in an application for post-conviction relief because this allows the trial
court to order a full evidentiary hearing on the matter. State v.
Burkhalter, 428 So.2d 449 (La.1983). However, where the record
contains sufficient evidence to decide the issue, and the issue is raised

27

by an assignment of error on appeal, it may be considered by the
appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8
So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96),
670 So.2d 461.

State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701.

In his pro se brief, the defendant alleges the following: 1) defense counsel

did not represent him in a professional manner, as counsel visited him a week and

a half before trial; 2) defense counsel never told him or asked him anything about a

trial; 3) defense counsel never informed him he had to request a bench trial more

than forty-five days prior to trial; 4) the trial court failed to afford an adequate

remedy when considering the motion for post verdict judgment of acquittal;

therefore, when the defendant obtains relief he should proceed in front of a

different judge; 5) defense counsel failed to perform proper pre-trial discovery and

investigation, and interview and call witnesses; 6) defense counsel‟s failure to

suppress the identification and evidence precluded the defendant from presenting

facts, evidence, and witnesses which would have proven his innocence; 7) defense

counsel failed to prepare a defense dealing with the chain of custody; and 8)

defense counsel failed to prepare an alibi defense. The defendant contends that

defense counsel‟s representation was not only deficient but indicated a constructive

denial of counsel. The defendant further contends he was prejudiced because the

outcome of his trial could have been different had defense counsel‟s performance

not been deficient.

The defendant‟s allegations of ineffective assistance of counsel involve

matters of trial preparation or strategy. Decisions relating to investigation,

preparation, and strategy require an evidentiary hearing and cannot possibly be

reviewed on appeal. Only in an evidentiary hearing in the district court, where the

28

defendant could present evidence beyond that contained in the instant record, could

these allegations be sufficiently investigated. Accordingly, the defendant‟s claims

of ineffective assistance of counsel will be relegated to post-conviction relief.

The defendant‟s claim that the trial court failed to afford an adequate remedy

when considering the motion for post verdict judgment of acquittal is considered

abandoned, as he did not provide specific references to the record regarding his

complaint. See State v. Lewis, 09-846 (La.App. 3 Cir. 4/7/10), 33 So.3d 1046, writ

denied, 10-967 (La. 11/24/10), 50 So.3d 825; Uniform RulesCourts of Appeal,

Rule 2-12.4.

CONCLUSION

The defendant‟s conviction is affirmed. The trial court is directed to inform

the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to the defendant within ten days of the rendition of this

opinion and to file written proof in the record that the defendant received the

notice.

CONVICTION AFFIRMED. REMANDED WITH INSTRUCTIONS.

29