State of Louisiana v. Kenneth Wayne Montgomery

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-389

STATE OF LOUISIANA

VERSUS

KENNETH WAYNE MONTGOMERY

************

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 10195-13
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery,
Judges.

AFFIRMED.
COOKS, J., dissents and assigns written reasons.

John F. DeRosier
District Attorney
Carla S. Sigler
Karen C. McLellan
Assistant District Attorney
Fourteenth Judicial District
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
P.O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR APPELLANT:
Kenneth Wayne Montgomery

Kenneth Wayne Montgomery
#123966
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, LA 70648
PRO SE

PETERS, J.

The defendant, Kenneth Wayne Montgomery, appeals his adjudication as a

second felony offender.1 For the following reasons, we affirm his adjudication in

all respects.

DISCUSSION OF THE RECORD

In a trial which began on January 10, 2013, a jury convicted the defendant of

two counts of distribution of cocaine, violations of La.R.S. 40:967. Thereafter, the

trial court sentenced him to serve two concurrent thirty-year hard-labor sentences

on the convictions. Subsequently, the State of Louisiana (state) charged the

defendant in this separate proceeding as a habitual offender in violation of La.R.S.

15:529.1. After considering the evidence presented at the July 26, 2013 habitual-

offender proceeding, the trial court adjudicated the defendant as a second-felony

offender and sentenced him to the same sentence previously imposed, two

concurrent thirty-year sentences at hard labor. The defendant appeals the

adjudication, asserting in his one assignment of error raised by his appellate

counsel, that “[t]he prosecution failed to prove that the defendant was the same

person who was convicted of the prior felonies on May 24, 2010 and January 10,

2013.”

OPINION

The offense of distribution of cocaine is subject to a possible incarceration

sentence of not less than two, nor more than thirty years at hard labor, with the first

two years of the sentence imposed to be served without benefit of probation,

parole, or suspension of sentence. La.R.S. 40:967(B)(4)(b). Thus, the defendant

received the maximum sentence for each count before imposition of the habitual

1
An opinion addressing the underlying convictions has been released this day and is
designated as State v. Montgomery, 14-390 (La.App. 3 Cir. ___/___/___), ___ So.3d ___.

offender provisions of La.R.S. 15:529.1. 2 Additionally, La.R.S. 15:529.1(A)(1)

provides an enhanced sentencing range of “a determinate term not less than one-

half the longest term and not more than twice the longest term prescribed for a first

conviction.” Furthermore, La.R.S. 15:529.1(G) provides that “[a]ny sentence

imposed under the provisions of this Section shall be at hard labor without benefit

of probation or suspension of sentence.”

After adjudicating the defendant a habitual offender, the trial court sentenced

him to the same sentence as before, which is still within the mandatory-minimum

range for the habitual-offender conviction. Thus, because the defendant’s sentence

is still subject to parole, it is basically the same sentence as that imposed in the

underlying proceeding, and the defendant has not raised an excessiveness claim in

either his appeal addressing the convictions themselves or in this appeal. That is to

say, the defendant does not challenge the length of the sentences, nor does he

explain how a reversal of this adjudication proceeding will benefit him from a

sentencing standpoint. Still, given the content of the record before us, we will

consider the sole assignment of error.

At the July 26, 2013 habitual offender hearing, the state introduced the

following exhibit with regard to the prior conviction:

Exhibit S1: Certified copies of an amended bill of information in
docket number 18150-08 charging Kenneth Wayne Montgomery, a
black male whose date of birth was listed as April 2, 1961, with
possession of cocaine occurring on June 30, 2008; minutes of court
dated May 24, 2010, reflecting the entry of a guilty plea before Judge
Clayton Davis in docket number 18150-08 to possession of cocaine by
Kenneth Wayne Montgomery, who was represented by an attorney
and who gave his date of birth as April 2, 1961, and his address as
2003 N. Prater St., Lake Charles, Louisiana; and a waiver of

2
While the sentence imposed does not mention the mandatory minimum period required
under La.R.S. 40:967(B)(4)(b), that minimum requirement is made part of the sentence pursuant
to La.R.S. 15:301.1.

2

constitutional rights and plea of guilty form signed by Kenneth Wayne
Montgomery, whose date of birth was listed as April 2, 1961.

The state also introduced the following exhibits with regard to the two distribution

of cocaine convictions, which gave rise to the habitual offender proceeding:

Exhibit S2: Certified copies of a grand jury indictment in docket
number 26952-12 charging Kenneth Wayne Montgomery, whose date
of birth was listed as April 2, 1961, with two counts of distribution of
cocaine; a bill of information in docket number 10195-13 (the
proceeding now before us) charging Kenneth Wayne Montgomery, a
black male who was born on April 2, 1961, as a habitual offender;
jury verdicts of guilty on each count of distribution of cocaine in
docket number 26952-12 dated January 11, 2013; minutes of court
dated April 1, 2013, reflecting that Kenneth Wayne Montgomery was
sentenced by Judge Clayton Davis to thirty years at hard labor on each
count of distribution of cocaine to be served concurrently, and the
filing of a habitual offender bill of information in docket number
10195-13.

Exhibit S3: Certified copy of an “Appeal Motion for Bond
Reduction” to the Third Circuit Court of Appeal by Kenneth W.
Montgomery dated October 4, 2012, wherein he stated he was
convicted two years ago and he was last arrested on June 30, 2008,
and gave his address as P.O. Box 2017, Lake Charles, Louisiana.

Finally, the state requested that the trial judge presiding in the habitual offender

proceeding take judicial notice that he had presided in both prior trials at issue.

The trial judge responded affirmatively to that request.

The defendant argues on appeal that the state failed to carry its burden of

proving beyond a reasonable doubt that he is the same person convicted of the

felony on May 24, 2010, and the two felonies on January 10, 2013. Specifically,

he points out that the state did not produce expert fingerprint evidence and that the

record contains no admission by him that he was the same person. Thus, the issue

before this court is whether the evidence before the trial court was sufficient to

support a habitual offender finding.

In State v. Brown, 11-1656, p. 2 (La. 2/10/12), 82 So.3d 1232, 1234, the

supreme court noted the following:
3

For the defendant to receive an enhanced penalty under La.R.S.
15:529.1, the state must prove prior felony convictions and then prove
the defendant is the same person who committed the prior felonies.
State v. Blackwell, 377 So.2d 110 (La.1979). Both the identity and
the prior conviction alleged must be proven beyond a reasonable
doubt. La.R.S. 15:529.1(D)(1)(b). Various methods of proof
establishing identity have been recognized as sufficient to sustain the
state’s burden of proof, including testimony of witnesses, expert
opinion as to fingerprints, and photographs contained in duly
authenticated records. State v. Brown, 514 So.2d 99, 106 (La.1987);
State v. Jones, 408 So.2d 1285, 1294-95 (La.1982); State v. Curtis,
338 So.2d 662, 664 (La.1976).

In considering the matter now before us, we first note that the methods of proof set

forth in Brown are illustrative and not mandatory. In fact, other methods of proof,

including judicial notice, have been found adequate to meet the state’s burden of

proof on the issue of identity.

With regard to the use of judicial notice of a trial judge’s participation in a

prior prosecution as evidence in a habitual offender proceeding, the supreme court

has reached the conclusion that while “the trial judge may take judicial notice that

the defendant before him is the same person who has been convicted of the present

offense just tried before him[,]” he may not necessarily be able to “take judicial

notice that the individual before him is the same defendant as the person convicted

in prior (and different) proceedings.” State v. Augillard, 371 So.2d 798, 799

(La.1979).

In the matter before us, the exhibits offered by the state establish that

Kenneth Wayne Montgomery, an African-American male residing in Lake

Charles, Louisiana, and born on April 2, 1961, was charged on June 30, 2008, in

Docket Number 18150-08 of the Fourteenth Judicial District Court in Calcasieu

Parish, Louisiana, with possession of cocaine, a violation of La.R.S. 40:967, and

was convicted of that offense on May 24, 2010; that an African-American male

having the same name, birthday, and city of residence, was charged on September
4

12, 2012, in Docket Number 26952-12 of the same district court, with two counts

of distribution of cocaine, violations of La.R.S. 40:967, and was convicted of those

offenses on July 11, 2013; and that the pleadings filed by the defendant, in Docket

Number 26952-12, acknowledge that the defendant in that proceeding had a prior

conviction for which he had been arrested on June 30, 2010. Additionally, counsel

for the state noted that the records reflect that the trial judge presiding in the

habitual offender proceeding had been the presiding judge in both of the

underlying conviction proceedings and the trial court responded that he did “take

judicial notice that Mr. Montgomery has now been convicted twice in this division

on those dates.”

We find that while the state did not use the specific methods of proof noted

in Brown, 82 So.3d 1232, the record before us establishes beyond a reasonable

doubt that the individual convicted of possession of cocaine in 2010, and the

individual convicted of two counts of distribution of cocaine in 2013, are one and

the same. While the trial judge did not specifically state that he recalled the

defendant’s first conviction, it is important to note the time-line history of the

distribution convictions: a grand jury indicted the defendant on September 12,

2012; a jury convicted him on January 10, 2013; the state filed its habitual offender

charge on April 1, 2013, the same day he was sentenced on the underlying

convictions; and the defendant was adjudicated a habitual offender on July 26,

2013. Furthermore, a major issue raised by the defendant in the distribution

prosecutions was his animosity toward the trial judge based on the prior

conviction. This history is documented in the record, was the subject of an effort

by the defendant to have the trial judge recused, and was the principal issue in the

appeal of his underlying convictions. See State v. Montgomery, 14-390 (La.App. 3

5

Cir. __/__/__), ___ So.3d ___. That being the case, this is not a situation where the

trial court could only notice that the records reflected his participation in the prior

conviction. The defendant made that conviction history a part of the distribution-

conviction proceedings, and the trial judge could take judicial notice of the content

of that later proceeding.

We find no merit in the defendant’s assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the adjudication of Kenneth Wayne

Montgomery as a second felony offender in all respects.

AFFIRMED.

6

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-389

STATE OF LOUISIANA

VERSUS

KENNETH WAYNE MONTGOMERY

Cooks, J., dissents.

On April 1, 2013, the State filed a habitual offender bill of information

seeking to have Kenneth Wayne Montgomery (Defendant) adjudicated a second

felony offender. On the same date, Defendant pleaded not guilty. A habitual

offender hearing was held on July 26, 2013. The trial court adjudicated Defendant

a second felony offender on two counts of distribution of cocaine, and sentenced

him to serve thirty years at hard labor on each count with the sentences to run

concurrently.

Defendant filed an application for post-conviction relief on September 12,

2013, seeking an out-of-time appeal, which the trial court granted on October 7,

2013.

Defendant contends the prosecution failed to prove he is the same person

who was convicted of prior felonies on May 24, 2010, and January 10, 2013.

Defendant participated in the habitual offender hearing via video feed from Allen

Correctional facility. Defendant’s “counsel advisor,” who had been relieved of her

services at the time Defendant was sentenced on the underlying offenses, was

present in court for the habitual offender hearing.

1

The State offered the following exhibits: 1 1) S1 - certified copies of an

amended bill of information in docket number 18150-08 charging Kenneth Wayne

Montgomery, a black male who was born on April 2, 1961, with possession of

cocaine occurring on June 30, 2008; minutes of court dated May 24, 2010,

reflecting the entry of a guilty plea in docket number 18150-08 to possession of

cocaine by Kenneth Wayne Montgomery, who was represented by an attorney and

who gave his date of birth as April 2, 1961, and his address as 2003 N. Prater St.,

Lake Charles, Louisiana, before Judge Clayton Davis after he was advised of his

rights; and a waiver of constitutional rights and plea of guilty form signed by

Kenneth Wayne Montgomery, whose date of birth was listed as April 2, 1961;

2) S2 - certified copies of an indictment in docket number 26952-12 charging

Kenneth Wayne Montgomery, whose date of birth was listed as April 2, 1961, with

two counts of distribution of cocaine; a bill of information in docket number

10195-13 charging Kenneth Wayne Montgomery, a black male who was born on

April 2, 1961, as a habitual offender; jury verdicts of guilty on each count of

distribution of cocaine in docket number 26952-12 dated January 11, 2013;

minutes of court dated April 1, 2013, reflecting that Kenneth Wayne Montgomery

was sentenced by Judge Clayton Davis to thirty years at hard labor on each count

of distribution of cocaine to be served concurrently and the filing of a habitual

offender bill of information in docket number 10195-13; and 3) S3 - a certified

copy of an “Appeal Motion for Bond Reduction” to the Third Circuit Court of

Appeal by Kenneth W. Montgomery dated October 4, 2012, wherein he stated he

was convicted two years ago and he was last arrested on June 30, 2008, and gave

his address as P.O. Box 2017, Lake Charles, Louisiana.

1
Defense counsel had not seen the documents presented by the State prior to the hearing
and Defendant told the trial court he had never received copies of those documents.

2

The State asserted that the name and date of birth listed on the bill of

information charging two counts of distribution of cocaine for which Defendant

was convicted, and on the indictment charging Defendant as a habitual offender,

were the same. The State further asserted the following regarding S-3:

[J]udge, stated on page 2, stated by Mr. Montgomery, that he was
convicted two years ago in this letter, and when this letter was written,
it was dated as October 4th, 2012. As previously stated, he was
convicted in 2010. That would have been approximately two years
from the -- that he was speaking of on that conviction as well as -- to
further support that, on page 3, he lists defendant’s last arrest was
June 30th, 2008, same arrest date from the plea of conviction from
2010.

Additionally, the State requested Judge Davis take judicial notice, as follows:

MR. GASPARD:

And, Judge, also, the State would like to point out that
when Mr. Montgomery pled in 2010 to possession of cocaine, it
was in front of this division and in front of Your Honor. We
request if you’d take additional notice that that was Mr.
Montgomery who had given that plea as reflected in the
certified copies that were turned over as reasonable -- as S1 --

THE COURT:

Yes, sir.

MR. GASPARD:

-- as further proof of the defendant’s identity as the same
person who was convicted then that was convicted on January
11, 2013 under the --

THE COURT:

The Court does take judicial notice that Mr. Montgomery
has now been convicted twice in this division on those dates.

The State noted it had received no response to the habitual offender bill from

Defendant. The trial court subsequently stated: “I’m asking the clerk’s office to

provide Mr. Montgomery with copies of all the exhibits that have been introduced

3

today as soon as possible. If he wishes to have another hearing on this, he can.”

And with that, Defendant was adjudicated a second habitual offender.

At the conclusion of the hearing, Defendant objected as follows:

Let the record reflect that also in the other conviction that y’all are
using to habitualize me is in the hands of the United States Supreme
Court right now as we speak, not to mention the fact that in -- in -- in
the sentencing phase of that, you never informed me that that charge
could be used against me in any future endeavors to enhance me of
[sic] anything.

Defendant again requested copies of the documents presented by the State alleging

he had not received them stating: “I ain’t received no [sic] evidence, no nothing.

You got me going into the [sic] blind just like y’all had me going into a [sic] blind

on my trial.”

In State v. Sigue, 13-1072 (La.App. 3 Cir. 3/5/14), 134 So.3d 156, the

defendant alleged the state failed to prove he was the same person who entered

guilty pleas to the predicate offenses alleged in the habitual offender bill. This

court found:

La.R.S. 15:529.1(D)(1)(b) states that “any challenge to a previous
conviction which is not made before sentence is imposed may not
thereafter be raised to attack the sentence.” Here, Defendant did not
raise his argument in his written “Objection To Multiple Offender
Bill” or at the habitual offender hearing. As such, Defendant failed to
preserve the issue for appeal. See [State v.] Elie, [10-1494 (La.App. 3
Cir. 10/5/11),] 74 So.3d 1216[, writ denied, 11-2786 (La. 4/13/12). 85
So.3d 1246], State v. Jones, 11-649 (La.App. 4 Cir. 10/19/11), 76
So.3d 608, writ denied, 11-2545 (La.3/30/12), 85 So.3d 116.

Id. at 160.

Defendant did not file written objection to the habitual offender bill and he

did not specifically object to the State’s failure to prove his identity at the habitual

offender hearing. He did, however, make known his objection to the court

adjudging him a habitual offender. In State v. Lorio, 94-2591, p. 3 (La.App. 4 Cir.

9/28/95), 662 So.2d 128, 130, defense counsel objected to the introduction of

4

state’s exhibits 2, 3, and 4, stating: “‘note the objections to the certified copies of

the prior charges used as the predicate in this matter.’” The fourth circuit found

that, “[w]hile the defendant did not specifically object to the State’s failure to show

that the five year cleansing period had not lapsed, his objections mentioned above

are sufficient to preserve this issue for appeal.” Id. Likewise, in State v.

Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, the defendant argued

the trial court erred in finding that his prior convictions in Texas amounted to

felonies in Louisiana; therefore, the trial court’s finding that he was a third habitual

offender was erroneous. The defendant in that case did not file a written response

to the habitual offender bill. This court, nevertheless, addressed the assigned error

stating: “In the case sub judice, the defendant is not challenging the validity of the

predicate offenses; rather, he is attacking a proof issue. Therefore, the defendant’s

argument appears more analogous to the issue considered in Lorio, [662 So.2d

128,] and as such, this assignment will be considered by this court.” Id. at 1377.

Defendant’s assignment of error is properly before this court for review.

I first note Defendant was not physically present at the habitual offender

hearing and the record reflects he has an identical twin brother. I also note that

during the hearing he asserted he did not receive copies of the documents used by

the State to meet its burden of proof. Additionally, the trial court, recognizing that

Defendant had not been provided copies of the documentary evidence introduced

by the State, stated that if the Defendant wished to have another hearing, he would

grant one. Defendant raises a question of proof which is fundamental to

establishing his habitual offender status, and further argues his constitutional right

to due process was disregarded. Defendant contends there was no evidence or

expert testimony that his fingerprints matched those from the prior convictions.

Indeed, the State did not offer any fingerprint evidence to prove identity.

5

Defendant denied the habitual offender allegations, and did not admit he was the

same person convicted of the prior offenses.

The State contends the exhibits presented, as well as the judicial notice taken

by the trial court, proved Defendant was the same individual who committed the

prior felony. The majority finds the State met its burden of proof as to identity. I

disagree. I believe the State failed to meet its burden to prove beyond a reasonable

doubt that Defendant is the same person allegedly convicted in a prior case in

docket number 18150-08 as on January 11, 2013, in State v. Kenneth Wayne

Montgomery, docket number 26952-12, Fourteenth Judicial District Court. The

State produced no witnesses establishing Defendant as the person in both cases; no

fingerprint evidence authenticated by any expert witness; no photographs in the

records presented; nor any other evidence which would sufficiently meet the state’s

burden of proof.

In State v. Brown, 11-1656, p. 2 (La. 2/10/12), 82 So.3d 1232, 1234,

(emphasis added) the Louisiana Supreme Court held:

For the defendant to receive an enhanced penalty under La. R.S.
15:529.1, the state must prove prior felony convictions and then prove
the defendant is the same person who committed the prior felonies.
State v. Blackwell, 377 So.2d 110 (La.1979). Both the identity and the
prior conviction alleged must be proven beyond a reasonable doubt.
La. R.S. 15:529.1(D)(1)(b). Various methods of proof establishing
identity have been recognized as sufficient to sustain the state’s
burden of proof, including testimony of witnesses, expert opinion as
to fingerprints, and photographs contained in duly authenticated
records. State v. Brown, 514 So.2d 99, 106 (La.1987); State v. Jones,
408 So.2d 1285, l294–95 (La.1982); State v. Curtis, 338 So.2d 662,
664 (La.1976).

In State v. O’Day, 191 La. 380, 185 So. 290 (1938) (on reh’g), the defendant

alleged the state failed to offer any proof that he was the same person charged in

Orleans Parish with the murder of Estelle Hughes, and convicted of and sentenced

for manslaughter. The supreme court addressed the issue stating:

6

The rocord [sic] shows that the accused was tried for murder and
convicted of manslaughter before a jury in the court of the same judge
who sentenced him. The present proceeding is a part of the original
prosecution against him for that crime. State v. Guidry, 169 La. 215,
124 So. 832. Our learned brother below had the right to take judicial
cognizance of any prior proceeding which was a part of the same case
he had previously tried. The filing of the information was solely and
only for the purpose of having the court impose a sentence upon the
accused, according to the laws of this State, as a second or third
offender. Therefore, proof that he was the prisoner who had been
sentenced by the judge under the previous conviction by the jury was
not necessary. (emphasis added)

Id. at 298. See also State v. Jones, 332 So.2d 461 (La.1976).

In footnote two of its decision in State v. Adams, 355 So.2d 917, 921 n. 2

(La.1978), the supreme court stated:

The trial judge’s per curiam opinion indicates that he took
judicial notice of the fact that he was the judge who had sentenced the
defendant in 1975 on a guilty plea to theft. We have previously held
that a judge has the right to take judicial cognizance of a prior
proceeding in which he participated as proof that a particular
defendant is the same person as previously convicted. State v. Jones,
332 So.2d 461 (La.1976); State v. O’Day, 191 La. 380, 185 So. 290
(1938). Nevertheless, the trial judge’s per curiam in the instant case
would not alone have been adequate to identify the defendant. In it he
stated:

“ . . . There also was evidence that the judge who had
previously sentenced Defendant is the same person as the
writer hereof. This was judicially noted and sentence
imposed under the Habitual Offender Law.”

The remarks indicate the judge took notice of evidence which showed
he was the sentencing judge in the prior case, but he did not state that
he remembered the defendant from that prosecution. Judicial notice
that a judge’s name appears on the records of a prior conviction will
not satisfy the showing required to sentence an individual as a
multiple offender. The defendant in the two proceedings must be
identified as the same person. (emphasis added)

In State v. Curtis, 338 So.2d 662, 664 (La.1976), the supreme court stated:

“We do not consider that identity of name of defendant and the person previously

convicted is sufficient evidence of identity.”

7

In State v. Augillard, 371 So.2d 798 (La.1979), the supreme court noted the

state argued the trial judge could take judicial notice that the accused was the same

person as had been earlier convicted before him. The supreme court stated:

However, the decisions cited (State v. Jones, 332 So.2d 461 (La.1976)
and State v. O’Day, 191 La. 380, 185 So. 290 (1938)) are not
authority to that effect: they merely hold that, in an enhanced sentence
proceeding (La.R.S. 15:529.1), the trial judge may take judicial notice
that the defendant before him is the same person who has been
convicted of the present offense just tried before him. These decisions
are not authority that the trial judge may take judicial notice that the
individual before him is the same defendant as the person convicted
in prior (and different) proceedings. (emphasis added)

Id. at 799 (footnote omitted).

In this case, the trial court’s taking judicial notice of Defendant’s 2010

conviction was not sufficient. Judge Davis did not state he remembered or

recognized Defendant as the same person who was convicted in 2013. Defendant

was not physically present at the hearing but appeared via video from a

correctional facility. Additionally, the plea to possession of cocaine in 2010 was

not part of the same proceedings as the distribution of cocaine offenses in 2013.

Under the referenced jurisprudence the documents submitted by the State in this

case are not sufficient to support the Defendant’s adjudication as a habitual

offender.

In State v. Neathery, 2007 WL 4480674, 07-1226 (La.App. 1 Cir. 12/21/07)

(unpublished opinion), the first circuit vacated the defendant’s habitual offender

adjudication and sentence, noting the appellate record did not contain the

fingerprint card made at the habitual offender hearing. In footnote five of its

opinion, the first circuit stated:

We are aware that the Habitual Offender Act does not require
the state to use a specific type of evidence, including fingerprints, to
carry its burden at a habitual offender hearing and that prior
convictions may be proved by any competent evidence. See [State v.]
Payton, [00-2889 (La. 3/15/02),] 810 So.2d [1127] at 1132. However,

8

at the January 25, 2007 habitual offender hearing, the state’s method
of proof was by fingerprint identification and matching. There was no
attempt to compare, for example, similar driver’s license numbers,
social security numbers, or dates of birth. No photographs were
introduced into evidence and no other witness, other than Ms.
Williams, testified at the instant habitual offender hearing. See State v.
Curtis, 338 So.2d 662 (La.1976). In any event, our review of the
record reveals that the dates of birth and names match on several of
the records. However, only the Louisiana State Police record of the
simple robbery and simple burglary convictions contains a social
security number. As such, a social security number match cannot be
made with other records. Also, the “S-2” exhibit in the appellate
record lists, presumably, the defendant's driver’s license number as
5689532, whereas the present bill of information lists the defendant’s
driver’s license number as 5863961.

Id. at 3 n. 5.

In State v. Galatas, 2010 WL 5464829, 10-980, p. 4 (La.App. 1 Cir.

12/22/10) (unpublished opinion), the first circuit noted the only information

provided by the state to establish the defendant’s identity was his name, race, sex,

and date of birth, which was insufficient to establish the defendant was the same

person convicted of possession of stolen property.

In his “Appeal Motion for Bond Reduction,” Defendant did not admit he had

a conviction in 2010 for possession of cocaine in docket number 18150-08. The

evidence presented by the State only establishes that a black male named Kenneth

Wayne Montgomery, having a date of birth of April 2, 1961, was convicted of

possession of cocaine and two counts of distribution of cocaine. I believe under

the settled jurisprudence the evidence presented by the State in this case did not

prove beyond a reasonable doubt that Defendant herein was the same Kenneth

Wayne Montgomery convicted of possession of cocaine in 2010. For the reasons

stated, I respectfully dissent.

9