State of Louisiana v. Brian M. Bonier

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-434

STATE OF LOUISIANA

VERSUS

BRIAN M. BONIER

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-29755
HONORABLE DESIREE D. DYESS, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

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Court composed of Elizabeth A. Pickett, Jonathan W. Perry, and Ledricka J. Thierry,
Judges.

CONVICTION AFFIRMED;
SENTENCE AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

Chad M. Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, Louisiana 70502
(337) 366-8994
COUNSEL FOR DEFENDANT/APPELLANT:
Brian M. Bonier

Billy Joe Harrington
District Attorney, Tenth Judicial District
Clifford R. Strider, III
Assistant District Attorney
Post Office Box 838
Natchitoches, Louisiana 71457
(337) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

PERRY, Judge.

Brian M. Bonier (“Defendant”) appeals his conviction and the sentence

imposed in connection therewith. For the following reasons, we affirm Defendant’s

conviction; we amend Defendant’s sentence by deleting the $2,500.00 fine; and we

remand this matter to the trial court with instructions to amend the minutes of

sentencing accordingly.

FACTS AND PROCEDURAL HISTORY

On February 17, 2020, Defendant was a passenger in a vehicle stopped by the

Natchitoches Parish Sheriff’s Office for a traffic offense. Deputies found a gun

under the passenger seat. As a result, Defendant was arrested for being in possession

of a firearm by a convicted felon as he had previously been convicted of possession

of methamphetamine.

On March 17, 2020, Defendant was charged by bill of information with

possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The bill

was amended on September 14, 2021, to include a more specific reference to

Defendant’s prior felony conviction. Jury selection began on November 15, 2021,

and Defendant was unanimously found guilty as charged on November 16, 2021.

The State filed a bill of information charging Defendant as a habitual offender

on November 18, 2021. On November 24, 2021, Defendant filed a pro se Motion

for Appeal. The motion was granted on November 29, 2021. However, on January

6, 2022, the trial court advised Defendant the filing was premature.

On January 6, 2022, Defendant was sentenced to sixteen years at hard labor

without benefit of parole, probation, or suspension of sentence. The trial court

further ordered Defendant to pay a fine of $2,500.00. Thereafter, the State filed an

amended habitual offender bill.

On January 27, 2022, Defendant filed a pro se motion to reconsider sentence,

which was denied on January 31, 2022. On February 3, 2022, Defendant was

adjudicated a third felony offender. His prior sentence was vacated, and he was

ordered to serve twenty years at hard labor without benefit of probation, parole, or

suspension of sentence. The trial court further ordered Defendant to pay a fine of

$2,500.00.

APPELLANT’S ASSIGNMENTS OF ERROR

Defendant is now before this court asserting four assignments of error:

1. The State failed to sufficiently prove that Brian Bonier was guilty
of Felon in Possession of a Firearm.

2. The trial court abused its discretion in denying the motion for a
mistrial during opening statements. The court’s ruling that the
State was allowed to tell the jury about inculpatory statements
allegedly made by Brian Bonier because they were “res gestae” is
legally incorrect. Because the inculpatory statements had not been
deemed admissible prior to opening statements, a mistrial should
have been granted.

3. Trial counsel provided ineffective assistance of counsel. In a case
with a questionable stop, search, and inculpatory statement,
counsel was deficient in his representation by not filing motions to
suppress the gun and alleged statement. Counsel’s failure to
contemporaneously object to the admission of this evidence
compounded the ineffective representation.

4. The trial court’s sentence, imposing a fine of $2,500, was
excessive after the court found Brian Bonier guilty of the habitual
offender bill and resentenced him in accordance with that statute.

DISCUSSION

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, we find there is

one error patent regarding the legality of the sentence imposed. Since the error is

raised in Assignment of Error Number four, we will address it as an assigned error.

2

Sufficiency of Evidence

In his first assignment of error, Defendant contends the State failed to

sufficiently prove he was guilty of the charged offense.

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); State v. Sylvia,
01-1406, p. 2 (La.4/9/03), 845 So.2d 358, 361; State v. Captville, 448
So.2d 676, 678 (La.1984). Therefore, 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 all of
the elements of the crime have been proved beyond a reasonable doubt.
Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361; Captville, 448 So.2d at 678.
The trier of fact makes credibility determinations and may, within the
bounds of rationality, accept or reject the testimony; thus, a reviewing
court may impinge on the “fact finder’s discretion only to the extent
necessary to guarantee the fundamental due process of law.” Sylvia,
01-1406 at p. 2-3, 845 So.2d at 361 (citing State v. Mussall, 523 So.2d
1305, 1310 (La.1988)).

State v. Johnson, 03-1228, pp. 4-5 (La. 4/14/04), 870 So.2d 995, 998.

[F]or the defendant to be convicted of possession of a firearm by a
convicted felon: “[T]he State must prove beyond a reasonable doubt:
(1) the possession of a firearm; (2) a previous conviction of an
enumerated felony; (3) absence of the ten-year statutory period of
limitation; and, (4) general intent to commit the offense.” State
v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329,
writ denied, 97-3187 (La.5/1/98), 805 So.2d 200.

State v. Johnson, 09-862, p. 3 (La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267.

This court has determined that actual possession of a firearm is
not necessary to satisfy the possession element; constructive possession
is sufficient. See State v. Edwards, 12-891, (La.App. 3 Cir. 2/6/13),
107 So.3d 883. Constructive possession occurs when “a thing [is]
subject to [the defendant’s] dominion and control.” Id. at 888 (quoting
State v. Lee, 02-704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589,
593, writ denied, 03-535 (La. 10/17/03), 855 So.2d 755 (footnotes
omitted) ). Even when dominion over a weapon is temporary or control
is shared, constructive possession of the weapon can still be found if
evidence supports “the offender was aware that a firearm was in his
presence, and that he had the general criminal intent to possess the
weapon.” Id.

“Guilty knowledge is an essential element in proving
constructive possession [of a firearm] and may be inferred from the

3

circumstances.” State v. Fobb, 11-1434, p. 12 (La.App. 3 Cir. 6/6/12),
91 So.3d 1235, 1244 (quoting State v. Brooks, 99-478, pp. 4-6
(La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492
(La. 5/25/01), 792 So.2d 750). ‘ “Constructive possession entails an
element of awareness or knowledge that the firearm is there and the
general intent to possess it.” ’ Fobb, 91 So.3d at 1244 (quoting State
v. McKinney, 44,269, p. 7 (La.App. 2 Cir. 5/13/09), 12 So.3d 422, 426).
“ ‘[M]ere presence of a defendant in the area of the contraband or other
evidence seized alone does not prove that he exercised dominion and
control over the evidence and therefore had it in his constructive
possession.’ ” State v. Johnson, 03-1228, p. 6 (La. 4/14/04), 870 So.2d
995, 998-1000 (quoting State v. Walker, 369 So.2d 1345, 1346
(La.1979) ).

The supreme court has broadly interpreted constructive
possession. In Johnson, a handgun was found on the floorboard of a
vehicle where Johnson’s feet had been before he was removed from the
car. Testimony revealed that no one saw Johnson with the gun and the
vehicle did not belong to Johnson. Additionally, another occupant of
the vehicle claimed ownership of the gun and testified that she
attempted to hide the gun before exiting the vehicle. The supreme court
reversed the appellate court’s decision to overturn Johnson’s conviction
for possession of a firearm by a convicted felon, stating:

The evidence presented by the State was sufficient to
prove that the defendant was in fact in possession of the
weapon and that this possession was enough to sustain a
conviction on the charge of a felon in possession of a
firearm, La. R.S. 14:95.1. . . . In this matter, the jury made
a credibility determination and found [two witnesses’]
accounts unconvincing. Consequently, it was
inappropriate for the court of appeal to impinge on the fact
finder’s discretion to rely instead on the testimony of [a
third witness] absent a showing that the defendant was not
granted the fundamental due process of law.

Johnson, 870 So.2d at 998-1000 (citations omitted) (emphasis in
original). General intent “is a fact question which ‘may be inferred
from the circumstances of a transaction.’ ” Edwards, 107 So.3d at 888
(quoting State v. Johnson, 09-862, (La.App. 3 Cir. 2/3/10), 28 So.3d
1263, 1267).

State v. Obrien, 17-922, pp. 12-13 (La.App. 3 Cir. 4/4/18), 242 So.3d 1254, 1264-65

(alterations in original), writ denied, 18-663 (La. 2/18/19), 265 So.3d 769.

At trial, there was a joint stipulation that Defendant had been convicted of

possession of methamphetamine, a felony, on April 4, 2014; he was sentenced to

4

serve four years at hard labor; he was released on parole on November 24, 2015; and

his parole was completed on February 22, 2019.

Deputy Dewayne Rice (“Deputy Rice”) was the State’s first witness. He was

employed by the Natchitoches Parish Sheriff’s Office on February 17, 2020. At

approximately 2:00 a.m., Deputy Rice, along with Deputy James Creighton

(“Deputy Creighton”), was patrolling in Campti.1 Deputy Rice testified he was

patrolling:

looking for anything out of the ordinary, especially around that time of
night . . . 2, 3, 4, 5 in the morning . . . what time people usually sleep.
No one should be roaming the roads that time of night. So, we drive
around in neighborhoods and look for suspicious activity.

Deputies Rice and Creighton were across the street from city hall talking at

approximately 2:35 a.m. At that time, a silver Buick passed them. The vehicle

caught Deputy Rice’s attention, and it immediately made a left turn without using a

signal. When asked how many cars he saw within ten minutes before and after he

stopped the Buick, Deputy Rice replied: “[L]ike I said it was 2:30 in the morning,

there shouldn’t be any . . . or there w[ere]n’t any cars on the road that night. And

he was one of the only few cars that passed us.” Deputy Rice further testified:

A. [H]e tried to make a left turn or he did make a left turn or he did
make a left now, I’m unsure if he used his signal or not, but it
wasn’t illuminated when he did make that left.

Q. There was no turn signal visible to you?

A. No, Sir.

Q. If it had been working, would you have seen it?

A. Yes, Sir, I would have.

....

Q. Okay. And your interest was piqued because of the
circumstances surrounding this?

1
Deputy Rice described Campti as a high crime area.

5

A. Yes, Sir, it was 2 o’clock in the morning. And he drove by and
made an immediate left right after seeing me and Deputy
Creighton parked at the hotel.

Deputy Rice exited his unit when the Buick stopped and asked the driver to

move to the front of the patrol unit. He recognized the driver as Leander Robinson.

Robinson was asked if he had any drugs or weapons in the vehicle, which was

registered to him, and said he did not. Thereafter, Deputy Rice asked Robinson for

permission to search the vehicle, which Robinson gave.

Deputy Rice testified that Deputy Creighton was standing at the front of

Deputy Rice’s unit, noticed there was a person in the front passenger seat of the

Buick moving around, and approached the vehicle. Deputy Rice could not see what

the passenger was doing but saw his head moving from side to side. Deputy

Creighton removed the passenger and brought him to the front of Deputy Rice’s unit.

Deputy Creighton then searched the Buick. Deputy Creighton discovered a weapon

under the seat. The weapon, a revolver, was removed from a Beats headphone case,

which did not contain any headphones. Deputy Rice testified, “Deputy Creighton

left the vehicle with the weapon in his hand from the passenger seat of the vehicle.”

Deputy Rice identified Defendant as the passenger.

According to Deputy Rice, both Robinson and Defendant were advised of

their Miranda rights “at this point.” Defendant nodded when asked if he understood

those rights. Thereafter, Deputy Rice asked Robinson again if the gun was his, and

Robinson said no. Robinson “said he didn’t know whose it was or if it was in there

at all.” Deputy Rice testified about asking Defendant as follows:

A. . . . Mr. Bonier had already been placed into handcuffs due to his
proximity. Uh, both Bonier and Leander were placed in
handcuffs, let me, uh . . . correct. Uh, they are both placed in
handcuffs, and uh, during the investigation we came to the
conclusion that the weapon may have belonged to Mr. Bonier.
So, we asked him, who did[] or I asked at first, did the weapon

6

belong to you. He did not say anything. Well . . . Deputy
Creighton asked him again, who did the weapon belong to? And
he said, I guess me.

Q. I guess me?

A. Yes Sir.

Q. In the way that was said, in the context that it was said, in the
tone of voice, in the moment . . . what did you think?

A. Uh, he was upset. But he was admitting to the weapon being his.

Q. Okay. Uh, he . . . uh, you were convinced that it was his?

A. Yes Sir, I was.

Q. And he just told you it was his?

A. Yes Sir, he did.

Q. Okay, Mr. Robinson, never told you was [sic] his?

A. No Sir, he did not claim the weapon to be his.

Q. Mr. Robinson, who gave you permission to search the vehicle,
correct?

A. Yes, Sir, he did.

....

Q. Would it be fair to say that you formed an opinion?

A. Yes, I did.

Q. And uh . . . is that opinion partly based on the fact that
Mr. Robinson gave you permission to search the vehicle?

A. Yes Sir, and with Mr. Bonier being in close proximity of that
weapon.

Deputy Rice thought Defendant’s remark was an admission.

Deputy Rice thought his body camera was recording the entire traffic stop.

However, it did not due to user error. The portion of the stop that was recorded was

admitted as State’s Exhibit 5 and was played for the jury.

7

The video opens with Defendant, who is handcuffed, sitting in the back of a

police car. When asked, Defendant admitted he was a convicted felon. An officer

walks to the passenger side of the Buick. He shines the flashlight into the vehicle,

and another officer checks the driver’s side of the vehicle. There is a discussion

between the officers about the glovebox. One of the officers discusses the glovebox

over the radio with his lieutenant. The officer asked the lieutenant if he could search

the glove compartment if he got consent to search a vehicle, a weapon was found in

the vehicle, and it was believed that the person that was sitting on it was a convicted

felon. The officer was told he had probable cause to search the entire vehicle. The

officer then began to search the vehicle. Robinson was subsequently Mirandized.

The officer then Mirandized Defendant. In a discussion regarding possession of the

gun, Officer Creighton indicated “He took claim for it . . . .”

When asked what they were searching for, Deputy Rice testified they were

looking for anything related to the crime. Deputy Rice then stated, “well, [Bonier]

lied to us about the weapon. So, we assumed that he lied about drugs.” Deputy Rice

was further questioned:

Q. All right, well I thought he said I guess it’s . . . oh, the first time?

A. The first time. That’s why Deputy Creighton was upset when he
came back to the vehicle.

Q. All right. So, but you had consent from Mr. Robinson?

A. Yes, Sir.

According to Deputy Rice, Defendant’s statement regarding the gun was not

recorded. Deputy Rice’s report indicated Defendant said, “I guess me.”

No DNA or fingerprint testing was done due to where the gun was located and

Defendant’s admission. Deputy Rice said Robinson could have reached the gun

from his location. However, it would not make any sense for a driver to keep a gun

8

under the passenger seat. He never saw Robinson move toward the passenger side

of the vehicle.

Deputy Creighton agreed that seeing a car at 2:35 in the morning piqued his

curiosity. He testified that immediately after passing the officers, the vehicle made

a left turn, and the driver did not use a signal. Deputy Rice approached the driver,

and Deputy Creighton went to the passenger side of the vehicle. When the dome

light came on when Robinson exited the vehicle, Deputy Creighton saw someone in

the passenger seat, and there was movement in the car. Deputy Creighton

approached the panel between the back and front passenger doors. At that time, the

passenger had his hands in his pants, so Deputy Creighton immediately asked him

to remove his hands. Deputy Creighton further testified:

A. . . . I can actually see the passenger in the vehicle . . . kind of
hunched over and he had his hands down lower. So, I was more
inept (phonetic) to trying to get to the vehicle and approach as
best I could to make sure that it wasn’t, you know, anything to
alarm anybody.

Q. So, was he hunched over like . . . .

A. I would say more . . . I can’t really move this chair, to be
completely honest with you. Uh, but I mean, he was leaned over.
And when I had approached the vehicle, I had seen the hands
kind of searching the area. But, I mean, he was leaned over.

Q. So, you don’t know where his hands were when he was first
leaning over, do you?

A. No, Sir. I couldn’t see from where I was at.

According to Deputy Creighton, Robinson told Deputy Rice he could search

the vehicle. Thereafter, Defendant was asked to get out of the vehicle, and a pat

down was done. Robinson then advised Deputy Rice there was nothing in his

vehicle and that it could be searched. Deputy Creighton then had Defendant stand

by Deputy Rice’s unit. Deputy Creighton testified:

9

At that point, I had walked back to the passenger side. And as soon as
I had looked back into the car, I could see what was consistent to a
handle of a firearm sticking out of a Beats headphone case. At that
point, I turned to Deputy Rice. I advised Deputy Rice to place both
subjects . . . when I could see that it was a handgun, to place both
subjects . . . or just detain both subjects until we could clarify who’s
[sic] weapon it belonged to. Because at this point, (inaudible) told us
there was nothing in the vehicle. Both subjects were detained. I believe
I went to my unit to put gloves on . . . and I may not have put gloves
on, I don’t remember. I went back to the unit or to the vehicle and I
retrieved the firearm out of the car.

Deputy Creighton further testified that Defendant and Robinson had both advised

there were no weapons in the vehicle. When Deputy Creighton saw the gun, he

turned back “and asked . . . are you fucking kidding me that there is a firearm under

the seat of the car, where you was [sic] just sitting and moving your hands around?”

He indicated he was caught off guard. He said:

There was enough from the dome lights being on and after I had
removed Mr. Bonier from the vehicle, the handle was protruding
enough out from underneath the seat where the Beats headphone case
was, that I could actually see the figure of the actual handle. I believe,
underneath, the floorboards even had like where the glovebox is . . . I
think when you opened the door a light comes on, on the right side of
the door panel. And that’s actually what illuminated and really caught
my attention of it.

Deputy Creighton then testified that the handle was “completely sticking out from

underneath the seat.” The two men were handcuffed after the gun was found and

Mirandized.

Deputy Creighton testified that when Deputy Rice asked who the firearm

belonged to, Defendant said, “I guess it’s mine.” Deputy Creighton thought this

meant it was Defendant’s gun. Thereafter, Defendant was arrested. Robinson was

not arrested due to Defendant’s remark and Robinson’s claim that he had did not

own or possess a firearm.

On cross-examination, Deputy Creighton was questioned about Robinson’s

claim that Deputy Creighton asked Defendant whose gun it was when Deputy

10

Creighton and Defendant were on the side of Robinson’s car. Deputy Creighton

testified this was not accurate. Deputy Creighton said the first time he heard the

statement was when Defendant was in the back of the patrol car. Failure to turn on

his bodycam was a mistake.

On redirect, Deputy Creighton agreed that a gun on the passenger side would

not help the driver protect himself, and he did not normally find a person possessing

a gun store it on the other side of the vehicle.

Leander Robinson had previously been convicted of distribution of

methamphetamine, had outstanding charges at that time of trial, and was

participating in drug court. He went by the home of Defendant, who was his nephew,

on February 17, 2020. Defendant lived fifty yards from him. While Robinson was

at Defendant’s, Defendant got a call and asked Robinson to drive him to Clarence,

which was approximately five miles away. Defendant stayed at a residence in

Clarence for ten to fifteen minutes. Robinson then drove Defendant back to Campti.

When discussing the traffic stop, Robinson testified that he used his turn

signal, but police said he did not. He thought the light was working. However, the

front signal was “messed up” when he bought the car. Defendant was asleep, but

Robinson woke him when the police turned their lights on.

An officer approached Robinson’s door and asked him to step out. Robinson

was told he was stopped because he did not use a turn signal. He was then asked if

he had any drugs or weapons and said no. Robinson testified he was not asked for

consent to search the vehicle. However, he would have given consent if he had been

asked. Robinson testified that he did not have anything in his car to hide, including

guns or drugs. He further indicated that police did not search the glovebox. On

redirect, Robinson indicated, “I didn’t tell them to search my car.” He was then

asked if police asked for permission to search and replied, “Uh, yeah, they ask

11

permission.” He was then asked if he told police it was okay and if he remembered.

Robinson responded, “No Sir, I don’t remember.”

Robinson testified the gun was found on the passenger side under the seat, it

was not his gun, and he had not seen the gun before. Robinson told police he did

not have a weapon in the car. He testified that police asked Defendant if the gun

was his, and Defendant said, “yeah.” Robinson indicated he did not own headphones

and had not seen the Beats headphones’ bag before. Robinson did not see Defendant

with anything when he got into Robinson’s car.

Robinson was questioned regarding where the officers and Defendant were

when Defendant said the gun was his. However, Robinson said, “I don’t really uh

. . . I can’t call it.” Robinson then said Defendant was standing outside Robinson’s

car speaking to the white officer, and Robinson was standing with the black officer

fifteen to twenty feet away.

Lieutenant Jonathan Roberts (“Lieutenant Roberts”) was questioned about a

call made by Defendant two hours after he was booked. He testified that prior to

every call there was a prompt that alerted the caller that the conversation was being

monitored and recorded. Calls made by Defendant were admitted as State’s Exhibit

6. There was a call on the date Defendant was arrested, February 17, 2020, at 4:32

a.m. The recording was transcribed, and the transcript admitted as State’s Exhibit 7.

During that call, Defendant stated the following:

Brian: Baby it[’]s like this. I had gun on, on my side and you know[.]

....

Brian: You know, I said it was mine, it wasn’t no use for . . . [.]

....

Brian: Well, everything good, you can’t . . . you don’t understand. That
gun ain’t hot or nothing like that.

12

....

[Unidentified Female]: Motherfucker Brian you don’t need that shit.
That shit cause nothing but trouble. Leave that shit alone. Fuck
I ain’t got nam [sic] and God protect me every day.

Brian: You ain’t here.

[Unidentified Female]: And I’m in a big city on this road every
morning by myself.

Lieutenant Roberts testified that the reference to hot indicated whether the gun

was stolen or not, and Defendant’s statement indicated the gun was not stolen.

Lieutenant Roberts was asked if the statement regarding the gun not being hot could

simply indicate Defendant was not being “charged with a stolen weapon,” and

Lieutenant Roberts indicated it could. Lieutenant Roberts interpreted the

unidentified female’s words as indicating Defendant did not need a gun, and she did

not need a gun. Lieutenant Roberts concluded the statement that Defendant had a

gun on his side indicated the gun was Defendant’s. Lieutenant Roberts suggested

Defendant should not know whether the gun was hot or not if the gun was not

Defendant’s.

Defendant argues the State did not prove he actually possessed the firearm

inasmuch as Robinson testified that he never saw Defendant with a gun or anything

that looked like a gun. Deputy Creighton believed Defendant leaned toward where

the gun was located but never saw Defendant touch or possess the gun, and DNA

and fingerprint testing was not requested. Therefore, the State had to rely on

circumstantial evidence to convict Defendant. Defendant asserts the evidence was

insufficient to prove he knowingly and constructively possessed the gun because he

was able to see it when he entered the vehicle. Defendant suggests his statement “I

guess mine” or “I guess me” is not sufficient because it is not a confession but only

circumstantial evidence. However, his statement was not recorded by the officers,

13

who both claimed they did not know how to properly operate their body cameras

and was not sufficient alone to prove the State’s case. Defendant next argues his jail

conversation in which he “simply acknowledged that the gun was found on his side

of the vehicle, and he told the cops it was his gun” did not prove he possessed the

gun. Despite the State’s repeated attempts to show the gun did not belong to

Robinson, the gun was in the immediate control of Robinson and was accessible.

In support of upholding the conviction, the State points out Defendant’s

statement at the scene; Robinson’s testimony that Defendant claimed ownership of

the gun; and Defendant’s statements during the jail call, including, “I know I said it

was mine . . . ,” and “[t]hat gun ain’t hot or nothing like that.”

The evidence presented indicates the gun was found under the seat in which

Defendant was sitting. Prior to his removal from the vehicle, Defendant was seen

leaning over and moving around. When asked who the gun belonged to, he stated

either “I guess me” or “It’s mine.” Robinson denied having ever seen the gun and

confirmed Defendant told police the gun was Defendant’s. Moreover, Defendant,

in his jail call, said he told police the gun was his and the gun was not hot.

In Johnson, 870 So.2d 995, which this court discussed in Obrien, 242 So.3d

1254, the supreme court was called upon to address the sufficiency of the evidence

to support the defendant’s conviction for possession of a firearm by a convicted

felon. Testimony revealed the following:

Officer Wayne Chandler approached the automobile and noticed the
strong smell of marijuana and that the driver appeared to be intoxicated.
The officers placed their spotlights on the car, and throughout their
investigation and search did not observe any furtive movements by any
of the occupants of the car. Because Officer Chandler recognized the
defendant, a passenger in the backseat of the vehicle, from past
narcotics arrests, he focused his flashlight on him to see if he attempted
to dispose of narcotics while everyone else was removed from the car.
When the defendant finally exited the vehicle, Officer Chandler looked
inside it and found a small, .25 caliber automatic pistol on the
floorboard of the car where the defendant’s feet had been. None of the

14

occupants of the vehicle responded when Officer Chandler asked to
whom the gun belonged.

During the trial, Officer Chandler testified that he did not see the
defendant make any type of furtive movements[,] but the officer felt
that the defendant “appeared nervous and [was] hiding something.” As
the others were exiting the vehicle, the officers testified that the
defendant “was reluctant to leave, and repeatedly asked ‘why do I have
to get out?’ ”

Officer Tim Morris testified at trial that he was assisting in
removing and searching the occupants of the vehicle and noted that the
defendant was the last person to exit the vehicle. Officer Morris did
not recall seeing any objects being passed between any of the
passengers and he testified that he did not observe the defendant making
any furtive movements.

Sergeant Marvin Garrett also testified that the defendant was the
last person to be removed from the vehicle and that it appeared that the
defendant was reluctant to exit the vehicle. Sergeant Garrett also
testified that he did not observe the defendant making any furtive
movements and that none of the vehicle’s passengers admitted owning
the pistol.

The State’s first adverse witness at trial, Monica Eason, testified
that she was in the car, sitting in the middle of the backseat next to the
defendant, on the night in question. She stated that they had just picked
up the defendant to give him a ride home when they were stopped by
the police. She further testified that the pistol belonged to her and that
she had found it near a trash dumpster three months before the night of
the incident. Eason testified that she had been carrying the pistol in her
purse, but as she “scoot[ed] across the backseat to get out of the car,
[she] took the gun out of [her] purse, and attempted to push it up under
the driver’s seat.” She also testified that the officer removed the
defendant from the car first and placed him in a patrol car. Further, she
admitted that she remained silent when the officer asked to whom the
gun belonged and it was not until six days after the defendant’s arrest
that she went to the police station to make a written statement that the
pistol was hers and not the defendant’s. During the State’s questioning,
Eason stated that she did not know how the pistol worked nor did she
know where the safety was located.

Tinyia Reeder was also called by the State as an adverse witness
at trial. She testified that she was also seated in the backseat of the
vehicle with the defendant on the night of his arrest. She testified that
as the police removed the defendant from the car, Eason whispered to
her that she had a gun, and that Eason put the gun under the seat. Reeder
also stated that she never saw the gun herself and was unable to recall
which seat she was sitting in, but later testified that she was sitting on
the right of the backseat.

15

The defendant testified that on June 29, 2000, he never saw or
possessed the .25 caliber pistol found in the vehicle. He stated that his
friends, Eason and Reeder, stopped to give him a ride and just moments
later the car was stopped by the police. The defendant stated he was
sitting in the backseat with Eason and Reeder, but that he did not see
either of them with the pistol.

Johnson, 870 So.2d at 996-97 (alterations in original). The supreme court found the

evidence was sufficient to prove the defendant was in possession of the weapon,

citing the following testimony from Officer Chandler:

A. We found a small .25 caliber pistol laying where his feet were
. . . [.] He appeared to be hiding something from us. He refused
to make eye contact. We had to ask him several times to get out
of the vehicle. It was like he was scared to get out. We assumed
there was narcotics in the vehicle, is what we were looking for
. . . [.] He kept asking “why do I got to get out? Why do I have
to get out of the car?”

Q. And the gun-the gun was located then right where his feet were?
It [sic] that correct?

A. Yes, sir.

Q. So . . . is it obvious to you then that if the gun was there his feet
were either on it hiding it from your light or . . . right located
underneath his feet?

A. Yes, sir.

Id. at 999. The supreme court further noted “it was inappropriate for the court of

appeal to impinge on the fact finder’s discretion to rely . . . on the testimony of

Officer Chandler[.]” Id. at 1000.

In State v. Washington, 605 So.2d 720 (La.App. 2 Cir. 1992), writ denied, 610

So.2d 817 (La.1993), the defendant was a passenger in a vehicle the police stopped

because they suspected it had been used in the commission of a crime. The

defendant provided a false name, and a firearm was found in plain view on the

floorboard of the passenger side. The defendant argued he did not own the vehicle,

was not driving the vehicle, and the gun was not traced to him. The second circuit

noted the defendant would likely have had his foot touching the weapon, particularly

16

in light of the driver’s testimony that he had not stopped the car so suddenly as to

cause the gun to come into view from underneath the seat. Based on these

circumstances, the court found the defendant had constructive possession of the

weapon.

In State v. Brokenberry, 41,481 (La.App. 2 Cir. 11/3/06), 942 So.2d 1209,

police stopped a vehicle driven by the defendant and occupied by three passengers.

Upon being questioned, the defendant admitted there were weapons inside the

vehicle. Inside the vehicle, police found a MAC 90 rifle, with its barrel propped

between the front seats and the stock on the backseat floorboard. They also found a

Glock 40 handgun on the front passenger floorboard. Police testified that both

weapons were within the defendant’s reach. The defendant informed police that he

did not own the weapons, and they had been purchased by his brother and father.

The defendant admitted he knew the weapons were in the vehicle. When confronted

with the fact that he was near the weapons, the defendant stated: “‘Man, these streets

are dangerous; you can’t blame me for carrying these.’” Id. at 1211. At trial, one of

the passengers testified that the weapons were inside the vehicle because he was

moving them from his grandmother’s home to his father’s home. The passenger also

testified the weapons were on the backseat floorboard, beyond the defendant’s reach,

and must have shifted during the stop. The defendant testified he knew the passenger

entered the vehicle with the weapons but denied telling police the streets were

dangerous. Thus, he could not be blamed for carrying weapons. The defendant also

denied having possession of or easy access to the weapons.

The second circuit found the evidence was sufficient to establish the defendant

had constructive possession of the weapons and intended to possess the weapons so

as to support his conviction for possession of a firearm by a convicted felon. The

second circuit further found the weapons remained subject to the defendant’s

17

dominion and control by virtue of his knowledge that the weapons were in vehicle

as well as the proximity of the weapons to the defendant at time of the stop.

In light of the testimony presented and cases cited herein, we find the evidence

was sufficient to prove Defendant’s guilty knowledge and constructive possession

of the firearm beyond a reasonable doubt. Accordingly, we affirm Defendant’s

conviction.

Motion for Mistrial

In his second assignment of error, Defendant contends the trial court abused

its discretion in denying the motion for mistrial made during opening statements.

Defendant suggests the court’s ruling that the State was allowed to tell the jury about

inculpatory statements allegedly made by him because they were res gestae is legally

incorrect. Because the inculpatory statements had not been deemed admissible prior

to opening statements, a mistrial should have been granted.

Louisiana Code of Criminal Procedure Article 767 provides: “The state shall

not, in the opening statement, advert in any way to a confession or inculpatory

statement made by the defendant unless the statement has been previously ruled

admissible in the case.”

“[M]istrial is such a drastic remedy, unless mandated by [La.Code Crim.P.]

article 770, it should only be used in those situations which might result in substantial

prejudice to the defendant.” State v. Thomas, 17-526, p. 13 (La.App. 3 Cir.

12/13/17), 258 So.3d 708, 716 (quoting State v. Burdgess, 434 So.2d 1062, 1065

(La.1983)). Louisiana Code of Criminal Procedure Article 770 states, in part:

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:

18

(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.

In its opening statement, the State made the following remarks:

During the investigation, they asked Mr. Robinson . . . is this your gun?
No, man . . . I’ve got felonies, not my gun. It was not on his side. It was
on the other side. So, they go to Mr. Bonier. Is this your gun? No, it’s
not my gun. Come on, whose gun is it? And then Mr. Bonier says . . . I
guess it’s me.

Defense counsel objected because there had not been a hearing to determine the

admissibility of Defendant’s inculpatory statement prior to trial. He then moved for

a mistrial. The State argued the response was res gestae, noted no motion to suppress

had been filed, and asserted it was under the impression there was no objection to

the use of Defendant’s statement. It was noted by the State and acknowledged by

defense counsel that Defendant’s statement was in the police report that had been

provided during open file discovery. The court recessed to consider the issue,

subsequently denying the request for mistrial, and finding:

The statement is part of the res gestae, it happened under the immediate
pressure of the events. There was no Motion to Suppress that was filed.
And the Court is citing both State of Louisiana versus William Barnes,
which is a Supreme Court case 414 So.2d 711 and State of Louisiana
versus Walker.

Thereafter, the State continued its opening statement:

Based on that investigation, he was placed under arrest for convicted
felon of possession of a firearm. Having just gotten off of parole.
Having this loaded .38 caliber weapon at his feet in full view. However,
that’s not all we have ladies and gentlemen. You will hear a jail
telephone, between the defendant and his wife, right after he’s arrested.
And about . . . [.]

19

MR. BOKENFOR: And just . . . [.] Same objection as I noted earlier,
Your Honor, for the record.

THE COURT: Overruled.

Defendant contends that neither State v. Barnes, 414 So.2d 711 (La.1982), nor

State v. Walker, 94-587 (La.App. 1 Cir. 4/7/95), 654 So.2d 451, writs denied,

95-1124, 95-1125 (La. 9/22/95), 660 So.2d 470, dealt with opening statements but

did address res gestae and the admissibility of evidence in the state’s case in chief.

Moreover, they both were controlled by La.Code Crim.P. art. 768. Defendant argues

that his statement to police and the jail call were not res gestae. Defendant suggests

the remark he made to police was the result of interrogation, and the jail call occurred

after he was arrested and transported to jail.

At issue in Barnes, 414 So.2d at 713, was testimony by a state witness that

immediately after the shooting he heard Junior Bazile tell the defendant, “‘You done

shot the son-of-a-bitch.’” The defendant objected to the testimony on the basis of

hearsay and lack of notice. The supreme court concluded Bazile’s “spontaneous

declaration made in conjunction with the killing” was res gestae. Id. at 714.

Additionally, “[n]otice under La.C.Cr.P. Art. 768 is not required when the statement

sought to be introduced forms a part of the res gestae.” Barnes, 414 So.2d at 714

(footnote omitted). Louisiana Code of Criminal Procedure Article 768 provides that

if the state intends to introduce a confession or inculpatory statement into evidence,

it must disclose the statement in pretrial discovery or else advise the defendant in

writing prior to the opening statement that the confession is to be used.

The trial court did not provide a citation to the Walker case it relied on. In the

case cited by Defendant, the defense argued the testimony of Frank Washington, an

undercover deputy, repeating defendant’s statement, “‘Well I know you’re cool,

because you dealt with my brother,’” should have been stricken because the state

20

failed to provide the defense with notice of its intent to introduce the statement. 654

So.2d at 453. The court rejected the assignment of error due to lack of a

contemporaneous objection to the testimony. Id.

The State notes open file discovery was provided to Defendant. Thus, he was

aware of the information contained in the police report and of the jail call. Moreover,

Defendant suffered no prejudice inasmuch as the statement contained in the police

report was admitted into evidence without objection. In support of this contention,

the State cites State v. Benoit, 17-187 (La.App. 5 Cir. 12/29/17), 237 So.3d 1214.

As for the jail call, the State asserts the statements made during the call were

voluntary, spontaneous, and made without any expectation of privacy.

In Benoit, 237 So.3d 1214, the defendant moved for a mistrial after the state,

in its opening statement, referenced the defendant’s statements to police that he was

a sex addict, that he thought the victim was telling the truth, and it was possible he

committed the offense when he was drinking. Following these remarks, the

defendant moved for a mistrial pursuant to La.Code Crim.P. art. 767. He argued

there was no ruling as to the admissibility of the statements, and the notices filed in

court did not give the state authority to reference the statements during its opening

statement. The trial court denied the motion for mistrial, reasoning defense counsel

had notice and was not taken by surprise or prejudiced in preparing a defense. The

fifth circuit addressed the trial court’s denial of the motion for mistrial as follows:

In State v. Lisotta, 97-407 (La. App. 5 Cir. 02/25/98), 712 So.2d
525, 527 the State in its opening statement said:

You’re also going to hear from Deputy Kuhn that this
defendant made several statements at the time that he was
arrested denying certain things, saying things that the State
intends to show, prove, that he’s guilty, exactly what we
say he’s guilty of.

In Lisotta, defendant moved for a mistrial pursuant to La. C.Cr.P. art.
767 because any statements allegedly made by the deputy had not yet

21

been deemed admissible. This Court found that the record showed that
prior to trial, the State had filed a notice of its intent to use and introduce
defendant’s statements into evidence. This Court reasoned that the
purpose of La. C.Cr.P. art. 767 is to prevent surprise and prejudice.
Finding State v. Strickland, 683 So.2d 218 (La. 1996) controlling, this
Court found that because the deputy’s statement was admitted during
trial, the State’s premature mention of the statement in its opening
statement to the jury caused no prejudice. See also, State v. Roberts,
06-765 (La. App. 3 Cir. 01/17/07), 947 So.2d 208, 230; State v.
Whitmore, 353 So.2d 1286, 1288-1289 (La. 1977).

Similarly, in this case, the record shows that the State filed a
notice of its intent to use defendant’s statements during opening
statement and to introduce them into evidence and that defendant’s
statements were subsequently admitted into evidence at trial. We find
that the State’s premature mention of defendant’s statements in the
State’s opening statement caused no real prejudice to defendant
because the statements were later determined admissible at trial.
Accordingly, the trial court did not abuse its discretion in denying the
motion for a mistrial.

Id. at 1221-22 (footnote omitted).

This court discussed Benoit, 237 So.3d 1214, in State v. Alexander, 17-1166,

pp. 27-28 (La.App. 3 Cir. 9/26/18), 256 So.3d 365, 382, writ denied, 18-1794

(La. 4/15/19), 267 So.3d 1130, and subsequently stated:

In State v. Strickland, 94-25 (La. 11/1/96), 683 So.2d 218,
superseded by statue on other grounds, La.Code Crim.P. art. 801, 2001
La. Acts No. 310 § 1, . . . the defendant argued the trial court erred in
failing to declare a mistrial after the state referred to an alleged
inculpatory statement during its opening statement. The issue was
addressed by the supreme court as follows:

The record reflects that during his opening argument, the
prosecutor stated:

You will hear [Atkin’s] testimony as to when
these two men entered the trailer as to what
Lawson Strickland told them he had just
done.

Vol. 4, p. 849. Defense counsel moved for a mistrial at a
bench conference. The trial judge allowed the prosecutor
to finish his opening statement and ultimately decided to
deny the motion, finding the statement was part of the res
gestae of the offense.

At the time of trial, La.C.Cr.P. art. 767 provided:

22

The state shall not, in the opening statement,
advert in any way to a confession or
inculpatory statement made by the defendant.

La.Acts 1995, No. 1278 amended the statute by adding
“unless the statement has been previously ruled
admissible.” Even at the time of trial, however, a violation
of the rule did not automatically require a mistrial. The
purpose of the rule is to “prevent surprise and to allow
adequate time for preparation of the defense, as well as to
avoid certain problems that had been attendant to
mentioning of confessions or inculpatory statements in the
state’s opening statement.” State v. Parker, 436 So.2d
495, 499 (La.1983); State v. Russell, 416 So.2d 1283, 1288
(La.1982), cert. denied, 459 U.S. 974, 103 S.Ct. 309, 74
L.Ed.2d 288 (1982).

In cases where the defendant knows through
discovery of the state’s intention to introduce the
statement and the statement is later properly admitted, the
prosecution’s premature mention of the statement in its
opening statement causes no prejudice to the defendant.
State v. Whitmore, 353 So.2d 1286, 1289 (La.1977). Here,
the defendant had pre-trial notice of the state’s intention to
introduce the statements. The trial judge properly
admitted the testimony during trial. Thus, the defendant
suffered no prejudice from the state’s premature mention
of his inculpatory statements in its opening statement. The
trial judge did not err in denying the defense motion for
mistrial.

Id. at 232-33 (alteration in original).

In Alexander, 256 So.3d 365, this court did not determine whether the defendant’s

remarks were an admission, confession, or inculpatory statement but addressed

whether the defendant was prejudiced by the state’s actions. It found the defendant

did not suffer prejudice as a result of the state’s premature reference to the

defendant’s statement to 911 in its opening statement inasmuch as the defendant

received pre-trial notice of the state’s intent to use the statement and failed to object

when the testimony regarding the statement was presented. This court noted that

defense counsel explicitly stated he was not arguing the statement should be

23

suppressed or complaining about notice of the state’s intent to use the statement.

Id. at 379.

We need not determine whether the trial court properly classified the remark

by Defendant to the deputy as res gestae. The police report was provided to

Defendant in discovery. Moreover, there was no objection to the admissibility of

testimony regarding Defendant’s remark to police. Based on Benoit, 237 So.3d

1214, and Alexander, 256 So.3d 365, we find Defendant did not suffer any prejudice

as a result of the State’s premature reference to Defendant’s remark.

Defendant objected to the State’s reference to his jail call. However, defense

counsel did not move for a mistrial at that time, and there was no finding by the trial

court that the jail call constituted res gestae. For these reasons, we find this

assignment of error lacks merit.

Ineffective Assistance of Counsel

In his third assignment of error, Defendant contends trial counsel provided

ineffective assistance of counsel for failing to file motions to suppress the gun and

alleged statement by Defendant. Furthermore, counsel’s failure to

contemporaneously object to the admission of this evidence compounded the

ineffective representation.

Defendant first addresses suppression of the traffic stop. He argues that

counsel should have pitted the State’s key witnesses against each other inasmuch as

their testimony was contradictory. Defendant asserts Robinson testified that his back

turn signal worked, and he used it on the night in question. Whereas deputies

testified Robinson did not use his signal, they viewed anyone driving at 2:30 a.m.

suspicions, and there was no dashcam footage. Defendant suggests that had the stop

24

been deemed illegal, the gun and his statement to police would have been

suppressed.

Defendant next addresses suppression of the search of Robinson’s vehicle.

Defendant suggests that even if the stop was proper, the legality of the search was in

dispute. Defendant acknowledges that a search of the vehicle may have been

permitted if Deputy Creighton saw the gun in plain view and knew one of the

occupants was a convicted felon. However, Deputy Creighton’s testimony that he

first saw the gun when he conducted the search controverted the State’s argument

that the gun was in plain view when Defendant exited the vehicle. According to

Defendant, Deputy Creighton testified that he first realized there was a gun under

the seat when he performed the search, which he claimed was done based on

Robinson’s consent. However, Robinson testified he did not consent to the search.

Thus, the search of the car, which led to the recovery of the gun and subsequent

statement from Defendant, should have been suppressed.

Defendant finally addresses the suppression of his statement “I guess me.”

Defendant suggests his statement was made prior to him being Mirandized, and the

remark was the result of questions asked to elicit inculpatory statements while he

was detained in handcuffs. Defendant suggests that inasmuch as no one saw him

with the gun, the gun was found under the seat of a vehicle belonging to another,

and there was no forensic evidence linking him to the gun, the evidence would not

have been sufficient to convict him but for his statement to police.

The State suggests the record is insufficient to review this assignment of error,

and the claims should be considered at a post-conviction hearing.

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

25

by an assignment of error on appeal, it may be considered. State v.
James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.

State v. Francis, 99-208, pp. 10-11 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491,

writ denied, 00-544 (La. 11/13/00), 773 So.2d 156.

There are cases in which courts of appeal have reviewed claims of ineffective

assistance of counsel for failure to file a motion to suppress. For example, in State

(City of Ruston) v. Campos, 51,447, 51-448, p. 15 (La.App. 2 Cir. 6/21/17), 224

So.3d 480, 491, the second circuit concluded:

[T]he testimony of Officer Castaneda makes clear that the traffic stop
was valid, and the subsequent arrest for DWI, the recording of the stop,
and the field sobriety tests were also valid. Additionally, as stated
earlier, Campos was advised of his rights early on and voluntarily
submitted to the Breathalyzer test. There was no basis for the motion to
suppress and no likelihood that it would have resulted in the exclusion
of evidence.

However, there are situations wherein consideration of the issue is not

appropriate. In State v. Montejo, 06-1807, pp. 22-26 (La. 5/11/10), 40 So.3d 952,

968-70 (alterations in original) (footnotes omitted), cert. denied, 562 U.S. 1082, 131

S.Ct. 656 (2010), which was on remand from the Supreme Court for consideration

of whether an apology letter should be suppressed pursuant to Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880 (1981) (under which a defendant in custody cannot be

interrogated once he has asserted his right to counsel unless he initiates further

communications with police), the supreme court stated the following:

We have previously considered the problems arising when a
party does not file a motion to suppress, and then later testifies at trial
as to facts that suggest the evidence should have been suppressed. State
v. Lipscomb, 00-2836 (La.1/25/02), 807 So.2d 218 and State v. Watson,
00-1580 (La.5/14/02), 817 So.2d 81. In Lipscomb, the defendant
alleged on appeal that his attorney at trial provided ineffective
assistance of counsel by failing to file a motion to suppress evidence.
This Court found ineffective assistance claims are to be considered in
post-conviction proceedings and not on appeal, and, in so holding,
explained the reasons why motions to suppress are required pre-trial:

26

[T]he constitutional validity of a seizure is ordinarily a
matter for the court to determine in the context of a
pre-trial motion to suppress if counsel elects to file one.
La.C.Cr.P. art. 703. This requirement insures that “all
disputes over police conduct unrelated to the guilt or
innocence of the accused are eliminated from the jury trial’
and thereby avoids unwarranted delay and jury
confusion.” State v. Christian, 26,589 (La.App. 2 Cir.
1/25/95), 649 So.2d 806, 808, writ denied, 95-0791
(La.9/15/95), 660 So.2d 448.

807 So.2d at 219-20. The Court recognized that “with the constitutional
validity of the search not at issue, neither the state nor the defense had
any particular need to delve in detail into the circumstances surrounding
[the officer’s] seizure of the evidence.” Id. at 221. In the similar case
of State v. Watson, supra, a police officer testified at trial explaining
the circumstances which led to the seizure of drugs and defendant’s
arrest. The defendant then testified, in contrast to the officer’s
testimony, that the officers pulled him off his bike, questioned him and
beat him before arresting him. The appellate court properly found the
defendant was estopped from raising the issue that the evidence should
have been suppressed as counsel did not raise the issue in a motion to
suppress; however, it reversed the conviction on an ineffective
assistance claim. State v. Watson, 99-0243 (La.App. 4 Cir. 5/3/00), 763
So.2d 713. This Court reversed, again finding an ineffective assistance
claim was better reserved for post-conviction. We explained that a
motion to suppress is required so that a full evidentiary hearing can be
held to address the issue and that a defendant is not allowed to first
bring these claims up after the State has rested its case:

In this case, the question of the constitutional
validity of the seizure of [the evidence] was not at issue in
the trial court. Thus, when the State tried this matter, its
witnesses were not required to elaborate on why they
stopped the defendant. Accordingly, neither the State nor
the defendant had any need to scrutinize the detailed
circumstances surrounding the seizure of [the evidence]
and explore the evidence attendant to that police action.
Therefore, the trial testimony of [the officer] focused only
on the State’s burden to establish beyond a reasonable
doubt that the defendant possessed the heroin.

817 So.2d at 84.

That is similar to what happened in this case. Defendant never
raised the claim to the trial court in a motion to suppress that the letter
should have been suppressed because he asserted his right to counsel
when approached by police on Sept. 10 or the police misled him to
thinking he did not have a lawyer. Although the burden of proof was
on the State on the trial of the motion to prove its admissibility, the
defendant must raise all grounds for suppression of the evidence that

27

are knowable or available at that time. The defendant bears this burden
in order to give the State adequate notice so that it may present evidence
and address the issue at trial on the motion. Because Montejo did not
raise these grounds in a motion to suppress or allege facts supporting
those grounds, the State had no need to put on evidence tending to show
that defendant never made a clear assertion of his right to counsel or
that the police never misled him. It simply put on evidence at the motion
hearing as required by La.C.Cr.P. art. 703(D) and La. R.S. 15:451 that
the letter was admissible, and put on evidence at trial as required by
La.C.Cr.P. art. 703(G) concerning the circumstances surrounding the
making of the confession or statement for the purpose of enabling the
jury to determine the weight to be given the confession or statement.
Thus, the officers only testified at the suppression hearing and at trial
that basically they asked if he had a lawyer, he said no, and then they
read him his rights. It was not until the defendant testified at trial that
he told the police he thought he had a lawyer and they told him he did
not, that this potential Edwards violation and waiver issue was ever
even alluded to. The State had no need, and was not required, to rebut
this testimony because the evidence had already been admitted and it
had never been claimed that the letter was obtained illegally on those
grounds. See State v. Joseph, 434 So.2d 1057, 1061, n. 3 (La.1983)
(where defendant testified at trial that confession was beaten out of him
and court had already ruled the statement was admissible in motion to
suppress, because that ruling was binding at trial under
La.C.Cr.P. art. 703, the state was not obligated to present rebuttal
evidence to “rehabilitate” the confession).

As stated earlier, the Supreme Court recognized in remanding the
matter that “Montejo’s testimony came not at the suppression hearing,
but rather only at trial, and we are unsure whether under state law that
testimony came too late to affect the propriety of the admission of the
evidence.” The defendant argues under Louisiana law, in reviewing the
trial court’s ruling on a defendant’s motion to suppress, this Court has
stated that it will look to the totality of the evidence presented at the
motion to suppress hearing and the trial. State v. Burkhalter, 428 So.2d
449, 455 (La.1983); State v. West, 408 So.2d 1302, 1308 (La.1982)
(“Although the state put on no evidence at the hearing on the motion to
suppress, we look to the totality of the evidence produced both at that
hearing and at trial when we assess whether the state has carried its
burden”). However, this jurisprudential rule will only be applied where
the defendant has filed a motion to suppress alleging a statement was
inadmissible on a specific constitutional ground and later a reviewing
court looks to his trial testimony, in addition to the testimony presented
at the motion hearing, to determine whether the motion to suppress
should have been granted on those grounds. The jurisprudential rule is
not applied where the grounds for suppression were not asserted in the
motion to suppress. We have never allowed a defendant to allege facts
for the first time in trial testimony which would support a new argument
for suppression of evidence, and have a reviewing court consider those
facts in determining whether the district court should have granted a
motion to suppress on grounds that were never argued to, or considered

28

by, the district court. This is prohibited by La.C.Cr.P. arts. 703 and 841
and would allow rejection of the district court’s determinations at the
suppression hearing without any indication of abuse of discretion.

In this case, no motion to suppress was presented to the trial court. Thus, the

trial court made no determination on the suppression issues presented in this

assignment of error, and the trier of fact was not required to address the issues when

determining Defendant’s guilt. Conflicting testimony was presented at trial.

Therefore, consideration of whether the claims asserted by Defendant would have

warranted the granting of a motion to suppress would require this court to make

credibility determinations. Moreover, counsel has not been given the opportunity to

address or explain whether his failure to file a motion to suppress was trial strategy.

See State v. Bell, 51,312 (La.App. 2 Cir. 5/17/17), 222 So.3d 79 (consideration of

ineffective assistance of counsel arguments was pretermitted and could be raised via

application for post-conviction relief where an evidentiary hearing giving counsel

the opportunity to explain his trial strategy could be had). For these reasons, we find

the issue of ineffective assistance of counsel should be relegated to post-conviction

relief.

Defense counsel’s failure to object to the evidence presented would not have

compounded counsel’s ineffective representation as La.Code Crim.P. art. 703(F)

provides: “Failure to file a motion to suppress evidence in accordance with this

Article prevents the defendant from objecting to its admissibility at the trial on the

merits on a ground assertable by a motion to suppress.”

Excessive Sentence

In his fourth assignment of error, Defendant contends the imposition of a

$2,500.00 fine as part of his habitual offender sentence was excessive and an error

patent. In its appellate brief, the State concedes imposition of the fine was improper.

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In sentencing Defendant as a habitual offender, the trial court imposed a

$2,500.00 fine, which we find was beyond the trial court’s authority. In State

v. Dickerson, 584 So.2d 1140, 1140 (La.1991) (per curiam), the supreme court held

in pertinent part:

[Louisiana Revised Statutes] 15:529.1 requires that the
sentencing judge vacate the original sentence and resentence the
defendant as a multiple offender. In resentencing, the judge must
impose a sentence authorized by La.Rev.Stat. 15:529.1. That statute
does not authorize the imposition of a fine, but only provides for
enhanced sentences relating to the term of imprisonment. The trial
judge was therefore without authority to impose a fine on resentencing
under La.Rev.Stat. 15:529.1.

Accordingly, the fine and default provisions of defendant’s
sentence are deleted.

See also, State v. Edwards, 09-799 (La.App. 3 Cir. 3/17/10) (unpublished opinion),

writ denied, 10-849 (La. 11/19/10), 49 So.3d 396; State v. Thomas, 95-1646

(La.App. 3 Cir. 5/8/96), 680 So.2d 37. We amend Defendant’s sentence to delete

the fine and we instruct the trial court to make an entry in the court minutes to reflect

the amendment.

DECREE

For the above reasons, Defendant’s conviction is affirmed, and his sentence

is affirmed as amended. We further remand this matter to the trial court with

instructions to amend the minutes of sentencing to reflect the deletion of the fine.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED;

REMANDED WITH INSTRUCTIONS.

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