State Of Louisiana VS Chuck Louis Jarrell

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 0412 STATE OF LOUISIANA VERSUS CHUCK LOUIS JARRELL Judgment Rendered September 19 Appealed from 2007 the 22nd Judicial District Court In and for the Parish of Washington Louisiana Case No 02 CR2 83980 The Honorable Peter J Garcia Judge Presiding Walter Reed Counsel for District State of Louisiana Attorney Appellee Franklinton Louisiana By Kathryn Landry Baton Rouge Louisiana Marion B Farmer Covington Louisiana Counsel for Defendant Chuck L Jarrell Defendant Plain In Dealing Louisiana BEFORE Appellant Chuck Louis Jarrell Proper Appellant Person GAIDRY MCDONALD AND MCCLENDON JJ GAIDRY J The defendant Chuck Louis Jarrell information with indecent behavior with 14 81 The defendant entered withdrew his for and entered plea sentencing the guilty plea the defendant motion s to a trial erred in comi s be present at Jarrell v the State defendant hearing this was 2003 1052 La a to recuse for fmiher case 1st Cir App appointed counsel and State 2004 1087 La for also denied So 2d 581 defendant filed s supervisory State ex The trial alleged that the and that he trial comi a trial by jury 11 8 v motion was State the defendant s State denied hearing State 2004 1846 defendant at the was obtained by evidence found again Comi Supreme La guilty April v 10 29 04 as s was 885 a 1 charged The judgment of 24 2002 and a pro se The record also contains a counsel who represented the on the motion to Each motion argues that evidence suppress unconstitutional search and seizure hearing an defense held was The defendant motion for post verdict by subsequent The pretrial motions including A counseled motion to suppress evidence was filed on motion to suppress evidence was filed on May 8 2003 to suppress to reI reI Jarrell ex unpublished was ex The defendant again 1 motion that the unpublished 03 second recusal denied several other denied the defendant not opportunity an motion to suppress confession and motions to suppress evidence After was Finding proceedings relief from the Louisiana reI Jarrell court a 1st Cir 7 12 04 App an granted the writ vacated the ruling of the writ to this comi and the writ application The trial court denied original recusal hearing The trial comi denied the defendant filed On the date set charged with this comi wherein he comi and remanded the court The defendant later The judge of violation of La R S attorney should have been notified and given defendant trial the his motion counsel at the represented by as also withdrawn recuse denying a guilty plea of guilty was application for supervisory writs juvenile of not plea a a bill charged by was 2 acquittal motion in defendant defendant was judgment and motion for sentenced to seven adjudicated was was of arrest a second later sentenced to ten years imprisonment years at trial The hard labor The new felony habitual offender The defendant at hard labor imprisonment The trial ordered that the first two years of said sentence be served without parole suspension of or counseled 1 The defendant raises the sentence court probation following assignments of error The trial court erred defendant s arrest not by suppressing because there arrest warrant to enter the was no the evidence of the search warrant or an residence where the defendant was found and the State failed to prove that the verbal consent to search was freely and voluntarily given by the owner of the residence 2 The trial granting the defendant s motion evidence of the defendant s prior conviction court to erred by not suppress under La Code Crim P mi 412 2 3 The trial comi erred to suppress 4 The trial sample 5 comi erred on by not granting the State s by the victim and the s motion the defendant s motion failure to consent produce a written form for the DNA taken from the defendant The trial court investigation prior 6 granting the defendant not evidence of the video confession for mistrial based statement by The defendant Amendment s right erred to by not conducting a presentence sentencing the defendant conviction was in violation of his Sixth confrontation of all witnesses to against him 7 The trial comi erred by imposing an excessive and harsh sentence upon the defendant The defendant raises the following pro se assigmnents of error III supplemental brief 8 The trial comi erred to 9 compulsory by not the defendant the right process The trial court erred time allowing by not prosecuting limit prescribed by law 3 the defendant in the his court elTed The trial 10 by allowing the defendant not to represent himself The trial 11 elTed comi twice for the by placing set same jeopardy the defendant in of circumstances the using same evidence The trial 12 bail court elTed by not allowing excessive imposing to trial prior The trial court erred 13 or because sentence maXImum the defendant to the by sentencing the showed defendant no remorse The trial 14 to choose comi a jury elTed by trial used 16 allowing the defendant the right judge trial or The trial comi erred 15 not by allowing sealed information to be by the jury The trial comi erred by allowing a tainted and or broken chain of evidence to be used at the trial The trial comi erred 17 of the by allowing illegal identification defendant The trial 18 defendant court erred through a by allowing defective the prosecution of the invalid defaced bill of information The trial 19 defender to ineffectively For the offender by allowing the defendant s public continue throughout the proceedings to comi assist the defendant following adjudication elTed reasons but we vacate the affirm the conviction and habitual enhanced sentence and remand for resentencing STATEMENT OF FACTS On or identified about by the victim play basketball Ultimately the 1 park July BA on 22 as Adam While there Adam the victim went to the two s only by a contact 4 and a male friend with the defendant simultaneously rode four wheeler motor her initials 2 park in Bogalusa Louisiana to had and the defendant the defendant We reference this victim B A 2001 bicycle They See La R S 46 1844 W away from rode to a area grassy the known lover s lane as bicycle in the motor area as he and the victim conversed the victim the defendant asked to as her At that private patio home point During their ride back the victim sat According to the defendant victim to the victim to the park Adam drove they made A shirt s come park Adam with her Adam mother Parish Sheriffs Office that was contained taken from a spermatozoa matched the DNA profile of a area DNA blood s mother The victim mother took the s The victim s stained The spermatozoa bicycle pants and she felt that clothing was Laboratory for the Louisiana State Police Crime sent to specimen his it back to the s the motor directly behind the victim sat unzipped actions to Adam Washington collected and testing s to the victim stated that she wanted to go the victim the defendant Before According which she also described stuff and instructed Adam and the victim to by repOlied her see in the middle and the defendant stuff on her back drove The defendant allowed Adam to drive on the back of the the from profile sample drawn from the defendant ASSIGNMENT OF ERROR NUMBER ONE COUNSELED In the first comi s ruling the State did on assigmnent of anest argues produce not that there was voluntarily consented no to Chris Hiclunan testified to the consent Sergeant Quinzell Spikes was not called to was testify determination that the entrance of the challenges the trial The defendant notes that to prove which the defendant the Detective fonn consent a and the homeowner as the defendant his motion to suppress evidence consent to enter the home in his error that the officers had located at the time of Thus the defendant owner The defendant of the home notes only Washington Parish Sheriffs Office by the homeowner The defendant also of the that notes that Washington Parish Sheriffs Office and one 5 of the arresting defendant recall whether not before arrest warrants informed of his defendant argues that voluntariness of the a failure to so right notes to The defendant consent not owner testimony The may have affected the presumably concludes that any have been including his confession should arrest was no allow the search to was hear any discussion that there refuse infonll the they discovered the after the defendant or Sergeant Spikes did Finally the defendant owner was fruits of his could Fmiher custody consent regarding that the outstanding s taken into officers suppressed The Fourth Amendment to the United States Constitution and Article I S searches and seizures the house of enter Steagald 1650 a Generally third pmiy United States v 68 L Ed 2d 38 a search warrant must also be obtained to search for the to 451 U S 204 State Wolfe 1981 v 1981 A search conducted without unless justified Schneckloth 1973 v well v to 20 L Ed 2d 797 Wolfe the relationship a La US consent v 1984 warrant 1968 State the 91 v exceptions S Ct 2022 La 6 or App 29 1st A valid consent search is was 543 freely and 88 S Ct 548 Smith 433 So 2d 688 common effects 693 to be La freely and authority sought a the State has the Consent is valid when it is premises La 36 L Ed 2d 854 1378 valid in that it person who possesses to 443 requirement but was 1648 1119 1120 established North Carolina 391 U S 398 So 2d at 1120 voluntarily given by sufficient 1356 S Ct 1642 93 S Ct 2041 403 arrest warrant presumably unreasonable Farber 446 So 2d 1376 2d So Bumper 101 398 So 2d 1117 218 Hampshire 449 213 216 specifically 412 U S proving that the 1792 the New recognized exception voluntarily given 1983 of one subject of an warrant is a State v 1971 writ denied burden of 1788 by Bustamonte Coolidge L Ed 2d 564 Cir protect people against unreasonable 5 of the Louisiana Constitution or other inspected United States 242 to Matlock 415 U S v State 1974 search is sufficient So 2d 280 287 6 n written a La L Ed 2d 228 1984 5 9 97 So 2d 20 a State Fmihermore search is not 588 a 96 1814 97 1347 determining the Overton 596 So 2d 1344 315 1992 1353 La V oluntariness is a App 1st Cir question findings during weight and should v of fact to 531 US 840 Brumfield 6 p 121 S Ct defendant has La the arrested was a at on the motion at whereabouts of Adams s per 2002 residence a residence v 2000 by the The trial comi s entitled are clearly to great State erroneous 1029 see celio denied also State 944 So 2d 588 06 20 suspect in See State v 593 after an receiving um elated Detective Hickman 7 testimony Sergeant Spikes Deputy was who Ben Godwin went to information case saw to hearing the defendant Detective Hickman and Gant 93 2895 p 3 v According curiam evidence to suppress the time of the offense s State 5 of the Louisiana Constitution to under Article I 397 31 one adversely affected by the search of the home the 637 So 2d 396 Adams Kenny 1st Cir 9 App privacy rights January trainee La are 148 L Ed 2d 62 search a case 775 So 2d 1022 loss of owner s 5 20 94 presented standing 126 00 104 2005 2500 p 5 As he has been assert La they only be detenllined evidence to suppress be disturbed unless not 99 0023 Casey hearing a is writ denied 599 So 2d trial comi under the facts and circumstances of each factual 703 to refuse consent to nature of consent to voluntary 10 31 97 warning a 83 1st Cir App La La suspect of his right 446 Ossey v 105 S Ct 293 13 p 39 L Ed 2d An oral consent State 916 Instead the lack of such required 993 La 1981 required not writ denied 1240 informing factor in La 94 S Ct 988 denied 469 U S Parfait v is consent Celio So 2d 1232 693 171 394 So 2d 584 Bodley v 164 When what he regarding they arrived recognized as the at the defendant posted at truck s Outstanding the Sheriffs Office for the defendant warrants Adams met subject whereabouts s the other When Detective unknown were Adams subject Hickman asked about the defendant Adams stated that the defendant the back of the home According to enter the home In State Deputy Godwin did 373 So 2d 145 Shy v not 148 consent to the of testimony police officer who a See also State suppression hearing App 5th Cir 4 26 05 19 06 on 902 So 2d 473 918 So 2d 1039 the uncontrovelied Adams freely and Herein was by the risk of confession was Anderson the defendant members who 3 When were During the reviewing considered State a v warrant on was asked first to at the La La in the trial comi s reliance Hickman and the record3 of the During the hearing issued sole witness 13 15 no elTor finding that that on Washington Parish Sheriffs November 5 2001 on s several occasions encounter regarding the alTest to According tell the defendant that the police warrantless search the motion to suppress the for the defendant pursued a exigent circumstances presented Detective Tom Anderson of the instant offense s writ denied 2005 1325 482 83 review of the justified on the basis Office testified that the for him a State gave the uncontrovelied Cambre 2004 1317 pp find Supreme consented to the search of his home voluntarily escape the testimony of Detective It also appears from of the home we permission proving the defendant luggage with was v in of the home the Louisiana La 1979 to search his police was testify Court held that the State satisfied its burden of valid rear Adams gave him testimony s the went to Sergeant Spikes to Detective Hickman were the officers outside and Hickman questioned him regarding the whereabouts of stated that the arrest s Detective through family police were with the defendant looking prior to his motion to suppress the entire record may be Martin 595 So 2d 592 596 La 1992 trial court s ruling on a 8 January 31 2002 arrest the defendant fled and eluded entries into where a person sufficient s home though possible the to be unreasonable may be and the destruction of evidence Thus the record supports requirement exigent reasons of Examples injury cause exigent the officers and to Farber 446 So 2d find that the trial court did not at 1379 80 to the warrant finding that another exception circumstances existed in this instance we denying the motion a justified escape of the defendant avoidance of violent confrontation that could public foregoing se exigent circumstances exist circumstances have been found a per Warrantless capture Based on the abuse its discretion in to suppress evidence ASSIGNMENT OF ERROR NUMBER TWO COUNSELED In his second of his prior assignment error the defendant argues that evidence conviction for forcible rape should not have been admitted under La Code of Evid art 412 2 the evidence State of was The defendant contends that the allowance of prejudicial and a violation of the ex post facto laws of this The defendant notes that his prior conviction of forcible rape occurred in 1988 prior to 2 412 the effective date of Article notes that the date of the instant offense is July 22 The defendant further 2001 also prior to the effective date of the code article During the trial Officer Cmiis Hodge of the Louisiana Depmiment of Probation and Parole the defendant offense testified and informed the for forcible rape an accused is victim who parole officer jury with acts that constitute under the age of evidence of the accused s at the time of the defendant In accordance with Aliicle 412 2 charged was s a seventeen at in sex s behavior may 9 prior conviction peliinent pmi offense when involving a the time of the offense commission of another crime involving sexually assaultive of the instant wrong be admissible and or may act be considered for its test balancing bearing on mi 404B committed La Code Evid wrongs or governed 412 2 to the on was admissibility of evidence the In 200 I acts Aliicle 412 2 which became effective subject When the instant offense in Article 403 provided regarding other crimes any matter to which it is relevant the 2001 15 August legislature enacted Thus Article in effect at the time of the trial but not at the time of the instant was offense AIiicle I 23 v prohibit Everett ex S S 10 of the United States Constitution and La Const art I post facto application of the criminal law by the State 2000 2998 13 p La 816 5 14 02 So 2d 1272 1280 State The United States Supreme Comi has identified four categories of law that violate the post facto prohibition ex criminal that was any law that innocent when done and before the aggravates punishment than the law any law that alters the testimony offense 1693 was 1697 legal committed ex which it is new an ex the was was 2 when committed and 4 requires was less required Tennessee 532 U S 451 or different at the time the 456 121 S Ct 2001 v State 2000 0172 pp 15 16 La 2 21 01 121 S Ct 2566 150 L Ed 2d Supreme Court held that in determining whether post facto violation the law redefines criminal conduct punished action passing of the law greater than it the crime conviction than v an punishment and inflicts greater denied 533 U S 936 the Louisiana there has been whether the a Rogers celio makes it rules of evidence and reI Olivieri 744 or changes 149 L Ed 2d 697 779 So 2d 735 2001 crime provided when in order to obtain In State 730 a any law that 3 committed any law that makes 1 and not analysis should focus or increases the whether the defendant has disadvantaged 10 on penalty by simply been The Louisiana two per curiam of State the Atiicle 412 2 an S Ct 668 La open an La Article 412 2 the exception restriction 07 under La Code Evid Willis 2005 218 we to the effective hold that the 2 412 to the ex 127 s case as present not of admissible if it fell within an Prior past sexual inconsequential expanded prosecution of certain of evidence required for increase the of error lacks merit 11 act a occurred We further prohibit the application Aliicle 412 2 or Greene 2006 667 Atiicle 412 2 removed that 404B date of Article 412 2 is redefine criminal conduct assigmllent to the enactment note that the fact that the case Citing 8 v 1232 was it 915 So 2d at 383 post facto laws would altering the quantum Thus this issue mi at p 22 which may be introduced in the not US p State 951 So 2d 1226 at Willis 383 writ denied in the defendant required similarly in type of evidence At the outset prior v the type of evidence which may be introduced App 5th Cir 130 2 n The Third Circuit found that Article 2006 Willis the Fifth Circuit ruled 2 held that its retroactive denied celio of applicability 2002 3196 at p 915 So 2d 365 2 11 05 In 863 So 2d 520 post facto violation State ex 412 2 did not alter the amount of proof to post facto clause 1 21 04 Morgan 930 So 2d 973 6 23 06 ex that the retroactive question App 3d Cir 166 L Ed 2d 514 merely peliains La The Third Circuit has constitute not 2005 218 p 22 La 2006 0186 2002 3196 Supreme Comi noted remains application does violation of the a Morgan v So 2d at 522 23 863 Comi has not decided whether the retroactive of Aliicle 412 2 is application footnote Supreme of Atiicle the type of evidence sex conviction offenses without The article does penalty by which it is punished ASSIGNMENT OF ERROR NUMBER THREE COUNSELED his third In assigmllent of the defendant raises additional error arguments along with reiterating the argument raised in assignment of number one confession videotaped the confession made why the trial to as aware was that he comi erred freely was and voluntarily given a inculpatory or inducements or show that accused who makes an interrogation So 2d 449 promises was 453 relating to La La App a admissibility will the evidence on not to the facts and La Miranda 1983 v a to was signed waiver of be admissible into freely was intimidation 15 451 statement the v Daughtery 569 So 2d 980 confession during custodial or State The trial a on a case case comi Whether must State are not or case 1990 testimony purpose not 1177 La a of suppOlied App showing basis with 1st of regard Benoit 440 So 2d 129 v consider the Arizona 384 U S 436 86 S Ct 1602 16 L 12 by of the for La 563 question for the weight 563 So 2d 1171 analyzed circumstances of each and confession 1990 King v 567 So 2d 610 appeal unless they La threats the State must credibility on voluntarily menaces Miranda4 rights of the and Additionally writ denied be oveliumed voluntariness has been made is 4 the confession is in the first instance voluntariness State writ denied R S 1st Cir Its conclusions the statement duress first advised of his admissibility of trial comi 131 produced show that it affirmatively given without influence of fear Cir that the defendant The defendant further argues that being videotaped confession evidence the State must by or form F or The the suppressing The defendant adds that the State failed to prove that it is unclear from the record whether the State rights not by error 2d Ed 694 totality of the 1966 circumstances in State deciding whether statement a Hernandez 432 So 2d 350 352 v Detective Anderson La interviewed or 1st Cir 1983 App the confession is admissible after defendant Detective Anderson informed the defendant of his Miranda them out loud from a waiver of rights form Anderson the defendant stated that he wanted the record The detective informed the defendant that off the record passed adding According defendant that he the table or to was promises the defendant appears a I do is on rights form the detective while he did being recorded the video inducements or to study a At the the defendant the defendant bicycle because specifically was sweating they played basketball say to the positioned beginning of the videotape motor bicycle when he before on threaten the defendant passing riding was on the riding According on it defendant The defendant admitted to his four wheeler speak activated the video During the interview the appeared calm cooperative and lucid on could not camera was not Detective the detective off form for several minutes before pen to Detective Anderson with the victim and Adam to Detective Anderson and not to they the record Detective Anderson testified that he did make any and Anything the defendant the waiver of camera speak arrest rights by reading According to his to the motor motor bicycle When asked if that may have been what the victim felt the defendant stated that this was the victim and Adam informed him that defendant denied any State introduced they a copy signature eighteen were inappropriate behavior the defendant confinned that his the The defendant stated that the only possible explanation the form of the waiver of 13 The At the end of the interview was on Anderson testified that the whereabouts of the years old During rights form the trial Detective original form could not be determined The defendant did not time of the trial and does not the presented confession s the admission of the copy to such admission challenge We find that the evidence suppress defendant object at the issue as to the to the of the arrest foregoing conclusions trial court s we confession herein error find that there The third s on raises any re have found the consent to search we denial of the defendant to voluntary nature of To the extent that the defendant statement legality the motion on trial comi s conclusions suppOlied the addressing assignment of in proper s appeal hearing credibility and weight of the testimony relating the defendant on the at number was no Based one on the abuse of discretion in the motion to suppress the videotaped assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER FOUR COUNSELED In the fomih court State erred s by failure not to assignment of granting produce form for the DNA a error the defendant argues that the trial the defendant motion for mistrial based s contends statement was that As noted sample taken from the defendant while never State the defendant contends that he did produce not a written statement to the provided produced by the information that could have been used and the State failed to to State open file and impeach may voluntarily submit shall be However a mistrial is impossible a police this have contained Finally to the DNA the sample the consent form ordered when makes it comiroom by the discovery the victim Louisiana Code of Criminal Procedure article 775 mistrial the written statement of the victim and the consent defendant the victim testified that she gave He on drastic prejudicial for the remedy defendant suffers such substantial defendant that should be prejudice that 14 conduct In provides or to obtain a outside the a granted only he has been that fair trial when the deprived of any reasonable expectation of fair trial a Detennination of whether should be motion for mistrial will a of that discretion State Berry v 684 So 2d 439 449 writ denied be disturbed not 95 1610 p 7 During the victim s testimony she stated that took place sic During a written bench conference the questioning by the defense someone to follows regarding and he had made me production of the The trial determine who else comi events She me wrote statement never seen a suggested fmiher wrote the wrote the statement remember who wrote the statement writing 703 So 2d 603 prosecutor stated that he had by the victim statement victim stated that from The defense asked for statement a 1 st Cir 11 8 96 App 97 as without abuse after she anived at the sheriffs office to make the initial They had took my clothes complaint appeal on La 10 97 0278 La mistrial the trial comi and the granted is within the sound discretion of denial of a The statement The victim could not specifically remembered someone her oral statement Ellis Lt completed the clothing Norsworthy of initial give notes while to Lt NorswOlihy written statement a Washington Parish Sheriffs Office report for the instant offense and collected the victim s According victim the interviewing s testimony he did not have The lieutenant stated that he took the victim He used the notes to make an the scratch offense repOli The suppreSSIOn of evidence by the prosecution favorable to an accused upon request violates due process where the evidence is material either to guilt or to the prosecution 97 10 L Ed 2d 215 punishment inespective Brady v 1963 evidence and evidence Maryland of the 373 U S good 83 faith or 87 83 S Ct 1194 Favorable evidence includes both impeaching the testimony 15 bad faith of of a 1196 exculpatory witness when the reliability guilt or or innocence or when it may have a United States v determination of the jury S Ct 150 3380 87 L Ed 2d 481 3375 92 S Ct 763 154 766 1985 to would have been different Kyles 1555 105 S Ct likely 1565 2d Ed 131 L The at 3383 question a verdict result is at 1566 115 S Ct After the State rested its to a Brady Maryland v statement for any a reiterated that open file and could testimony regarding statement The trial not personally record does not did the comi write 433 34 473 U S 115 at 682 more on trial resulting different a evidentiary suppression 514 U S at 434 Kyles in chief the defendant moved pursuant the was one s but of as a probability material specifically designating evening of July provided 22 2001 Sheriffs Office files The trial comi noted Lt he that took statement during the for such NorswOlihy victim s a s initial acknowledged that she The trial court concluded that the clearly establish the existence of a written 16 The State The State fmiher indicated also noted that the victim a 419 proceeding 105 S Ct at 3381 exculpatory notes request that had probability citing Bagley of the trial at 678 case discovery not find 105 results from its error 514 U S reasonable A that Detective Anderson searched the statement of Regardless fair trial understood outcome given by the victim 676 different verdict with the evidence a 473 U S Bagley 667 the result of the shown when the government undermines confidence in the sentencing is not whether the defendant would wOlihy of confidence accordingly 1995 the United States 405 U S v reasonable Whitley v 490 than not have received a on 473 U S 1972 the defense whether in its absence he received in Bagley Giglio if there is the evidence been disclosed bearing constitutional and suppression by the government S Ct direct 31 L Ed 2d 104 evidence is material favorable may be determinative of defendant s credibility of that witness statement by the victim The trial State by the comi providing At the outset this basis record ruled that the defendant s motion had been satisfied open file that the defendant did note we At any rate discovery at the time of her at the time of the trial There is notes written We it is by Lt NorswOlihy now turn to sample Officer Hodge likely in that the victim taking present during obtain the defendant a blood blood sample being drawn from the defendant consent voluntarily form According the door According Center defendant the defense open was to the admission did not know the whereabouts of or coercion overruled the defendant s a s St at the s DNA s Sheriffs Tammany Parish trial Officer the testimony Hodge believed a present for such execution failure to of the blood consent form placed produce sample Officer upon the defendant a room consent Officer and form Hodge Hodge did not The trial comi Upon fmiher questioning Officer objection Hodge testified that the defendant Hodge not to the referring standing just outside of the Based upon the State objected witness any duress was was the sample and witnessed the at the sample gave the blood Hodge he a Officer to executed but he Officer to was was consent to and Based upon police prior meeting to s complaint regarding the defendant Office Medical on complaint the victim s the issues raised was mistrial gist of the testimony presented by the victim s lack of experience and the Norsworthy a indication in the no record that the victim had any other encounters with the victim and Lt for move agree with the trial comi s assessment of the we The victim was sixteen years of age nineteen years of age not was cordial in the blood providing sample Medical the person testing procedures State v have been held to constitute Carthan 377 So 2d 308 17 311 La 1979 a search of A search conducted with of and to blood a subject sample is probable justify a cause consent s whether the defendant acted Clark 446 So 2d 293 a subject s comi trial comi s La La App 19 4 96 Before form a as to 1st Cir question of fact the parole the DNA a sample motion form and that See State v each v Bustamante case witnesses 246 88 L La given test for consent is by 2d Ed are 1980 State 403 v 1985 the and the Wilson 467 So 2d 503 518 v to be La See also Davis 94 2332 p writ denied 96 0127 to suppress no officer had the After the State s consent prosecutor argued that the defendant The the DNA sample before the trial The as to the existence of such such form could be located in the Sheriffs Office The State fmiher noted that Officer right to demand a blood Hodge sample as the defendant by the defendant s failure 18 comi to file s from the defendant argument the defense moved for a mistrial The trial denied the motion for mistrial The trial been waived was be detennined surrounding prosecutor fmiher noted that the record is unclear records consent resting the defendant moved for the production of the regarding consent to credibility of the 368 upon consent 671 So 2d 925 should have filed a rely warrant The voluntariness of 1973 666 So 2d 400 95 15 12 both the citing Schneckloth 106 S Ct 281 Fontenot 383 So 2d 365 v 1984 appeal State on to Generally the 36 L Ed 2d 854 search is denied 474 U S 911 State 4 weight to voluntarily without coercion La determinations accorded great involving the taking demonstrate the must under the facts and circumstances trial cert 297 93 S Ct 2041 consent to search When the State seeks requirements freely and voluntarily without coercion 412 U S 218 a specifically established exception a wanantless search it a including comi noted that the issue may have a pretrial motion and fmiher noted that the trial DNA testimony indicated that the defendant consented the to sample We find that the trial court did not abuse its discretion in defendant motion for mistrial Uncontroverted s defendant consented to the DNA does the record establish that he find that this prejudice probability of a fair trial Based assigmnent of error lacks on that he the that the arguing nor We cannot say coerced in any way that the defendant suffered such substantial any reasonable testimony indicated The defendant is not sample was denying the was foregoing deprived reasons of we merit ASSIGNMENT OF ERROR NUMBER FIVE COUNSELED In the fifth court erred assignment of not by conducting the defendant sentencing that the trial court as a a PSI State order 618 a PSI will So 2d defendant s background at not 914 request A PSI a La as noted comi no 1993 an requested by date of sentencing 2d So 908 Such an our 914 comi aware 1st App in Wimberly denying the court the instant offense denial of a s after the We second PSI This assignment of error lacks merit 19 an of the defendant by the trial guilty plea to comi s La The trial court s failure to by the trial fully law that the investigation is abuse of discretion ordered and reviewed abuse of discretion in the trial requested on the mandate under 618 was defendant entered his later withdrawn find the PSI ordering of the accused be reversed absent was no Wimberly right the trial to original sentencing v Herein prior The defendant contends habitual offender writ denied 624 So 2d 1229 aid to the comi and not PSI presentence investigation a by the defendant there is trial comi order Cir the defendant argues that the trial abused its discretion in not the defendant at the time of the As noted error as ASSIGNMENT OF ERROR NUMBER SIX COUNSELED In the conviction assignment of sixth contends that he offense of the against unable was to at an preserve trial Issue grounds for the young male specifically essential witnesses at present the the time of the that so that he may gambling did individuals not at issue on a raising from proceeding and to or any to any by an testimony on on the on before the trier of fact State v to appeal on Since the objection the an prevent the to resOliing absence of the ground that Moreover it violated the the Confrontation rigorous testing in Kennedy 2007 WL So 2d the notice of safeguards the defendant s rights to as Louisiana Constitutions he is or appeal subject their testimony objection well as problem and the cure an The purpose behind 841 objections regarding the issue elTor raise any In order to must state favorable verdict then Clause of the Sixth Amendment accusers object put the trial judge confrontation clause of the United States precluded not alleged mi have been cOlTected lodge or of the rule is to objection might easily defendant OCCUlTence pmiy a La Code Crim P objection alleged irregularity review appellate with the the defendant did alleged constitutional violation to this for the contemporaneous defendant from note that we as contemporaneously 5 22 07 two to 5 arguments his The defendant him confront alleged victim and the At the outset errors right obtained in violation of his Sixth Amendment was confrontation of all witnesses guardian the defendant argues that his elTor an 2005 1981 1471652 No to confront adversary p 12 statements La or The victim refelTed to the young male who was present at the time of the offense as The defendant refers to the first adult individual to have Adam her close friend and the victim s guardian contact with the victim after the otTense as Ms Holland 5 The victim referred to this individual as Adam s 20 mom testimony of the individuals there any evidence Thus we find to in presented were suggest that they merit in this no question assignment to was 6 the defendant were Nor the jury s accusers of error ASSIGNMENT OF ERROR NUMBER SEVEN COUNSELED AND ASSIGNMENT OF ERROR NUMBER THIRTEEN PRO SE In the seventh and final counseled argues that the trial COUlt erred in pro se assignment of trial COUlt erred in without error imposing sentence at the When the trial to vacate the sentencing the defendant note that while the trial to sentence the maximum In sentence requires sentence the a defendant enhancement sentence original conform to the and has found it unnecessary hard labor 15 529 1D 3 As noted by this conform to not was imposed habitual offender it failed of the habitual language when imposing already imposed COUlt has as habitual a in the the failure of simply case a trial vacated the requirements of the habitual offender to vacate resentencing Accordingly sentence the maximum resentenced upon his previous criminal appeals with original remand for The sentence COUlt to vacate the sentence to was sentence as a court sentencing to vacate any However when faced in maximum imposed for the instant offense the conviction used sentence sentencing court the defendant adjudication and original offender statute offender we court sentenced the the basis for the 6 excessive harsh number thilteen the defendant argues that the original sentencing habitual offender or an complying with sentencing guidelines At the outset statute assigmllent of error the defendant to we the the habitual offender vacate the original requirements of sentence seven La year RS It is not necessary to vacate the habitual offender sentence the State in its appellate brief the record evidences an agreement between Adam to the State and the defense attomey to not call the Cangelosi boy presumably avoid a potential conflict of interest with the Public Defender s Office The substance of the potential conflict of interest was not fully developed in the 21 record imposed or remand for to 2000 0717 pp 3 6 La resentencing 1st Cir App writ denied 2001 0673 La The record in this motion P mi 881 1 State 879 So 2d 179 entitled to a at pp He did 158 writ denied 97 0189 Article I La 13 6 97 to 367 So 2d 762 Sepulvado considered excessive if it is or is nothing more punishment 10 La La 767 imposition of to shock should not be set aside discretion one s La 1979 v Supreme as Dorthey as State v 686 So 2d 149 Supreme prohibits the Comi in State sentence that is a Generally to the a sentence severity sense is of the imposition of pain and suffering harm 797 So 2d 75 judge is to State of justice within statutory limits Court sentence this basis held that of the light A trial 83 v is so Hurst 99 2868 writ denied given it society and 2000 3053 wide discretion in the and the sentence imposed excessive in the absence of manifest abuse of Hurst 99 2868 at pp In State Louisiana in 798 So 2d 962 sentences 7 4 04 grossly dispropOliionate if when the crime 1 st Cir 10 3 00 App 10 5 01 as on grossly dispropOliionate considered are dispropOliionate p his enhanced The Louisiana than the needless A sentence is considered new 695 So 2d 986 within the statutory limits may still be excessive crime 1st Cir App of the Louisiana Constitution section 20 imposition of excessive punishment v object La 1st Cir 12 20 96 App La a imposed Therefore the defendant is only was 13 14 bane en in accordance with La Code Crim review for constitutional excessiveness 96 0631 Handley Jackson does not show that defendant filed bane the time it v 811 So 2d 895 resentencing en See State 814 So 2d 6 9 11 Smith 2003 1153 pp 7 8 v 183 84 unduly harsh this basis 01 16 2 02 case reconsider upon to 15 3 on 623 10 11 797 So 2d at 83 So 2d 1276 recognized that if 22 a 1280 81 La 1993 the trial judge determines that the punishment mandated by contribution to nothing of than the the express which recognition by punishable are these 623 2d So As R S a second us to prior was 14 2 13 we do to a they A a after and in light of of the comis to be sentence charged are It is the function legislative length found are imposed with unconstitutional U not a minimum a to its 2006 find that the trial error was for applying Dorthey of court is not at hard labor or s will be discussed in the review for are 14 42 1 La the record before imposing Considering an the grossly dispropOliionate without merit error to ten previous assigmnent of error number number thirteen 23 sentenced La R S on years See La R S the defendant Based shocking Counseled error was abused its discretion in imprisomnent sentence behavior amendment half one imprisonment The defendant under La subject and three crime of violence forcible rape prior s of As noted hard labor at assignment sentencing the defendant its 2006 amendment for to the defendant 7 constitutionally excessive only maximum of fourteen years facts of the offense the se purely Moreover enhanced sentence of ten years and pro made was determine the to a imprisomnent conviction R S Dorthey felony offender l 1A imprisonment and years that would not be to at 1278 15 529 14 81C severity of the crime he is duty bound crimes is as unless punishments the felonies as that the sentence amounts the comi that the determination and definition of acts Legislature s prerogative crimes classified to one in holding or measurable no purposeful imposition of pain and suffering and is proportion reduce the sentence to However of punishment acceptable goals to more out grossly the Habitual Offender Law makes section herein 7 seven ASSIGNMENT OF ERROR NUMBER EIGHT PRO SE In the eighth assigmnent of erred in comi contends occasions several on for subpoenaed allowing him compulsory not that The trial guardian the individual who owner the defendant argues that the trial error he defendant was the victim s have testified that the defendant A defendant s right was was 16 The comi witnesses at hearings or P defendant La compulsory process includes the and the right 1982 subpoenas defendant a will not be each and every case to 782 787 At La recess La Const mi I right to State v do The demand testimony by so right of to App in order to to testify or the to subpoenas for witnesses 1361 obtain service of La requested or new trial in error he might give which would be prejudicial See State v of possibility a Green 448 So 2d 2d Cir 1984 the prior S defendant a of his conviction the witness were the State Latin 412 So 2d 1357 inability s to the defense and which would indicate the trial continuance 731 grounds for reversal different result if the witness on constitutions and in the state In order for the defendant to show must demonstrate the favorable requested mi to have them served However the offense may subpoenas for the compulsory attendance of trials when Code Crim victim s obtaining witnesses Const amend VI See U S shall issue at present process for his behalf is embodied in both the federal and statutory law of this State the innocent compulsory to names The defendant argues that place and the individual who guardian witnesses the time of the offense and the at of the home wherein his arrest took defendant have to attempted specifically present The process defendant to the could have selection and locate his witness seating of or 24 made preserved the an oral motion jury motioned his claim in some for for a other Instead the defendant failed fashion timely about the absence of the The defendant right potential been held that an accused Code Crim P mi cannot claim that he was obtaining witnesses where compulsory process for to these witnesses subpoena See also Beach So 2d 364 1980 State issue 498 32 reflect not witnesses might give which would be favorable We find testify Also there has been no witnesses at issue of prejudicial Fmiher it has right a no to 6 2nd Cir App La as 5th Cic for the potential what to related to 770 1171 testimony the the defendant and which different result if the witnesses enol to the defense did not seek p showing at possibility properly not denied the subpoenas witnesses would indicate the 841 Blackburn 631 F 2d 1168 v does the record Here Ball v was writ denied 2000 0506 La 10 6 00 1253 748 So 2d 1249 99 appeal on La preserved for appellate review timely complaint right of compulsory denied the which he raised for the first time process 15 12 was a Thus the defendant waived his witnesses claim that he s make to the absence of the were to potential assignment of enol lacks merit This ASSIGNMENT OF ERROR NUMBER NINE PRO SE In the ninth failed to institute The defendant was anested assigmnent of prosecution notes on argument s the two January 31 2 sic time limitation year on July 22 as we to note that it timely and that he The defendant concludes that the conviction and to the State failure 2001 The defendant also notes that the trial 2002 should be vacated and the indictment dismissed Initially State within the defendant argues that the State that the offense occurred occurred in late 2005 sentence error s failure to to quashed is unclear whether the defendant is commence the defendant has failed or timely institute prosecution trial properly or both or as an to the Nonetheless it appears that preserve either 25 raising complaint for review First the defendant did untimely prosecution prosecution had was a committed not on on oral an written motion or As noted was art 572A 2 filed within La 14 81 RS untimely on the oral motion being was the comply oral motion an signed by the defendant which it is based on with the Since provisions of Article 284 may have waived any right La Code Crim P trial had not La quash 1981 an it a a the non capital institution was in open comi written motion motion to a quash oral motion cannot be State v specify distinctly to quash does not State considered v Thus the defendant complain La about lack of Code Crim James P mi 394 So 2d 1197 the time limit for commencement of date of the trial Louisiana Code of Criminal Procedure article 578 2 trial of Code his attOlney and filed in open imposed by 581 art In any event expired by the or 536 art he may have had to 578 2 See La P 1st Cir 1988 App the time limitations 1 to Fmiher it shall 536 compliance with n The Statements made at the time of Pursuant to La Code Crim Howell 525 So 2d 283 1199 art 382 However the record does not contain such in the office of the clerk of comi grounds filing of The instant bill of information commencement of trial filed at the time shall be in writing or the See La prosecution seemingly indicate though not directly that written motion comi by year after the commission of the offense one Second the defendant made based instituted See La Code Crim P March 6 2002 State had four years within which to institute Crim P the basis of by the defendant the instant offense Prosecution 22 2001 on the time limits for the institution of Moreover expired July bill of information not file provides that felonies must be held within two years from the date of of the prosecution apparently meritorious motion to When quash 26 a based defendant has on brought prescription an the State bears heavy burden a time such that 1 14 94 1981 to demonstrate either State Code Crim P states that when a defendant files plea the running of the periods be suspended until the State have less than State Guidry v 697 98 La a motion to court year after the one Rome 93 1221 v quash to or running of the time limit preliminary plea is suppress or and bills of So 2d 778 a preliminary prosecution a and rules the on and the A by the defense that has the as to quash motions to applications for discovery 14 2 La 03 838 misunderstanding regarding still within the a to instituted on March 6 2002 a by the Thereafter the defendant filed several motion for as charged to withdraw his a Prieur discovery and hearing and a motion On December 3 2002 the trial guilty plea the sentence to be two year motion was On October 23 2002 the defendant withdrew pled guilty allowed the defendant defendant filed The the motions on motion for bill of pmiiculars and to suppress examination pending motions 2003 well shall the counted Brooks 2002 0792 p 6 of the bill of information inspection motions comi v as 578 shall per curiam pretrial motions including for motion filed continuance State pmiiculars As stated herein filing or La the trial court not including properly filed motions motions for 782 period is La preliminary no case commence when the comi rules resumes pleading any effect of delaying trial the relevant other by Article prescriptive period is merely suspended until the trial filing of preliminary pleas 765 of the time limitation thereon but in ruling of La 1st Cir 1983 App of limitation established ruling of the suspension or a 395 So 2d 764 concelning the suspension 580 mi State 442 So 2d 696 Haney v 1286 interruption have tolled prescription will not 630 So 2d 1284 an time limit for recuse the judge 27 due to imposed On commencement A recusal an apparent Febluary 6 of trial the hearing took place on May 2003 6 2003 and the trial denied the motion the defendant filed notice of intent review motion a examination and to the motion to and the trial comi 2004 2004 a On hearing hearing on date of the trial and the was the trial court proceedings held on this 2003 on Based on the on the motion to October 30 2003 Comi denied writs mi 578 2 comi ruling s on did not foregoing July October 29 on denied in the midst of the trial Thus the of trial 8 preliminary the motion to suppress evidence commenced commencement assigrunent for 11 August was time limitation set forth in La Code Crim P to May This comi denied writs again denied the motion Supreme On recuse motion application vacated second recusal and the Louisiana The discovery to seek writs of certiorari and a and remanded for fmiher recuse On remand recuse writ to evidence suppress motion for a granted the defendant s 12 court on the statutory expire prior this reasons of error lacks merit ASSIGNMENT OF ERROR NUMBER TEN PRO SE In the tenth comi erred in not assigrunent of allowing him to Code of Criminal Procedure right to the that there is error the defendant argues that the trial represent himself the defendant no was when he an the Louisiana arrestee notes has the however statutory mandate that an accused be represented by counsel behalf he would have that he that appointment of counsel The defendant further The defendant contends that had the trial own notes Citing held in subpoenaed to exercise his defendant fuliher claims that the trial record the defendant s allowed him witnesses contempt and ordered attempted court to serve statements 28 on his The defendant contends sixty days right of compulsory court to act in parish jail process ordered the minute clerk The not to We note that the defendant has not the arguments raised in this Comis of shall set Appeal Rule forth According to on October 24 2005 presented to possibility that he had arrest no the found the defendant to the trial during a The minute entry fmiher in reference We to this suppression hearing transcript the are of one witness The trial comi recessed the allow the defendant and his attOlney Mr of the defendant witnesses Any the record testifying to to The defendant testify The tape At that manipulation court regarding raise his hand and take requested speaks for his itself point the trial conversation between Mr The trial discuss The defense attorney indicated advised the defendant stated more Stamps The defendant stated he had witnesses comi ultimately there but pmi stated on day prior arguments raised herein testimony The trial advice and not s to the October 24 2005 the stand if he wished to nothing one comi of the record proceedings his giving case imposition of sixty days imprisonment in parish jail According the the issues of the to the peliinent minute entry the trial presume that the defendant State Rules peliinent pmi the brief of the appellant the motion to suppress confession on reflects the pOliion in argument confined strictly an contempt of comi hearing Pursuant to Uniform assignment 4 12 any record references for citations of the pages of the record and the authorities cited accurate in 2 provided denied the defendant s There comi Stamps attOlney s in wasn t peliinent and Mr lanell is motion to suppress confession An accused has the guaranteed in the representation unequivocal state right to choose between the and federal constitutions However the choice to right and the represent oneself to counsel right must be to self clear and Requests which vacillate between self representation and 29 representation by counsel knowingly and intelligently representation equivocal are facts and circumstances of each 10 7 06 936 So 2d 108 167 L Ed 2d 100 The by on a case State v a asserted unequivocally be determined must Whether case Leger 147 48 cert denied defendant has the basis right self to considering 2005 0011 u s 53 p 127 S Ct the La 1279 2007 defendant failed unequivocal asseliion or a show to attempt mere do nor we to find any his assert clear right and self to representation Moreover the defendant did not raise this issue below thus it has properly preserved for appellate review not art 841 been This assignment La Code Crim P of error lacks merit ASSIGNMENT OF ERROR NUMBER ELEVEN PRO SE In the eleventh court was without The defendant is judicially jurisdiction notes his of as was the defendant argues that the trial enol the case was barred by double prior plea agreement The defendant incorrect for him to be to the instant offense jeopardy assignment prosecuted violated in this person shall be life or limb subject Protection 2 acquittal for the same 1069 offense same Similar a offense to be twice second protection against State double provides that put in jeopardy of against double jeopardy is divided into three basic offense after conviction and 3 the guilty plea regard guarantees 1 protection against after a right against The Fifth Amendment to the United States Constitution no argues that it after he entered The defendant concludes that his jeopardy v a prosecution for the second are offense prosecution for the same protection against multiple punishment for Smith 95 0061 p 3 La 7 2 96 protections same offered Constitution and La Code Crim P mi 30 by Article 591 I 9 676 2d So 1068 15 of the Louisiana According to La Code Crim P 592 art defendant who a valid sentence imposed IS upon a pleads guilty The trial before attaches when jeopardy permit comi may guilty plea a La Code Crim P sentence court allowed the defendant Thus jeopardy mi 559A withdraw his to to had not attached before the be withdrawn any time In the instant guilty plea prior trial and sentence for indecent behavior with violate the prohibitions against double jeopardy This to sentencing The defendant subsequent trial subsequent the trial case juvenile do a assignment of s not error lacks merit ASSIGNMENT OF ERROR NUMBER TWELVE In the twelfth comi he elTed was right not by assignment forty is its on of bail amount McCloud any bail 357 defendant filed s denied So 2d a pro se at motion for the good mi cause 342 La 1134 La to application with this On a art or reduce defendant is an application 343 June 26 comi to seek The trial increase lies in Code Crim P 1978 311 mi When appropriate remedy that time 1132 his appearance before La Code Crim P Code Crim P ruling assure State 2003 v the review of the trial denial of his Motion for Bail Reduction and Motion and Order for Constructive State unpublished issue in violation of his constitutional person to a required own La supervisory review comi six months security given by empowered aggrieved by for the defendant argues that the trial to bail the proper court whenever the elTor allowing the defendant bail The defendant contends that denied bail for Bail is the comi of PRO SE The Contempt ex and Appeal reI Jarrell v From State Judgment and 2003 1326 Thus the defendant has invoked subject of the trial comi s ruling 31 at La the App application 1st Cir 9 8 03 supervisory review issue in this was on assignment this was rendered by the subsequent trial conviction and moot Bradford 298 So 2d 781 788 La Thus 1974 this State sentence assigmnent of v enol lacks merit ASSIGNMENT OF ERROR NUMBER FOURTEEN PRO SE In the fomieenth the trial court erred bench trial As by prejudice any reversal not we of enol openly advising note in this of the defendant the defendant him of his the defendant previously noted At the outset find assigmnent was Thus conviction s in regard During pertinent part as the recusal La follows hearing the trial peers we find no was merit in this a a to or a a jury be tried do we ground for mi 921 of his rights personally stated judge s nor a P aware the defendant choice jury trial Crim well a that alleged Also the defendant judge recused coincide with Thus by not Code If I choose to have haven t made that decision yet to the matter is not Moreover the record reflects that the defendant in this tried that the defendant has regard right states simply trial which I to have attempts by a jury of his assignment of error ASSIGNMENT OF ERROR NUMBER FIFTEEN PRO SE In the fifteenth trial the comi jury plea erred was the the PSI 8 error the defendant contends that the by allowing sealed information make their decision which sentence assigmnent of wrote The defendant to court ordered confession seeking that the trial a notes placed under seal According used in the trial The defendant notes that he entered later withdrawn and the trial defendant to be comi a a help guilty During PSI mercy and to a ordered the PSI lesser to be the defendant his trial attorney advised him that the written confession would be used by the State and shown to the jury if the defendant testified 8 The argument for this that have not been assignment repeated herein of enor 32 contains unrelated incoherent statements As noted by the State in response to this the written confession the trial The that was herein nor any other portion assignment of the PSI videotaped confession was the only admitted and the We find no propriety of introduced at was statement neither error by the defendant of that admission has been addressed basis for this argument thus the assignment of error is without merit ASSIGNMENT OF ERROR NUMBER SIXTEEN PRO SE In the sixteenth comi erred with The cross defendant referenced unrelated an of error the defendant argues that the trial by admitting evidence for which the chain established technician assignment a contends specifically sample already DNA on of that further argues that the State did sent to the illegal cross referencing not establish the related to the laboratory State custody v altelnatively by establishing Martin 607 So 2d 775 forensic La a App without objection analyzed the evidence in question the chain of custody sample and the victim s clothing objected 9 to as an of the evidence in was the admission of the DNA The argmnent for this statements that have not been blood sample The defendant assignment of repeated herein 33 not it must issue is the at be one continuous chain of 1st Cir 1992 A Julia contemporaneous question raised below sample solely enor trial at expert in forensic DNA analysis a to serologist accepted 779 Naylor objection a 9 visually by testimony that the object case or uncertified an origin of the ganllents that In order to introduce demonstrative evidence identified either not The defendant fUliher contends that the technician matter from the defendant to conceal the allegedly was file for the defendant contacted the Sheriffs Office and advised them to collect were custody on the DNA The defendant the basis of the also contains unrelated incoherent State failure s to produce admission of the victim the pretrial motions search s a clothing defendant question appears that the issues raised in this for appellate review La raised the was was not a assignment were l 103A art not La However located fruit of the the to of the legality contain arguments not Code Evid objected pretrial to pertained in which the defendant the evidence in custody and evidence The motions did arrest s The defendant previously as to suppress of the residence form consent and the to chain of atTest Thus it as properly preserved Code Crim P art 841 Nonetheless we find that the State establish visual identification and issue The victim skili that she same 8 00 p the chain of The victim testified that her station that or m on specifically identified Lt NorswOlihy collected the date of the at the the time of the trial but evidence custodian and taken Hodge was to the Washington Parish Sheriffs Office and the placed the sample in A sheriffs hospital contents evidence the date it contents on of S 1 and S 5 as an was victim at over who sealed turned over to was to the drawn from the envelope from the the evidence in placed as was up the evidence the vial that he drawn Julia locked a Officer placed in the Naylor identified the the evidence that she received and tested 34 on the time of the offense evidence deputy picked of S 5 Hodge identified the envelope was police police tmned the evidence not at at the shili and clothing from the present when the blood sample He at as at the to Louisiana State Police Crime Lab defendant drawer collected The evidence custodian m examined the evidence and determined that it Officer was the items in S 1 offense and Detective David Pittman at 10 30 p the custodian clothing custody of the evidence at the time of the offense and released to the wore date presented sufficient testimony at the lab The defense did identification find no testimony merit in this not object the chain of evidence and visual to of the evidence at issue Based on the foregoing we assignment of error ASSIGNMENT OF ERROR NUMBER SEVENTEEN PRO SE In the seventeenth trial erred in court defendant defendant trial assignment of admitting the victim s in on the date of the offense but did so was was at object to waives the right at trial to the asseli the to withdrew his motion attorney stated that the motion line up No in comi objection not was we pretrial identification The absence of 1st was on 381 a not to v Cir 1992 In moot doing as find no right the defendant so admissibility the defense the evidence would s a the defendant issue on argument that the unreliable is not prerequisite a Williams 2001 1398 p 4 La writ denied testimony to asseli this merit in the defendant was and the defendant before the trial from 2002 1466 pretrial identification its Herein appeal technically identify identification State 815 So 2d 378 testimony error lodged when the victim identified victim s in court identification A identification may admission of the identification Thus the defendant has waived his appeal Nonetheless during the motion to suppress identification a to suppress identification reflect that the victim did comi the the defense table in non formal attire A defendant who fails to file who fails identify to of the victim by the State and the fact that debriefing sitting unable four years later The defendant further contends that the in the defendant identification of the comi The defendant contends that the victim have been the result of App the defendant argues that the error 35 5 goes to the State Several factors La v are King App to an in comi 1st Cir 3 28 02 03 9 843 So 2d 388 weight of the witness 604 So 2d 661 considered in 669 s La evaluating the of reliability criminal at an the identification her or celiainty demonstrated 2243 2253 at the identification the defendant and that there was Thus eyewitness a of irreparable App examine 140 must and show that the State King crime will conspicuously identified him did a was right charged to 604 2d So ordinarily similar in at at 669 cure examine the suggestiveness inherent in the in A review of the victim s The an 2002 1368 opportunity to cross comi 2d So was La mere trial an at 381 1977 identification at the as suggestiveness of such 160 61 the Louisiana was not unduly fact that the defendant at the time the witness guilty of the crime only that he The court fmiher found that counsel witness court was sufficient to remedy s any identification process testimony does substantial likelihood of misidentification defense attorney any the defense table suggest that he by the identification of the defendant court with its commission cross suggestive La writ denied court reasoned that the seated not was 677 Johnson 343 So 2d 155 suggestive The Johnson was an very substantial likelihood a Williams 2001 1398 at p 5 815 found procedure 97 suppress to 114 La identification Court order 98 Johnson 2000 0680 pp 7 8 v a Supreme the level of procedure is suggestive is not perpetrator of v 432 U S In 1977 4 3 the time between the Brathwaite v 775 So 2d 670 witness about his in In State 5 view the of attention degree s of the criminal if the identification misidentification 845 So 2d 1066 a Manson permissible if there 1st Cir 12 22 00 5 30 03 the witness to substantial likelihood of misidentification even identification will be 2 confrontation L Ed 2d 53 opportunity of the witness prior description crime and the confrontation S Ct the of the crime scene the accuracy of his 1 not During show that there cross examination the questioned the victim concerning her oppOliunity 36 was a to view the perpetrator identification This at was the cnme cured by Any suggestiveness in the in scene the to opportunity comi examine the witness cross assignment of enor is without merit ASSIGNMENT OF ERROR NUMBER EIGHTEEN PRO SE In the trial comi erred in invalid defaced information did upon or of eighteenth assignment allowing the institution of bill of information not the defendant argues that the enol specifically prosecution bill of information The defendant notes that the bill of whether the offense state we nor note that the defendant did lodge objection thereto an complain of technical insufficiency in not charge against him and there is Comeaux 408 1251 see a committed was 1252 1 n 2d So La against him a right 1106 1st Cir App La Code Crim P crime has 1099 art 487 to be no 1981 S or bill of information in fairly informed of our McLean v 532 So 2d 130 constitution a 525 So 2d La 1988 person accused of of the nature of the accusation 13 The bill of information State writ denied fully informed La Const ari I the prejudice caused by the defect State La Under quash A defendant may not indictment an to move for the first time after conviction when the defendant is v defective a in the presence of the victim At the outset the with violated La R S 14 81 lewd and lascivious gratifying indecent behavior with act upon under the age of 17 pertinent pari a juvenile or juvenile by committing in the presence of intent by the defendant with the An indictment which charges juveniles in the alternative language of the an that the defendant the sexual desires of either person the defendant age of 17 years inform a states accused of the nature and cause 37 of one B A arousing being a over or the indecent behavior with statute does not of the accusations adequately against him See State 283 Edwards v constitutional mandate that against him does or information all not So 2d 231 State allegations Crim P of the nature and only be may so its at informed before disposal find that we cause of the Moreover there has been This assignment no cause by indictment of was aware this including us case in the However prosecution facts the and the defendant had full charge against him and of of the evidence the State had with which extent art 921 had record the circumstances of the instant and 1973 defendant be informed of the nature and a require that he the Considering nature La By virtue of open file discovery the defendant the evidence knowledge 233 to prove showing of prejudice the its Code La of error lacks merit ASSIGNMENT OF ERROR NUMBER NINETEEN PRO SE In the nineteenth and final that the trial comi erred in him assigmnent of allowing his trial The defendant contends that he never covered up violations of the trial judge to list vital the denial of his motion attorney had raised re attorney to filed application an ineffectively to to in his to the differently have a attorney The defendant argues that his trial application for supervisory review of The defendant concludes that if his recuse as assist two the different minute matter who keepers would have been remanded allotment As a general properly raised than errors error transcribed the minutes for the defendant argues The defendant further contends that his trial public defender attorney failed error in by appeal oppOliunity for a rule an claim of ineffective assistance of counsel is more application for post conviction relief in the trial court a This is full because post conviction relief evidentiary hearing under 38 La Code creates the P mi Crim 10 930 State writ denied Lockhart 629 So 2d 1195 v 94 0050 La record is sufficient this interest of counsel not likely States court may to and rendering reasonably Fruge 495 F 2d 557 v 466 U S review of as to require show that counsel s 5th Cir 1974 La a conviction motion to his counsel s deficient have been changed 2064 80 L Ed 2d 674 two the defense A failure to performance State to on court his counsel 471 La s sufficient 1985 performance on to recuse appeal defense counsel s failure to list for of 10 The defendant would have to seq in order to receive such a satisfy the two different requirements hem ing 39 minute would The specific deficiency alleged regards use So 2d must show that but for the motion or or Robinson v writ denied 476 So 2d 350 either in the district was so must deficient as for Second the defendant deficient performance the ruling supervisory review the test pmi must Thus the defendant recuse In Strickland First the defendant perfonnance prejudiced 1st Cir also United States per curiam a citing claim that his counsel s assistance s performance is App see Comi established The defendant has raised arguments regarding his La United per curiam 5th Cir 1974 required showing of either 1038 39 530 effective assistance prejudice defeats the ineffectiveness claim 1035 appeal in the errorless counsel not 104 S Ct 2052 Supreme reversal of show that this deficient make the 687 convicted defendant a direct 416 So 2d 528 mean 5th Cir 1980 1127 668 the United States defective 558 Estelle 491 F 2d 125 127 v Washington 1984 Ratcliff on when the judged ineffective by hindsight but counsel reasonably Johnson 615 F 2d 1125 v v 1st Cir 1993 App However resolve this issue State economy La So 2d 1132 to render Herring v 635 Effective counsel has been defined 1982 and judicial 7 4 94 1207 as clerks only error who of La Code Crim P mi 924 et transcribed the minutes portion of the record The defendant has differently transcribed was differently discrepancy in transcription was consequential defendant do Thus this not substantiate a and has not stated how any The arguments raised claim of deficient assignment of error lacks specified which not performance or by the prejudice merit REVIEW FOR ERROR As mandated La Code Crim P by been made of the record in this discovered 15 529 The trial 1 1A a court to ten years case mi and sentenced 920 2 a a review for sentencing the defendant imprisonment at by suspension of La RS denial of on Crim P 1 A a on hard labor with the first mi prior benefit of paro e we the defendant s the 06 of La Code provisions provision without This matter is remanded to the trial court with instructions amendment 16 8 the the State has raised this nor Ininutes and commitment order 1st Cir Thus habitual offender sentence is amend the sentence to delete the to correct the to probation parole to its 2006 amendment However in accordance with the 882A two parole eligibility is prohibited neither We note that neither the defendant appeal R S for the crime of indecent behavior with nor 14 81C parole eligibility unlawful issue 15 5 29 1 See La R S juveniles However sentence has has been error under La years of said sentence to be served without the benefit of or error State sentence 943 So 2d 412 Templet v 422 if necessary 2005 2623 p to reflect this 17 La App writ denied 2006 2203 La 4 20 07 954 So 2d 158 For the offender amended foregoing adjudication affirmed reasons are and the defendant The affirmed the case is instructions 40 s conviction and habitual sentence remanded is amended to the trial and court as with CONVICTION AND ADJUDICATION AFFIRMED HABITUAL OFFENDER SENTENCE AMENDED AND AS AMENDED AFFIRMED REMANDED WITH INSTRUCTIONS 41

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