State Of Louisiana VS Norman Allen Byrd
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 9 2010 KA 0822 l b STATE OF LOUISIANA jo VERSUS NORMAN ALLEN BYRD Judgment Rendered October 29 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court Number 443431 Div J Honorable William J Knight Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington LA State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge LA Prentice L White Baton Rouge LA Counsel for Defendant Appellant Norman Allen Byrd Normand Allen Byrd Appellant Defendant St Gabriel LA In Proper Person BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES J The defendant Norman Allen Byrd was charged by bill of information with distribution of oxycodone a violation of LSAR 40 The defendant S 967 1 A pled not guilty and following a jury trial was found guilty as charged The defendant was sentenced to twenty two years at hard labor with the first two years of the sentence to be served without benefit of parole probation or suspension of sentence Subsequently the State filed a multiple offender bill of information At the habitual offender hearing the defendant was adjudicated a fourth felony habitual offender His original twentytwoyear sentence was vacated and he was resentenced to life imprisonment without benefit of parole probation or suspension of sentence The defendant now appeals designating one counseled assignment of error and two pro se assignments of error We affirm the conviction and habitual offender adjudication amend the sentence and affirm as amended and remand for correction of the commitment order if necessary FACTS On October 2 2007 at about 4 p the defendant drove to the 00 m s McDonald and Blockbuster parking lot at LA Highway 25 and U Highway S 190 in Covington There he met St Tammany Parish Sheriff Office Detectives s Cheryl Kaprielian and Daniel Chauvin both of whom were working in an undercover capacity as drug buyers The drug buy had been pre arranged Detective Kaprielian and the defendant had exchanged phone calls earlier and agreed that they would meet at this location where the defendant would sell them five 80milligram pills of oxycodone for 150 In the parking lot the defendant remained alone in his vehicle Detective Chauvin approached the driver side and Detective Kaprielian approached the s s passenger side of the defendant vehicle s Detective Kaprielian had on her person a small pinhole camera and an audio device to record the transaction The 2 audio of the transaction was monitored by Sergeant Richard O the case Keefe agent with the St Tammany Parish Sheriff Office Sergeant O and other s Keefe police officers were nearby in surveillance positions in undercover vehicles Sergeant O plan was a buybust wherein a signal by the undercover s Keefe officer that the transaction was complete would be immediately followed by the apprehension and arrest of the defendant As Detective Chauvin approached the defendant on his driver side s window the defendant handed him a pill bottle containing five oxycodone tablets Detective Chauvin gave the defendant about 60 and gave the signal As a stall tactic to allow backup to arrive Detective Chauvin pretended to count out the rest of the money he owed the defendant The defendant was then removed from his vehicle and arrested COUNSELED ASSIGNMENT OF ERROR In this assignment of error the defendant argues that the trial court erred in denying his motion to quash the bill of information Specifically the defendant 1 In his brief the defendant asserts that the trial court erred in failing to grant his pro se motion to quash the bill of information On October 19 2009 the defendant filed a pro se pleading entitled Objection a Motion for Supplemental Briefing to dismiss andor quash for failure to provide a speedy trial and a Brief in Support of that motion The objection motion and brief in support of the motion argued that the trial court committed error and prejudiced the defendant defense by allowing the State to amend the s date of the offense in the bill of information The defendant also filed pro se motions to recuse the assistant district attorney and the judge Judge William Knight Defense counsel filed similar motions At the hearing on the motion to recuse the judge the defendant argued that Judge Knight should not have allowed the State to amend the bill of information The defendant also asserted that while Judge Knight ruled on his objection Judge Knight did not even look at his motion Presumably the defendant was referring to his motion to quash since that motion and the objection were filed on the same day Judge Knight testified that he overruled the defendant objection to the amended bill of information but s also granted the defendant a continuance to allow him additional time to prepare for trial because of the amendment to the date of offense Judge Knight further explained The objection slash motion in my mind was one in the same thing because in the event that I overruled the objection then that denies the motion It one in the same So while s in my mind I was ruling on both the motion and the objection perhaps Mr Byrd did not understand it that way If so that fine But the fact of the matter is in overruling of the s objection to the amendment there a denial of the motion So it one in the same s s The court ruled that there were no grounds for recusing Judge Knight and that the amendment to the bill of information was proper Several days later during pretrial motions shortly before the start of voir dire Judge Knight addressed the defendant pro se Objection motion and stated s All right This is an objection to the amendment of the bill of information which has been the subject of much discussion already during the course of this case While the 3 contends that the trial court erred in allowing the State to amend the bill of information to change the date of the offense which was prejudicial to him The defendant also argues that the trial court erred in failing to rearraign him following the amendment to the bill of information The bill of information stated that the defendant was being charged with distribution of oxycodone It listed the date of offense as August 27 2007 which was typed This date is struck through by a single line and underneath it a new date of October 2 2007 is handwritten in A handwritten notation on the bill by Assistant District Attorney Scott Gardner indicates that the bill of information was amended as to date only on July 9 2009 In his brief the defendant asserts that his defense was prejudiced because for approximately fourteen months his defense was prepared by finding evidence and witnesses to support his contention that he was not involved in any illegal drug transaction on August 27 2007 The date or time of the commission of an offense need not be alleged in the indictment unless the date or time is essential to the offense LSAC art P Cr 468 The court may cause an indictment to be amended at any time with respect to a defect of form LSAC art 487 P Cr A A mistake respecting the date on which the offense occurred has been held to be such a defect of form when not essential to the offense State v Dye 384 So 420 422 La 1980 See State v 2d Lawson 393 So 1260 1263 La 1981 The date of the offense is not essential 2d to the offense of distribution of oxycodone See LSAR 40 S 967 1 A Therefore the mistake respecting the date on which the offense occurred was one of form which may be amended at any time See State v Myles 616 So 754 2d 755 56 n La App lst Cir writ denied 629 So 369 La 1993 See also l 2d State v Trotter 37 pp 4 5 La App 2d Cir 8 852 So 1247 325 03 22 2d court certainly understands Mr Byrd consternation relative to that amendment the s amendment was done properly under the Code So the objection is overruled 0 1250 51 writ denied 2003 2764 La 2 867 So 689 Accordingly the 04 13 2d State was entitled to amend the bill of information Moreover after the trial court ruled that the State amendment to the bill s was proper it nevertheless granted the defendant a continuance to prepare for trial The bill of information was amended on July 9 2009 Trial did not commence until November 12 2009 Therefore the defendant had four months to adjust his defense to address an October 2 rather than an August 27 alleged date of offense Furthermore over one and onehalf years prior to the commencement of trial the defendant was aware that he had been arrested on October 2 2007 for a drug violation on that date In the State discovery responses filed on April 25 s 2008 the State provided the defendant with an arrest report which contained the following narrative On October 02 2007 Detective Richard S O Jr of the Keefe St Tammany Parish Sheriff Office Narcotics Division concluded an s investigation of Norman Byrd The conclusion of the investigation resulted in the arrest of a white male identified as Norman Byrd Norman Byrd was arrested in the s McDonald parking lot in Covington located at Louisiana Highway 25 and Highway 190 Z The defendant filed a Motion to Continue on July 10 2009 In requesting a continuance the motion stated in pertinent part This matter is currently set for trial on July 13 2009 II On July 10 2009 defense counsel Michael Capdeboscq spoke to Assistant District Attorney Scott Gardner Assistant District Attorney Scott Gardner advised defense counsel that he had amended the bill of information on July 9 2009 to change the date of offense from August 27 2007 to October 2 2007 In the discovery provided to defense counsel it is alleged that the offense occurred on more than one date IV Defendant is prejudiced both materially and adversely as this affects defendant s defense E The defendant has failed to demonstrate that he was surprised or that his defense was prejudiced as a result of the amendment to the bill The trial court did not err in overruling the defendant objection to the amendment s See State v Mason 447 So 1134 1137 La App 1 st Cir 1984 2d Regarding the issue of re arraignment neither the record nor the minutes indicate that the defendant was re arraigned after the prosecutor amended the bill of information Nevertheless failure to rearraign the defendant was waived because he did not object by filing a motion before trial See LSAC art P Cr 555 see also State v Ross 95 1240 p 2 n La App 1st Cir 5 674 2 96 10 2d So 489 491 n This assignment of error is without merit 2 SENTENCING ERROR The defendant asks this court to examine the record for error under LSA P Cr C art 920 2 This court routinely reviews the record for such errors whether or not such a request is made by a defendant Under LSAC art P Cr 2 920 we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found a sentencing error See State v Price 2005 2514 La App 1st Cir 12 952 So 112 en banc 06 28 2d writ denied 2007 0130 La 2 976 So 1277 08 22 2d The sentence for a conviction of distribution of oxycodone is necessarily at hard labor See LSAR 40 S 967 b 4 B Accordingly the defendant life s sentence under the Habitual Offender Law must also be at hard labor See State v Bruins 407 So 685 687 La 1981 In sentencing the defendant the trial court 2d failed to provide that his life sentence was to be served at hard labor Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings The minutes reflect that the trial court sentenced the defendant to life at hard labor under LSAR S 1 529 15 When there is a discrepancy between the minutes and the transcript the transcript prevails State v Lynch 441 So 732 734 La 1983 2d 0 without inspection of the evidence LSAC P Cr consideration of such an error on appeal art 920 2 authorizes Further LSAC art 882 P Cr A authorizes correction by the appellate court We find that correction of this illegally lenient sentence does not involve the exercise of sentencing discretion and as such there is no reason why this court should not simply amend the sentence See Price 2005 2514 at pp 21 22 952 So at 12425 Accordingly 2d since a sentence at hard labor was the only sentence that could be imposed we correct the sentence by providing that it be served at hard labor PRO SE ASSIGNMENTS OF ERROR In his first pro se assignment of error the defendant argues that the trial court erred in allowing the bill of information to be amended and in not re arraigning him In his pro se second assignment of error the defendant asks Did the trial court error sic by not granting my motion for Speedy Trial The defendant makes no argument in his brief regarding a speedy trial Instead the entirety of his argument is confined to the issues raised in his first assignment of error These issues have already been addressed in the counseled assignment of error and have been found to be meritless The only new issue raised within the body of the defendant argument is s that no arrest warrant was utilized for his arrest The scenario set up by police officers was a buy in which following the transaction the defendant would bust be arrested on the spot On October 2 2007 after the defendant sold the oxycodone to Detective Chauvin he was immediately arrested LSAC art P Cr 1 213 authorizes a peace officer to make an arrest without a warrant when the person to be arrested has committed an offense in his presence See State v Peebles 376 So 149 La 1979 As such an arrest warrant with a supporting 2d affidavit was not required The pro se assignments of error are also without merit An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review LSAC art 882 P Cr A 7 CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED SENTENCE AMENDED TO PROVIDE THAT IT BE SERVED AT HARD LABOR AND AFFIRMED AS AMENDED REMANDED FOR CORRECTION OF COMMITMENT ORDER IF NECESSARY n
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