State Of Louisiana VS Andrew K. Galatas
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0980 STATE OF LOUISIANA VERSUS ANDREW K GALATAS Judgment Rendered DEC 2 2 2010 EWWWWM3 On Appeal from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 414501 1 Honorable William J Knight Judge Presiding Walter P Reed PlaintiffAppellee District Attorney State of Louisiana Covington Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Frank Sloan Counsel for DefendantAppellant Mandeville Louisiana Andrew K Galatas E OR H y PP iClt C McDONALD AND McCLENDON JJ 4fi4 Cac Y McCLENDON J The defendant Andrew K Galatas was charged by bill of information with possession with intent to distribute marijuana a violation of LSA R S 1 A 966 40 count 1 and pornography involving juveniles a violation of LSA S 81 R 14 count 2 1 He pled not guilty but following a jury trial he was found guilty as charged on both counts The State subsequently filed a habitual offender bill of information At the habitual offender hearing the defendant was adjudicated a fourth felony habitual offender and was sentenced to sixty years imprisonment at hard labor without benefit of probation or suspension of sentence for the possession with intent to distribute marijuana conviction count 1 He was sentenced to forty years imprisonment at hard labor without benefit of probation parole or suspension of sentence for the pornography involving juveniles conviction count 2 The sentences were ordered to run consecutively The defendant filed a motion to reconsider sentence which was denied The defendant now appeals designating the following three assignments of error 1 The trial court erred by failing to arraign the defendant on the multiple offender bill of information 2 The trial court erred in permitting the computer printout from Cajun II to be introduced into evidence 3 The sentences imposed are illegally excessive because they were imposed consecutively for a mistaken reason and for an improper reason We affirm the convictions We vacate the habitual offender adjudications and sentences and remand for further proceedings FACTS On April 13 2006 based on information from a complainant that the defendant owned a computer which contained child pornography Lisa Freitas an FBI agent assigned to the New Orleans field office and other FBI agents executed a search warrant at the defendant trailer on Oak Drive in Slidell The s s defendant computer was seized During the search of the defendant trailer s agents also found a digital scale and fourteen bags of marijuana totaling about one pound An FBI agent trained in forensic computer examination imaged the K hard drive of the defendant computer and examined the files both saved and s The hard drive contained many images and video clips of child deleted pornography ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the trial court erred in failing to arraign him on the habitual offender bill of information The record does not indicate that the defendant was advised by the trial court of the specific allegations contained in the habitual offender bill of information his right to be tried as to the truth thereof and his right to remain See LSAR 15 State v Griffin 525 So 705 706 S 529 a D 1 2d silent App La 1 Cir 1988 Such error on the part of the trial court will be considered harmless if despite the defendant not being advised of his rights the s defendant did not plead guilty or stipulate to the charges in the habitual offender bill and instead a habitual offender hearing is conducted wherein the state actually proves the truth of the allegations State v Mickey 604 So 675 2d 678 La 1 Cir 1992 writ denied 610 So 795 La 1993 App 2d In this case the defendant did not plead guilty or stipulate to the charges in the habitual offender bill Instead a habitual offender hearing was conducted wherein the State actually proved the truth of the allegations and the s defendant identity Therefore while the trial court may not have fully complied with La R 15 under the circumstances present herein we find S 529 a D 1 that any such error was harmless See Mickey 604 So at 678 2d Moreover this issue is moot because the habitual offender adjudications and sentences are vacated This assignment of error is without merit ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues that at the habitual offender hearing the trial court erred in allowing into evidence a Cajun II report from the Department of Public Safety and Corrections DPSC 3 Specifically the defendant contends the DPSC computer printout constituted impermissible hearsay This assignment of error has merit The predicate convictions of the defendant the State sought to prove at the habitual offender hearing were molestation of a juvenile docket number 270498 22nd JDC St Tammany Parish illegal possession of stolen things value over 500 docket number 00 252944 22nd JDC St Tammany Parish issuing worthless checks 100 total 00 docket number 249560 22nd JDC St Tammany Parish and illegal possession of stolen things value over 500 docket number 320075 CDC Orleans 00 Parish For the illegal possession of stolen things value over 500 docket 00 number 252944 and issuing worthless checks convictions the defendant entered guilty pleas on the same day June 18 1996 At the habitual offender hearing the State conceded that under existing law at the time these convictions should count as one conviction The State then suggested that the conviction for issuing worthless checks docket number 249560 not be used against the defendant The trial court agreed and adjudicated the defendant a fourthfelony habitual offender based on the three predicate convictions of molestation of a juvenile docket number 270498 illegal possession of stolen things value over 500 docket number 252944 and illegal possession of 00 stolen things value over 500 docket number 320075 00 The backs of the bills of information for molestation of a juvenile and illegal possession s defendant of stolen things contained fingerprints ostensibly the Thus at the habitual offender hearing the State called a fingerprint expert to testify regarding the identity of the defendant Based on a comparison of fingerprints taken from the defendant that day the fingerprint expert testified that the fingerprints on the backs of the bills of information belonged to the defendant The bill of information for possession of stolen property docket number 320075 did not contain fingerprints Thus the State M called to testify Don Robertson an employee of Probation and Parole in the Covington Division Robertson testified he supervised the defendant only on his parole release for his molestation of a juvenile conviction docket number 270498 Robertson further testified that at the prosecutor request he ran a Cajun II report on the s defendant The report which was a computer printout from a DPSC database indicated the times defendant was incarcerated and under supervision and the docket information as to which district he was in what the charge was who was the judge what the sentence was and if it was a felony misdemeanor When the Cajun II report was offered into evidence defense counsel objected to the admission on the grounds of hearsay Defense counsel noted Robertson was not the custodian of the records and he did not upload the records The State responded that while those might be viable objections under LSAC art E 6 803 there are no such requirements under LSAGE art 803 8 The trial court overruled the objection and admitted the Cajun II report into evidence In State v Smith 040800 App La 1 Cir 12 897 So 710 04 17 2d we held that a computer printout from the DPSC entitled Cajun II Court Docket Record Summary qualified neither as a public record or report under LSAC E art 803 nor as a record of regularly conducted business activity under LSA 8 E C art 803 6 Under LSA C art 803 the business records exception to E 6 hearsay records may be admissible if they qualify as records of regularly conducted business activity The Cajun II report in this case does not fall under Article 803 because Robertson was not the custodian of records When asked 6 at the hearing if he was one of the select few persons that could upload to the secure database Robertson responded No sir Robertson did not make the Cajun II report himself nor did he establish under Article 803 that the record 6 was made at or near the time by or from information transmitted by a person with knowledge LSAC art 803 E 6 For example on cross examination at the hearing the following colloquy between Robertson and defense counsel took place E Q Are you the custodian of those records A No sir I printed them out I downloaded them Are you the person that input this information into this Q database A No Q Do you know who the person is that inputs this information into the database A s It some clerical person in our department but I not sure m who Q Is there more than one person that inputs this information into the database A Yes sir Q Did you input any information that contained in these records s into the database A No sir Further the Cajun II report does not qualify as a public record or report Accordingly the report is not admissible under LSAC art 803 the public E 8 2d records exception to hearsay Smith 040800 at p 7 897 So at 715 We also note that the Cajun II report admitted into evidence in this case was uncertified The report was not properly authenticated and such a report is not self authenticating under LSA C art 902 E See LSA C art 901 Smith E 20040800 at pp 9 10 897 So at 716 17 2d As we opined in Smith 2004 0800 at p 10 897 So at 716 17 We note that where the consequences are 2d so grave it would have been a small matter to have a document certified under La C art 902 so that it could be selfauthenticating if the document E b 2 could not have been certified under the procedure outlined in La S R 11F 529 15 In order to obtain a multiple offender conviction the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony In attempting to do so the State may present 1 testimony from witnesses 2 expert opinion regarding the fingerprints of the defendant when compared with those in the prior record 3 photographs in the duly authenticated record or 4 evidence of identical driver license number s sex race and date of birth State v Payton 00 2899 p 6 La 3 810 02 15 2d So 1127 1130 31 Without the Cajun II report to consider the only information contained in s State Exhibit MB6 the Orleans Parish bill of information minutes and other 101 various documents for possession of stolen property docket number 320075 to establish the defendant identify is his name race sex and date of birth s Under Payton this information is insufficient to establish the defendant is the same person convicted of possession of stolen property Since all of the predicate convictions introduced into evidence at the habitual offender hearing were necessary for the trial court to adjudicate the defendant a fourth felony habitual offender the State did not establish the s defendant status as a fourth felony habitual offender by competent evidence Accordingly we vacate the habitual offender adjudications and sentences and remand this matter to the trial court for further proceedings consistent with the findings in this opinion remaining assignment of Because the sentences are being vacated the error addressing the s defendant sentences is pretermitted REVIEW FOR ERROR Three days after the defendant convictions defense counsel filed a s motion for a new trial and a motion for postverdict judgment of acquittal trial court did not rule on either of these motions A motion for a postverdict judgment of acquittal must be made and disposed of before sentence P Cr C art 821 A before sentence The LSA A motion for a new trial must be filed and disposed of LSAC art 853 On remand the trial court is ordered to P Cr rule on the defendant written motions for a new trial and postverdict judgment s of acquittal prior to resentencing the defendant CONVICTIONS AFFIRMED HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES VACATED MATTER REMANDED FOR FURTHER PROCEEDINGS 1 The defendant is not protected by principles of double jeopardy from being tried again under the Habitual Offender Law See State v Young 99 1310 p 5 La 1 Cir 4 769 App 00 17 2d So 12 14 7
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