State Of Louisiana VS Jace Colby Washington
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRS I CIRCUIT 2010 KA 1807 STATE OF LOUISIANA VERSUS DACE COLBY WASHINGTON Judgment Rendered MAY 0 6 2011 APPEALED FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT PARISH OF ST TAMMANY STATE OF LOUISIANA DOCKET NUMBER 431086 1 DIVISION C THE HONORABLE RICHARD A SWARTZ JUDGE Walter P Reed Attorneys for Appellee District Attorney State of Louisiana Covington Louisiana Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana Mary E Roper Baton Rouge Louisiana Jace Colby Washington Angie Louisiana Attorney for Defendant Appellant Jace Colby Washington In Proper Person BEFORE WHIPPLE McDONALD AND McCLENDON JJ McDONALD I Defendant Jace Colby Washington was charged by grand jury indictment with one count of second degree murder a violation of La R 14 and one S 30 1 count of attempted second degree murder a violation of La R 14 S 27 1 30 14 He pled not guilty to both charges Subsequently the state nolprossed the charge of attempted second degree murder Following a trial by jury on the charge of second degree murder defendant was convicted of the responsive offense of manslaughter a violation of La R 14 After denying defendant motions for S 31 s new trial and for post verdict judgment of acquittal the trial court sentenced defendant to twenty five years at hard labor Defendant now appeals raising one counseled and four pro se assignments of error For the following reasons we affirm the conviction and sentence ASSIGNMENTS OF ERROR Counseled Assignment of Error 1 The trial court erred in imposing an excessive sentence Pro Se Assianments of Error 1 The trial court erred in excluding the admission of the statement of a codefendant 2 The trial court erred in allowing the state to introduce other crimes evidence without giving fair notice to and over the objection of defendant 3 The trial court erred in denying defendant motion to suppress the s search warrant 4 The trial court erred in denying defendant motion for post verdict s judgment of acquittal 1 The indictment also charged Glenn J Carter Edric R Cooper and Grant A Gethers with the same offenses Carter conviction for second degree murder was affirmed by this Court in State s v Carter 2008 2586 La App 1st Cir 6 11 09 19 3d So 1245 2009 WL 1706810 unpublished writ denied 20091692 1 3 29 So 1249 Cooper pled guilty to a 26 10 3d manslaughter on August 11 2008 The record does not indicate the disposition of the charge against Gethers 2 FACTS On the evening of April 29 2007 defendant Glenn J Carter Edric R Cooper and Grant A Gethers entered a mobile home in Slidell Louisiana that was occupied by Jose Luis MartinezCarpio the victim and several other individuals with the intent of robbing the occupants covered All four assailants had their faces Defendant was armed with a 9millimeter semiautomatic handgun Carter and Cooper were also each armed with a handgun Carter and Gethers went into the living room area while defendant and Cooper entered a bedroom and pointed their guns at the two men inside While Cooper was demanding money from the men sudden gunshots were heard from the living room All four assailants fled the mobile home Cooper fired one shot before his gun jammed but no one was hit by that bullet The parties jointly stipulated that the victim was shot by Carter and died that same day SUFFICIENCY OF THE EVIDENCE In his fourth pro se assignment of error defendant contends the evidence was insufficient to support his conviction Specifically he argues the evidence did not establish either that he had specific intent to kill or cause great bodily harm to the victim or that he participated in an attempted robbery He maintains he was not a principal to any crime and stresses that Carter confessed to shooting the victim In cases such as the present one where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors the reviewing court should first determine the sufficiency of the evidence The reason for determining the sufficiency of the evidence first is that insufficient evidence to support the guilty verdict bars the retrial of a defendant because of the constitutional protection against double jeopardy thereby rendering all other issues 3 moot See Hudson v Louisiana 450 U 40 43 45 101 S 970 97273 67 S Ct 2d Ed L 30 1981 State v Hearold 603 2d So 731 734 La 1992 Accordingly we will first determine whether the evidence was sufficient to support defendant manslaughter conviction s The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trierof fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 S 99 S 2781 2789 61 L 560 1979 See also La C art 821B State Ct 2d Ed P Cr v Ordodi 060207 La 11 946 So 654 660 The Jackson v Virginia 06 29 2d standard of review incorporated in La C art 821 is an objective standard for P Cr testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 provides that the S 438 factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence State v Patorno 01 2585 La App l st Cir 6 02 21 822 So 141 144 2d On appeal defendant contends the evidence was insufficient to support his conviction because the evidence did not establish either that he shot the victim or that he had specific intent to kill him or cause him great bodily harm In fact the parties stipulated at trial that the victim was shot by Carter However the theory of the state case was that defendant was guilty of felony second degree murder not s because he shot the victim or had specific intent to kill or cause him great bodily harm but because defendant was a principal to the attempted armed robbery that resulted in the victim death The jury returned a verdict finding defendant guilty s of the responsive offense of manslaughter Louisiana Revised Statutes 14 provides in pertinent part that 31 A Manslaughter is fl 2 A homicide committed without any intent to cause death or great bodily harm a When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30 1 or of any intentional misdemeanor directly affecting the person Emphasis added Thus under La R 14 A the state is not required to prove the S 31 2 a defendant possessed specific intent to kill or inflict great bodily harm in order for the defendant to be guilty of manslaughter This provision defines manslaughter as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in La R 14 first degree S 30 murder and 14 second degree murder or any intentional misdemeanor 1 30 directly affecting the person even though he has no intent to kill or to inflict great bodily harm See State v Brumfield 329 So 181 189 90 La 1976 State v 2d Anseman 607 So 665 668 69 La App 5th Cir 1992 writs denied 613 2d 2d So 98990 La 1 Under the explicit language of this provision specific 993 intent to kill or to inflict great bodily harm is not an essential element of manslaughter under La R 1 A S 42 31 a Moreover a persons concerned in the commission of a crime whether ll present or absent and whether they directly commit the act constituting the offense aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime are principals La R 14 Mere presence at the S 24 scene of a crime does not make a person a principal to the crime A defendant may only be convicted as a principal for those crimes for which he personally has the requisite mental state State v Neal 000674 La 6 796 So 649 659 01 29 2d cent denied 535 U 940 122 S 1323 152 L 231 2002 S Ct 2d Ed In the instant case the trial court in its instructions to the jury identified aggravated assault as an intentional misdemeanor directly affecting the person that 5 could possibly support a manslaughter conviction under La R 14 Under La S 31 S 37A R 14 an aggravated assault is an assault committed with a dangerous weapon Assault is defined in La R 14 as an attempt to commit a battery S 36 or the intentional placing of another in reasonable apprehension of receiving a battery Battery is defined by La R 14 in pertinent part as the S 33 intentional use of force or violence upon the person of another To establish defendant guilt the state presented the following testimony s of Cooper one of the participants in the attempted robbery who pled guilty to manslaughter as a result of the victim death Cooper testified that he Carter s Gethers and defendant went to the mobile home where the victim and several other individuals resided for the specific purpose of committing an armed robbery which he described as going to hit the lick to get money After arriving there in two vehicles they covered their faces to conceal their identities To further facilitate the plan Cooper Carter and defendant each armed themselves with a handgun Once inside Cooper and defendant went into a bedroom occupied by two men While he and defendant held their guns on the men Cooper demanded money from them According to Cooper they heard sudden gunshots from the living room at that point All four perpetrators fled the mobile home Cooper got into Carter vehicle and defendant got into Gethers car and they left the scene s s Carter mobile phone began ringing with an incoming call but he did not answer it At trial the state introduced records establishing multiple calls between Carter and defendant mobile phones in the period shortly after the shooting s During the subsequent police investigation the police seized a 9millimeter handgun from defendant residence s The gun which belonged to defendant s father was introduced into evidence at trial During his testimony Cooper identified it as being the same gun that defendant used during the attempted robbery Additionally the state introduced the testimony of Carlton Davis and 2 Stanley Doyle who each testified that Cooper accompanied by defendant and Gethers visited them in Vicksburg Mississippi the week before the attempted robbery Both Davis and Doyle testified they saw defendant in possession of a semiautomatic gun during that visit Defendant testified in his own defense at trial He denied ever being at the s victim mobile home or having any knowledge of the shooting According to his testimony he was at home visiting with Gethers at the time the shooting occurred He denied being with Cooper at any time that evening Defendant further denied being in possession of a handgun either during the visit to Mississippi or on the day of the shooting s Defendant father Henry Washington testified at trial that defendant was at home from approximately 8 p until 9 p on the evening of the shooting 40 m 30 m The police first received a report of the shooting at 9 p Washington testified 17 m that although defendant was aware he had a handgun defendant did not know where he kept it which was under a desk in Washington home office He further s indicated that the gun was present in that location on the day of the shooting Hence the jury was presented with conflicting testimony in the instant case The trieroffact is free to accept or reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency An appellate court will not assess the credibility of witnesses or reweigh the evidence to overturn a trierof fact determination of guilt State v Lofton 96 1429 La s App 1st Cir 3 691 So 1365 1368 writ denied 97 1124 La 10 97 27 2d 97 17 701 So 1 2d 331 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases Mitchell 993342 La 10 772 So 78 83 00 17 2d N See State v After a thorough review of the record we find the evidence sufficient to support a conviction for manslaughter Defendant participated in a plan with his coperpetrators to arm themselves with handguns in order to rob the occupants of the mobile home wherein the victim resided It was implicit in the plan that the handguns would be used to threaten and coerce the occupants of the mobile home into giving up their money thereby intentionally placing them in reasonable apprehension of receiving a battery Pointing a gun at or threatening an individual with a gun constitutes the crime of aggravated assault See La R 14 S 36 37A State v Julien 09 1242 La App 3d Cir 4 34 So 494 499 State v 10 7 3d Fountain 93 2561 La App 4th Cir 12 647 So 1254 1257 writ 94 15 2d denied 95 01 La 6 656 So 1010 Moreover aggravated assault is 40 95 23 2d an intentional misdemeanor directly affecting the person that can support a 2d conviction for manslaughter See Brumfield 329 So at 18990 In the instant case it was while the perpetrators were attempting to execute the planned robbery using handguns to threaten and coerce the mobile home occupants that the s victim was shot and killed by one of defendant coperpetrators Thus the proof s of defendant participation as a principal to the aggravated assault upon the victim s and the other occupants was sufficient to support his conviction for manslaughter See La R S 14 and 14 A 24 31 2 a The guilty verdict returned in this case indicates the jury accepted the state s evidence particularly the testimony of Cooper that defendant participated in the planned assault upon the mobile home occupants that resulted in the victim s s death and rejected defendant claim that he was at home at the time of the s shooting and was innocent of any involvement therein See State v Andrews 940842 La App 1 st Cir 5 655 So 448 453 We cannot say that the 95 2d s jury determination was irrational under the facts and circumstances presented to them See Ordodi 946 So at 662 An appellate court errs by substituting its 2d appreciation of the evidence and credibility of witnesses for that of the trier offact and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the trier offact See State v Calloway 07 2306 La 1 1 So 41 418 per curiam 09 21 3d 7 When a case involves circumstantial evidence and the trier offact reasonably rejects the s hypothesis of innocence presented by the defendant own testimony that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Captville 448 So 676 680 La 1984 2d Accordingly we are convinced that viewing the evidence in the light most favorable to the state any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that defendant was guilty of manslaughter We find no error in the denial of defendant motion for post verdict judgment of acquittal s C4KOMgFr1 See La 1 I Moreover even if the evidence did not support defendant manslaughter s conviction he would not automatically be entitled to a reversal If a defendant does not timely object to an instruction on a responsive verdict that is not supported by the evidence and the jury returns a verdict of guilty of that responsive offense the defendant may not complain on appeal that the evidence does not support the responsive verdict to which he failed to object Under such circumstances the conviction of the responsive offense may be affirmed whether or not the evidence supports the verdict if the evidence is sufficient to support the 2d offense charged State ex rel Elaire v Blackburn 424 So 246 251 52 La 1982 cert denied 461 U 959 103 S 2432 77 L 1318 1983 S Ct 2d Ed The record does not reflect that defendant objected herein to the inclusion of manslaughter as a responsive offense Thus defendant would be entitled to a reversal of his conviction only if the evidence is insufficient to support a E conviction of the charged offense second degree murder See State v Collins 09 2102 La App 1 st Cir 6 43 So 244 251 Based on our review we find 10 28 3d the evidence was sufficient to support a conviction for second degree murder Louisiana Revised Statutes 14 prior to amendment by Acts 1 30 2009 No 15 Sec 1 provided in pertinent part that A Second degree murder is the killing of a human being EZZ3E3 a 2 When the offender is engaged in the perpetration or attempted perpetration of armed robbery even though he has no intent to kill or to inflict great bodily harm This provision defines second degree murder as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of certain enumerated felonies including armed robbery even though he has no intent to kill or to inflict great bodily harm See State v Goodley 01 0077 La 02 21 6 820 So 478 483 Thus under the explicit language of this provision 2d specific intent to kill or to inflict great bodily harm is not an essential element of felony murder under La R S 14 2 1A 30 In the instant case the state presented testimony establishing that defendant participated in a plan to rob the occupants of the mobile home in which the victim resided Furthermore defendant took an active role in the attempted robbery holding a handgun on occupants of the mobile home while money was demanded from them It was during the execution of the planned assault and robbery of the occupants that the victim was shot and killed by one of defendant co s perpetrators As previously noted the guilty verdict returned by the jury reflects its acceptance of the state evidence and rejection of the claim of innocence s presented by the defendant own testimony s Thus the proof of defendant s participation in the attempted armed robbery was sufficient to support a conviction as a principal to second degree murder See La R 14 and 14 A As S 24 1 30 2 10 the Supreme Court stated in State v Kalathakis 563 So 228 231 La 1990 2d the mens rea of the underlying felony provides the malice necessary to transform an unintended homicide into a murder We are convinced that viewing the evidence in the light most favorable to the state any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that defendant was guilty of second degree murder See La C art 821B P Cr This assignment of error lacks merit EXCLUSION OF CARTER STATEMENTS S In his first pro se assignment of error defendant contends the trial court erred in excluding as inadmissible hearsay statements made by his coperpetrator Glenn Carter which he claims exculpated him and were crucial to his defense The statements in question were made by Carter to the police several days after the murder Defendant argues the statements exculpate him because Carter describes only himself and Cooper as being involved in the attempted robbery Defendant maintains the statements would have cast serious doubts on Cooper crucial trial s testimony that defendant was involved in the crime Hence he asserts the exclusion of the statements deprived him of his right to fully confront and cross examine the state witnesses and to his constitutional right to prepare a defense s Generally hearsay is not admissible unless subject to an exception found in the Louisiana Code of Evidence or as otherwise provided by legislation La C E art 802 Defendant argues that Carter statements were admissible in the present s case as statements against penal interest Louisiana Code of Evidence article 804 which delineates certain exceptions to the general rule against admissibility of 2 In the statements Carter never specifically states that only two participants were involved in the attempted robbery nor was he questioned on that point Nevertheless an inference that there were only two participants reasonably can be drawn from his failure to mention anyone other than himself and Cooper as participants 11 hearsay statements in cases where the declarant is unavailable provides in pertinent part as follows A Definition of unavailability Except as otherwise provided by this Code a declarant is unavailable as a witness when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court B Hearsay exceptions The following are not excluded by the hearsay rule if the declarant is unavailable as a witness 3 Statement against interest A statement which was at the time of its making so far contrary to the declarant pecuniary or proprietary s interest or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another that a reasonable man in his position would not have made the statement unless he believed it to be true A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement Emphasis added Thus when a statement tending to expose the declarant to criminal liability is offered to exculpate the accused Article 3 804B expressly requires corroborating circumstances indicating trustworthiness The burden of satisfying the corroboration and trustworthiness requirement rests upon the accused State v Hammons 597 So 990 99697 La 1 That burden may be satisfied by 2d 992 evidence independent of the which statement tends either directly or circumstantially to establish a matter asserted by the statement Circumstantial evidence of the veracity of the declarant as to the portion of the statement exonerating the accused is generally sufficient Typical corroborating circumstances include statements against the declarant interest to an unusual or s devastating degree or the declarant repeating of consistent statements or the fact s that the declarant was not likely motivated to falsify his statements for the benefit of the accused Hammons 597 So at 997 2d 12 Under compelling circumstances formal rules of evidence must yield to a s defendant constitutional right to confront and crossexamine witnesses and to present a defense Normally inadmissible hearsay may be admitted if it is reliable trustworthy and relevant and if its exclusion would compromise the defendant s right to present a defense See U Const amend VI La Const art 1 S 16 State v Van Winkle 94 0947 La 6 658 So 1 202 State v Gremillion 95 30 2d 98 542 So 1 1078 La 1989 2d 074 In the instant case after trial had already begun the trial court held a hearing on defendant motion in limine concerning the admissibility of Carter prior s s statements During the hearing Carter was called to testify but invoked his Fifth Amendment right against self Defendant argued that since Carter incrimination was unavailable to testify his prior statements were admissible under La C art E 3 804B The state responded that the statements were inadmissible because defendant failed to establish the necessary corroborating circumstances indicating trustworthiness of the statements especially since Carter testified at a suppression hearing that the statements in question were coerced by the police The trial court ruled that Carter statements were inadmissible because the two prior statements s were inconsistent with each other in describing Carter participation in the instant s crime and were not sufficiently corroborated by other circumstances On appeal defendant contends the trial court erred because s Carter statements that there were only two participants in the attempted armed robbery were corroborated by the testimony of Jose Roberto RomeroEchegoyen who testified at trial and Luis Fernando Martinez Avila who testified preliminary examination hearing held in this matter We disagree at the These men were roommates of the victim and were present in the mobile home when the shooting occurred although not in the same room They each testified to seeing only two assailants However while they testified to seeing only two assailants 13 their overall testimony indicates there was at least one more During his trial testimony Romero Echegoyen described hearing the fatal gunshots coming from the living room while he was in his bedroom being held at gunpoint by two men This scenario requires that at least three assailants were involved s Defendant assertion that there was no evidence to suggest the presence of anyone other than Carter and Cooper at the crime scene is mistaken Defendant also points out that Cooper trial testimony corroborated Carter s s s statements on several points Nevertheless the fact that Carter statements and s Cooper testimony may have agreed on some incidental points is of little avail to defendant s Cooper testimony was clearly inconsistent with Carter statements s on the crucial issue of the number of participants in the attempted robbery Moreover it was on this precise issue that defendant sought to introduce the statements Under Article 804B when a hearsay statement tending to expose the 3 declarant to criminal liability is offered for the purpose of exculpating the accused it is admissible only if the defendant establishes corroborating circumstances indicating trustworthiness Hammons 597 So at 996 97 2d In view of the inconsistencies between the two prior statements as well as Carter testimony at s the suppression hearing regarding coercion we find no error or abuse of discretion in the trial court exclusion of the statements as being inadmissible hearsay s evidence Defendant failed to present the necessary corroborating evidence to indicate the trustworthiness of the statements This assignment of error is without merit ADMISSIBLITY OF WITNESS TESTIMONY In his second pro se assignment of error defendant contends the trial court erred in denying his motion in limine to exclude the testimony of Davis and Doyle regarding having seen defendant with a semiautomatic handgun shortly before the IE instant crime was committed The stated grounds of the motion were 1 that the testimony of these witnesses was not relevant 2 that it was offered as impermissible character evidence and 3 that whatever probative value the testimony had as character evidence was greatly outweighed by its prejudicial effect The state responded that the evidence was offered to show that defendant was in possession of a semiautomatic handgun such as that he was alleged to have used in the instant crime only days before the crime was committed The trial court denied the motion in limine concluding the testimony was relevant and not so prejudicial as to preclude its admission On appeal defendant argues Davis and Doyle should not have been allowed to testify since the defense was notified only days before trial that these witnesses would testify impeding his ability to prepare a defense Initially we note this contention constitutes a new ground for objection that cannot be raised for the first time on appeal The grounds for an objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make a proper ruling and prevent or cure any error A defendant is limited on appeal to those grounds for an objection that were articulated to the trial court See La C art 841A La P Cr E C art 103A l 998 1005 State v Young 991264 La App 1 st Cir 3 764 So 00 31 2d In any event defendant argument is meritless In the absence of s extraordinary circumstances the state is not required to provide its witness list to the defendant The state must do so only in situations where a determination has been made that there are peculiar and distinctive reasons why fundamental fairness requires such a disclosure See State v Weathersby 092407 La 3 29 10 12 3d So 499 501 per curiam No such showing has been made in this case As an additional basis for excluding the testimony defendant asserts it was inadmissible character or other crimes evidence We disagree The mere fact that defendant was seen in possession of a 15 gun does not by itself constitute impermissible character evidence In order to constitute impermissible other crimes evidence the evidence in question must point unmistakably to a prior crime See State v Edwards 971797 La 7 750 So 893 906 cert 99 2 2d denied 528 U 1026 120 S 542 145 L 421 1999 In this case the S Ct 2d Ed testimony of which defendant complains clearly does not meet this criteria despite s defendant assertion that it amounts to evidence of illegal gun possession Indeed the witnesses merely testified that they saw defendant in possession of a handgun without any suggestion that he was doing anything illegal or improper Finally defendant contends the testimony was irrelevant and its probative value was outweighed by the risk of unfair prejudice generally admissible La C art 402 E All relevant evidence is Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence La C art 401 E Any evidence whether direct or circumstantial is relevant if it tends to prove or disprove the existence of any material fact State v Mosby 581 So 1060 1065 La App 1st Cir 1991 2d affirmed 595 So 1135 La 1992 However even relevant evidence may be 2d excluded if its probative value is substantially outweighed by the risk of unfair prejudice La C art 403 E A party seeking to introduce evidence over an objection bears the burden of showing that it is relevant However once that burden is met the burden shifts to the party opposing the introduction of the evidence to show that the evidence is inadmissible under Article 403 because its probative value is substantially outweighed by its prejudicial effect State v Jones 03 0829 La App 4th Cir 04 15 12 891 So 760 767 writ denied 2005 0124 La 11 916 So 2d 05 28 2d 140 Moreover the trial court has considerable discretion in determining the relevancy of evidence and its ruling will not be disturbed on appeal absent an 16 abuse of discretion State v James 02 2079 La App 1 st Cir 5 849 So 03 9 2d 574 584 In the instant case defendant was accused of participating in an attempted robbery that resulted in a homicide while armed with a semiautomatic handgun The testimony in question showing that he had possession of a semiautomatic handgun shortly before the crime was offered as circumstantial evidence to show he had access to a handgun on the date of the crime Without doubt the evidence was relevant for this legitimate purpose and not merely for the purpose of damaging defendant reputation or character as he asserts s Moreover the probative value of this evidence clearly outweighed any risk of unfair prejudice s Defendant argument that the evidence was unduly prejudicial is based in large part on his contention that the evidence amounted to evidence of a prior crime which we have already rejected This assignment of error is without merit MOTION TO SUPPRESS In his third pro se assignment of error defendant asserts the trial court erred in denying his motion to suppress a 9millimeter handgun that was seized from his home pursuant to a defective search warrant Specifically he argues the affidavit of probable cause supporting the issuance of the warrant contained false and misleading information based on the self statement of Cooper and that the serving affiant acted in bad faith in including the information in the affidavit Defendant further argues that the affidavit failed to establish probable cause because it did not adequately demonstrate Cooper reliability or the basis of his knowledge s At the hearing on the motion to suppress defense counsel argued the affidavit contained intentional misrepresentations since the police were in possession of two statements from Cooper prior to the execution of the search warrant as well as a statement from Carter all of which were contradictory to each 17 other Defense counsel asserted the affiant chose to include information from s Cooper statements that indicated defendant was involved in the attempted robbery while omitting any references in the statements that indicated he was not involved In response the prosecutor pointed out that Cooper second statement s was given after the execution of the warrant continued to argue that the affidavit At that point defense counsel nevertheless contained intentional misrepresentations since the police knew that Cooper and Carter had given inconsistent statements on the issue of defendant involvement in the attempted s robbery No witnesses were called to testify at the suppression hearing After reviewing the search warrant and the statements in question the trial court specifically found that there were no intentional misrepresentations and that probable cause to issue the search warrant existed The trial court denied the motion to suppress When a search and seizure of evidence is conducted pursuant to a search warrant the defendant has the burden to prove the grounds of his motion to suppress La C art 703 State v Hunter 632 So 786 788 La App P Cr D 2d 1st Cir 1993 writ denied 940752 La 6 638 So 1092 Further when 94 17 2d a trial court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion s e i unless such ruling is not supported by the evidence See State v Green 94 0887 La 5 655 So 272 281 However a trial court legal findings are 95 22 2d s subject to a de novo standard of review See State v Hunt 091589 La 12 09 1 25 So 746 751 3d Article 1 5 of the Louisiana Constitution requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate La C art 162A P Cr Probable cause exists when the facts and circumstances within the affiant knowledge and of which he has s In reasonably trustworthy information are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched The process of determining probable cause requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system Green 02 1022 La 12 831 So 962 968 02 4 2d State v Moreover a magistrate s determination of probable cause prior to issuance of a search warrant is entitled to significant deference by a reviewing court The task of a reviewing court is simply to ensure that under the totality of the circumstances the issuing magistrate had a substantial basis for concluding that probable cause existed Green 831 So 2d FW18TJ An affidavit supporting a search warrant is presumed to be valid The defendant must prove by a preponderance of the evidence that the affidavit contains intentional misrepresentations State v Kreitz 560 So 510 512 La 2d App 1st Cir writ denied 565 So 940 La 1990 When a defendant proves 2d that an affidavit contains false statements it should be determined whether the misrepresentations were intentional or unintentional State v Brannon 414 So 2d 335 337 La 1982 Kreitz 560 So at 512 2d The making of material and intentional misrepresentations to a magistrate in order to secure a search warrant involves a fraud upon the court and results in the invalidation of the warrant and suppression of the items seized However if the misrepresentations or omissions are inadvertent or negligent the warrant should be retested for probable cause after striking that which had been misrepresented or supplying that which had been omitted State v Byrd 568 So 554 559 La 2d 1990 State v Peterson 03 1806 La App 1 st Cir 12 868 So 786 03 31 2d 793 writ denied 040317 La 9 882 So 606 04 3 2d C IL The harsh result of quashing a search warrant when the affidavit supports a finding of probable cause should result only when the trial court expressly finds an misrepresentation or omission was made to the issuing magistrate intentional Kreitz 560 2d So at 512 Further it is well established that even when a search warrant is found to be deficient the seized evidence may nevertheless be admissible under the goodfaith exception of United States v Leon 468 U 897 91822 104 S 3405 3418 S Ct 20 82 L 677 1984 wherein the United States Supreme Court held the 2d Ed exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in an objectively reasonable goodfaith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid Leon 468 U at 923 1 S at 3421 enumerated four instances in which S 04 Ct suppression remains an appropriate remedy 1 where the issuing magistrate was misled by information the affiant knew was false or would have known was false except for a reckless disregard for the truth 2 where the issuing magistrate wholly abandoned his detached and neutral judicial role 3 where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable and 4 where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid As reflected by the nature of the instances enumerated in Leon suppression of evidence seized pursuant to an invalid warrant is not a remedy to be lightly considered Furthermore the jurisprudence presumes good faith on the part of the executing officer and the defendant bears the burden of demonstrating the necessity for suppression of evidence by establishing a lack of good faith State v Maxwell 09 1359 La App 1st Cir 5 38 So 1086 1092 writ denied 10 0 1 3d 10 1284 La 9 45 So 1056 10 17 3d 20 In the instant case the affidavit of probable case contained the following allegations Carter provided an inculpatory statement admitting to participating in the homicide with intentions of robbing the victim Carter stated he had a handgun and shot the victim during the robbery attempt In addition Carter implicated his friend Edric Cooper as his accomplice Cater sic was arrested for first degree murder on May 4 2007 Cooper provided an inculpatory statement admitting to participating in the homicide with intentions of robbing the victim Cooper stated he Carter and two other black male subjects Grant Gethers and Jace Washington went to the residence with the intention of robbing the subjects in the trailer Cooper continued to state the four were riding in Carter Tahoe and parked down the street away s from the trailer and used bandannas and clothing articles to conceal their identities Carter gave Washington a 380 caliber Lorcin handgun to arm himself while Carter armed himself with a 45 caliber Glock and Cooper was in sic already in possession of a 9mm All subjects approached the trailer with Carter and handgun Washington entering the trailer Cooper and Gethers were standing outside the trailer as lookouts Cooper stated he heard Carter demanding the residents to empty their pockets which was followed by multiple gunshots Cooper observed Washington exit the trailer in a hurry and he and Gethers followed Carter exited the trailer last and all ran to Carter Tahoe in which they fled the area Cooper advised s Carter threw the 45 caliber handgun into the wooded area just prior to getting in the vehicle Carter drove directly to Washington s residence of 113 Westminster Slidell Louisiana where Cooper Washington and Gethers got out of the Tahoe and into Washington s vehicle They left the residence Cooper stated he gave the 9mm handgun to Washington at the residence Defendant presented no testimony to establish that the affiant Detective Stacey Callender deliberately concealed information or made any deliberate misrepresentation to the magistrate in the affidavit of probable cause that would have affected the issuance of the warrant The affidavit clearly discloses that Carter implicated himself and Cooper while Cooper additionally implicated defendant and Gethers Further although defendant continues to claim on appeal that at the time the affidavit was executed Cooper had given the police two 21 contradictory statements regarding the events in question no evidence supporting this claim was introduced at the suppression hearing However a review of the affidavit reveals that it does fail to disclose that before he gave the statement admitting he shot the victim Carter had given an earlier statement in which he gave a different account of what occurred In the earlier statement Carter admitted to his participation in the crime but claimed Cooper shot the victim It is not clear whether this information would have affected the issuance of the warrant since Carter admitted in both statements to his participation in the crime and it was actually Cooper statement rather than s s Carter that provided probable cause for the search warrant However even if this information should have been included in the affidavit defendant failed to introduce any evidence that this omission was intentional In this context intentional means a deliberate act designed to deceive the issuing magistrate State v Lamartiniere 362 So 526 529 n La 1978 Peterson 868 So at 2d 2 2d 793 Herein the trial court specifically found there were no intentional misrepresentations in the affidavit Nevertheless even though there were no intentional misrepresentations it appears much of the information included in the affidavit was later recanted by Cooper including the following allegations that everyone rode to the crime scene in the same vehicle that Cooper rather than defendant was in possession of a 9 millimeter handgun that Cooper stood outside the residence as a lookout that all of the participants immediately drove to defendant residence after the homicide s and that Cooper gave the 9millimeter handgun to defendant at defendant s residence However even with these allegations excised it appears the affidavit could support a finding of probable cause since it still establishes defendant s participation in the crime resulting in the victim death giving rise to a reasonable s belief that evidence of that crime might be found at defendant residence s 22 In any event even if the search warrant is considered defective the Leon goodfaith exception to the exclusionary rule is applicable since the physical evidence was seized by officers acting in an objectively reasonable good faith reliance on a search warrant issued by a detached and neutral magistrate See Leon 468 U at 918 22 104 S at 341820 We reject defendant contention S Ct s that the goodfaith exception is not applicable because the affidavit of probable cause contained intentional misrepresentations and omissions and was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable As noted the trial court specifically found there were no intentional misrepresentations contained in the affidavit This determination cannot be reversed by this Court in the absence of a clear abuse of the trial court discretion s which has not been shown herein See Green 655 So at 281 Further there is 2d nothing on the face of the warrant that would make it so deficient that it could not be presumed valid Given the facts known to Detective Callender at the time she executed the affidavit of probable cause it was reasonable for her to believe she was providing the judge with sufficient information to issue a warrant Therefore the facts do not support a finding that the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable Leon 468 U at 923 104 S at 3421 S Ct Accordingly suppression of the evidence would not be appropriate under the Leon goodfaith exception to the exclusionary rule Finally we also reject defendant argument that the affidavit did not s establish probable cause because it failed to adequately demonstrate the s informant reliability or basis of knowledge A magistrate may issue a search warrant when the totality of the circumstances viewed in a commonsense and non technical manner establish there is a fair possibility that contraband or evidence of 2d a crime will be found in a particular place See State v Barrilleaux 620 So 23 7 131 1320 La 1993 We note that this case does not involve an anonymous informant Rather it contains information from a named individual who admitted to participating in the crime under investigation As such there was no question as to his basis of knowledge For these reasons we find no error or abuse of discretion in the trial court s denial of defendant motion to suppress s This assignment of error is without merit EXCESSIVE SENTENCE In his only counseled assignment of error defendant contends the trial court abused its discretion in sentencing him to twentyfive years at hard labor and in denying his motion for reconsideration of sentence Specifically defendant argues the sentence is excessive in view of the fact that he was only nineteen at the time of the offense he had no prior criminal history and he played a lesser role in the s victim death since he only agreed to participate in an armed robbery and did not participate in the shooting Additionally noting that the trial court failed to order a presentence investigation report PSI he argues the record does not reflect that the trial court adequately considered defendant personal history and circumstances s as it was required to do Defendant suggests his sentence should be reduced to twelve years or less to comport with that received by his coperpetrator Edric Cooper who actually fired a weapon while committing the instant offense and had a prior criminal history The Eighth Amendment to the United States Constitution and Article 1 20 of the Louisiana Constitution prohibit the imposition of excessive punishment Even when a sentence is within statutory limits it may be unconstitutionally excessive See State v Sepulvado 367 So 762 76667 La 1979 A sentence 2d is considered unconstitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless k1 f infliction of pain and suffering A sentence is grossly disproportionate if when the crime and punishment are considered in light of the harm to society it shocks the sense of justice Andrews 655 So at 454 A trial court has wide although not 2d unbridled discretion in imposing a sentence within statutory limits Trahan 93 1116 La App 1st Cir 5 637 So 694 708 94 20 2d State v The sentence imposed will not be set aside absent a showing of a manifest abuse of the trial s court wide discretion Andrews 655 So at 454 2d Louisiana Code of Criminal Procedure article 894 sets forth items which 1 must be considered by the trial court in imposing sentence Although the trial court need not recite the entire checklist of Article 894 the record must reflect 1 that it adequately considered the criteria therein In light of the criteria expressed by Article 894 1 a review for individual excessiveness should consider the circumstances of the crime and the trial court stated reasons and factual basis for s its sentencing decision State v Hurst 992868 La App 1st Cir 1 797 00 3 0 2d So 75 83 writ denied 00 3053 La 1015101 798 So 962 2d In the instant case defendant was originally charged with second degree murder which carries a mandatory sentence of life imprisonment at hard labor without benefit of parole probation or suspension of sentence See La R S 1 30 14 B He was convicted of the responsive offense of manslaughter and faced a sentence of imprisonment at hard labor for not more than forty years See La R S 31 14 B Defendant received a sentence of twentyfive years imprisonment This sentence was slightly over the midpoint of the sentencing range s Defendant contention that the trial court failed to give adequate weight to the mitigating factors of his youth lack of a prior criminal record and his alleged lesser role in the offense lacks merit In imposing sentence the trial court explicitly indicated defendant was being sentenced in accordance with provisions of Article 894 1 the The trial court clearly was aware of defendant s 25 youth having asked defendant his age before imposing sentence As to s defendant role in this incident the evidence reflects he threatened the occupants of the residence with a handgun displaying a callous disregard for their safety The trial court noted that although defendant maintained he was not involved after hearing all of the evidence presented at trial the court was convinced beyond a reasonable doubt that defendant participated in the attempted armed robbery that resulted in the victim death s The fact that the evidence in this case might have supported a verdict of second degree felony murder under La R 14 S 30 2 A was an appropriate sentencing consideration See State v Parfait 96 La 1814 App 1st Cir 5 693 So 1232 1244 n writ denied 97 1347 La 97 9 2d 5 97 31 10 703 So 20 2d Additionally immediately prior to sentencing defendant the trial court held a hearing on defendant motions for new trial and for a post verdict judgment of s acquittal after which it denied the motions During sentencing the trial court expressed an opinion that defendant testimony both at trial and during the motion s hearing was untruthful The trial court further concluded that defendant had attempted to intimidate and threaten witnesses who testified against him at the or hearing Such conduct indicates a continued propensity for criminal misconduct on defendant part as well as a failure to accept responsibility for his actions s Finally the trial court indicated that any lesser sentence would deprecate the seriousness of the offense Having reviewed the record we find no merit in defendant contention that s the trial court should have ordered preparation of a PSI We note that defendant does not contend he requested the preparation of a PSI as he could have In any event the ordering of a PSI lies within the discretion of the trial court 3 Defendant expressly waived the sentencing delays provided in La C art 873 P Cr 26 La C P Cr art 875A State v Johnson 604 So 685 698 La App 1 st Cir 1992 writ 1 2d denied 61 So 795 La 1993 0 2d Furthermore we reject defendant suggestion that his sentence should be s reduced to be the same or less than that of his coperpetrator Cooper The record reflects that Cooper pled guilty to manslaughter as a result of his involvement in the victim death and testified on behalf of the state in the instant matter both of s which may have been factors considered by the sentencing court In any event there is little value in making such sentence comparisons It is well established that sentences must be individualized to the particular offender State v Batiste 594 So 1 3 La App 1st Cir 1991 2d Considering the reasons given by the trial court we find no abuse of discretion in the trial court imposition of a sentence of twentyfive years s record adequately supports the sentence imposed This assignment of error lacks merit For these reasons the conviction and sentence are affirmed 7u1A 01a1 04A The
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