State Of Louisiana VS Raymond Deckelman
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 0296 STATE OF LOUISIANA VERSUS RAYMOND DECKELMAN DATE OF JUDGMENT SEP 1 4 2011 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT BER NUM 475289 DIVISION I PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE REGINALD T BADEAUX III JUDGE Walter P Reed Counsel for Appellee District Attorney State of Louisiana Covington Louisiana Kathryn W Landry Assistant District Attorney Baton Rouge Louisiana Counsel for DefendantAppellant Raymond Deckelman Frank Sloan Mandeville Louisiana BEFORE WHIPPLE KUHN AND GUIDRY JJ Disposition CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 7 Y KUHN J The defendant Raymond Deckelman was charged by bill of information with manslaughter a violation of La R 14 S 31 He pled not guilty and following a jury trial the defendant was found guilty as charged The State subsequently filed a multiple offender bill and the defendant was adjudicated a fourth felony habitual offender The trial court sentenced the defendant to forty years at hard labor without benefit of probation or suspension of sentence We affirm the conviction habitual offender adjudication and sentence On appeal the defendant has designated the following counseled assignments of error 1 The improper jury charges on self defense violated fundamental requirements of due process and requires that the verdict be reversed 2 In the alternative due to the ineffective assistance of trial counsel the verdict should be reversed The defendant has further designated the following pro se assignments of error 1 Defense counsel was ineffective for allowing the prosecutor to suppress Brady information 2 Defense counsel was ineffective for failing to object to perjured statements of State witnesses 3 Defense counsel was ineffective for failing to move for a mistrial when the prosecutor during closing argument vouched for the veracity of State witnesses and called the defendant a liar 4 The prosecutor failed to correct testimony she knew to be false The prosecutor violated the defendant due process when she s expressed her personal opinion about the credibility of witnesses and 5 the defendant guilt during closing argument s 2 FACTS In 2009 Kenneth Beeson and his girlfriend Christy Ferman lived together in an apartment on City Drive off of Old Spanish Trail in Slidell The defendant lived in a trailer across the street from Kenneth and Christy The defendant s girlfriend Amy had previously lived with him but she had recently broken up with him and moved out of the trailer The defendant was allegedly angry with Kenneth because the defendant thought Amy was cheating on him with both Kenneth and Christy while he and Amy were still together Christy insisted that nothing was going on with them and Amy Over the course of weeks the defendant would yell at and taunt Kenneth when the defendant saw him On May 30 2009 residents of the apartment complex met at the pool to celebrate Christy birthday There was food and alcohol at the party s Kenneth drank beer and Christy drank wine Christy invited the defendant to the party The defendant declined When the party ended around 8 p Christy went 30 m back to her apartment to get ready to go out Kenneth began gathering other girls to go out with Christy At some point while Kenneth was doing this Kenneth walked across the street to the defendant yard s Chassidy Adkison who lived in the same apartment complex as Kenneth and Christy testified at trial that she was outside her apartment and observed what occurred She stated the defendant was sitting in his yard angry and screaming at Kenneth while he was gathering up people to go out Kenneth had had enough and walked across the street toward the defendant The defendant and Kenneth walked toward each other in the defendant yard and began arguing No strikes s were thrown Christy came from her apartment and got in between Kenneth and 3 the defendant Christy turned toward Kenneth and directed him away from the defendant Kenneth was walking backward still arguing with his hands in the air The defendant then came up behind Christy grabbed Kenneth by the shoulder and stabbed Kenneth in the middle of the chest Chassidy did not see the weapon and was not sure if Kenneth was stabbed or shot Kenneth took a step or two and fell backward on the ground Chassidy stated that she saw everything and not once did she see Kenneth put his hands on the defendant Christy testified at trial to essentially the same facts as Chassidy According to Christy while she was getting ready to go out she heard the defendant yelling from across the street the defendant Shortly thereafter she heard Kenneth voice respond to s As Christy walked outside she saw Kenneth walking across the street toward the defendant The defendant was near the front of a small boat As Christy approached them she heard the defendant tell Kenneth that if he came in his yard he was going to kill him Kenneth approached the defendant and bumped him with his chest Kenneth asked the defendant if he realized he weighed 100 pounds that his old lady could f him up and that he needed to shut up and leave him Kenneth alone Kenneth did not put his hands on the defendant Neither Kenneth nor the defendant had a weapon in his hand Christy put her arm between the two men and told Kenneth that he could not be in the defendant s yard Kenneth put up a hand and starting walking backward while Christy was facing Kenneth with her arm on his chest Christy testified that she did not see Kenneth get stabbed She did not see or hear the defendant approach She only remembered talking to Kenneth as they were walking and then hearing a very loud Kenneth was 5 and weighed 226 pounds The defendant is smaller in stature 10 4 noise followed by Kenneth falling to the ground on his back Christy thought Kenneth had been shot According to Christy Kenneth did not put his arms around the defendant grab him or lay a hand on him Kenneth suffered a fatal stab wound to the middle chest Dr Michael DeFatta testified at trial that the wound was just less than an inch in length The knife penetrated Kenneth chest plate or sternum and went through the s pericardial sac and perforated the aorta Kenneth probably lived only seconds after being stabbed by the defendant Dr DeFatta explained that the loud sound witnesses may have heard when Kenneth was stabbed was the knife impacting the halfinch thick portion of bone over the chest He opined it was also possible that air could have escaped from the right chest cavity The defendant stabbed Kenneth with a kitchen knife and fled the scene on foot Several hours later the police apprehended the defendant at his father s house which was about one mile from the defendant trailer The defendant was s taken to the Slidell Police Department where he provided an audio statement The defendant did not testify at trial However his statement was played for the jury According to his statement the defendant was working inside a small boat next to his trailer He was cutting carpet with a kitchen knife Kenneth walked from across the street and pulled the defendant out of the boat Christy arrived and separated the two men Kenneth backed up Kenneth then grabbed the defendant a second time and the defendant did not have a chance to get away defendant had the knife in his right hand The While facing each other Kenneth squeezed the defendant by the arms under his ribcage The defendant right arm s was trapped so he switched the knife to his left hand and stabbed Kenneth in the R chest Kenneth fell face forward on the sidewalk The defendant panicked and ran jumping fences running through bushes and finally sitting by a tree He thought he brought the knife with him but realized he dropped it when he was going over a fence The defendant explained that he was a fourtime convicted felon so he was scared to turn himself in to the police When the defendant was asked during the interview if he and Kenneth had any problems in the past to make him be in fear of Kenneth wanting to cause bodily harm to him the defendant responded We never had words ve ASSIGNMENTS OF ERROR NOS 1 and 2 In these related assignments of error the defendant argues that the improper jury charges on self violated fundamental requirements of due process defense Specifically the defendant contends that the trial court erroneous jury charge on s retreat was based on law that was in effect prior to the date of the alleged offense Further he argues that the trial court should have included in its jury instructions the 2006 change in the law on justifiable homicide as set out in La R 14 S 20 C and D In the alternative the defendant asserts ineffective assistance of counsel for defense counsel failure to object to the jury charge on retreat as well as for s his failure to request that the jury be properly charged with the law under La R S C 20 14 and D as it read at the time of the alleged offense As the defendant has pointed out defense counsel did not object to the proposed jury charges Normally such failure to object would preclude consideration on appeal of arguments challenging the giving or failure to give a jury charge See La Code Crim P arts 801 C A 841 However in order to address the claim of ineffective assistance of counsel we will address the arguments Co concerning the jury charges See State v Cooper 2005 2070 La App 1st Cir 06 5 935 So 194 199 writ denied 20061314 La 11 942 So 554 2d 06 22 2d A claim of ineffectiveness of counsel is analyzed under the two pronged test developed by the United States Supreme Court in Strickland v Washington 466 S U 668 687 104 S 2052 2064 80 L 674 1984 In order to establish Ct 2d Ed that his trial attorney was ineffective the defendant must first show that the s attorney performance was deficient which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment Secondly the defendant must prove that the deficient performance prejudiced the defense This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial the defendant must prove actual prejudice before relief will be granted It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding Rather he must show that but for the counsel unprofessional errors there is a s reasonable probability the outcome of the trial would have been different State v Serigny 610 So 857 85960 La App 1 st Cir 1992 writ denied 614 So 2d 2d 263 1 La 1993 Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim State v Robinson 471 So 1035 1038 39 La App 1st Cir writ denied 476 So 2d 2d 350 La 1985 Louisiana Code of Criminal Procedure article 807 provides The state and the defendant shall have the right before argument to submit to the court special written charges for the jury Such charges may be received by the court in its discretion after argument has begun The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court 7 A requested special charge shall be given by the court if it does not require qualification limitation or explanation and if it is wholly correct and pertinent It need not be given if it is included in the general charge or in another special charge to be given A homicide is justifiable when committed in self defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger La S 20 R 14 Louisiana Revised Statutes 14 provides 1 A 2 A 20 When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing The defendant argues defense counsel should have objected to the following jury charge Some factors that you should consider in determining whether the defendant had a reasonable belief that the killing was necessary are 1 The possibility of avoiding the necessity of taking human life by retreat The defendant further contends defense counsel failed to request that the jury be properly charged with La R 14 and 14 which had been the law for S 20 C D 20 nearly three years before the killing took place Louisiana Revised Statutes 14 and 14 were added to the statute C 20 D 20 as part of a revision that deleted the language T homicide shall be justifiable he even though the person does not retreat from the encounter from La R S 3 A 20 14 justifiable homicide committed by a person in a dwelling place of business or motor vehicle during burglary or robbery as well as deleting the 8 language T homicide shall be justifiable even though the person committing he the homicide does not retreat from the encounter from La R 14 S 20 a 4 A justifiable homicide committed by a person in a dwelling place of business or motor vehicle to prevent entry or to compel the intruder to leave and adding La S 20 R 14 C and D See 2006 La Acts No 141 B 1 See State v Morris 2009 0422 La App 1 st Cir 9 22 So 1002 101213 09 11 3d Louisiana Revised Statutes 14 C and D provide B 20 B For the purposes of this Section there shall be a presumption that a person lawfully inside a dwelling place of business or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto or to compel an unlawful intruder to leave the premises or motor vehicle if both of the following occur 1 The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling place of business or motor vehicle 2 The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred C A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section and may stand his or her ground and meet force with force D No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry See Morris 22 So at 1013 3d We note that arguably the first prong of the Strickland analysis is met As pointed out by the defendant the change in the law on retreat specifically the W addition of paragraph D was not new By the time of the defendant trial during s which the jury charge conference was held the change in the law had been in effect for about four years We also do not see how the failure to object to the old law or request the new law which appears to be more favorable to a defendant asserting self defense could have constituted trial strategy by defense counsel Cf State v Albert 96 1991 La App 1st Cir 6 697 So 1355 1363 64 97 20 2d In any event it is unnecessary to determine if defense counsel performed deficiently Even assuming deficient performance we do not find the defendant proved that such performance prejudiced the defense A conviction will not be overturned on the grounds of an erroneous jury charge unless the disputed portion when considered in connection with the remainder of the charge is erroneous and prejudicial An erroneous instruction is subject to harmless error review or in the case of an ineffective assistance of counsel claim an analysis of whether the defendant was prejudiced by the error The question becomes whether it appears beyond a reasonable doubt that the erroneous instruction did not contribute to the s jury finding of guilt or whether the error is unimportant in relation to everything else the jury considered as revealed in the record Stated another way the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the jury charge error See Cooper 935 So at 199 2d 200 Assuming defense counsel erred in failing to object to the charge referencing retreat considering the law and the evidence presented at trial as well as the jury charge on selfdefense as a whole the verdict was surely unattributable to any such error While the possibility of retreat is no longer to be considered many of the 0 1 requisite elements to establish whether a homicide is justifiable remain For example as we noted in Morris 22 So at 1013 paragraph A of the statute sets 3d forth situations when a homicide may be justifiable depending on the reasonable belief of the person committing the homicide the danger presented to that person or others and the need for the use of deadly force Under La R 14 for a S 20 1 A homicide to be justifiable it must be committed in self defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger Paragraph D while prohibiting consideration of the possibility of retreat tracks 2 A the language of La R 14 in requiring the factfinder to determine S 20 whether or not the person who used deadly force not involving unlawful entry had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving danger to life or great bodily harm While La R 14 provides that there is no duty to retreat before using S 20 C deadly force that statement is limited by the language as provided for in this Section See Morris 22 So at 1013 3d The three places afforded added protection under La R 14 are inside a dwelling place of business or motor S 20 vehicle See La R 14 20 14 14 S A 20 20 3 A B a 4 The defendant was not in his dwelling business or motor vehicle when he stabbed and killed Kenneth While it appeared he was in a place he had a right to be to constitute justifiable homicide the defendant in killing Kenneth must have had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving danger to life or great bodily harm The version of events as described at trial by Chassidy and Christy indicated that the 11 extent of physical contact between the defendant and Kenneth was a brief bumping of the chests and that while Christy was backing Kenneth away from the altercation the defendant approached Kenneth and stabbed him The defense version of events as indicated by the defendant statement s played at trial suggested that Kenneth grabbed the defendant and then released him when Christy intervened Kenneth then grabbed the defendant again who was bear hugged as described by Sergeant Fred Ohler with the Slidell Police Department who took the defendant recorded statement s While Kenneth was holding the defendant the defendant with his free arm stabbed Kenneth in the chest killing him Under either version of events we do not find Kenneth actions in any way s constituted a violent or forcible felony upon the person of the defendant Moreover any physical contact with the defendant by Kenneth who at all times was unarmed clearly did not involve danger to life or great bodily harm The defendant conduct in stabbing Kenneth was disproportionate to any s perceived threat In State ex rel D 20021742 5 846 So 753 756 B P 03 20 2d our supreme court quoted from State v Plumlee 177 La 687 699 149 So 425 42829 1933 which discussed proportionate use of deadly force Two things must concur in order to justify us in killing another to prevent him from committing some act first it must reasonably appear necessary in order to prevent him from committing a crime and second the crime to be prevented must be a great crime and not a petty offense from which no great injury would result to us or others in body or property Therefore if it reasonably appears that the crime can be prevented by any other available means as by a warning by a show of force or by the use of any force short of killing the killing would not be justified And if the crime to be prevented was a petty offense not likely to result in great injury in body or property to us or others we would not be justified in killing to prevent it even if it could not be prevented by any other means 12 Accordingly the defendant use of deadly force was neither reasonable nor s apparently necessary See La R 14 State v Johnson 20061263 La S 20 D App 3d Cir 2 948 So 1 writs denied 20070467 07 7 2d 229 07 12 10 965 So 398 2d 399 0509 La Moreover the defendant actions after he left s the scene of failing to report the stabbing and running to hide are inconsistent with a theory of selfdefense See State v Emanuel Dunn 2003 0550 La App 1st Cir 11 868 So 75 80 writ denied 20040339 La 6 876 So 03 7 2d 04 25 2d 829 State v Wallace 612 So 183 191 La App 1st Cir 1992 writ denied 2d 614 So 1253 La 1993 2d Flight following an offense reasonably raises the inference of a guilty mind State v Captville 448 So 676 680 n La 2d 4 1984 We find that the jury charge referencing retreat even if erroneous did not prejudice the defendant Moreover on the evidence presented the jury could not have reasonably believed the defendant acted in self defense Accordingly these assignments of error are without merit PRO SE ASSIGNMENT OF ERROR NO 1 In his first pro se assignment of error the defendant argues he received ineffective assistance of counsel because defense counsel failed to object to the prosecutor giving the defendant notice of her intent on the day of trial to use statements made by the defendant to Christy Ferman The defendant references in his brief only the colloquy among the trial court prosecutor and defense counsel shortly before opening statements In this discussion the prosecutor informs the trial court that she is giving notice that 13 Christy Ferman gave a recorded statement about what the defendant stated in his front yard The prosecutor makes no mention in this discussion of the defendant s statement to the police The defendant argues that Christy statement had s exculpatory value and that defense counsel should have objected to Christy s statement not being played at trial The defendant alleges that Christy gave a recorded deposition that may have according to the prosecutor exculpatory or impeaching evidence However based on our review of the colloquy in the record among the trial court prosecutor and defense counsel we find no such reference by the prosecutor that Christy s statement contained exculpatory or impeaching evidence The relevant portion of the colloquy wherein the prosecutor informs the trial court that she is giving defense counsel notice of a statement made by Christy is as follows Ms Knight prosecutor I did file one other notice In talking with s one of the witnesses she gives a video statement It hard to understand so I decided to go ahead and give defense notice I have ll to refile it I can find my original Christy Ferman after meeting with t her she is a witness on the scene there was a statement or two that she told me about the defendant telling her I don know if it is in the video t or not I wanted to give notice under Code Article 716 If there is any statement about the defendant to a lay witness I have to give notice that there was a statement I will tell what it is I don know if it is a t a statement or not It hard to hear s Mr Oriol defense counsel Your Honor this particular video was the one we had problems with when my disc didn work and I had to go t over to your office and look at it The disc is not of the highest quality The Court Are you even sure you going to use it re Ms Knight I not going to use the disc of the statement m statement it may come up The The Court Did you know about the statement Mr Oriol Mr Oriol I knew what was in the police report and I knew what was on her video statement 14 The Court What is the gist of the alleged statement Ms Knight She went over to invite him defendant to come over that day They were having a party and he said some rude statements to her The Court Were they incriminating statements Ms Knight He didn say I going to come over and kill someone t m He was just angry at her or at the group He didn want anything to do t with them It is clear from the foregoing that defense counsel had notice of Cheryl s statement and in fact possessed a copy of the statement prior to trial It is also clear that the prosecutor did not suggest that Cheryl statement contained exculpatory or s s impeaching evidence The defendant suggests in his brief that Cheryl statement should have been played at trial because Kenneth the victim was intoxicated at the time of the incident and Cheryl admitted to being intoxicated at that time According to the defendant Cheryl statement needed to be played so the jury s could have received the full scope of what the defendant was facing the night of the incident and to help the jury determine whether Cheryl was in any condition to remember the detail that she described at trial s It is not clear from the record if defense counsel had Christy recorded s statement at the time of trial what condition the statement was in or why defense counsel chose not to play it A claim of ineffective assistance of counsel is more properly raised by an application for post conviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses sufficient evidence to decide the issue of ineffective assistance of 15 counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial economy State v Carter 960337 La App 1st Cir 11 96 8 684 So 432 438 2d In this case the allegation of ineffective assistance of counsel cannot be sufficiently investigated from an inspection of the record alone Whether to play s Cheryl statement could have involved matters of trial strategy by defense counsel In any event decisions relating to investigation preparation and strategy cannot possibly be reviewed on appeal Only in an evidentiary hearing in the district court where the defendant could present evidence beyond what is contained in the instant record could these allegations be sufficiently investigated Accordingly these allegations are not subject to appellate review See State v Albert 961991 La App 1 st Cir 6 697 So 1355 1363 97 20 2d 64 See also State v Johnson 2006 1235 La App 1st Cir 12 951 So 06 28 2d 304 294 Any available post conviction relief notwithstanding this pro se assignment of error is without merit PRO SE ASSIGNMENTS OF ERROR NOS 2 and 4 In these related pro se assignments of error numbers two and four the defendant argues respectively that defense counsel provided ineffective assistance Continued Dr DeFatta testified at trial that Kenneth BAC at the time of the autopsy was 142 Cheryl s 2 testified at trial that she drank several glasses of wine throughout the day but she was not belligerent or sloppy drunk 3 For example defense counsel may have planned to play the statement after Cheryl testified at trial to impeach her testimony However if Cheryl trial testimony was simply an iteration of s her recorded police statement defense counsel may have had no strategic reason to play the statement 4 The defendant would have to satisfy the requirements of La Code Crim P art 924 et seq in order to receive such a hearing 16 because he failed to object to perjured statements made by Christy Ferman and Chassidy Adkison and the prosecutor failed to correct the testimony of Christy and Chassidy that the prosecutor knew to be false When the defendant was apprehended he was brought back to the scene of the stabbing to explain to the police what had transpired Subsequently the defendant was placed in the back of a vehicle with the windows rolled down Chassidy testified at trial that she was standing in the street at this time The defendant then said peace have a good life and the vehicle drove away Regarding this same incident Christy testified at trial I don know why the police t put the defendant in a vehicle with the windows rolled down but he said peace have a nice life The defendant points out in his brief that Sergeant Ohler who brought the defendant back to the crime scene was asked on direct examination Upon leaving the area was he allowed to make contact to your knowledge with anybody in the apartment complex Sergeant Ohler responded No he was not According to the defendant Sergeant Ohler testimony that the defendant was not s allowed to make contact with anyone at the apartment complex suggests that Christy and Chassidy perjured themselves This contention is meritless Sergeant Ohler stated that to his knowledge no one had contact with the defendant at the scene Furthermore we do not find based on this testimony of Christy and Chassidy that the defendant made contact with witnesses at the scene at least not contact in any meaningful way as suggested by the prosecutor question s There is simply no inconsistency between Sergeant s Ohler testimony that to his knowledge the defendant was not allowed to make contact with anyone and Christy and Chassidy testimony that indicated they were s s 17 standing at the scene among other bystanders when they heard the defendant utter some brief parting remark We find no support from the record that Christy and Chassidy perjured themselves with this testimony As such there was no testimony the prosecutor would have known to be false and nothing for her to correct These pro se assignments of error are without merit PRO SE ASSIGNMENTS OF ERROR NOS 3 and 5 In related pro se assignments of error numbers three and five the defendant argues respectively that defense counsel provided ineffective assistance of counsel because he failed to move for a mistrial when the prosecutor during closing argument vouched for the credibility of State witnesses Christy and Chassidy and called the defendant a liar and the prosecutor violated the defendant right to due s process when she expressed her personal opinion about the credibility of witnesses and the defendant guilt during closing argument s In the challenged portion of the closing argument that referenced Christy the prosecutor stated One thing I would give you is that she is credible because you hear it all She not going to candy coat it She not going to change anything s s In the challenged portion of the closing argument that referenced Chassidy the prosecutor stated Yeah she is not hiding anything She came here with the truth In the challenged portion of the closing argument regarding the defendant the prosecutor stated I wanted you to hear that so you knew not only did he do this by all the witnesses he is lying to you When he talked to the police he is lying about his self that he has made up defense 18 The credibility of the witnesses in this case was clearly an important issue Since the defense theory was self defense and the testimony of Christy and Chassidy contradicted such a theory the prosecutor focused on the credibility of the witnesses and of the defendant during closing argument Commenting on the credibility of the witnesses is proper and within the scope of closing argument where the credibility of the witness is in question and the facts bearing on the s witness credibility appear in the record State v Davenport 43 La App 101 2d Cir 3 978 So 1189 1194 writ denied 2008 1211 La 1 999 08 19 2d 09 30 2d So 748 See La Code Crim P art 774 State v Martin 539 So 1235 1240 2d La 1989 State v Motton 395 So 1337 1346 La cert denied 454 U 2d S 850 1 S 289 70 L 139 1981 State v Sayles 395 So 695 697 02 Ct 2d Ed 2d 98 La 1981 See also State v Palmer 2000 0216 La App 1 st Cir 12 00 22 775 So 1231 1235 36 writs denied 2001 0211 2d 2d So 224 229 1043 La 1 807 02 11 The facts bearing on the credibility of Christy Chassidy and the defendant were explored at length during the trial and the prosecutor s arguments properly focused on those facts and were not an appeal to prejudice or otherwise improper See Davenport 978 So at 1194 2d Moreover even if we were to assume deficient performance by defense counsel for failing to object to the prosecutor comments about credibility we do s not find the defendant proved that such performance prejudiced the defense Accordingly his claim of ineffective assistance of counsel must fall These pro se assignments of error are without merit IL a9310 110 For these reasons we affirm defendant conviction habitual offender s adjudication and sentence CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 20
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