State Of Louisiana VS Anthony Duane Craig
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NOT DESIGNATED FOR PUBLTCATION STATE OF LOIJISIANA COURT OF ARPEAL FIRST CIR tJTT N0 2013 KA Sf 2 STATE OF LOUISIANA VERSUS ANTHONY DUANE CRAIG Judgment rendered N 0 1 2013 Appealed from the 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 08 0579 10 Honorable Trudy White Judge HON HILLAR C MOORE III ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA BATON ROUGE LA SONIA WASHINGTON ALLiSON MILLER RUTZEN ASSISTANT DISTRICT ATTORNEYS BATON ROUGE LA FREDERICK KROENKE ATTORNEY FOR BATON ROUGE LA APPELLANT DEFENDANT ANTHONY DUANE CRAIG BEFORE PETTIGREW McDONALD AND McCLENDON JJ c J t nc C PETTIGREW J The defendant Anthony C raig wa charged by grand jury indictment with uane one count of second degre murder aof i R 14 and pled not guilty iolati S 30 1 Following a jury trial he was found g as charged by unanimous verdict During trial ilty he moved for mistrial but the motions were denied He was sentenced to life imprisonment at hard labor without the benefit of parole probation or suspension of sentence He now appeals filing a counseled and a pro se brief In his counseled brief he challenges the denial of one of his motions for mistrial In his pro se brief he argues the evidence was insufficient to support the verdic because he acted in self In defense the alternative he argues the evidence was insufficient to support the verdict because it supported only a conviction for manslaughter He also eontends the trial court erred in failing to order a mistrial after the State tofd the jury the defendant did not make a statement at the time of his arrest Additionally he argues he is being denied proper judicial review due to an incomplete record Lastfy he argues he received ineffective assistance of counsel For the following reasons we affirm the conviction and sentence FACTS Elton Clark testified at trial He lives on East Brookstown next door to 5042 East Brookstown in Baton Rouge Louisiana where the offense took place Clark mother ss cousin is the mother of the victim Thomas Barkon Tne defendant is Clark sister baby s s s daddy brother Corey Craig is Clark sister husband and the defendant ss sbrother Clark testified that on May 22 2010 he was in a gro of people outside playing p dominoes and just chilling The victim was drinking and listening to music in a truck with Uncle June The defendant drove up in a smalP car to the group of people The victim exited Uncle June truck and began taHcing to the defendant like it was a regular day s Thereafter however the men began arguing from a distance efore the men were close enough to fight each other Corey Craig told the defendant to just go and the defendant drove away Five or six minutes later however the defendant returned The victim stated If this p a n get out the car I going to smash him I going to smash him r m m 2 m I tired of him I going to smash hirr Th defendant backed up his vehicle like he m was fixing to leave and the vic approached the vehicle Clark told the victim to get tim away from the defendant car s e efo this craz m f run over you The defendant put his head down 9ik he vas sayi a praver and opened the door of his y vehicle Clark testified when he d caper the do0r the victim seen the ani fen Ed gun Because when the vicEfm seen the yu the v went fike he was fixing to tim run Clark stated the defendant ther aimed the gun at the victim and shot him He then looked at everybody in the yard and stated Anybody can get it Thereafter he drove away Clark testified the victim had no guns or knives on him and never threatened to kill the defendant but just wanted to fight him He also indicated there had been a prior incident between the victim and the defendant Corey Craig also testified at triaL The defendant knocked on Corey Craig window s at 5042 East Brookstown on the day of the incident Thereafter the defendant and the victim who had been with Corey Craig inside the house began arguing wanted the defendant to come to the street The victim The men were not close to each other during the argument and there was na physical ccntact between them Corey Craig broke up the argument and the defenciant gat into hos ve and backed it up to leave icle Corey Craig indicated he prevent the v from waiking up to the defendant d ctim scar and told him to just let the defendant leav The defendant then drove away Corey Craig testified the defendant returned in his vehicle approximately three minutes later and asked for a cigarette Corey Craig gave the defendant a cigarette and he backed up his car to leave again According to Corey Craig the victim got out of a truck and ran up to the driver door of the defendant side s svehicle and tried to reach for the door handle Corey Craig did not see any weapons on the victim Thereafter the defendant got out and shot the victim According to Corey Craig the defendant did not say anything after the shooting Corey Craig indicated he did not think the defendant was trying to shoot the victim but rather was shoot down but the victim tried to ng turn around and like duck tried to run Corey Craig testified he did not hear the victim threaten to kili the defendar ton the day of the incident 3 Bruce Harrison also kestif t triaa T1he er e rtwas his wife nephew ia r s the day of the incident the ef trsite Narrase dr Brusly ndaro On The defendant told Harrison that the defendar had kiEl s c the m was calling the t ar se defendant names The defie di N ind te Fh v had struck the defendant Rdant t im e or had been armed with any weapon The victim died as a result of being shot above and behind his right ear His alcohol blood level was 289 He also had marijuana in his system SUFFICIENCY OF THE E1 IDENCE In pro se assignment of error number 1 the def argues his actions on the ndant day of the incident were justified because he was in fear of receiving great bodily harm or death if he did not prevent the victim from openipg the door of his vehicle In the alternative in pro se assignment of error s 2 ne argues the evidence supported ber ur only a conviction for manslaughter The standard of review for su e the evider to uphold a conviction is ciencpe f ce whether viewing the evidence in kf lig mQSfi favorabi to the prosecution any rational e trier of fact could conclude the State pi the essential elements of the crime and the s defendant identity as the perpetrator of that crime beyond a reasonable doubt In conducting this review we also must be expressl mindful of Louisiana circumstantial s evidence test which states in part assuming every fact ka be proved that the evidence tends to prove every reasonable hyp of innccene is excluded State v Wright thesis 0601 La 98 p 2 App 1 Cir 2 730 So 4 486 writs denied 99 La 99 19 2d 5 0802 2d 99 29 10 748 So 1157 0H95 a 2c1 2000 A 73 So 732 quoting La R O1 7 1Q S 438 15 When a convi is based r bnt d and circumstantial evidence the tian i ec reviewing court must resolve any c n the dire e by vi that v nflict k idence wing sdence in the light most favorable to the pr Vlfhen the direct evidence is thus viewed secutian the facts established by the direct evidence and the facts reasonabiy inferred from the circumstantial evidence must be sufficlent for a rational juror to conclude beyond a 4 reasonable doubt that the defendar tvas guilty of every essential element of the crime Wright 98 at 3 730 So at 48i 0601 2d Second degree murder is the kllling cf a human beir when the offender has a g specific intent to kill or to inflict great b har La 2 14 Specific adily n 5 3Q A 1 criminal intent is that state of mind whdLh xists v the circumstances indicate that the er offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 Though intent is a question of fact it need not be proven as a S 10 1 fact It may be inferred from the circumstances of the transaction Specific intent may be proven by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as a defendant actions or facts depicting the s circumstances Specific intent is an ultimate iegal conclusion to be resolved by the fact finder Specific intent to kill may be inferred from a defendanYs act of pointing a gun and firing at a person State v Henderson 99 p 3 App 1 Cir 6 762 1945 La 00 23 2d So 747 751 writ denied 2000 La 6 793 So 1235 2223 0 15 2d Manslaughter is a homicide that woufd be either first or second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufFicient to deprive an average person of his self and cool reflection control Provocation shall not reduce a homicide to manslaughter if the jury finds that the s ofFender blood had actually cooled or that an average person blood would have s cooled at the time the offense was committed La R 14 Sudden passion Sa 31 1 A and heat of blood are not e of the offense of manslaughter rather they are ements mitigatory factors in the nature of a defense whlch exhibit a degree of culpability less than that present when the homicide is committ witliout them The State does not bear the ed burden of proving the absence of these mitigatory factors A defendant who establishes by a preponderance of the evidence that he acted in a passion or heat of sudden blood is entitled to a manslaughter verdict In reviewing the claim this court must determine if a rational trier of fact viewing the evidence in the light most favorable to the prosecution could have found the mitigatory factors were not established by a 5 preponderance of the evidence State v Huls 95 pp 26 La App 1 Cir 0541 27 96 29 5 676 So 160 177 writ denied 96 l1 685 So 126 2d 1734 a 6 97 2d When a defendant charged with a homicide ciaims self the State has the defense burden of establishing beyond a rea d that he did nat act in self anable ubt defense State v Rosiere 488 So 965 968 La 986 2d Louisiana Revised Statutes 1420 in pertinent part provides A A homicide is justifiable 1 When committed in seif by one who reasonably defense 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 2 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 a 4 When vehicle into the committed by a person lawfully inside a motor against a person who is attempting to make an unlawful entry motor vehicle and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry B For the purposes of this Section there shall be a presumption that a person lawfully inside a motor vehicle held reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto if both of the following occur 1 process of 2 The person against whom deadly force was used was in the unlawfully and forcibly entering the motor vehicle The person who used deadly force knew or had reason to believe that an unlawful and forcible entry vuas occurring C A person who is not engaged in unlawful activity and who is in a place where he or she has a right ta 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 possibiliry 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 6 apparently nacessary to revent a viol or foycibEe e9ony invoiving life or t E great bodily harm or to prevent the unlavufui er try Louisiana Revised Statutes 14 sets fp situa when a homicide may be A 20 kh ions justifiable depending on the reasonabie befief of tkrE persor committing the homicide the danger presented to that persan cr akhers and the need for the use of deadly force While La R 14 provides khak th is oc duty io retreat before using deadly S 20 C r force that statement is limited by the language as provided for in this Section Louisiana Revised Statutes 14 prohibits consideration of the possibility of retreat by D 20 the fact finder but in doing so tracks the language of La R 14 When S 20 2 A committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm and La R 14 When committed by a S 20 a 4 A person lawfully inside a dwelling a place of business or a motor vehicle as defined in R S 40 1 32 against a person who is attempting to make an unlawful entry In order for La R 14 to apply tcircumstances must be sufficient to excite the fear of S 20 2 A he 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 Louisiana Revised Statutes a 4 A 20 14 only applies when the person committing the homicide reasonably believes that the use of deadly forcz s necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicie State v Morris 2009 p 19 La 0422 App 1 Cir 9 22 So 1Q02 3013 09 il 3d The presumption of reasonableness in l R I4 as not a licer to kill a S 20 B se The legislature decision to use the te presumption rather than a mandatory s m inference of reasonableness means that theState is entitled to offer proof that a person s use of deadly force was unreasonable If the can prove beyond a reasonable doubt State that the use of force was unreasonable the defendant may still be guilty of homicide See State v Ingram 45 pp 9 La App 2 Cir 6 71 So 437 445 546 ZO 11 22 3d writ denied 2011 La 1 77 So 947 1630 12 11 3d The relevant inquiry on appeal is whethe after viewing the evidence in the light most favorable to the proseeution a rational fact finder could have found beyond a 7 reasonable doubt that the defendent dsC not act ir self Rosiere 488 So at defense 2d 969 968 see also State v Wilson 6fl3 Q 23 238 La App 1 Cir 1992 writ 2d denied 93 La 3 63 So 23 0533 94 25 2c A person who is V aggressor r awinc ri a cann claim the right e s siky bt iffc t of self unless F withclr rc e v ri defense rs tir Yj r cod faith and in such a manner cc that his adversary knows or shouud i ow tMat h esires to withdraw and discontinue the r conflict La R 1421 S A thorough review of the record indicates that any rational trier of fact viewing the evidence presented in this case in the light most favorable to the State could find that the evidence proved beyond a reasonable doubt and ta the exclusion of every reasonable hypothesis of innocence all of the elements of second degree murder and the defendanYs identity as the perpetrator of that offense against the victim The verdict rendered in this case indicates the jury credited the testimony of the witnesses against the defendant and rejected his attempt to discredit those witnesses This court will not assess the credibility of witnesses ar rew the evidence to overturn a fact finder igh s determination of guilt The trier of fact may aecept or reject in whole or in part the testimony of any witness State v Lofton 96 p 5 App 1 Cir 3 691 1429 La 97 27 2d So 1365 1368 writ denied 97 La 0 70 So 1331 Further in 1124 97 17 2d reviewing the evidence we cannot say that the jury determination was irrational under s the facts and circumstances presented to them See State v Ordodi 2006 0207 pp 14 La il946 So 654 662 An appellate court errs by substituting iEs 15 06 29 2d appreciation of the evidence and credibility of witness for that of the fact finder and s thereby overturning a verdict an the basis of an exculpatory hypothesis af innocence presented to and rationally rejected by khe ury 5tate v Calloway 2007 pp 1 2306 La 21 3d 2 1 1 So 417 418 per curiam 09 Additionally even if it oufd be found that the defendant was not he aggressor any rational trier of fact could find beyond a reasonable doubt that he id not act in self defense The defendant had the opportuniiy to drive away from fihe unarmed victim at any time and in fact minutes before the fataf shooting had driven away from him 8 without incident Further the ia vuas ct nik ra he w highiy intoxicated tars d r s and according to Elton Clark raci C rai atte to r away from the defendank y or d t as soon as he reaBized the defe ha a gan he d shot the uictim in the darat z nda f head told the other people at the sc A e rcan q wt and fl The efendant i ybod t d s actions after the incident were inconsEstena rith a t6 of just homicide See eory fiable State v Wallace 612 Sa 183 191 f Ap i Cir 1992 writ denied 644 So 2d a 2d 1253 La 1993 Any rational trier of fact viewing the evidence in the light most favorabfe to thE prosecution could also find thak the mitigatory fackors req to support manslaughter ired were not established by a preponderance of the eviden Any rational trier of fact could e conclude that the unarmed intoxicated Victim c the defendanz and threaten kQ s irsing Ing smash h was insufficient provocation far the defendant to shoot him in the nead m This assignment of error is without m rit MOTIONS FOR MISTRIAL In his sole counseled assignment of error the defendant argues the trial court erred in denying the motion for mistrial after the defendant rap sheet was mentioned s during the playing of State Exhibit 35 In pra se assegnment of error number 3 he argues the trial court erred in denying the mation for mistrial after gaton Rouge Pofice Department Detective Scott Blake testifoed the defendanY aid not maice a stat at the ment time of his arrest Louisiana Code of Criminal Proced article 7 prnvodes ore Upon motion of a defendar a mis shall ne ordered when a t rsai comment made withln the Ihearang ox the jury by the district remark or attorney during the trial or in arg refers erectly or indi to merit y ct 2 Another crime committ alleged to have been committed by dor the defendant as to which evidence is not adrrzissilble 3 The failure of the defendant to testify in his own defense An admonition to the jury to disregard the remark or comment shali not be sufficient to prevent a mistriai If the defenaant howevei requests 9 that only an admonition be giver the court shall admonish the jury to disregard the remark r comment but shald not declare a mistriaf Louisiana Code of Crimizial Procedure rt f71 in pertinent part provides scie In the following cases upo a thP re uest f the defendant the court shall promptly admonish tt j to d a remark r comment ey sregard made during the tria cr ir argu n the hearing of the jury when ent r ithin the remark is irrelevant ar imrnaterial and of su nature that it might ia create prejudice against the defendant or the rtate in the mind of the jury 1 attorney When the remark or ent comrr is made by the district and the remark is not within the scope of Article 770 or 2 When the remark or comment is made by a witness or person other than the judge district attorney or a court official regardless of whether the remark or comment is within the scope of Article 770 In such cases on motion of the defendant the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair triaL Upon motion of a defendant a mistrial shaH be ordered and in a jury case the jury dismissed when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by Articles 770 or 771 La Code Crim P art 775 A mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial Determination of whether a should be granted is within istrial the sound discretion of the trial court and the denial of a motion for a mistrial will not be disturbed on appeal without abuse of that discret State v Berry 95 p 7 or 1610 La App 1 Cir il 684 So 439 949 writ denied 97 La 10 703 So 96 8 2d 027 97 2d 603 EVIDENCE OF THER CRIMES COMrMITTED BY THE DEFENDANT Louisiana Revised Statutes 15 provides 450 Every confession admission or deciaretion sought to be used against any one must be used in its entirety so that the person to be affected thereby may have the benefit of any exculpation or expianation that the whole statement may afford A defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him although of course he may waive the benefts of the protective statute Gonsequently when the State see to introduce a confession CS lo admission or declaration against a defendant tlhat contains other crimes evidence but that is otherwise fully admissible the defendant has tuvo aptions He may waive his right to have the whole statement used obje ta the other crimes evidence and require the t court to excise it before admitting the statement or he may insist on his right to have the statement used in its entirety so as to receiue any exculpation or explanation that the whole statement may afford A third alternative that of keeping the whole statement out is not available to defendant unless of course the confession itself is not admissible State v Morris 429 So 111 121 La 1983 2d At trial Clark testified the defendant talked to him a couple nights ago and attempted to persuade him not to come to court The defendant had telephoned his brother and the defendant brother had taken the phone to Clark house Thereafter s s the State played State Exhibit 35 a recording of a telephone conversation between the defendant and Clark and other persons The call origina from jail and began with an ed automated statement indicating it was subject to monitoring and recording In the conversation the defendant told Clark that the defendant needed Clark not to come to court Clark stated he had been subpoenaed to appear and would tell the truth The defendant complained to an unidentified femafe in the conversation that Clark was about to send the defendant to Angola for the rest of his life and called Clark a f rat The female tried to calm the defendant and stated if he testified it would be your word against his The defendant replied it was not a good idea for him to testify because then the State could bring up his old charges and referenced certain convlctions The defense moved for a mistrial under Article 770 arguing they should have edited it to exclude his rap sheet The State argued the recording had been given to the defense the previous day the defense had never requested that the recording be edited and anytime you play a document like that it got to be played in its entirety The trial s court overruled the objection and also denied a request to admonish the jury because that would bring more attention to it The defense stated Okay There was no abuse of discretion in denying the motion for mistrial based on other crimes committed by the defendant The defendant sphone conversation referencing his 11 old charges did not provide a basis for a mandat mistrial under Article 770 At most ry the comment implicated the iscretin mestr r4v af Article 771 as nary af sions 2 irrelevant or immateria9 and caf such ature t rr reate prejudice against the tst na ight defendant refusing in the cnie of tl jur iE QUrt 9 did n a 4ts d in d e 9 r t use screfiion to admonish the se jury beca shment drnor vould have brought more attention to the defendant old char A he defendanc waived his right to s ea ati rialBy have his phone conversation edited to rem the reference to other crimes evidence ve He failed to object to the other crimes e and ask f its excise before State Exhobit idence r 35 was admitted into evidence ARREST POST SILENCE Article 770 is inapplicable to references tosilence See State v 3 arrest post Colarte 96 pp 8 La App 1 Cir 12 688 So 587 593 writ denied 0670 9 20J96 2d 1015 97 La 10 701 So 197 Under the authority of Article 771 where the 97 3 2d prosecutor or a witness makes a reference to a defendant post silence the trial s arrest court is required upon the request of the defendant or the State promptly to admonish the jury In such cases where the cour is sat that an admonition is not sufficdent to sfied assure the defendant a fair triaf upon motior f the defendank the court may grant a mistriaL Colarte 96 at 9 68 So at 593 OE7Q 10 2d At trial Detective Blake testifed he was h I dEtective in the investigation af ad the incident The State asked Detective Biaice When lthe defendant was arrested did he give you a statement The defense mQVed fror a mistrial under A 770 arguing ticle 3 the question referenced the defendant right to remain silent The trial court overruled s the objection Thereafter Detective Blake answered th question No he did not There was no abuse of discretion in the denial of the motion for a mistrial based on reference to post silence The reference to th post silence of the defendant arrest arrest did not resuit in such substantial prejudice to him hat he was deprived of any reasonabl2 expectation of a fair trial At most the defense would have been entitled to an admonition but the defense failed to request an admonition Article 771 mandates a request for an admonishment State v ack 554 Soa2d 1292 La App 1 Cir 1296 12 1989 writ denfed 560 So 2 a 1990 ur t defe did not testify at i 2 er re dant trial and there s no indication in the c that tf Sk used the defendant silenee r we t s at the time of arrest and a receiuir Miranela ufinr impea Com are er a r hment Doyle v o Oh S U k44 9 61f 61 36 S rt 2 245 2 c A 91 1976 These assignments cf rr ram vr rne t rso DENIAL OF RE ON OMPLETE RECORD IEVif In pro se assignment of error number 4 the defendant argues this court is deny ng him a review on direct appeal beca the record does not contain transcripts of proper se voir dire opening statements and closing arguments Louisiana Constitution article I 19 guarantees defendants a righk of appeal based upon a complete record of ali evidence upon which the judgment is based Additionally La Code Crim P art 843 in pertinent part provides In felony cases the clerk or court shall record all of stenagrapher the proceedings including the examination of prospective jurors the testimony of witnesses st rulings or and charges by the tements ers court and objections questions statements and arguments of counsel The Louisiana Supreme Court has reversed a c and death sentence when tion nvac the appellate record was so defcient that the court eo not properly review the case for l error See State v Landry 97 pp 1 L 6 751 So 214 214 0499 4 a 29 99 2d 216 However a slight inaccuracy in a record or an inconsequential omission from it whech is immaterial to a proper determination Qf the appeaf does not require r of a versal conviction cert State v Campbell 2006 0286 99 La j21 983 So 10 872 08 2d S denied 555 U 1040 129 S 507 172 i2008 C Zd Ed 471 Further an incomplete reeord may be adequate for appeNate revjew and a defendant n noE be ill entitled to relief on the basis of as inc r absent a showing that e was te mpi cord prejudiced by the missin portions af the recprd ampbell 2006 at 99 983 So 0286 2d at 872 873 In conneetion with fifing the appEal i this matte defense counsel requested that a a transcript of the trial with the exceptian of voir dire opening and cfosing an a Miranda v Arizona 384 U 436 86 S f602 16 LEd 694 1966 S Ct 2d 13 transcript of sent be pr Se d Cactle C P art 914 The party neing pared rirt A f making the motion for appeal shall at t t t rrai ss ade r transcript me i t9orr quest the of that portion of the proceedinys v ss e s ht I f the assi af errors to be nrrient urged The record was prepared Rn Urci v hee designati and appellate nc i th n counsel filed a eou brief clra9i s c b mot for m Thereafter eseled sn f l n ni c strial the defendant requested that a copy of tl c rbe sent to Mrs Trish Foster ees t ra Director of Legaf Programs LQUisiana State Prdsu for preparation of a suppiemen r al appeal brief Additionaily he cequesked that the o statement an ciosir oing e grgumerit be transcribed so that the defendant coUld fl plete coi briefo This court de ied the motion The record in the instant case is ade for a review and th defendant uate ilate pp has failed to show that he was pre b the abser of trenscripts of oir dire udiCed ce opening statements and closing arguments e nutes ll m of these portions of the trial reflect no objections Accordingly error if any that accurred during these portions of trial was not preserv dfor review A defendanf may nat assign as error a rufing refusin to sustain a challenge for cause made by him e an objection thereto is made at the nless time of the ruiing The nature mf the ai rand gr therefcr s be stated at the jectic nds all time of objection La Code Crim P ark 800fA S State e vr i024 Law 2012 6 App 3 Cir 4 110 So 1273 76 see La CUde Crim P art 84 An 13a 3 3d A irregularity or error cannot be avaii f a ver a t u o to at tt time d ter ct 9zss ias ected of occurrence The yrounds for c must b s brought tp the court jeckiQw h atFCiently s attention to allow it thE oppart tca m he proper ruling and preven or cure any ity m ke error State v Trahan 43 r 16 a Ap 1 Cir 5 637 So 644 704 1116 4 2U 2 This assignment of error is withr merot uF INEFFECTIVE ASSISTANCE OF COUNSEL In pro se assignment of error number 5 the defendant arg appellate counsel es was ineffective for preparing an appeaV pres t cc defense brie on an nnabfy e unseled incomplete record for assigning onl on rrar ar for fiailing to haflenge the suffci d ncy of the evidence 14 I A claim of ineffective assestance f co is generally relegated to post irase conviction proceedings unless the record permifis c res on appeaL efiritivF fution State v Miller 0192 99 p 24 La 9 776 Se 3 471 cert der 531 U 1194 121 S OQ 6 2d 5 ied S Ct 1196 149 L 111 2001 2d Ed A claim of ineffectiveness of ur sel araalyzed under the two test pronged developed by the United StatesSupreme Court ir 5trickland v Washington 466 U S 668 104 S 2052 80 LEd 674 1984 In order to establish that his trial attorney Ct 2d was ineffective the defendant must first show that the attorney performance was s 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 canceivable effect on the outcome of the proceeding Rather he must show that but for the counsel unprofessional errors there s is a reasonable probability the outcome of the trial would F been different Further it ave is unnecessary to address the issues of both counsel performance and prejudice to the s defendant if the defendant makes an inadequat showing pn one of the components State v Serigny 610 So 857 859 La App 1 Cir 1992 writ denied 614 So 2d 860 2d 1263 La 1993 As noted in our treatment of pro se assignment of error number 4 the record in the instant case is adequate for appellate review Accordingiy appellate counsel did not render deficient performance in preparing the counseled brief The defendant sremaining claims of inefFective assist of counsei on matters of Strategy Ttie investigation nce ern of strategy decisions requires an evidentiary hearing and therefore cannot possibly be 2 The defendant would have to satisfy the requirements of La Code Crin P art 924 et s in order to q receive such a hearing 15 reviewed on appeal State v Allen 94 p 8 App 1 Cir 11 664 So 1941 La 95 9 2d 1264 1271 writ denied 95 La 3669 S 433 2946 96 15 2d This assignment of error is withoi merdt or atherwise not subject to appellate rt review CONVICTION AND SENTENCEAPFIRMED 16
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