WOODARD, Judge.
Defendant appeals his conviction and sentence stemming from two instances of simple burglary. We affirm the convictions, vacate the sentences, and remand for resentencing.
FACTS
On the night of July 15, 1995, the defendant, Charles Edward Kennerson, along with three other men, drove to the home of Wayne Bordelon in Avoyelles Parish. Bordelon's truck was unlocked and parked in his driveway. Bordelon's son's truck (registered in Bordelon's name) was also parked there but was locked. Kennerson and his accomplices entered both trucks, removed various items, and left. Bordelon did not become aware of the theft until the following morning.
The burglars then went to the home of Dr. James Guillory, also in Avoyelles Parish. While two of the defendant's accomplices stayed in the yard and ate pears from Guillory's trees, the defendant and his other accomplice, a juvenile, entered a shed attached to the victim's carport and removed boxes of frozen meat. The burglars loaded them into the defendant's car with the items taken from Bordelon's trucks, and left. Guillory did not realize the meat had been taken until the following morning.
On October 3, 1995, the defendant was charged by bill of information with two counts of simple burglary, violations of La. R.S. 14:62. At the close of trial on May 17, 1996, the six-member jury found the defendant guilty on both counts. Pursuant to La.R.S. 15:529.1, he was subsequently charged as an habitual offender on June 4, 1996, and the court advised him of his constitutional rights.
On June 25, 1996, the defendant's current counsel was enrolled as counsel of record. After a hearing held July 9, 1996, the district court determined that the defendant was a third habitual offender and denied the defendant's Motion for Post-Verdict Judgment of Acquittal at a hearing on July 23,1996.
The district court sentenced the defendant to twenty years on each count, sentences to run consecutively, after reviewing the Presentence Investigation Report (PSI) and hearing further arguments. The defendant's Motion to Reconsider Sentence was denied on August 26, 1996.
The defendant now appeals his conviction and sentence.
ASSIGNMENTS OF ERROR
The defendant claims the following sixteen assignments of error:
LAW
ERRORS PATENT
A review of the record reveals two errors patent. First, the record suggests that the trial court did not give the defendant credit toward service of his sentence for time spent in actual custody before the imposition
Second, the record shows that the court did not inform the defendant of the three-year prescriptive period for post-conviction relief. La.Code Crim.P. art. 930.8. Although the minutes reflect that the lower court gave the defendant his 930.8 notice at sentencing, the transcript of sentencing does not indicate that the notice was given. It is well-settled that where the transcript and the minutes conflict, the transcript controls. La. Code Crim.P. art. 921. Thus, the district court is directed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).
ASSIGNMENTS OF ERROR NUMBERS 10 AND 11
Pursuant to State v. Hearold, 603 So.2d 731 (La.1992), we will first consider the defendant's tenth and eleventh assignments of error in which he contends that the evidence was insufficient to support the jury's verdict of guilty of two counts of simple burglary.
In Hearold, 603 So.2d at 734, the Supreme Court stated:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
In order to obtain a conviction for simple burglary, the elements of the crime must be proven beyond a reasonable doubt. The elements of the crime at issue, simple burglary, are contained in La.R.S. 14:62:
Like most felonies, burglary consists of an act element and an intent element. La.R.S. 14:7, 14:8. The act element, or actus reus, is the unauthorized entry of a dwelling or vehicle. The intent element, or mens rea, is the specific intent to commit a theft (or other felony) in the dwelling or vehicle. State v. Maxie, 614 So.2d 1318 (La.App. 3 Cir.1993). Theft is defined by La.R.S. 14:67(A) as follows:
The defendant argues that his convictions are invalid because there was no physical evidence proving that he was present at the crime scenes. The defendant further claims that there was no evidence presented to show that he entered "the dwelling of James Guillory," as alleged in the bill of information.
However, as the state points out in its brief, there is no legal requirement that physical evidence be produced to support a conviction. The prosecution's case relied upon the testimony of the victims, who stated that their property had been entered without authorization and that items had been removed from their premises. The defendant's three accomplices testified as state witnesses and affirmed that the defendant was at both crime scenes and that the defendant participated in the burglaries, including the unauthorized entries and the subsequent takings. Furthermore, prosecutors presented testimony that showed that the defendant was the driver and "ringleader" of the group. Therefore, under the Jackson standard, the State had properly proved the elements of the crime. Thus, the defendant's tenth assignment of error has no merit.
The defendant's second argument regarding the language in the bill of information and the evidence, is actually one of notice. In the case sub judice, the bill of information does contain a possible error. The bill charges the defendant with entering the "dwelling of James Guillory." However, the trial evidence showed that the defendant actually entered a shed attached to the victim's carport, which was in turn attached to the Guillory home. A bill of information informs a defendant of the charge or charges against which he must prepare to defend himself. Further details are provided in the bill of particulars. La.Code Crim.P. arts. 463, 464, 484; State v. Hammontree, 363 So.2d 1364 (La.1978). See also State v. Bordenave, 93-1682 (La.App. 4 Cir. 8/23/95); 660 So.2d 1207, reversed on other grounds, 95-2328 (La.4/26/96); 678 So.2d 19.
At trial, the state provided testimony to indicate that Guillory's shed was connected to the carport, which was, in turn, connected to Guillory's dwelling. Thus, under the statute and jurisprudence, the shed is a "structure" within the meaning of La.R.S. 14:62. However, the shed may also be considered a part of the victim's "dwelling." State v. Freeman, 539 So.2d 739, 743 (La.App. 3 Cir.), writ denied, 543 So.2d 17 (La.1989). See also State v. Harris, 470 So.2d 601 (La.App. 1 Cir.), writ denied, 477 So.2d 1123 (La.1985). Therefore, the bill's language cannot be said to have misled the defendant through faulty notice. The bill clearly charges the defendant under La.R.S. 14:62 and states the essential elements of the offense. When the defendant filed a request for a bill of particulars, the state's answer included statements from the defendant's three accomplices. All of the statements implicated the defendant and mentioned Guillory's shed and the frozen meat.
In State v. Duncan, 94-1563 (La.App. 1 Cir. 12/15/95); 667 So.2d 1141, the court noted that a bill failed to identify the "structure" which was burglarized. The first circuit determined that the error was harmless, as the defendant was not surprised or prejudiced by the omission. Id.; See also State v. Morris, 457 So.2d 119 (La.App. 2 Cir.1984). Other cases have held that an incorrect address in a bill is likewise harmless. State v. Sheppard, 466 So.2d 493 (La.App. 1 Cir.1985); State v. Lewis, 288 So.2d 324 (La.1974).
In the case sub judice, the facts included in the bill of particulars and the bill of information properly provided the defendant with notice of the charges against him. Therefore, the error, if any, regarding the use of the word "dwelling" in the bill of information, was harmless.
For the reasons discussed above, these assignments of error lack merit.
ASSIGNMENT OF ERROR NUMBER 7
We address this assignment next, because it concerns the district court's denial of the defendant's Motion for Post Verdict Judgment of Acquittal, which is reviewed under
The defendant's current counsel entered the case after the original Motion for Post Verdict Judgment of Acquittal was filed and argued it as a motion to reconsider his adjudication as a habitual offender. He does the same on appeal. However, a Motion for Post Verdict Judgment of Acquittal is not a proper vehicle for challenging a habitual offender adjudication. Article 821's Jackson standard does not apply to reviews of habitual offender adjudications. When such an adjudication is reviewed, the sole issue presented for our determination is whether evidence was introduced to support a trial judge's finding that the defendant is the same person as the previously-convicted felon. State v. Young, 27,237 (La.App. 2 Cir. 8/23/95); 660 So.2d 548.
Therefore, this assignment will not be considered by this court. The issues raised by the defendant regarding the habitual offender adjudication will be addressed as they arise in his other assignments of error.
ASSIGNMENT OF ERROR NUMBER 1
The defendant has explicitly abandoned this assignment of error in his brief.
ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, the defendant argues that the district court erred when it admitted documents from the state of Texas at the habitual offender hearing. On appeal, the defendant contends that the Texas documents labeled S-2, S-7, and S-9 were not properly authenticated. At the habitual offender proceeding, defense counsel also objected to the introduction of S-8, for the same reasons that he objected to the aforementioned exhibits, but defense counsel did not include his objection to S-8 in his current argument.
At the habitual offender hearing, the defendant objected to the introduction of state's exhibit S-2, records from the "Criminal Records Section" of Jefferson County, Texas. Exhibit S-2 included a photograph of the defendant, a rap sheet, and a set of fingerprint records. Defense counsel maintained that S-2 was not properly authenticated, because while some pages contained a seal, others did not. The trial court overruled the defense's objection. Later, the prosecution offered S-7, records from Harris County, Texas. Exhibit S-7 included copies of a bill of indictment, a judgment, an amended bill of indictment, and a "bill of costs." Again counsel objected, and again counsel was overruled. The state then presented exhibit S-8, which is a duplication of exhibit S-7, except that it lacked the amended bill, and added a pair of otherwise blank pages bearing the stamp of the Harris County District Clerk.
In each instance, the prosecution responded to the defendant's objections by stating that the documents were presented to the court as sent by the Texas authorities. The lower court apparently accepted this argument, as it overruled each of the defendant's objections. Defense counsel also objected to S-9, an exhibit that included documents similar to those in S-8 and S-7, but relating to a different charge. Defense counsel noted that the judgment included in S-9 lacked certification. The court overruled the objection without comment from the state. In addition, before the State called its witnesses, the defendant re-urged its objections.
The habitual offender statute, La.R.S. 15:529.1, has its own certification provisions at paragraph (F) as follows:
It is well-settled that other methods of certification are also available to prosecutors. To this end, the State's brief cites La.Code Evid. art. 901, which, in pertinent part, reads:
In addition, La.Code Evid. art. 902 states, in pertinent part:
Louisiana courts have also applied the provisions of 28 U.S.C. 1738 and 28 U.S.C. 1739, together with article 902(4), when faced with authentication problems in habitual offender proceedings. 28 U.S.C. 1738, reads:
Its companion statute, 28 U.S.C. 1739, reads:
In State v. Langlois, 620 So.2d 1193 (La. App. 4 Cir.), writ denied, 625 So.2d 1042 (La.1993), a case involving an authentication problem similar to that in the case sub judice, the fourth circuit conducted a detailed discussion of the application of the aforementioned statutes.
Id. at 1195-1196.
In light of this discussion, and the statutes cited previously, it seems the documents introduced in the present case, with the possible exception of S-2, were not properly authenticated. Documents produced outside the State of Louisiana require either official seals, or multiple attestations, or both. As the documents at issue do not meet such requirements, the lower court erred by authenticating them. The State argues "there is no standard form necessary to introduce records of a public body." Strictly speaking, this is true. However, it is clear that there
Exhibit S-2 has a notarial stamp on its first page, which certifies that Deputy Randy Franks is the records custodian for the Jefferson County Jail and that the other pages are true and correct copies of the county records of Kennerson's criminal history. It is signed by the named deputy and by a notary. Ergo, La.Code Evid. art. 902(8) would seem to apply. However, because paragraphs 902(1) and 902(2) are the more particular provisions, those provisions govern. These paragraphs, along with the federal statutes, are rather specific concerning the requirements for official seals and multiple attestations as to the identity of the first certifying official. Under 902(1) and 902(2), the secondary attestations must be made by other government officials. If the authentication process merely requires an out-of-state deputy to obtain the stamp of an out-of-state notary, then paragraphs 902(1) and 902(2) would be meaningless. Thus, S-2 should not have been accepted by the lower court. In addition, exhibits S-7 and S-9 also appear to lack the proper seals or attestations and, therefore, should not have been accepted.
The defendant does not re-urge his objections as to S-8 on appeal, but did object to it below. S-8's second and fifth pages, otherwise blank, bear identical stamped attestations that the copies are true and correct. They are dated, and signed by the district clerk of Harris County, Texas, under the language, "witness my official hand and seal of office." No official seal, other than the quoted language, appears.
Under this court's careful analysis, it is apparent that none of the contested exhibits were properly authenticated. The Code of Evidence and the Habitual Offender statute give prosecutors a plethora of procedures for authenticating out-of-state documents at habitual offender proceedings. In the case sub judice, the available procedures were not used. As previously noted, the defense's objections were met only with comments from the State that included: "[T]hat's the manner in which those documents were submitted to me," and "[t]hat is the manner in which those documents were sent to my office." However, these remarks do not constitute an argument relevant to the obvious authentication problems. Under La.R.S. 15:529, it is the state's burden to prove an offender is a habitual offender; therefore, it is also the state's responsibility to produce authentic, admissible documents in order to meet its burden. However, as will be discussed below, these authentication errors are harmless.
The defendant's objection regarding hearsay also fail, because the properly authenticated exhibits, S-3, S-4, S-5, and S-6 are clearly public records of the type contemplated in La.Code Evid. art. 803(8)(a)(I) and (ii):
Thus, any error as to the contested exhibits would be harmless. Furthermore, because the contested exhibits were not properly authenticated, we need not discuss the hearsay issue as it relates to them.
However, this court recognizes that the defendant stated on the record that he had no objection to the admission of exhibits S-3, S-4, S-5, or S-6. Further, he does not contest them on appeal. Exhibits S-3, S-4, and S-5 show that the defendant pled guilty to three offenses in Jefferson County, Texas, on April 12, 1993. These crimes were counted as one offense for purposes of the defendant's multiple offender adjudication. The S-6 documents showed that the defendant pled guilty to two offenses in Harris County, Texas, on May 2, 1990. These crimes were part of a group of offenses that were also counted as one at the defendant's multiple offender adjudication. Thus, even without the objectionable exhibits which are the basis for this assignment of error, it appears that the state has produced sufficient evidence to prove that the defendant is a third habitual offender.
Therefore, this assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 3
In his third assignment of error, the defendant argues that the trial court erred in finding that his prior convictions in Texas amounted to felonies in Louisiana, as required by La.R.S. 15:529.1(D)(1)(b). Therefore, the defendant contends that the trial court's finding of third habitual offender status is erroneous. This assignment of error is well taken.
La.R.S. 15:529.1(D)(1)(b) reads, in pertinent part:
(Emphasis added.)
The record reveals no written response by the defense to the state's "Motion for Sentencing Under the Habitual Offender Law," or to the multiple offender bill. La.R.S. 15:529.1 requires such a response, and one circuit has held that such an answer is required to preserve a defendant's appellate claims. State v. Lorio, 94-2591 (La.App. 4 Cir. 9/28/95); 662 So.2d 128. However, the Lorio court noted that 15:529.1(D)(1)(b) was written "to place the burden of challenging a predicate conviction ... on the defendant." Id. at 129. Further, the statutory language contemplates a challenge to the constitutional validity of the predicate convictions. Although the Lorio court refused to consider the defendant's challenge to the predicate offense, it did address his claim that the state had failed to prove the "cleansing period" had not elapsed. Id. at 129-131. In the case sub judice, the defendant is not challenging the validity of the predicate offenses; rather, he is attacking a proof issue. Therefore, the defendant's argument appears more analogous to the issue considered in Lorio, and as such, this assignment will be considered by this court.
The defendant's adjudication as a third habitual offender was based upon the following groups of crimes: (1) a set of offenses committed in Harris County, Texas; (2) a set
First, although La.R.S. 15:424 provides that the published law of other states is prima facie evidence of the law of that state, without the necessity of introducing it into evidence, the State should, at a minimum, cite the pertinent statute for the record. The relevant Texas statute, section 31.07 of the Texas Penal Code, states:
As noted above, in 1990, Louisiana's nearest equivalent crime was La.R.S. 14:68, "unauthorized use of a movable," which read:
The state made no showing that the vehicle "used" by the defendant in Texas had a value greater than one thousand dollars ($1,000.00). Therefore, there was no showing that the Texas crime would have been a felony under La.R.S. 14:68, and the defendant's argument on this point is well taken. The Harris County offenses, "unauthorized use of a motor vehicle," as presented in exhibit S-6, were not shown to be equivalent to Louisiana felonies.
Second, regarding the Jefferson County offenses, the defendant also argues that his conviction for burglary of a vehicle, a Suburban belonging to victim Zack Byrd, was not proven to be a Louisiana felony. The Texas documents in S-3 show that, although the defendant was indicted for theft, he actually pled guilty to "burglary of a vehicle." The statute, at section 30.04 of the Texas Penal Code, reads:
When the defendant committed the crime in 1992, the closest Louisiana statute was La. R.S. 14:62, "simple burglary," which read:
It is clear that these laws are sufficiently similar to demonstrate that the predicate Texas crime would have been a felony if committed in Louisiana.
Third, the defendant contends that another Jefferson County conviction for "burglary of a vehicle" was not shown to be a Louisiana felony. The indictment indicates that the crime consisted of the breaking and entering into a truck belonging to Ellis Simpson "with intent to commit theft." The defendant argues that the equivalent Louisiana statute, La.R.S. 14:62, requires unauthorized entry, with intent to commit a theft therein. The defendant was convicted under Texas Penal Code section 30.04, reproduced above. Considering the language of that section, along with La.R.S. 14:62, this court finds the language to be sufficiently similar so as to demonstrate that the Texas offense was equivalent to a Louisiana felony. Therefore, the defendant's argument on this point fails.
Finally, the defendant contests the use of another Jefferson County conviction. In his argument, the defendant asserts that his conviction for stealing victim Richard Hughes' van was not proven to be equivalent to a Louisiana felony. It is not clear whether the Texas statute requires an intent on the part of the defendant to permanently deprive the owner of his property. The intent on the part of the defendant to permanently deprive the owner of his property is, however, an essential element of Louisiana's theft statute, La.R.S. 14:67. Therefore, the Texas offense appears more analogous to La.R.S. 14:68, "unauthorized use of a movable." This offense is not a felony if the movable has a value of one thousand dollars or less. Thus, the value of the thing taken is a key issue. See also State v. Smith, 95-1827 (La.App. 1 Cir. 9/27/96); 681 So.2d 978.
The 1992 indictment, as evidenced by exhibit S-5, charges the defendant with stealing a van "of the value of at least Seven Hundred Fifty Dollars and less than Twenty Thousand Dollars." It appears that the threshold for felony theft is now higher, as the present Texas statute sets the limits between fifteen hundred dollars and twenty thousand dollars. However, in considering the bill's language and with no evidence regarding the dollar value of the van, we can only conclude that the state did not prove that this offense was equivalent to a Louisiana felony at the time it was committed. Therefore, the defendant's argument on this point is valid.
Based on this court's analysis, the Harris County convictions and one of the Jefferson County convictions were not shown to be equivalent to Louisiana felonies, as required by La.R.S. 15:529.1. As the Jefferson County convictions counted as one predicate offense, the defendant, at most, was proven to be a second habitual offender, and should be resentenced as such. Of course, the state would have the option of once again attempting to prove that the defendant is a third habitual offender, as double jeopardy does not apply to habitual offender adjudications. State v. Martin, 599 So.2d 422 (La.App. 4 Cir.1992).
Considering the merits of this particular assignment of error, the defendant's adjudication and sentence as a third habitual offender should be reversed and vacated, and the case remanded for proceedings in accord with this court's opinion. The state has the option of attempting to prove the defendant is a third habitual offender.
ASSIGNMENT OF ERROR NUMBERS 5 AND 8
This court will address these two assignments of error together, as did both the defendant and the state. The defendant's fifth assignment of error urges that the district court erred in sentencing the defendant as a third habitual offender. The defendant's eighth assignment of error argues the court erred in denying his Motion to Reconsider Sentence in that the court applied the habitual offender law to enhance both of his
The defendant correctly notes that a defendant cannot be sentenced as a multiple offender on multiple counts where the convictions on more than one count were entered on the same day and the offenses arose out of a single criminal episode. State v. Guillory, 598 So.2d 1299 (La.App. 3 Cir. 1992), affirmed after remand, 93-1031 (La. App. 3 Cir. 4/27/94); 640 So.2d 427, writ denied, 94-1380 (La.9/30/94); 642 So.2d 869. The state does not disagree but argues that the counts did not arise "out of a single criminal episode." The state's contention appears to be correct. The facts of the case indicate that once the defendant and his accomplices finished burglarizing Bordelon's trucks, one "criminal episode" was complete, they then drove to Dr. Guillory's home, where they participated in a second, different "criminal episode." As the fourth circuit explained in State v. Ward, 94-490, pp. 12-14 (La.App. 4 Cir. 2/29/96); 670 So.2d 562, 568-69:
(Emphasis supplied). Under this rationale, the criminal activity that occurred in the case sub judice constituted more than one criminal episode, and therefore, the defendant's sentences were properly enhanced. For the foregoing reasons, these assignments of error lack merit.
ASSIGNMENTS OF ERROR NUMBERS 6 AND 9
This Court will address the defendant's sixth and ninth assignments of error together, as they rely upon the same legal argument. The defendant alleges that his sentence of two consecutive twenty-year terms is excessive. Having already determined that the prosecution failed to prove that the defendant is a third habitual offender and having already determined that the defendant should be resentenced, this point is moot. However, this court feels compelled to address the issue, pursuant to the authority granted by La.Code Crim.P. art. 881.4, which reads, in pertinent part:
(Emphasis added.)
These reasons would seem to justify the trial court's imposition of consecutive sentences, as required by State v. Thompson, 544 So.2d 421 (La.App. 3 Cir.), writ denied, 550 So.2d 626 (La.1989). The materials introduced at the habitual offender hearing and the pre-sentence investigation (PSI) report show that the defendant is a career criminal. Further, this court has already observed that both burglary counts were subject to enhancement under La.R.S. 15:529.1. The simple burglary law, unenhanced, carries a
Focusing on the constitutional claim advanced by the defendant, the jurisprudence suggests that the defendant's individual sentences are neither shocking nor grossly disproportionate to the severity of the crimes committed. State v. Martin, 28,489 (La.App. 2 Cir. 8/21/96); 679 So.2d 557 (twenty-five years not excessive for fourth habitual offender convicted of simple burglary of a dwelling); State v. Anderson, 603 So.2d 780 (La.App. 1 Cir.1992) (twenty years at hard labor not excessive for second felony offender convicted of simple burglary; however, a writ was granted, requiring an "articulated justification for the near-maximum sentence"); Anderson, 609 So.2d 831 (La.1992); State v. Jones, 537 So.2d 848 (La.App. 5 Cir.1989) (fifteen years for a second offender convicted of simple burglary "clearly not excessive").
Despite the fact that the individual sentences appear to be legally sound, their combined effect is disproportionate to the crimes committed. The facts of the case indicate that: the crimes were simple burglaries; the burglars did not try to enter the victims' homes, and the burglars did not manifest a violent intent or act toward the victims. In addition, the value of the items taken from Mr. Bordelon's truck is unclear, while the burglars took a tire and $75 worth of frozen meat from Mr. Guillory's shed. Although the defendant is clearly a career thief and burglar, which we in no way intend to condone or minimize, he does not have a violent history. Thus, the record lacks evidence supporting the lower court's characterization of the defendant as a "dangerous man." Also, this court notes that, at the time of sentencing, the defendant was thirtyone years old. Therefore, the forty-year combined sentence will effectively span the remainder of his life, although "good time" diminution of sentence is available to the defendant pursuant to La.R.S. 15:571.3.
In State v. Soraparu, 93-1636, pp. 7-8 (La.App. 4 Cir. 1/19/95); 649 So.2d 1100, 1104, the fourth circuit stated:
(Citations omitted.)
Having reviewed the aggravating factors that the trial court stated in its reasons for sentence, this court is of the opinion that a forty-year combined sentence is not proportionate to the crimes committed and constitutes a manifest abuse of discretion on the part of the trial court. Certainly, the defendant deserves long sentences as the PSI reflects that the defendant has received a number of short-term sentences in Texas that have not dissuaded him from continuing his criminal activity. However, in reviewing the sentences, this court must ask whether a non-violent, petty criminal should spend the rest of his life in jail for stealing a tire and $75.00 worth of meat. The obvious answer to that question is no. The facts of the case do not establish that the defendant is the worst kind of offender in order to justify the imposition of two near maximum consecutive sentences and, as such, the sentence is grossly out of proportion to
ASSIGNMENT OF ERROR NUMBER 12
The defendant has explicitly abandoned this assignment of error in his brief.
ASSIGNMENT OF ERROR NUMBER 13
In this assignment of error, the defendant contends that the prosecution's closing argument was improper because in it, the prosecutor made reference to the Pope, causing the jury to be unduly influenced. The following remarks were made by the prosecutor during rebuttal:
The state argues that the defense failed to object to the remarks, as required by La. Code Crim.P. 841, the contemporaneous objection rule, which reads:
Based on the foregoing, this assignment will not be considered by this court.
ASSIGNMENT OF ERROR NUMBER 14
In this assignment of error, the defendant contends that the state improperly referred to the case during the voir dire of juror Elizabeth LaCombe. During the voir dire, the following colloquy took place:
The defendant argues that this exchange could be interpreted as an indication to the jury pool that the defendant would, or was required to, testify. Our review of the voir dire of Ms. LaCombe by the defendant's counsel indicates that Ms. LaCombe was fully aware of the state's burden of proof and that defense counsel accepted her as a juror shortly thereafter. Once defense counsel had accepted Ms. LaCombe as a juror, the defendant waived the right to challenge her on appeal. State v. Bourque, 622 So.2d 198 (La.1993). Furthermore, there was no contemporaneous objection to the question during voir dire. La.Code Crim.P. art. 841.
Therefore, this assignment will not be considered by this court.
ASSIGNMENT OF ERROR NUMBER 15
In this assignment of error, the defendant alleges that juror Sylvia Eagins' answers during voir dire suggested she might expect him to take the stand in his own defense:
Immediately afterwards, the court had the following dialogue with Ms. Eagins:
Defense counsel then questioned her again, to the same effect:
The record reveals no challenge for cause, and Ms. Eagins was accepted shortly thereafter. In fact, Ms. Eagins was the first juror seated. Thus, the reasoning employed in the previous assignment would apply here as well, and as such, this assignment will not be considered by this court.
ASSIGNMENT OF ERROR NUMBER 16
In this, his final assignment of error, the defendant argues that the lower court erred by seating Fay Smith Guillot as the alternate juror. In support of his argument, the defense points to a case in which the prosecuting attorney had represented Ms. Guillot's sister four years prior to this trial in a social security matter. As with the previous assignment of error, the record does not indicate that the defense lodged an objection or a challenge to Ms. Guillot's appointment. Additionally, this court notes that the defendant's case was not prejudiced, because Ms. Guillot did not participate in deliberations.
Therefore, this assignment lacks merit.
CONCLUSION
Accordingly, the defendant's convictions are affirmed, but the defendant's adjudication and sentence as a third habitual offender should be reversed and vacated. The case is remanded to the trial court in order to resentence the defendant as a second felony offender and in a manner not inconsistent with this opinion.
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