TERRI F. LOVE, Judge.
Defendant was charged with aggravated assault with a firearm, possession of a firearm by a convicted felon, and obstruction of justice after allegedly threatening to kill his neighbor with a gun. A jury found defendant guilty as charged. Following a multiple bill hearing, the trial court adjudged the defendant a third and fourth habitual offender and sentenced him to twenty years.
Defendant appeals contending that the trial court erred by denying his motion for post-verdict judgment of acquittal, as there was insufficient evidence to support his convictions. Defendant also asserts that his Fifth Amendment rights were violated by mention of his prior criminal history and ordering him to submit to fingerprinting at the multiple bill hearing. Defendant lastly contests his guilt as a habitual offender, maintaining that the evidence submitted was insufficient.
We find that the trial court did not err by denying defendant's motion for post-verdict judgment of acquittal, as sufficient evidence was presented to support his convictions. Defendant failed to show that mentioning his previous criminal history constituted a violation of rights. As to the multiple bill hearing, defendant did not admit to being a habitual offender. Therefore, the trial court's alleged failure to advise him of the right to remain silent was harmless error. Fingerprints are a non-testimonial form of identification and ordering defendant to submit them was not error. The fingerprint testimony and evidence was sufficient to support the habitual offender adjudication. Accordingly, the convictions and sentence of defendant are affirmed.
Louis Jones ("Mr. Jones"), the victim, was confronted by the defendant, a neighbor, Reginald Jones ("Defendant") on September 12, 2016. Defendant allegedly brandished a firearm and threatened to kill Mr. Jones.
As a result of the confrontation, Defendant was charged by bill of information with aggravated assault with a firearm and possession of a firearm by a convicted felon, in violation of La. R.S. 14:37.4 and La. R.S. 14:95.1, respectively. Defendant appeared for arraignment and pled not guilty to the charges. The trial court found insufficient probable cause to substantiate the charges at the preliminary hearing. Defendant withdrew his not guilty plea and pled guilty to aggravated assault with a firearm and was sentenced to five years at hard labor. The State also entered a nolle prosequi as to the possession of the firearm charge. The same date, the State filed a multiple offender bill and Defendant pled guilty thereto. The trial court then vacated the five-year sentence and set a date for sentencing.
Subsequently, Defendant moved to withdraw his guilty plea. The State joined the defense's motion and the trial court ordered that Defendant's guilty plea be withdrawn. The State thereafter filed an amended bill of information charging Defendant with aggravated assault with a firearm, possession of a firearm by a convicted felon, as well as obstruction of justice, in violation of La. R.S. 14:130.1. Defendant pled not guilty to the amended bill.
A jury found Defendant guilty as charged as to all counts. Defendant filed a motion for post-verdict judgment of acquittal, which the trial court denied. The trial court sentenced Defendant to ten years at hard labor on the convictions for obstruction of justice and aggravated assault with a firearm. The trial court also sentenced Defendant to ten years at hard labor without the benefit of probation, parole, or suspension of sentence, as to the felon in possession of a firearm charge. However, the trial court waived any fees and costs as to all three counts. All sentences were ordered to run concurrently, with credit for time served.
After sentencing, the State filed a multiple offender bill of information. The trial court adjudicated Defendant a quadruple offender as to his convictions for aggravated assault with a firearm (count one) and obstruction of justice (count three) and a triple offender as to the conviction for felon in possession of a firearm (count two). The trial court then vacated the previous sentences and resentenced Defendant to twenty years for each count, to run concurrently, without the benefit of probation, parole, or suspension of sentence as to the felon in possession of a firearm charge. Defendant's appeal followed.
Mr. Jones was living with his ex-wife, Brenda Jones, with whom he had an on-again off-again relationship, at 2542 Elder Street. Defendant lived two houses down from Mr. Jones and Brenda. Mr. Jones testified that at approximately 9:00 a.m., Defendant approached him on the street as he was walking home from purchasing cigarettes at a gas station on Franklin Avenue. Mr. Jones stated that Defendant appeared to be retrieving the garbage can and stopped him "like he wanted to fight," said "something about [how] I disrespected him and . . . he's going to do this and that to me." Defendant stated that Mr. Jones disrespected him when Mr. Jones was arguing with Brenda outside their home one night. Mr. Jones testified that he had "said something" during his argument with his ex-wife and Defendant "took it like [he] was speaking about him [Defendant]." Mr. Jones said that during this encounter, Defendant moved towards him as if he was going to hit him, but Mr. Jones moved out of the way and continued home. Mr. Jones denied telling Defendant he was "going to go after him," but conceded that they continued to argue as he walked away.
Upon returning home, Mr. Jones began watching television, but then observed Defendant on his surveillance video standing in his driveway. When Mr. Jones exited his house, he noticed Defendant had "something in his hand" resembling a "pistol." He was ten to twenty feet away from Defendant when he observed the gun.
Mr. Jones was also shown an affidavit that was provided to the prosecution by defense counsel the morning of trial.
On cross-examination, Mr. Jones testified that when Defendant was in the front of his driveway he did not initially observe a gun, but that he saw the pistol when Defendant moved closer towards him. When questioned whether he was sure the gun was an actual pistol or a water gun, Mr. Jones responded he was "no expert on guns."
Brenda testified that when she returned from work, Mr. Jones advised her that Defendant had approached him outside their home with a gun. She stated upon viewing the surveillance video, she "kn[e]w it was a gun" that Defendant brandished at Mr. Jones. Brenda called the police. Brenda testified that at no point did Mr. Jones advise her that the incident did not happen or instruct her not to call the police. On cross-examination, Brenda conceded that the gun Defendant was holding "could have been" a toy gun and she could not tell from the surveillance tape "whether it's a toy gun or a real gun." On redirect, however, Brenda noted that Mr. Jones had informed her the day of the incident that Defendant was holding a gun.
Trooper Sean LeBoeuf responded to the 911 call. At the time of the incident, he was employed as a patrolman by the New Orleans Police Department. Trooper LeBoeuf testified that when he arrived on the scene, Mr. Jones advised him that he and his neighbor had an argument and it escalated to a point during which the neighbor went to Mr. Jones' house with a gun. Trooper LeBoeuf identified the body camera video, depicting his conversation with Mr. Jones. Trooper LeBoeuf viewed and collected the video surveillance footage from Mr. Jones' residence. He then went to Defendant's house on the corner of Elder Street and Franklin Avenue, where a woman advised him that Defendant was not home, but that she would contact him. Trooper LeBoeuf eventually spoke with Defendant later that day. Trooper LeBoeuf identified the body-cam video of his interaction with Defendant.
Trooper LeBoeuf admitted, on cross-examination, that he did not obtain a warrant to search Defendant's truck or house for a firearm. He also testified that he did not recover bullets or shell casings from Defendant's person. Trooper LeBoeuf testified that Defendant insisted during his interview that he had a water gun, not a real gun, and because Defendant was a felon and it "would be dumb for him to carry a gun." Defendant also advised Trooper LeBoeuf that he had thrown the gun in the Peoples Avenue Canal. Trooper LeBoeuf stated that the police did not search the canal for the disposed water gun. The canal was not searched because of woody overgrowth and because there was a shortage of manpower. He believed the surveillance video and Mr. Jones and Brenda's description of the incident was sufficient evidence to close the case.
A review of the record reveals a patent error with regard to Defendant's sentence. After the trial court adjudicated Defendant a fourth felony offender as to his convictions for aggravated assault with a firearm (count one) and obstruction of justice (count 3) and a third felony offender as to the conviction for felon in possession of a firearm (count two), the trial court imposed the following sentences:
The trial court failed to specify that Defendant's twenty-year sentences regarding his fourth felony offender convictions for counts one and three were to be served "without benefit of probation or suspension of sentence" as required per La. R.S. 15:529.1(G). Nevertheless, La. R.S. 15:301.1(A) self-activates, providing that the sentence is deemed to contain the provisions relating to the service of the sentence without the benefit of parole, probation, and/or suspension of sentence. State v. James, 07-1578, p. 6 (La. App. 4 Cir. 6/25/08), 988 So.2d 807, 811. Thus, we need not vacate and remand for correction.
Defendant contends that the trial court erred in denying his motion for post-verdict judgment of acquittal.
A post-verdict judgment of acquittal "shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty." La. C.Cr.P. art. 821(B). This standard
State v. Williams, 04-1377, pp. 7-8 (La. App. 4 Cir. 12/1/04), 891 So.2d 26, 30. Thus, "[a] motion for post-verdict judgment of acquittal raises the question of sufficiency of the evidence." State v. Simmons, 07-0741, p. 15 (La. App. 4 Cir. 4/16/08), 983 So.2d 200, 208.
The well-settled standard for reviewing convictions for sufficiency of the evidence was outlined by this Court in State v. Haynes, 13-0323, pp. 7-8 (La. App. 4 Cir. 5/7/14), 144 So.3d 1083, 1087-88:
Here, Defendant was convicted of aggravated assault of a firearm, felony possession of a firearm, and obstruction of justice. Aggravated assault with a firearm is an assault committed with a firearm. La. R.S. 14:37.4(A). An assault is "an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery." La. R.S. 14:36. "Battery is the intentional use of force or violence upon the person of another." La. R.S. 14:33. A firearm is defined in La. R.S. 14:37.4(B) as "an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it." La. R.S. 14:37.4(B). "To convict a defendant of aggravated assault with a firearm, the State has to prove the defendant made an attempt to commit a battery, or intentionally placed the victim in reasonable apprehension of receiving a battery by the discharge of a firearm." State in Interest of C.B., 52,245, pp. 3-4 (La. App. 2 Cir. 6/27/18), 251 So.3d 562, 566. "A discharge of the firearm is not an element of the offense." Id., 52,245, p. 4, 251 So. 3d at 566.
La. R.S. 14:95.1(A) states that "[i]t shall be unlawful for any person who has been convicted of . . . any violation of the Uniform Controlled Dangerous Substances Law, which is a felony . . . to possess a firearm."
Defendant challenges the firearm requirement. Specifically, Defendant contends that the State failed to establish beyond a reasonable doubt that he possessed a "real gun." Defendant notes that he advised the investigating officers that the gun was a toy gun; that the affidavit, signed by Mr. Jones, indicated that the gun was a water pistol and no firearms were involved; and Brenda, Mr. Jones' ex-wife, testified that she could not identify the object in Defendant's hand. Defendant avers that no firearm was discovered and no weapons expert testified that he possessed a firearm.
However, a review of the evidence and the testimony demonstrates that the State presented sufficient proof to demonstrate that Defendant possessed a firearm. Mr. Jones testified that Defendant threatened to shoot him while holding "something in his hand" that "looked like a pistol." Subsequent to the incident, Mr. Jones also informed his ex-wife, Brenda, and the investigating officer, Trooper LeBoeuf, that Defendant pointed a gun at him. Trooper LeBoeuf's and Brenda's testimony corroborated Mr. Jones'. Moreover, while Mr. Jones said he was not an expert on guns, he had experience with guns while he was serving in the military. Although Brenda testified on cross-examination that she could not tell from the surveillance video whether Defendant was holding "a toy gun or a real gun," she also testified on direct examination that she knew it was a gun. As noted above, Brenda also stated that Mr. Jones told her Defendant was holding a gun the day of the incident.
Even if the jury found Brenda's testimony inconsistent, evaluating the credibility of a witness falls squarely within the province of the jury, which may accept or reject the testimony of a witness in whole or in part. It is not the role of the court of appeal to assess the credibility of witnesses or to reweigh the evidence. See State v. Swanzy, 10-0878, pp. 10-11 (La. App. 4 Cir. 2/16/11), 61 So.3d 114, 120. Further, the jury had the opportunity to view the body camera video of Trooper LeBoeuf, wherein Mr. Jones also described the item in Defendant's hand as a pistol, and video surveillance of the incident, wherein Defendant appears to point a gun at Mr. Jones.
Additionally, with regard to the affidavit, Mr. Jones stated that the document was provided to him by Defendant and that he only signed the affidavit in an attempt to resolve the case and help Defendant avoid prison. Further, Mr. Jones explicitly testified that the attestations therein indicating that no firearms were involved in the encounter and that the gun was a "water pistol" were false. The jury was entitled to accept Mr. Jones' testimony rather than the hearsay statements attributed to him in the affidavit drafted by Defendant days before trial.
Furthermore, while Defendant informed the police that the gun at issue was a water pistol, he could not produce the toy gun because he threw it in the canal, which indicates an attempt to dispose of a genuine firearm. Mr. Jones' and Brenda's testimony also indicates that Defendant was in possession of a gun. The jury was permitted to accept their testimony and disregard Defendant's self-serving statement to Trooper LeBoeuf. Moreover, Mr. Jones testified that Defendant said he was going to "blow" his head off, which is inconsistent with someone carrying a water gun.
The fact that no firearm was recovered and no firearms expert testified at trial is not fatal. Again, Trooper LeBoeuf stated Defendant threw the evidence in an overgrown, wooded canal. Trooper LeBoeuf also testified he did not know of any test that could have indicated Defendant was in possession of a gun because a gunshot residue test is utilized only when a gun has been fired.
Viewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Defendant possessed a real gun and; thereby, convict him of possession of a firearm by a convicted felon and aggravated assault with a firearm. Accordingly, Defendant's assertion that the State presented insufficient evidence to establish the existence of a firearm lacks merit.
Defendant also claims that the State could not prove that he obstructed justice by disposing of the gun when it was not reasonable to for him to think that a criminal investigation would result from his dispute with Mr. Jones.
La. R.S. 14:130.1 defines obstruction of justice and states in relevant part:
"[T]he knowledge requirement in La. R.S. 14:130.1(A) is met if the perpetrator merely knows that an act `reasonably may' affect a `potential' or `future' criminal proceeding." State v. Powell, 15-0218, p. 11 (La. App. 4 Cir. 10/28/15), 179 So.3d 721, 728, quoting State v. Jones, 07-1052, p. 9 (La. 6/3/08), 983 So.2d 95, 101; State v. Tatum, 09-1004, p. 12 (La. App. 5 Cir. 5/25/10), 40 So.3d 1082, 1090. "The defendant must also have tampered with evidence `with the specific intent of distorting the results' of a criminal investigation." Id., quoting La. R.S. 14:130.1(A)(1). "Nothing beyond `movement' of the evidence is required by the statute if accompanied by the requisite intent and knowledge." Id., quoting Jones, 07-1052, p. 10, 983 So. 2d at 101.
Here, as noted above, Trooper LeBoeuf testified that in the course of the investigation, Defendant advised him he threw the gun in the Peoples Avenue Canal. Defendant also admitted to disposing of a "water pistol" in the body-cam video offered into evidence. Moreover, Defendant told Trooper LeBoeuf that he would not possess a real gun because he was previously convicted of a felony.
"Jurisprudence indicates that a prior conviction, alone, is sufficient to find that a defendant had the knowledge required by the statute." Powell, 15-0218, pp. 11-12, 179 So. 3d at 728. In Jones, this Court found the defendant possessed the requisite knowledge he was obstructing a potential criminal proceeding in part because defendant was on probation for a drug offense and possession of marijuana would constitute a violation thereof. The Court stated:
Jones, 07-1052, pp. 9-10, 983 So. 2d at 101.
Further, "the investigation need not have been underway at the time of the obstruction for the statute to have been violated — i.e., the obstruction must only be committed with the knowledge that the act reasonably may affect `an actual or potential present, past, or future criminal proceeding.'" Powell, 15-0218, p. 12, 179 So. 3d at 728, quoting La. R.S. 14:130.1(A) (emphasis in original).
In the present case, Defendant admitted to discarding the gun, which established that he secluded a piece of evidence with the intent to distort the results of an investigation. In fact, because Defendant disposed of the gun and the police were unable to recover it, he was able to assert at trial that the weapon was a water gun. Also, Defendant insisted to Trooper LeBoeuf it would be "dumb" to carry firearm based on a prior conviction, which, as in Jones, further evidenced that Defendant knew possession of a gun could affect potential criminal proceedings against him. A reasonable juror could therefore conclude that by disposing of the gun in the canal, Defendant was attempting to avoid future criminal proceedings. Accordingly, we find that sufficient evidence existed to support his conviction for obstruction of justice.
Defendant also claims that there was insufficient evidence to support his convictions because the trial court found there was no probable cause to substantiate the charges at his preliminary hearing. However, "[t]he primary function of the preliminary examination is to determine if there is probable cause to believe a defendant has committed a crime in order to hold him on his bond obligation for trial." State v. Baham, 13-0901, p. 3 (La. 6/28/13), 117 So.3d 505, 507. La. C.Cr.P. art. 296 provides, in relevant part:
The State was only required to present a prima facie case. State v. Lewis, 09-0350, p. 5 (La. App. 4 Cir. 12/16/09), 28 So.3d 548, 552. "If the evidence does not support probable cause, the court must order defendant's release from custody or bail." Id. A finding of no probable cause does not result in a judicial dismissal, as "[t]he State may still proceed against the defendant." Id. Thus, the trial court's finding of no probable cause at the preliminary hearing results only in the release of custody and/or bail. It does not affect the ability of the State to prosecute Defendant nor is it relevant to Defendant's subsequent conviction.
Defendant also contends that the trial court erred in declining to modify the verdict to simple assault, a lesser included verdict of aggravated assault with a firearm. La. C.Cr.P. art. 821 allows the trial court to "modify the verdict and render a judgment of conviction on the lesser included responsive offense" in lieu of granting a post-verdict judgment of acquittal.
Defendant asserts that the trial court erred in allowing the prosecution to refer to his previous criminal history during trial and in closing arguments when he invoked his Fifth Amendment privilege and elected not to take the stand at trial.
The State referenced Defendant's prior conviction for possession of cocaine in relation to his felon status for the charge of the possession of a firearm by a convicted felon. The State introduced a certified copy of Defendant's 2006 guilty plea for cocaine possession and the parties stipulated as to its authenticity and that the conviction qualified as a "valid predicate for [La. R.S. 14:]95.1." The State was permitted to introduce evidence relating to his previous conviction as proof thereof is an essential element of the crime of felon in possession of a firearm. Further, because the defense did not object to the introduction of Defendant's drug conviction and in fact stipulated thereto, Defendant failed to preserve this issue for appellate review. See La. C.Cr.P. art. 841(A) ("[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"); State v. Brooks, 98-0693, p. 9 (La. App. 4 Cir. 7/21/99), 758 So.2d 814, 819 (a defendant must make known the grounds for his objection, and he is limited on appeal to those grounds articulated at trial).
Defendant's prior convictions for drug possession and negligent homicide were also raised at the sentencing hearing and the multiple offender hearing. However, previous criminal activity is a proper factor for the trial court to consider at the sentencing phase. See La. C.Cr.P. art. 894.1 (providing guidelines for sentencing and lists several non-exclusive factors for a court to evaluate in determining the appropriate sentence to be imposed, including defendant's prior criminal record); State v. Ballett, 98-2568, p. 25 (La. App. 4 Cir. 3/15/00), 756 So.2d 587, 602 (holding that the trial court is entitled to consider the defendant's entire criminal history in determining the appropriate sentence to be imposed); La. R.S. 15:529.1 (providing enhanced sentences for repeat felony offenders).
The closing arguments were not included in the record for appeal. As noted by the State, counsel for Defendant did not designate that the closing arguments be part of the record. See La. C.C.P. art. 914.1(A) (providing that the "party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged"). He also did not file a motion to supplement the record with the closing statements. The trial transcript does not indicate that any objections were made to the prosecution's closing statements. As such, to the extent that the State allegedly improperly referred to Defendant's prior crimes in closing statements, the allegation concerning the impropriety thereof was waived and Defendant cannot raise the issue on appeal. As Defendant failed to establish that his Fifth Amendment rights are implicated by the prosecution's reference to his prior convictions at trial and sentencing, his assertion lacks merit.
Defendant's remaining assignments of error regarding the multiple bill hearing will be addressed concurrently.
"To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony." State v. Payton, 00-2899, p. 6 (La. 3/15/02), 810 So.2d 1127, 1130, quoting State v. Neville, 96-0137, p. 7 (La. App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39. "There are various methods available to prove that the defendant is the same person convicted of the prior felony offense, such as testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, or photographs in the duly authenticated record." State v. Wolfe, 99-0389, p. 4 (La. App. 4 Cir. 4/19/00), 761 So.2d 596, 600.
Here, to establish Defendant was a multiple offender, the State introduced several exhibits, including a print-out from the Department of Public Safety and Corrections, Probation and Parole Division, showing Defendant was convicted of possession of cocaine in the 18
Defendant alleges that the trial court erred in failing to advise him of his right to remain silent during the multiple bill hearing. La. R.S. 15:529.1(D)(3) provides:
However, as to these requirements, this Court in State v. Jones, 14-1118, p. 10 (La. App. 4 Cir. 4/1/15), 165 So.3d 217, 224, recently stated that they "`should not serve as technical traps for an unwary but otherwise conscientious judge.'" (quoting State v. Cook, 11-2223, p. 1 (La. 3/23/12), 82 So.3d 1239, 1240 (per curiam)). Therefore, "appellate courts are permitted to review records to determine whether a `[d]efendant's interests were fully protected and any technical noncompliance with the statutory directives . . . was harmless.'" Id., quoting Cook, 11-2223, p. 2, 82 So. 3d at 1240-1241. "`Generally, a trial court's failure to advise the defendant of his right[s] . . . is considered harmless error, when the defendant's multiple offender status is established by competent evidence offered by the [prosecution] at a hearing, rather than by admission of the defendant.'" Jones, 14-1118, p. 10, 165 So.3d at 225, quoting State v. Hayes, 12-0357, p. 13 (La. App. 4 Cir. 1/23/13), 108 So.3d 360, 368. "This review is often performed `in light of the documentary proof introduced by the [prosecution] at the hearing that the defendant is the person who pled guilty to the predicate offenses, and in light of the defendant's own admissions in his testimony at trial.'" Id., quoting State v. Brown, 11-1656, pp. 1-2 (La. 2/10/12), 82 So.3d 1232, 1233-34 (per curiam).
"A criminal defendant need not be informed of these rights, however, following that defendant's decision to deny the allegations contained in the multiple bill and to proceed to a full adjudication by formal hearing of the defendant's habitual offender status." Jones, 14-1118, p. 11, 165 So. 3d at 225. Moreover, the habitual offender law only affords the advisement of rights protection to those "that confess their status as habitual offenders." Id.
In the present case, Defendant contested the allegations in the multiple bill. The formal hearing was held and the prosecution introduced competent evidence that established Defendant was a third and fourth felony offender. Defendant did not admit or confess that he was a multiple offender. Thus, any failure on part of the trial court to advise Defendant of his right to remain silent was harmless.
Defendant also contends that the trial court erred by compelling him to submit to fingerprinting in violation of this Fifth Amendment privilege against self-incrimination and the right to remain silent.
At the beginning of the multiple bill hearing, the State advised the trial court that Officer Bell was "prevented by somebody in the audience from fingerprinting" Defendant and asked the trial court to order Defendant to submit to fingerprinting. The trial court so ordered. Defendant did not object to the trial court's order and responded "Yes, Your Honor." The record reflects that Defendant's fingerprints were then taken by Officer Bell.
Because Defendant did not object the trial court's ruling, he is precluded from raising the issue on appeal. Nonetheless, it is well established that "[f]ingerprint evidence is a non-testimonial means of identification and does not violate defendant's privilege against self-incrimination." State v. McCullom, 480 So.2d 430, 432 (La. App. 4th Cir. 1985). Thus, Defendant's Fifth Amendment rights were not violated by being fingerprinted by Officer Bell in open court.
Defendant maintains that the trial court erred in adjudicating him a multiple offender based on "faded, non-existent, and miniscule" fingerprints and unqualified opinion testimony.
The fingerprints Defendant claims are insufficient to establish his prior conviction are contained in the documents related to his possession of cocaine plea in Case No. 611-06A. On cross-examination by defense counsel, Officer Bell conceded that the fingerprints in S-6 were not the same size as the prints taken on the day of the hearing. Officer Bell also acknowledged that the fingerprints in S-6 are lighter than those contained on the fingerprint card. However, Officer Bell testified on several occasions that he used a magnifying glass to assist him in comparing and matching the fingerprints. Moreover, Officer Bell testified as to his training and qualifications in analyzing latent fingerprints.
An expert may be qualified "by knowledge, skill, experience, training, or education." La. C.E. art. 702. "Courts may also consider whether a witness has previously been qualified as an expert." State v. Ferguson, 09-1422, p. 25 (La. App. 4 Cir. 12/15/10), 54 So.3d 152, 166. "[T]he trial judge has wide discretion in the area of the qualifications of an expert witness, and such discretion will not be disturbed on appeal in the absence of manifest error." State v. Chapman, 410 So.2d 689, 704 (La. 1981).
Officer Bell testified at the hearing that he took four different classes, which combined amounted to 144 hours in training, to obtain professional certification to become a latent fingerprint examiner. Officer Bell stated he had been accepted as an expert in the field of fingerprint identification more than seventy times and never been denied qualification as an expert by a trial judge. Officer Bell further testified that in all the proceedings in which he had been involved, no counter-expert had challenged his fingerprint analysis nor has anyone challenged his credentials. He also said that he analyzed fingerprints eight hours a day, five days a week. Accordingly, Officer Bell's experience and training qualified him in the field of fingerprint and the trial court did not err in accepting him as an expert.
Defendant also contests Officer Bell's ability to analyze fingerprints because he admitted at the hearing to having "vision issues." The vision problems to which Defendant refers is Officer Bell's admission that he wore glasses. He stated that he had worn glasses since high school and while he believed he was far-sighted, he was unsure. However, Officer Bell's necessity for glasses given his far or nearsightedness failed to render him incapable or unqualified to provide an opinion regarding fingerprint identification.
We find that Officer Bell's testimony and the exhibits offered by the State were sufficient to adjudicate Defendant a fourth felony offender as to his convictions for aggravated assault with a firearm and obstruction of justice and a third felony offender as to his conviction for possession of a firearm by a convicted felon.
For the above-mentioned reasons, we find that the trial court did not err by denying Defendant's motion for post-verdict judgment of acquittal, as sufficient evidence was presented to support his convictions. Defendant's failed to show any mention of his previous criminal history constituted a violation of his Fifth Amendment rights. As to the multiple bill hearing, Defendant did not admit to being a habitual offender. Therefore, the trial court's alleged failure to advise him of the right to remain silent was harmless error. Ordering Defendant to submit to fingerprinting at the multiple bill hearing was not a violation, as fingerprints are non-testimonial identification. The fingerprint testimony and evidence was sufficient to support a habitual offender adjudication. Accordingly, the convictions and sentence of Defendant are affirmed.
