PETTIGREW, J.
The defendant, James Leonard Moore, was charged by bill of information with simple burglary, a violation of La. R.S. 14:62. He pled not guilty. Pursuant to a plea offer, the defendant withdrew his former plea and pled guilty. Prior to sentencing, the defendant retained new counsel, who filed a motion to withdraw his guilty plea. The trial court granted the motion, allowed the defendant to withdraw his guilty plea, and set the matter for trial. The State amended the bill of information to charge the defendant with simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. The defendant pled not guilty to the amended charge. After a jury trial, the defendant was found guilty as charged by a unanimous verdict. Thereafter, the defendant filed a motion for new trial, which was denied by the trial court. The State filed a bill of information charging the defendant as a fourth-felony habitual offender. Before the habitual offender hearing, the defendant retained a new attorney, who enrolled and filed motions for new trial and post-verdict judgment of acquittal. The trial court denied the defendant's motions, and the defendant stipulated to being a fourth-felony habitual offender. The trial court sentenced the defendant as a habitual offender to twenty-five years at hard labor. The defendant filed a motion to reconsider sentence, which was denied.
On the morning of March 25, 2008, Lori Runnells left her home in Baker and drove her husband to work in the family's only functioning vehicle. An old pickup truck with a wrecked front end remained in the back of the house. Her son, who was out of school for the Easter holidays, remained at home asleep in his bedroom with the family's two dogs. When Ms. Runnells returned to the home about 7:15 a.m., she drove to the back of the house. She saw a silver car in the driveway and at first believed the vehicle was her daughter's recently purchased car, but she then realized it was not the same vehicle. As Ms. Runnells exited her own car, she noticed the lights were on in her kitchen. She also noticed the screen door was closed, but the wooden door was open; she remembered locking the door's deadbolt before she left the home.
Ms. Runnells then saw a man standing on the steps and walking out of her kitchen door. At first she did not see the man's face and thought he might be a friend of her son. However, she noticed the man "palmed a screwdriver," and explained that the man was holding the tool handle in his hand with the sharp end slipped into the sleeve of his jacket. The man was about twelve feet away from her, and she asked who he was. The man responded that he was "looking for Mr. Larry." The man, who Ms. Runnells later identified as the defendant, started to walk toward her. She walked to the other side of her vehicle, but the man continued to approach her. Ms. Runnells ran to a window outside her son's bedroom and screamed to him to call the police. When the defendant heard the dogs barking, he jumped in his car and fled. As the defendant backed up the car and drove out of the driveway, he almost hit Ms. Runnells. However, Ms. Runnells was able to obtain the vehicle's license plate number, and she immediately walked inside and wrote the number down. Ms. Runnells testified the incident was about three to five minutes long.
Ms. Runnells testified about her identification of the defendant in a photo lineup shown to her by the police. She also positively identified the defendant during the trial. Ms. Runnells testified she did not personally know the defendant and had never met him before she encountered him at her home. Nor did she give him permission to go inside the home.
When asked about the location of her home, Ms. Runnells confirmed that her home was about two miles from Arena Drive, the street where the defendant lived with his mother. She also indicated that she sometimes went to a nearby convenience store, located at the corner of Plank Road and Comite Road. Ms. Runnells had not searched her home to see if anything was missing when the police initially investigated the offense. Later, she discovered that some of her husband's tools, a weed eater, a chainsaw, and an old generator were missing from a storage shed at the residence.
Ms. Runnells' son, Cody Runnells, testified that on the morning of the incident, he was awakened when his mother banged on his bedroom window. He grabbed the telephone and brought it to his mother; he did not recall who dialed 911, but his mother was the one who actually spoke with the police and reported the offense.
East Baton Rouge Parish Sheriffs Corporal Lavonita Ealy testified she was dispatched to the Runnells' home to investigate the burglary at about 7:30 a.m. The corporal testified about the information given by Ms. Runnells, which was consistent with Ms. Runnells' testimony. Based on this information. Corporal Ealy prepared the initial report. She noted her report indicated Ms. Runnells had not noticed any missing items, but explained that Ms. Runnells had not yet had time to completely check her home and that generally missing items are not immediately known by victims. The corporal attempted to obtain fingerprints from the doorknob, but they were very smeared. After her initial investigation, detectives from the burglary division arrived to handle the case.
East Baton Rouge Parish Sheriffs Detective Willie Stewart testified that he arrived at the Runnells' home at 7:45 a.m. to investigate the burglary. Ms. Runnells gave information about the incident and indicated that "she saw an unknown black male walking from her back door with something in his hand." She also stated the defendant tried to hit her with his vehicle as he fled from the home. She did not state any items were missing, but the detective was able to discover the name and address of the owner of the suspect's vehicle from the license plate number obtained by Ms. Runnells. On cross-examination, the detective agreed that the "victim said that she saw someone coming away from the back of her house" and that she did not relate she "actually observed someone inside of her house."
At about 9:00 or 10:00 a.m. that same morning, Detective Stewart went to the address of the vehicle's owner and the defendant's mother, Ida Spurlock. He met the defendant and another man, identified as Ms. Spurlock's husband, Roosevelt Taylor, outside the home. At that time, the defendant denied driving the vehicle that morning. He also observed the vehicle at the home and spoke with Ms. Spurlock. To her knowledge, her vehicle had been parked at the home that morning, but she also indicated she was asleep after arriving home from working a graveyard shift.
Detective Stewart testified he arranged for a photographic lineup, including the defendant's photo, to be shown to Ms. Runnells. When Ms. Runnells saw the lineup, she immediately circled the defendant's photograph as the man she saw walking out of her home. Around 2:00 p.m. that same day, the detective returned to Ms. Spurlock's home and located the defendant at a nearby house. After Detective Stewart handcuffed the defendant and advised him of his
Detective Steven Gallo testified he prepared the six-person photo lineup that included the defendant's driver's license photo. He was present when Detective Stewart showed the lineup to Ms. Runnells, and she was not given any clues as to the location of the defendant's picture. She did not hesitate and immediately selected the defendant's photo as the suspect. Detective Gallo went to the defendant's home with Detective Stewart when the defendant was taken into custody. When he arrived, he observed the defendant using a weed eater a few houses away. Detective Gallo heard Detective Stewart advise the defendant of his rights, and the defendant stated he had been driving that morning. He was also present when the screwdriver was seized, but testified, "if I remember correctly, it was in the back of [the defendant's] vehicle."
The defendant called several witnesses on his behalf. Andre Moore, the defendant's nephew, testified he lived with his grandmother, Ms. Spurlock, her husband, Mr. Taylor, and his uncle, the defendant. He further testified that although "we" never drove Ms. Spurlock's car, she did allow Mr. Taylor to drive the vehicle. Mr. Taylor drove the car every day and even used it more than Ms. Spurlock. Andre Moore said he was present each time the detectives came to his grandmother's home; they asked if someone had been using her vehicle and told her it had run red lights. He also heard Ms. Spurlock state Mr. Taylor had been using the vehicle. Andre Moore further testified the defendant drove a truck and he had never seen the defendant drive Ms. Spurlock's vehicle.
The defendant also called Detective Stewart's supervisor, Lieutenant Jonathan Alfred, as a witness and questioned him as to his involvement in the investigation. Lieutenant Alfred testified that he had not been part of the investigation, but explained his name was on the police report because he was the reviewing officer.
Mr. Taylor was subpoenaed as a defense witness and, at the time of the trial, was an inmate in the St. Tammany Parish Jail. Out of the presence of the jury, the trial judge advised Mr. Taylor that if he admitted committing the burglary at the Runnells' home, he could be arrested for that offense and, because of his prior convictions, he could be charged as a habitual offender. The judge further advised Mr. Taylor that he had the right to not incriminate himself during his testimony if asked whether he committed the burglary. The judge also advised Mr. Taylor that defense counsel indicated he was going to testify that he had committed the burglary at the Runnells' home. Mr. Taylor stated he was going to testify about using the car, but was not going to admit to committing the burglary.
In the presence of the jury, Mr. Taylor testified that he used his wife's car from around 4:00 p.m. on the date of the burglary; he denied using the vehicle that morning. He admitted having prior convictions for burglary, but could not recall the number. Mr. Taylor further testified, "I don't have no problem with pleading guilty when I'm wrong" and that he pled guilty "to everything I do." When questioned by the prosecutor on cross-examination, Mr. Taylor denied committing or being involved in the burglary of the Runnells' home. He also denied driving his wife's vehicle to that location.
Ms. Ida Spurlock testified she could recall the events of March 25, 2008, because her son was arrested on that date. She testified that the first time the detectives came to her home, they told her that her vehicle had run ten red lights. Ms. Spurlock claimed the vehicle was not at her home during that visit by the detectives because Mr. Taylor was using the car at the time. She called his cell phone and left a message during the detectives' first visit to her home, but Mr. Taylor did not return to the home until about 7:30 that evening. She further stated that Mr. Taylor had a habit of leaving the house early in the day and staying out until late at night. She also recalled seeing Mr. Taylor bring things home, but could not say that he did not purchase the items. Ms. Spurlock further testified that she never allowed the defendant to drive her car and, because he had a truck, he did not need to use her car.
On cross-examination, Ms. Spurlock was confronted with the police report narrative that reflected she had told the detectives she did not know who had her car that morning; she denied making that statement. She admitted that she loved her son; and when asked if she wanted to see him convicted, she answered, "No, I don't, what mother would?"
The defendant testified that the detectives were holding their firearms when they arrived to arrest him and that Detective Stewart put a pistol in his back before the arrest. The defendant admitted he had been advised of and understood his
The defendant admitted he had a prior conviction for armed robbery and that he had been released from prison in 2007. However, on cross-examination the defendant did not recall his conviction in 2000 for illegal possession of stolen things and that his probation for that offense was revoked in 2002. When asked about his misdemeanor theft convictions in 1996 and 1999, the defendant testified, they were "[p]robably the truth." The defendant admitted he had numerous prior convictions involving theft, but stated he "was" a thief and that he had been a "drug user then."
The State called Detective Stewart as a rebuttal witness. He disputed the testimony of the defendant and Ms. Spurlock about the events when he was at their home. Detective Stewart testified he saw Mr. Taylor at the Spurlock residence about 9:00 a.m. on the morning of the burglary. At the time, Ms. Spurlock's car was in the driveway of the home.
When Ms. Runnells was called as a rebuttal witness, the prosecutor asked the trial court's permission to have Mr. Taylor stand next to the defendant. Mr. Taylor was wearing an orange prison jumpsuit, and the defendant was wearing a striped shirt. Ms. Runnells was asked to identify the man she had seen at her home, and she identified the defendant. She also testified she had never seen Mr. Taylor before that day. She reiterated her prior testimony that she saw the defendant coming out of her house.
In assignment of error number four, the defendant claims the State failed to present sufficient evidence of the element of specific intent to support his conviction for simple burglary of an inhabited dwelling; he concedes that there was sufficient evidence to find him guilty of unauthorized entry of an inhabited dwelling.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt.
Simple burglary of an inhabited dwelling is defined by La. R.S. 14:62.2, which states, in pertinent part:
Thus, the accused must have the specific intent to commit either a felony or a theft at the time of his unauthorized entry.
The defendant specifically argues that because the evidence did not show a forced entry or that the missing property was actually taken during the incident, there is no proof of the element of intent. The State contends that specific intent can be inferred from the facts of the offense, including that the defendant possessed a flathead screwdriver, a tool frequently used to gain entry.
Ms. Runnells' testimony shows that she positively identified the defendant as the man she saw coming out of her home. She testified the rear door deadbolt was locked when she left the home, and when she returned, she saw the defendant exiting her rear door while holding a screwdriver. Detective Willie Stewart testified that the defendant admitted he had used his mother's vehicle at the time of the offense and that a screwdriver was found in the defendant's possession. The testimony further reveals that when the victim confronted the defendant about being in her home, he started to approach her, but fled when she yelled for her son to contact the police. When the police came to investigate, Ms. Runnells had not searched her home to see if anything was missing and thus, did not discover that items were missing from a storage shed until later.
It is well settled that the trier of fact can accept or reject, in whole or in part, the testimony of any witness. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a jury's determination of guilt.
This assignment of error lacks merit.
In assignment of error number three, the defendant argues that the trial court abused its discretion in denying his right to present an alibi defense at trial. In his brief to this court, the defendant claims his own testimony and that of Andre Moore would have shown he was doing yard work at the time the crime was committed, and thus, establish his alibi.
Initially, we note that although the defendant objected to the court's ruling regarding the presentation of the alibi evidence, he failed to proffer the substance of the excluded testimony. Defense counsel did attempt to make a proffer during the trial, but the trial judge denied that request and stated counsel could make the proffer after the trial ended. However, there is nothing in the record to show that defense counsel attempted to make a proffer after the verdict was rendered.
To preserve the right to appeal a trial court ruling that excludes evidence, the defendant must make the substance of the evidence known to the trial court. La. Code Evid. art. 103(A)(2). The trial court's ruling that the defendant present his proffer of evidence after the completion of the trial was not unreasonable. Because the defendant did not make the proffer of Andre Moore's testimony, there is no evidence for this court to review on appeal.
Moreover, there appears to be no merit in the defendant's argument. A review of the record indicates that procedurally, the defendant failed to comply with the notice requirements for presenting an alibi defense. Louisiana Code of Criminal Procedure article 727 provides:
The article provides that "for good cause shown," an exception may be granted to the notice requirement; however, the decision to grant such exception is within the discretion of the trial court. The purpose of the discovery rules is to eliminate unwarranted prejudice from surprise testimony at trial.
The State's reciprocal motion for discovery stated, in pertinent part:
The defendant's answers to the State's discovery request stated, in pertinent part:
During Andre Moore's direct examination, defense counsel asked a question regarding the defendant's whereabouts before the detectives arrived at the home. The trial court sustained the State's objection. Defense counsel argued he should be allowed to question Andre Moore about the defendant's alibi, because the defendant's answers to the State's discovery request had given notice that the defendant had not driven his mother's vehicle at the time of the offense. The assistant district attorney responded that the defendant's answers did not provide notice of an alibi, because they did not include information as to the specific places that the defendant claimed to be at the time of the offense or the names and addresses of witnesses the defendant intended to call to establish his alibi. Defense counsel countered that the defendant listed "just about everybody that lives on this street as an alibi witness."
The trial judge concluded the defendant's discovery answers did not indicate the defendant's whereabouts at the time of the crime. The argument about alibi testimony continued, and the judge acknowledged that the defendant's answers included a list of people and their statement that the defendant was not allowed to drive his mother's vehicle. However, the judge concluded that the answers did not state where the defendant was at the time of the offense and that the defendant was not allowed to present testimony of an alibi. After a recess, the assistant district attorney acknowledged the trial court had already ruled on the issue of alibi evidence, but filed a written motion in limine to exclude the defendant's alibi witnesses and evidence. The judge concluded the proper remedy was not to exclude witnesses, but for the prosecutor to object when defense counsel asked witnesses questions that sought alibi evidence.
The defendant concedes his trial counsel failed to comply with the requirements of Article 727 and failed to provide the State with proper notice of the alibi defense. However, he argues that the only problem with the notice was the failure to include the specific place where the defendant was during the crime. The defendant asserts that the State cannot rely on that technicality, that the exclusion of this evidence was a severe and harsh remedy, and that he was prejudiced by the ruling. The defendant contends the factors to be considered in determining whether the trial court properly exercised its discretionary power to exclude undisclosed alibi evidence are present in this case and support a finding that the trial court erred in not allowing the alibi testimony. He contends the reason for the failure to comply with the notice requirements "may have been due" to defense counsel's "mistaken understanding" of the law, that nothing in the record shows the harm caused by the nondisclosure was mitigated, that there was no physical evidence linking him to the crime, that the evidence against him was not overwhelming, and that the State had sufficient notice of the witnesses prior to trial.
The State responds that the defendant failed to prove there was "good cause" for admitting the alibi testimony and that the trial court did not abuse its discretion. The State argues because the defendant waited until after the State presented its case in chief to disclose the alibi, it would not have been able to rebut or negate the alibi testimony and would have been prejudiced. The State further contends that prior to trial, the defendant knew his nephew could testify about an alibi and he did not offer any valid reason for the nondisclosure. In addition, the State argues that any harm to the defendant was mitigated and that he was essentially able to present an alibi defense because his mother and nephew testified the defendant never drove his mother's vehicle. Moreover, the State argues that the weight of the evidence presented, including the victim's positive identification, the defendant's admission to the police that he had been driving the vehicle around the time of the offense, and the defendant's possession of the screwdriver, supported the defendant's guilt.
Alternatively, the State contends that even if the trial court erred in not allowing the alibi evidence, any such error was trial error and harmless. The State argues that the jury clearly rejected the defendant's hypothesis that Mr. Taylor committed the crime and believed the victim's positive identification of the defendant and that Mr. Taylor had not driven the vehicle at the time the offense was committed.
From our review of the record, we cannot say that the trial court abused its discretion in not allowing testimony of Andre Moore regarding the defendant's whereabouts at the time of the offense. There was no valid reason for the failure to comply with the notice requirements. Moreover, the defendant essentially presented alibi evidence when his witnesses stated he had never driven his mother's car. Therefore, he has shown no prejudice.
This assignment of error is without merit.
In assignments of error numbers one and two, the defendant contends that his trial counsel was ineffective when he fell asleep for "several minutes during the State's direct examination of Detective Willie Stewart" and by failing to give the State proper notice of his intent to present an alibi defense.
As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post conviction relief in the trial court rather than on appeal. This is because post conviction relief provides the opportunity for a full evidentiary hearing under La. Code Crim. P. art. 930.
The claim of ineffective assistance of counsel is to be assessed by the two-part test of
Counsel's performance is deficient when it can be shown that he made errors so serious that he was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. The defendant must make both showings to prove that counsel was so ineffective as to require reversal.
As support of the claim that his attorney fell asleep during the trial, the defendant refers to his own affidavit that states "his trial counsel fell asleep, on August 5, 2009, for several minutes." The affidavit further states that "to the best of [the defendant's] knowledge and memory, his trial counsel fell asleep for several minutes during the State's direct examination of Detective Willie Stewart, a State's witness."
The State argues the defendant has not cited any part of the record to support his allegation and that even the defendant's affidavit does not support his claim. The State contends the affidavit does not definitively state his counsel fell asleep; instead the affidavit only establishes that counsel "might" have been asleep. Moreover, the State contends that the record shows that during defense counsel's cross-examination of Detective Stewart, counsel attempted to find inconsistencies in the detective's testimony and referred to testimony given by the detective on direct examination. The State also notes the record reflects defense counsel was awake and objected when another prosecutor attempted to conduct the redirect of the detective. Moreover, the State contends the defendant has not shown that any prejudice occurred as a result of this alleged deficient conduct.
A review of the trial transcript shows that during Detective Stewart's testimony, the defendant's attorney stated he had no objection to the admission of exhibits identified by the detective. As noted by the State, defense counsel referred to the detective's direct testimony during his attempt to discredit the detective on cross-examination. The record further shows that defense counsel objected when a different prosecutor questioned the detective.
The defendant also claims his defense counsel's representation was deficient when he failed to provide proper alibi notice. The defendant argues he was prejudiced because the outcome of the case would have been different if the evidence of his alibi had been admitted at trial.
The State argues that there is no evidence in the record that the defendant told his trial counsel about the potential alibi prior to trial, and thus, the defendant has not shown deficient performance.
It is clear that the trial judge did not allow the alibi testimony because of defense counsel's failure to notify the State of the specific place the defendant claims to have been at the time of the offense. We need not determine if this lack of notice was deficient conduct, because the defendant has not shown he was prejudiced. In light of the evidence presented to prove the defendant's guilt, the defendant has not shown that there is a reasonable probability that counsel's error, if any, was sufficient to undermine confidence in the outcome of the trial.
These assignments of error lack merit.
In conducting a review of the record for error pursuant to La. Code Crim. P. art. 920(2), we note the existence of an error involving the defendant's habitual offender adjudication. The record indicates that following the defendant's convictions, the State instituted habitual offender proceedings seeking to have the defendant adjudicated a felony habitual offender. The defendant stipulated that he was a fourth-felony habitual offender. At no time did the trial court advise the defendant of his habitual offender rights under La. R.S. 15:529.1(D)(1)(a) and of his right to remain silent.
Prior jurisprudence and codal authority have held that before a defendant pleads guilty or stipulates to the allegations in a habitual offender bill of information, the trial court must advise the defendant of the specific allegations contained in the habitual offender bill of information, his right to be tried as to the truth thereof, and his right to remain silent.
