FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF
ALLEN, NO. CR-2015-2972 HONORABLE E. DAVID DESHOTELS, JR.,
Todd Nesom District Attorney Joe Green Assistant District
Attorney John Richardson Assistant District Attorney COUNSEL
FOR APPELLEE: State of Louisiana
M. Ikerd Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: Allen Joseph Morehead
Joseph Morehead Allen Correctional Center IN PROPER PERSON
composed of John D. Saunders, Marc T. Amy, and D. Kent
T. AMY JUDGE.
State charged the defendant with illegal possession of stolen
things over $1, 500.00 after he was found to be in possession
of two allegedly stolen all-terrain vehicles. A jury
convicted the defendant as charged. The defendant was
subsequently adjudicated a second felony offender due to a
prior federal conviction. The trial court thereafter
sentenced the defendant to nine years at hard labor. For the
following reasons, we affirm with instructions.
and Procedural Background
early morning hours of May 18, 2015, the Allen Parish
Sheriffs Office received information regarding a suspicious
truck leaving a home. The dispatcher informed Deputy Michael
Dotson that the vehicle was travelling "at a high rate
of speed" and that it had "a trailer that possibly
had some four-wheelers on it that may have been
stolen." Deputy Dotson positioned himself along the
highway, waiting for the truck to arrive at his location. He
explained that after the described white truck approached
him, he "r[a]n the truck down and made a traffic
stop." Deputy Dotson explained that, after he removed
the driver from the vehicle, he identified the driver as the
defendant, Allen Joseph Morehead. The defendant's
passenger was subsequently found to be Austin Brown.
Dotson testified that, when he questioned the defendant as to
the ownership of the all-terrain vehicles (ATVs) on the
trailer, the defendant explained that he had purchased the
vehicles earlier in the day. However, the defendant could not
produce related paperwork.
to Deputy Scotty Paul, who also responded to the dispatch,
the officers "started investigating the vehicle, the
truck and the four-wheelers." He explained that the
investigation included running "the VIN numbers on both
the four-wheelers and the trailer[, ]"and that
"they c[a]me back to different people that was in the
truck [sic]." The ATVs were registered to Joshua
LeBlanc, whereas the trailer was registered to Albert
LeBlanc. Deputy Paul explained that the defendant and Mr.
Brown were transported to the sheriffs office at that time.
September 28, 2015, the State charged the defendant with
illegal possession of stolen things over $1, 500.00, a
violation of La.R.S. 14:69(B)(1). After a jury convicted the
defendant as charged, the State filed a bill of information,
alleging the defendant to be a habitual offender, second
offense. In the bill, the State noted both the subject
conviction under La.R.S. 14:69(B)(1) and a purported April
2012 conviction in federal district court for one count of
conspiracy to commit interstate transportation of stolen
motor vehicles, a violation of 18 U.S.C. § 371. On March
30, 2016, the court adjudicated the defendant as a habitual
offender and sentenced him to nine years at hard labor.
trial court granted the defendant's motion for out of
time appeal. Now appearing before the court, and in counseled
assignments of error, the defendant alleges that:
I. The State failed to sufficiently prove Allen Morehead was
guilty of possessing stolen things over $1500.
II. The trial court erred in finding Allen a second felony
offender because the State failed to meet its burden of proof
regarding any prior conviction.
III. The trial court erred by denying counsel's motion to
quash the jury venire when Allen Morehead was forced to sit
in front of the jury pool all morning before trial, in plain
view of potential jurors, some of whom noticed he was wearing
prison attire. The court's ruling violated Allen's
rights to be presumed innocent and to due process.
supplemental brief filed in proper person, the defendant
contends that "the comments of prosecution, infected and
mislead [sic] the trial court and jury from the 'bias[ed]
statement' made by the prosecution, as an infringement of
rights to due process[.]" The defendant also questions
whether the presence of the trial judge's brother-in-law
on the jury resulted in "unwarranted influence on
addition to those errors assigned on appeal, La.Code CrimP.
art. 920(2) requires consideration of errors
"discoverable by a mere inspection of the pleadings and
proceedings and without inspection of the evidence." Our
review in that regard reveals one such error. Namely, at the
July 7, 2016 hearing on the defendant's motion for
retrial, the trial court advised him that: "you have two
years that your date - - that your conviction becomes final
to file post-conviction relief." The record indicates
that the defendant thereafter filed an application for
post-conviction relief on July 29, 2016.
Code of Criminal Procedure Article 930.8 provides that the
time period for applying for post-conviction relief is two
years, beginning to run when a defendant's conviction
and sentence become final under the provisions of
La.Code Crim.P. arts. 914 or 922. Accordingly, the trial
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 the opinion and
to file written proof in the record that the defendant
received the notice. See, e.g., State v. Thibodeaux,
16-542 (La.App. 3 Cir. 3/15/17), 216 So.3d 73, writ
denied, 17-0642 (La. 12/5/17), 231 So.3d 628.
of the Evidence
first address the defendant's contention that the State
failed to prove the value of the items at issue beyond a
reasonable doubt. In particular, he contends that the State
lacked sufficient evidence of the condition of the trailer
and the subject ATVs so as to establish fair market value of
$1, 500.00 or more.
time of the May 2015 offense at issue,
La.R.S.14:69 provided, in part:
A. Illegal possession of stolen things is the intentional
possessing, procuring, receiving, or concealing of anything
of value which has been the subject of any robbery or theft,
under circumstances which indicate that the offender knew or
had good reason to believe that the thing was the subject of
one of these offenses.
B. (1) Whoever commits the crime of illegal possession of
stolen things, when the value of the things is one thousand
five hundred dollars or more, shall be imprisoned, with or
without hard labor, for not more than ten years, or may be
fined not more than three thousand dollars, or both.
State v. Kelly, 15-0484, pp. 3-4 (La. 6/29/16), 195
So.3d 449, 451, the Louisiana Supreme Court explained that:
In reviewing the sufficiency of the evidence to support a
conviction, this court has recognized that an appellate court
in Louisiana is controlled by the standard enunciated by the
United States Supreme Court in 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 v. Tote, 01-1658 (La.5/20/03), 851
So.2d 921, 928. Under this standard, an appellate court
"must determine that the evidence, viewed in the light
most favorable to the prosecution, was sufficient to convince
a rational trier of fact that all of the elements of the
crime had been proved beyond a reasonable doubt."
Tate, 851 So.2d at 928. In applying this standard, a
reviewing court is not permitted to second guess the rational
credibility determinations of the fact finder at trial, nor
is a reviewing court required to consider the rationality of
the thought processes employed by a particular fact finder in
reaching a verdict. State v. Marshall, 04-3139 (La.
11/29/06), 943 So.2d 362, 367. It is not the function of an
appellate court to assess credibility or reweigh the
evidence. State v. Stowe, 635 So.2d 168, 171 (La.
the defendant contends that the State failed to present
sufficient evidence as to the condition and fair market value
of the subject property, the record supports the
defendant's conviction. As to condition, Joshua LeBlanc,
the owner of the 2004 and 2006 Honda ATVs, explained that
those vehicles were in "very good condition" at the
time they were taken. Albert LeBlanc, the owner of the
subject 1996 trailer, testified that the trailer was
"[i]n fair condition." With regard to the value of
the items, Officer Voorhies Leger explained that he acted as
the chief investigator on the case and performed a valuation
of the items in order to advise as to the appropriate charge.
Officer Leger testified as to his methodology in arriving at
the value of the items taken, noting that "low retail
was above $2, 500.00" for the 2006 Honda and that
"low retail" for the smaller, 2004 Honda "was
just over $500.00." When asked by the State whether
those figures collectively exceeded $1, 500.00, Officer Leger
responded: "Yes, sir, including the trailer. Well, just
the 2006 would have been over $1, 500.00." Additionally,
the State presented exhibits, which the prosecutor described
as "the reference that [Officer Leger] used was the NADA
to determine the value of the 2006 Honda and also the 2004
this evidence regarding both the condition and the value of
the vehicles, we find no merit in the defendant's
contention that the State failed to prove that the stolen
"things" were valued at $1, 500.00 or more.
defendant next questions the sufficiency of the evidence
offered in support of his adjudication as a habitual
offender. He notes that, at the habitual offender hearing,
the State only presented the testimony of federal probation
officer Clint Mitchell, who explained that he had been the
probation officer for the defendant due to a prior guilty
plea to a charge of conspiracy to commit interstate
transportation of stolen motor vehicles. Notwithstanding this
testimony, the defendant asserts that the State was required
to prove the original guilty plea, that he was represented by
counsel when he entered that prior plea, and that the plea
was informed and voluntary. He cites State v.
Zachary, 01-3191 (La. 10/25/02), 829 So.2d 405,
review, we find that the record before the court supports the
defendant's adjudication as a second habitual offender.
Notably, when defense counsel raised the evidentiary point at
the habitual offender hearing at the close of the State's
case, the following colloquy occurred:
MR. DEMORUELLE [Defense Counsel]:
However, we would point out to the Court now that the State
has rested, the bill of indictment has been recognized but
has not been introduced into evidence. Therefore, we object
to the multiple offender bill, number one. Number two, there
is a Boykin form and there is no collogue [sic] between Mr.
Morehead and the circuit judge and therefore this conviction
cannot be used to enhance the conviction.
MR. SUMBLER [Assistant District Attorney]:
And for the record, Your Honor, the State has already
introduced into evidence already the State Exhibit-1 [sic]
which was actually the certified copy of the conviction prior
to the actual trial in this particular case. And because of
that, the State would introduce - It's already introduced
into evidence already, so we don't have to introduce it
again. So for the record, it's State Exhibit-1 and it has
already been previously marked into evidence already and
that's what the State used in reference to the habitual
Your Honor, he offered it as to the trial as to the
identification of Mr. Morehead and he used it under a
[P]rieur purposes [sic]. For the purpose of habitual offender
bill, it has to be re-introduced because Article 529 says
that the State has to prove beyond a reasonable doubt that
there is a prior conviction. And he has not done it in this
And, Your Honor, once again, it's already been introduced
into evidence already.
Court finds that sufficient evidence has been introduced or
produced to show a prior conviction.
Please note my objection.
referenced in the above-passage, the State relied upon
documentation of the underlying federal conviction by
reference to State Exhibit-1, which it introduced into
evidence at a pre-trial hearing conducted pursuant to
State v. Prieur, 277 So.2d 126 (La. 1973). That
exhibit contained evidence of both the defendant's
conviction and, by minutes of the proceeding, his
representation by counsel. During Officer Mitchell's
testimony regarding that conviction at the habitual offender
hearing, the State noted that the documentation "ha[d]
been previously marked as State Exhibit-1[, ]"
presenting that exhibit to the witness. In particular, the
State asked Officer Mitchell to identify the defendant's
indictment, contained within that exhibit, before he
identified the defendant and confirmed that the indictment
had the same number as the probation case file. Given the
documentation's prior formal introduction of the evidence
regarding the federal conviction and the State's reliance
upon that evidence at the habitual offender hearing, we find
that the trial court permissibly took notice of evidence
introduced at that prior proceeding. See State v.
Muhammad, 03-2991 (La. 5/25/04), 875 So.2d 45, 49 n.9
(wherein the supreme court explained within the habitual
offender context that "the trial judge has the right to
take judicial cognizance of any prior proceeding which is
part of the same case he has previously tried.");
State v. Brown, 11-1656 (La. 2/10/12), 82 So.3d
1232; State v. Timmons, 44, 702 (La.App. 2 Cir.
9/23/09), 22 So.3d 1074, writ denied, 09-2251 (La.
4/16/10), 31 So.3d 1053. See also La.Code Evid. art.
and to the extent the defendant contests the sufficiency of
the evidence contained within State's Exhibit-1, we note
that the defendant did not file written objections to the
habitual offender allegations, as required by La.R.S.
If, at any time, either after conviction or sentence, it
shall appear that a person convicted of a felony has
previously been convicted of a felony under the laws of this
state, or has been convicted under the laws of any other
state, or of the United States, or of any foreign government
or country, of a crime, which, if committed in this state
would be a felony, the district attorney of the parish in
which subsequent conviction was had may file an information
accusing the person of a previous conviction. Whereupon the
court in which the subsequent conviction was had shall cause
the person, whether confined in prison or otherwise, to be
brought before it and shall inform him of the allegation
contained in the information and of his right to be tried as
to the truth thereof according to law and shall require the
offender to say whether the allegations are true. If he
denies the allegation of the information or refuses to answer
or remains silent, his plea or the fact of his silence shall
be entered on the record and he shall be given fifteen days
to file particular objections to the information, as provided
in Subparagraph (b) of this Paragraph. The judge shall fix a
day to inquire whether the offender has been convicted of a
prior felony or felonies as set forth in the information.
(b) Except as otherwise provided in this Subsection, the
district attorney shall have the burden of proof beyond a
reasonable doubt on any issue of fact. The presumption of
regularity of judgment shall be sufficient to meet the
original burden of proof. If the person claims that any
conviction alleged is invalid, he shall file a written
response to the information. A copy of the response shall be
served upon the prosecutor. A person claiming that a
conviction alleged in the information was obtained in
violation of the constitutions of Louisiana or of the United
States shall set forth his claim, and the factual basis
therefor, with particularity in his response to the
information. The person shall have the burden of proof,
by a preponderance of the evidence, on any issue of fact
raised by the response. Any challenge to a previous
conviction which is not made before sentence is imposed may
not thereafter be raised to attack the sentence.
(Emphasis added.) Thus, La.R.S. 15:529.1(D)(1)(b) required
the defendant to "set forth his claim" as now
alleged in his response to the habitual offender bill of
do we find merit in the defendant's contention that
La.R.S. 15:529.1(D)(1) requires a defendant only to complain
of a defect in the bill. Rather, the plain language of the
statute shows that such a response is required to preserve a
claim that "a conviction alleged in the
information" was obtained in violation of the state or
federal constitutions. In State v. Wise, 13-247, pp.
7-8 (La.App. 5 Cir. 11/19/13), 128 So.3d 1220, 1225-26,
writ denied, 14-0253 (La. 9/12/14), 147 So.3d 703,
the fifth circuit explained:
In his second pro se assignment of error, defendant
argues the trial court erred in denying his Motion to Quash
Multi-Bill in which he alleged that prosecutions for two of
the alleged predicate offenses were not instituted in a
timely manner. Specifically, defendant contends that the
State exceeded the time limitation for screening and
accepting the charges in predicate case numbers 288-157 and
358-790, now used by the State to charge defendant as a
fourth felony offender. Thus, defendant maintains that these
predicate offenses should have been quashed.
A defendant has the right to challenge the constitutional
sufficiency of previous convictions through a written
response to the State's filing of a habitual offender
bill of information. See La. R.S. 15:529.1(D)(1). A
defendant must make such a response in order to preserve
challenges to previous convictions for appellate review.
Id.; State v. Harris, 44, 402 (La.App. 2 Cir.
6/24/09), 20 So.3d 1121, writ denied, 09-2303
(La.4/23/10), 34 So.3d 271. In addition, if a defendant does
not concede the validity of previous convictions, he is
entitled to a formal hearing. La. R.S. 15:529. 1D(1)(b). A
defendant's response to the State's filing of a
habitual offender bill of information is often styled as a
"motion to quash." See, e.g. State v.
Zachary, 08-634 (La. 11/21/08), 995 So.2d 631. Pursuant
to La. R.S. ...