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State v. Morehead

Court of Appeals of Louisiana, Third Circuit

February 15, 2018



          H. Todd Nesom District Attorney Joe Green Assistant District Attorney John Richardson Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Chad M. Ikerd Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Allen Joseph Morehead

          Allen Joseph Morehead Allen Correctional Center IN PROPER PERSON

          Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

          MARC T. AMY JUDGE.

         The 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.

         Factual and Procedural Background

         In the 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.

         Deputy 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.

         According 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.

         On 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.

         The 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.

         By 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 deliberations."


         Errors Patent

         In 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.

         Louisiana 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.

         Sufficiency of the Evidence

         We 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.

         At the time of the May 2015 offense at issue, La.R.S.14:69[1] 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.

         In 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. 1994).

         While 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 Honda."[2]

         Given 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.

         Habitual Offender Status

         The 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, [3] in this regard.

         After 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 offender bill.
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 hearing.
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.

         As 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. 201.[4]

         Furthermore, 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. 15:529.1(D)(1):

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 information.

         Neither 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. ...

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