State of Louisiana Court of Appeal, Second Circuit (Shreveport)
Case Number: 51,784-KA
Judge: E. Joseph Bleich
Court: State of Louisiana Court of Appeal, Second Circuit (Shreveport)
Plaintiff's Attorney: GARY V. EVANS
KENNETH PATRICK HAINES
GEORGE WINSTON, III
Assistant District Attorneys
Defendant's Attorney: LOUISIANA APPELLATE PROJECT BY:
Peggy J. Sullivan
Description: On October 29, 2014, the Mansfield Police Department received a
walk-in complaint from the victim of events that involved a man firing a gun
into the air in a pasture located in Mansfield, Louisiana, and subsequently
engaging in a physical altercation with the victim. The victim and other
witnesses identified Chadric Green as the individual who pulled a weapon
out of his back pocket and fired five or six times into the air; the witnesses
also saw a gun fall out of Green’s pocket as he fought with the victim.
Police recovered six .380 automatic shell casings from the scene. A warrant
for Green’s arrest was obtained and he was arrested in the late hours of
October 29, 2014.
On July 7, 2016, Green was charged by third amended bill of
information with one count of possession of a firearm by a convicted felon
or carrying a concealed weapon, in violation of La. R.S. 14:95.1, after
having been previously convicted of simple burglary in DeSoto Parish in
Docket No. 08-CR-17320, on January 14, 2009.
In four pretrial court appearances in 2016, Green refused appointed
counsel and asserted his constitutional right to represent himself. The trial
court ultimately assigned standby counsel to assist Green as needed. On the
day of trial, however, Green insisted that standby counsel was not going to
be of any help to him because he did not trust him. Thereafter, Green
proceeded to trial on July 27, 2016, and conducted voir dire and questioned
the state’s four witnesses on his own behalf.
These four witnesses were present at the gathering of people in or near
the pasture on October 29, 2014. The victim, Billy Layton, heard five
gunshots, saw Green put a gun in his back pocket, point a gun at him after
the two fought, and carry the gun in his hand after the altercation. Layton
also heard Green threaten to “pop” another individual. Jasmine Green and
Treshawn Walker both testified they saw Green with a gun. Davonte
Murphy saw Green fire a handgun multiple times into the air and a gun fall
out of Green’s pocket as he scuffled with Layton.
On the second day of trial, the trial court was notified that Green was
absent from court and that standby counsel had unsuccessfully attempted to
reach him. The trial judge issued an arrest warrant. Upon Green’s absence
for approximately another hour, the trial judge ruled that trial would proceed
in accordance with La. C. Cr. P. art. 832. The trial judge allowed standby
counsel to leave, but ordered that he be available until a verdict was reached.
The trial judge informed the jury of Green’s absence, explaining that
it was assumed to be voluntary as he was present for the first day of trial and
failured to notify anybody that he would be late. The trial judge apprised the
jury that officials continued to search for Green. The trial judge read La. C.
Cr. P. art. 832 as authority for the trial to proceed and reminded the jury that
Green’s absence did not change the presumption of innocence.
The state completed its case with the testimony of four additional
witnesses, including the investigating police officer who found the six shell
casings at the crime scene and collected statements from eyewitnesses. A
firearms instructor with the DeSoto Parish Sheriff’s department confirmed
that the markings on the shell casings were fired from a firearm and not an
air pistol. The state’s final two witnesses offered proof of Green’s identity
in the prior felony conviction. After a short deliberation, the jury returned a
unanimous verdict of guilty.
Following his return to custody on January 6, 2017, Green filed a pro
se motion for post-verdict judgment of acquittal on the grounds of
insufficient evidence to convict him, which was denied by the trial court on
February 23, 2017. Green appeared for and represented himself at
sentencing on March 1, 2017, without standby counsel, when the trial court
denied his oral pro se motion for new trial on the grounds of insufficient
evidence to convict him.1 Green did not request the assistance of counsel.
After hearing arguments from the state and Green regarding sentencing, and
considering a presentence investigation report, the trial court sentenced
Green to 14 years at hard labor without benefits and imposed a $1,000 fine.
This appeal ensued.
Sufficiency of the Evidence
In his first assigned error, Green argues that the evidence was
insufficient to convict him, solely on the grounds that the state failed to
prove his identity as the same person previously convicted of simple
burglary, a necessary element of the charged offense.2
1 The waiver of counsel at trial carries through to subsequent proceedings unless the defendant expressly requests that counsel be appointed for subsequent proceedings. State v. Carpenter, 390 So. 2d 1296 (La. 1980); State v. Franklin, 43,173 (La. App. 2 Cir. 9/17/08), 996 So. 2d 387, writ denied, 2008-2371 (La. 5/22/09), 9 So. 3d 138.
2 The eyewitness testimony was sufficient to prove Green’s possession of a firearm.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 2001-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,
124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Stephens, 49,680 (La.
App. 2 Cir. 05/20/15), 165 So. 3d 1168; State v. Crossley, 48,149 (La. App.
2 Cir. 06/26/13), 117 So. 3d 585, writ denied, 2013-1798 (La. 02/14/14),
132 So. 3d 410. This standard, now legislatively embodied in La. C. Cr. P.
art. 821, does not provide the appellate court with a vehicle to substitute its
own appreciation of the evidence for that of the fact finder. State v. Pigford,
2005-0477 (La. 02/22/06), 922 So. 2d 517; State v. Stephens, supra; State v.
Crossley, supra. The appellate court does not assess the credibility of
witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661
So. 2d 442.
La. R.S. 14:95.1 provides that it is unlawful for any person who has
been convicted of simple burglary to possess a firearm or carry a concealed
weapon. To support a conviction for possession of a firearm by a convicted
felon, the state must prove: (1) the possession of a firearm; (2) a previous
conviction of an enumerated felony; (3) absence of the 10–year statutory
period of limitation; and (4) general intent to commit the offense. State v.
Castor, 50,512 (La. App. 2 Cir. 04/13/16), 194 So. 3d 668.
The burden is on the state to prove the existence of the prior felony
convictions. In the area of establishing a defendant’s previous conviction
identity, courts have recognized various methods that may be used to carry
this burden of proof, such as testimony of witnesses, expert opinion as to the
fingerprints of the accused when compared with those of the person
previously convicted, photographs contained in a duly authenticated record,
or evidence of identical driver’s license numbers, sex, race and date of birth.
State v. Westbrook, 392 So. 2d 1043 (La. 1980); State v. Jones, 41,429 (La.
App. 2 Cir. 09/27/06), 940 So. 2d 131, writ denied, 2006-2769 (La.
09/14/07), 963 So. 2d 394; State v. Blackson, 38,044 (La. App. 2 Cir.
01/28/04), 865 So. 2d 272. The mere fact that the defendant on trial and the
person previously convicted have the same name does not constitute
sufficient evidence of identity. State v. Watson, 40,059 (La. App. 2 Cir.
09/21/05), 911 So. 2d 396; State v. Blackson, supra.
However, the jurisprudence holds that photographs contained in duly
authenticated court records is sufficient proof of identity in themselves
without the evidence of fingerprints. State v. Curtis, 338 So. 2d 662 (La.
1976); State v. Hardy, 174 La. 458, 141 So. 27 (1932); State v. Callier,
39,650 (La. App. 2 Cir. 07/27/05), 909 So. 2d 23, writ denied, 2006-0308
(La. 09/01/06), 936 So. 2d 196. See also, State v. Hongo, 625 So. 2d 610
(La. App. 3 Cir. 1993), writ denied, 631 So. 2d 1163 (La. 1994). Further,
the quality and content of time the trier of fact has to observe the defendant
and compare him with the photograph is a factor to consider in determining
whether the state has met its burden of proof. State v. Curtis, supra; State v.
Hongo, supra. See also, State v. Thomas, 27,504 (La. App. 2 Cir. 11/01/95),
662 So. 2d 798.
The rule of idem sonans is that absolute accuracy in spelling names is
not required in a legal document or proceedings either civil or criminal. If
the name, though different from the correct spelling thereof, conveys to the
ear, when pronounced according to the commonly accepted methods, a
sound practically identical with the correct name as commonly pronounced,
the name there given is a sufficient designation of the individual referred to,
and no advantage can be taken of the clerical error. State v. Bennett, 517 So.
2d 1115 (La. App. 1 Cir. 1987), writ denied, 523 So. 2d 1335 (La. 1988).
See also, State v. Foster, 164 La. 813, 114 So. 696 (La. 1927); State v.
Hattaway, 180 La. 12, 156 So. 159 (La. 1934); State v. Gipson, 28,113 (La.
App. 2 Cir. 6/26/96), 677 So. 2d 544, writ denied, 1996-2303 (La. 1/31/97),
687 So. 2d 402; State v. Leboeuf, 2016-0810 (La. App. 1 Cir. 10/28/16),
2016 WL 6330439, writ denied, 2016-2126 (La. 9/15/17), 225 So. 3d 477.
In this case, in order to satisfy the burden of proof regarding Green’s
identity, the state presented the testimony of Sydney Sparks, a clerk with the
criminal division of the DeSoto Parish Clerk of Court’s office, the official
custodian of public records. Sparks identified State’s Exhibits S-2 and S-3,
which were certified copies of the March 19, 2008 bill of information and
case minutes from Green’s prior conviction for simple burglary in DeSoto
Parish Docket No. 08-CR-17320.3 Sparks read the redacted bill of
information and the full case minutes aloud to the jury. According to
Sparks, the bill of information, dated March 19, 2008, listed the name
Chadric L. Green, with an address of 174 James Lane, Mansfield, Louisiana
71052, and date of birth of September 24, 1976. The case minutes for case
No. 08-CR-17320, show that on March 19, 2008, Chadric L. Green appeared
and was represented by counsel. Green was advised of his rights, pled guilty
3 State’s Exhibit S-3, which was published to the jury, is a redacted version of Exhibit S-2 that excluded reference to a charge that was later dismissed. The exhibits spell Green’s first name as “Chadrick,” but the trial transcript shows his name as “Chadric,” the name utilized here.
to simple burglary and was sentenced to one year at hard labor. The minutes
state that pursuant to a plea agreement, a second charge was dismissed and
the state declined to charge Green as a habitual offender. Both exhibits were
admitted into evidence. Sparks testified that these documents were “the
same” with a case on another incident on “this bill of information.”
Lieutenant Phillip Daniels, with the patrol division of the DeSoto
Parish Sheriff’s Department, testified that he maintained the booking process
records that included the booking cards containing fingerprints and
photographs completed upon an arrest of an individual. Lt. Daniels
identified State’s Exhibit 4 as a certified copy of a booking card for an
individual named Chadric L. Green. The card contained social security
number XXX-XX-3614, a date of birth of September 24, 1976, and
described Green as a black male, 5’7”, weighing 166 lbs., with brown eyes
and black hair. According to Lt. Daniels, the card contained digital
fingerprints and a photo of the defendant who was arrested on January 9,
2008, for a charge of simple burglary. State’s Exhibit S-4 was admitted into
evidence and published to the jury.4
Based upon the jurisprudence noted above, we find that in this case,
Green’s photograph is alone sufficient to prove his identity. Green’s
representation of himself during both voir dire and the first day of trial gave
the jury a unique opportunity to view him, focus on his features and compare
his photograph from the prior offense with his appearance at the present
trial. Even so, we find that the record otherwise sufficiently links Green to
the previous offense. Green’s date of birth and address appear on the
4 State’s Exhibit 4 also lists Green’s forename as “Chadrick” and actually lists the date of Green’s arrest as January 19, 2008.
present charging instrument and are identical to the information provided
through Sparks’ testimony relating to the predicate conviction. Despite the
prosecutor’s inartful examination of Sparks regarding the prior case and
“this bill of information,” Sparks clearly identified the information as being
“the same.” Any different spelling of Green’s forename is merely idem
sonans because the addition of the silent “k” at the end of Chadric does not
change the sound thereof and is a proper designation. State v. Foster, supra,
State v. Hattaway, supra; State v. Gipson, supra; State v. Leboeuf, supra;
State v. Bennett, supra. For these reasons, we find that the totality of proof
provides a sufficient link between the two offenses and establishes the
necessary element of possession of a firearm by a convicted felon. Thus,
this assignment of error is without merit.
Green next argues that the trial court erred by not declaring a mistrial
due to his absence from the second day of trial when Sparks referenced other
crimes evidence, including the fact that a second charge was dismissed and
that the state declined to charge Green as a habitual offender. Green
contends that there was no one to act on his behalf or to protect his right to a
fair trial by objecting to these prejudicial remarks and moving for a mistrial.
A defendant has a Sixth Amendment right to conduct his own defense
by making a knowing and voluntary waiver of his right to counsel and
thereby asserting his right to represent himself. Faretta v. California, 422
U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The trial court may, but
is not required to appoint standby counsel, who may assist the pro se
La. C. Cr. P. art. 831 states that a defendant charged with a felony
shall be present at all proceedings when the jury is present, when the court is
determining and ruling on the admissibility of evidence, and at the rendition
of the verdict or judgment, unless he voluntarily absents himself. Further,
La. C. Cr. P. art. 832 provides:
A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and he voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial.
The admissibility of other crimes or bad acts is governed by La.
C.E. art. 404(B). State v. Prieur, 277 So. 2d 126 (La. 1973). A
defendant who makes no contemporaneous objection to the
introduction of evidence of other crimes and fails to move for mistrial
waives the right to cite introduction of evidence of other crimes as
error on appeal. State v. Smith, 535 So. 2d 786 (La. App. 2 Cir.
1988). Likewise, a defendant who fails to object to other crimes
evidence introduced during trial, waives the error on appeal. State v.
Ruiz, 06-1755 (La. 04/11/07), 955 So. 2d 81 (La. 2007); State v.
Lilley, 43,467 (La. App. 2 Cir. 09/17/08), 996 So. 2d 348, writ denied,
2008-2514 (La. 05/15/09), 8 So. 3d 582.
In this matter, Green exercised his Sixth Amendment right to waive
his right to counsel and represent himself at trial. Thus, he assumed the
burden to make any necessary contemporaneous objections on his behalf,
including an objection to prejudicial remarks made during his absence, or
move for a mistrial based upon that evidence. Green’s choice to voluntarily
absent himself from trial when the alleged error occurred created a situation
of his own choosing that included the release of standby counsel and the
continuation of trial without him. Because no contemporaneous objection to
the alleged other crimes evidence was made or mistrial sought, the issue was
not preserved for review on appeal. This assignment is also without merit.
In this case, Green was sentenced immediately following the denial of
his oral motion for new trial. There is no showing on the record that he
waived the 25-hour delay required by La. C. Cr. P. art. 873. Nevertheless,
the maximum sentence was not imposed and a presentence investigation
report was ordered, of which the defendant was notified, and reviewed by
the trial court. Further, considering the substantial amount of time that
elapsed between Green’s conviction and sentence, and because Green does
not complain about the error or raise an excessive sentence claim, we find
the error to be harmless. State v. Kisack, 2016-0797 (La. 10/18/17), 2017
WL 4681356; State v. Augustine, 555 So. 2d 1331 (La. 1990); State v. White,
404 So. 2d 1202 (La. 1981).
Outcome: For the foregoing reasons, Green’s conviction and sentence are