NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 17-600
STATE OF LOUISIANA
VERSUS
MICHAEL KEES
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 16-976 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.
AFFIRMED AND REMANDED WITH INSTRUCTIONS. Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT APPELLANT: Michael Kees
Hon. M. Bofill Duhe District Attorney Robert Clauson Vines Assistant District Attorney W. Claire Howington Assistant District Attorney 300 Iberia St., #200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR PLAINTIFF APPELLEE: State of Louisiana PERRET, Judge.
Defendant, Michael Kees, was convicted of operating a vehicle while
intoxicated, fourth offense, in violation of La.R.S. 14:98(A). Defendant was
sentenced to fifteen years at hard labor, of which three years would be served
without the benefit of parole, probation, or suspension of sentence, and Defendant
would receive credit for time served. Defendant seeks review of his conviction by
this court, alleging the state presented insufficient evidence to support his
conviction and that Defendant had ineffective assistance of counsel. For the
reasons that follow, we affirm Defendant‟s conviction and remand with
instructions to the trial court.
ISSUES FOR REVIEW
This court must decide:
1. whether the evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard, was insufficient to prove, beyond a reasonable doubt, that Michael Kees was driving while under the influence of alcohol; and
2. whether trial counsel‟s representation of Michael Kees fell below the standard guaranteed by the Sixth Amendment because she allegedly failed to assure that the jury instructions given in this case were both correct and complete and that they properly instructed the jury as to the law necessary to return a just and lawful verdict.
FACTS AND PROCEDURAL BACKGROUND
On June 29, 2016, Defendant was involved in a single vehicle accident in
which he drove off the roadway and into a ditch. He was charged with one count
of operating a vehicle while intoxicated, fourth offense, in violation of La.R.S.
14:98(A), one count of careless operation of a motor vehicle, in violation of La.R.S. 32:58, and one count of operating a vehicle without a driver‟s license, in
violation of La.R.S 32:52. He was subsequently found guilty of one count of
operating a vehicle while intoxicated, fourth offense. At trial, the following
testimony and documents were presented to the jury.
Chad Bordelon, a probation officer for the State of Louisiana, Department of
Corrections, identified Defendant as one of his probationers. He testified that
Defendant had been convicted of operating a vehicle while intoxicated, third
offense, on May 3, 2013, for which Defendant was placed on probation for five
years. At this time, the State also introduced into evidence certified copies of
Defendant‟s two prior convictions for operating a vehicle while intoxicated and the
conviction for the third offense: State‟s Exhibit 1, a 2005 conviction under
Tangipahoa Docket No. 502193; State‟s Exhibit 2, a 2012 conviction under
Lafayette Parish Docket number 11-7631; and the 2013 Iberia Parish conviction
testified to by Officer Bordelon.
Jamie Miller, a deputy with the Lafayette Parish Sheriff‟s Office, 1 testified
that, on June 29, 2016, at approximately 6:00 p.m., he was dispatched to a single
vehicle crash off of Louisiana Highway 88. When he located the vehicle,
Defendant was standing by the opened driver‟s side door of the vehicle, which was
in the ditch. As Deputy Miller approached the vehicle, Defendant moved away
from him to the other side of the vehicle. Defendant told Deputy Miller that he
overestimated the curve in the road while driving and, because the road was wet,
he lost control. However, Deputy Miller testified that the road was not wet.
Defendant also did not have a driver‟s license. Defendant told Deputy Miller that
1 At the time of the offense, Deputy Miller was employed by the Iberia Parish Sheriff‟s Office.
2 he forgot his driver‟s license and instead, produced a Louisiana Identification card.
Deputy Miller stated there was a strong odor of cologne and beer coming from
Defendant. He looked inside the vehicle while the door was open and smelled the
same cologne and beer odor. Deputy Miller testified that he believed Defendant
was under the influence of alcohol because, besides smelling the odor of alcohol,
Defendant swayed when he walked and stood, and his speech was slurred. In fact,
Deputy Miller first believed Defendant had a speech impediment because of his
slurred speech and pronunciation of some words. Deputy Miller also stated there
was no alcohol in the vehicle. Defendant was not asked to perform a field sobriety
test at that time and Deputy Miller did not utilize his body camera while talking to
Defendant.
Scott Verret, a trooper with the Louisiana State Police in Lafayette, arrived
at the scene approximately twenty minutes after Deputy Miller and took over the
investigation. Trooper Verret, an eighteen-year veteran in law enforcement, stated
he has had extensive training in investigating driving under the influence
incidences. Defendant told Trooper Verret that he lost control of the vehicle when
he swerved to avoid a tire in the road. However, Trooper Verret did not find any
tire in the roadway, or anywhere in the area. He stated that, as he spoke with
Defendant, he could smell cologne and an odor of alcohol coming from
Defendant‟s person. He testified Defendant walked off balance, his eyes were red
and glassy, and his speech was slurred. At this point, believing he was
investigating a driving under the influence case rather than a crash incident, he
returned to his unit and turned on the unit‟s dash-cam.
Trooper Verret asked Defendant to walk the fog line at the side of the road,
which Defendant did. He then attempted to do a horizontal gaze nystagmus test on
3 Defendant. Trooper Verret explained that a horizontal gaze nystagmus test
requires the test-taker to follow a stimulus, such as a pen, while the officer looks
for a “smooth pursuit” of the stimulus. An impaired driver‟s pursuit will not be
smooth; instead, the driver‟s eyes will jerk while following the stimulus. However,
after an abortive attempt, Defendant told Trooper Verret he did not want to do the
test. At this point, Trooper Verret arrested Defendant for driving while intoxicated
and put him into the back of his unit. The trooper read Defendant his Miranda
rights at this time. Trooper Verret testified that he was unaware of Defendant‟s
prior record and arrests before this time.
Trooper Verret transported Defendant to the Iberia Parish Sheriff‟s Office in
New Iberia because there was an Intoxilyzer at that location. Trooper Verret
explained that an Intoxilyzer instrument analyzes the amount of alcohol in the
person‟s breath to give a definitive result on the person‟s blood alcohol level.
Defendant refused to do the test. Trooper Verret also stated Defendant kept asking
to go to the bathroom and that Defendant would alternate between being quiet and
cooperative to being combative. Although Trooper Verret offered Defendant
another opportunity to take the Intoxilyzer test, he again refused to take the test.
The State offered into evidence the DVD recording of Trooper Verret‟s
dash-cam for the time period he attempted to get Defendant to perform a field
sobriety test at the crash site. The recording shows Trooper Verret running his
boot across the fog line to clear the line of anything that could trip Defendant. He
then asked Defendant to walk down the line. Defendant appears to walk down the
line without difficulty. The recording also shows Trooper Verret attempting to
perform the horizontal gaze nystagmus. While it is difficult to discern whether
Defendant swayed during this time, he did appear anxious and his words, which
4 were muted but could be heard, sound thick. Defendant told Trooper Verret he had
not been drinking and that he was just recovering from pneumonia. Trooper Verret
told Defendant that he could smell the alcohol. Trooper Verret then handcuffed
Defendant and took him to the police unit. Once inside the unit, Trooper Verret
and Defendant‟s conversation can be heard. Trooper Verret asked Defendant
questions and Defendant answered. Defendant was cooperative during the
conversation. Defendant can be heard asking Trooper Verret not to charge him
with driving while intoxicated.
A jury trial commenced on January 30, 2017. The State severed the two
misdemeanor charges above from trial, following which Defendant was found
guilty of operating a vehicle while intoxicated, fourth offense. Defendant was
sentenced on February 21, 2017, to fifteen years at hard labor, of which three years
would be without the benefit of parole, probation, or suspension of sentence, and
Defendant would receive credit for time served.
Defendant filed a “Motion for Reconsideration of Sentence” on March 13,
2017, wherein he alleged the sentence was excessive under the circumstances of
his case. The motion was denied without a hearing.
Defendant has now perfected a timely appeal of his conviction.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the
court for errors patent on the face of the record. After reviewing the record, we
find there are two errors patent.
First, the record does not indicate that the trial court imposed the mandatory
$5000.00 fine required by La.R.S. 14:98.4(B), rendering Defendant‟s sentence
illegally lenient. “However, this court will not consider an illegally lenient
5 sentence unless it is a raised error.” State v. Celestine, 11-1403, p. 2 (La.App. 3
Cir. 5/30/12), 91 So.3d 573, 575; see also State v. Jacobs, 08-1068 (La.App. 3 Cir.
3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931.
Second, Defendant was advised at sentencing that he had two years within
which to file an application for post-conviction relief. Louisiana Code of Criminal
Procedure Article 930.8 provides that a defendant has two years after the
conviction and sentence become final to seek post-conviction relief. Therefore, the
trial court‟s advisement was insufficient, and the trial court is directed to inform
Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written
notice to Defendant within ten days of the rendition of this opinion and to file
written proof in the record that Defendant received the notice. State v. Roe, 05-116
(La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924
So.2d 163. We will now address Defendant‟s Assignments of Error.
LAW AND DISCUSSION
Defendant designates two assignments of error on appeal. The first
challenges the sufficiency of the evidence introduced at his trial, while the second
asserts he received ineffective assistance of counsel.
Assignment of Error Number One—Sufficiency of the Evidence
Defendant argues that the State failed to prove, beyond a reasonable doubt,
that Defendant was guilty of operating a vehicle while intoxicated in violation of
La.R.S. 14:98. An insufficient evidence claim is reviewed on appeal under the
standard set forth by Jackson, 443 U.S. 307. “[T]he relevant question 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 beyond a
6 reasonable doubt.” State v. Ellis, 179 So.3d at 588, (quoting Jackson, 443 U.S. at
319).
In State v. Williams, 13-497, pp. 3-5 (La.App. 3 Cir. 11/6/13), 124 So.3d
1236, 1239-40, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this court also
discussed the standard of review for sufficiency of evidence, as follows:
In State v. Spears, 05-964, p. 3 (La. 4/4/06), 929 So.2d 1219, 1222-23, the supreme court stated that:
[C]onstitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law.
The fact finder must be given discretion in weighing the witnesses‟
credibility. Id. Thus, other than insuring the sufficiency evaluation standard of
Jackson, “the appellate court should not second-guess the credibility determination
of the trier of fact,” but defer to the credibility and evidentiary determinations of
the jury. State v. Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724,
727.
When applying the Jackson standard, the Louisiana Supreme Court “has
found that „[w]hen a case involves circumstantial evidence, and the jury reasonably
rejects the hypothesis of innocence presented by [defendant], that hypothesis falls,
and the defendant is guilty unless there is another hypothesis which raises a
7 reasonable doubt.‟” Ellis, 179 So.3d at 588 (quoting State v. Captville, 448 So.2d
676, 680 (La.1984)).
Defendant argues that the State failed to prove, beyond a reasonable doubt,
that Defendant was guilty of operating a vehicle while intoxicated. Defendant also
asserts the State cannot prove that he was intoxicated at the time he drove the
vehicle, and that the circumstantial evidence does not exclude Defendant‟s
reasonable hypothesis of innocence as required by La.R.S. 15:438.
At the time of the offense, La.R.S. 14:98 provided:
A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:
(a) The operator is under the influence of alcoholic beverages.
(b) The operator‟s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.
(c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.
(d)(i) The operator is under the influence of a combination of alcohol and one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription. . . .
In State v. Kestle, 07-1573, pp. 6-7 (La. 12/2/08), 996 So.2d 275, 279
(citations omitted), the supreme court discussed behavioral manifestation as an
observable condition of intoxication:
In State v. Hightower, 238 La. 876, 116 So.2d 699, 703 (1959), this court stated that “a person is intoxicated within the provisions of the statute when he does not have the normal use of his physical and mental faculties by reason of the use of alcoholic beverages (or narcotics), thus rendering such person incapable of operating an
8 automobile in a manner in which an ordinarily prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under like conditions.”
It has been widely recognized that intoxication, with its behavioral manifestations, is an observable condition about which a witness may testify. Behavioral manifestations, sufficient to support a charge of DWI, in the absence of a scientific test, are determined on a case by case basis. An officer‟s subjective opinion that a subject failed a field sobriety test may constitute sufficient evidence of intoxication to support a DWI conviction.
In the current case, Defendant argues that the physical manifestations of
intoxication described by both Deputy Miller and Trooper Verret are not supported
by the video recording. Defendant states the video did not show him swaying or
stumbling, nor can the listener hear him slur his words. He asserts the video shows
he followed directions when the trooper told him to walk the fog line and that he
did so without difficulty. After Trooper Verret put Defendant into the car, he
could be heard politely answering questions. Defendant notes there was no
evidence submitted as to when the crash occurred or when Deputy Miller was
dispatched to the scene. He argues that he could have left the scene of the accident
and returned later; thus, there was no evidence that he drank alcohol prior to
driving the vehicle, rather than after the vehicle ended up in the ditch. Therefore,
he argues there was no evidence he was intoxicated while he was driving the
vehicle.
Defendant argues his case is similar to State v. St. Amant, 504 So.2d 1094
(La.App. 5 Cir. 1987). In St. Amant, the arresting officer pulled over Ms. St.
Amant for reasons other than a traffic violation. When she exited the vehicle, the
officer observed that she was unsteady on her feet, appeared confused, slurred her
9 words, and smelled of alcohol. The officer took her to the police station where she
underwent an Intoxilyzer test and did a videotaped field sobriety test. The result of
the Intoxilyzer test was 0.18g percent blood/alcohol content. The officer also
testified that Ms. St. Amant did not perform well on the field sobriety test because
she was unsteady on her feet. Even though the trial court noted in the record that
Ms. St. Amant had performed adequately on the field sobriety test contrary to the
officer‟s opinion, it still found Ms. St. Amant guilty of driving while intoxicated,
second offense.
On appeal, the fifth circuit ruled that the Intoxilyzer result was inadmissible
because the proper foundation was not laid for its admissibility. Furthermore, the
fifth circuit concluded the trial court was correct when it opined that Ms. St. Amant
performed adequately on the videotaped sobriety test. The fifth circuit stated:
Because we have concluded the intoximeter test result is inadmissible, defendant‟s conviction must turn on whether the State‟s evidence otherwise proved beyond a reasonable doubt that defendant was operating a motor vehicle while under the influence of alcoholic beverages. Apart from the intoximeter test, the other evidence offered on this issue was the videotaped field sobriety test and the arresting officer‟s testimony relating his sensory impressions.
We conclude, as did the trial judge, that the defendant does not appear intoxicated on the videotape.
The only remaining evidence is the arresting officer‟s statement that when he first detained her she smelled of alcohol, was unsteady on her feet and seemed confused. He also testified, however, that she was unsteady on her feet during the videotaped field sobriety test, but that was not perceptible to us. Accordingly, we conclude his testimony alone is insufficient to carry the State‟s burden of proof.
Id. at 1097-98.
10 Similarly, the fourth circuit in State v. Loisel, 01-2018 (La.App. 4 Cir.
3/6/02), 812 So.2d 822, reversed a DWI conviction finding the videotape did not
support a finding that the defendant was intoxicated. In Loisel, there was no
testimony given at trial. Instead, the State admitted the officer‟s report and a
videotape. Mr. Loisel was pulled over after an officer witnessed him sitting in an
intersection, blocking traffic. The officer witnessed Mr. Loisel light a cigarette and
put a mint in his mouth. Regardless, the officer could still smell alcohol on his
person. Mr. Loisel refused the finger to nose test and the walk and turn test, but
agreed to perform the alphabet test, which the officer reported Mr. Loisel failed.
Mr. Loisel also admitted to drinking. The officer‟s report stated Mr. Loisel
smelled of alcohol, had slurred speech, and he checked off “unsure” under the
“balance” section of the Uniform Field Sobriety Test form. Id. at 824. The court
concluded the video tape showed Mr. Loisel had some trouble with the alphabet
test, but did not appear to have trouble walking or standing, which was contrary to
the officer‟s report. He actually stood and paced in front of the officer‟s vehicle
for approximately twenty minutes. The court also found it was possible to
understand everything Mr. Loisel said to the officer. The fifth circuit concluded,
“Loisel‟s refusal to take some of the tests may have been reason enough for the
arrest; however, the officer‟s statements in the police report (in comparison to the
videotape) are legally insufficient to carry the State‟s burden of proof for the
conviction.” Id. at 829.
However, in State v. Walker, 05-875 (La.App. 4 Cir. 3/29/06), 930 So.2d 94,
the fourth circuit discussed evidence admitted to prove Ms. Walker was driving
under the influence: behavioral manifestation, videotaped observations of the
accused, and taking or refusing testing for alcohol consumption. No trial
11 testimony was taken, but the State entered the police report and videotape made at
the Belle Chasse Lockup into evidence. In Walker, Ms. Walker was stopped for
speeding and driving erratically. The officer observed Ms. Walker pour some
liquid out of the car window as she drove. When she stopped, she staggered a bit
as she exited the vehicle. Although she produced her driver‟s license and
registration, she had problems finding her insurance card, which was lying on her
lap. She refused to do a field sobriety test. At the police station, she again refused
to do a field sobriety test or take a chemical test for intoxication. During
interrogation, Ms. Walker slouched in her chair, rubbed her eyes, and acted
nervous. When asked if she had been drinking, she shrugged her shoulders but
admitted she had left a bar before she was stopped. She was found guilty of
operating a vehicle while intoxicated, first offense. She appealed the conviction,
and argued that the video recording negated a finding that she was intoxicated at
the time she was stopped.
The fourth circuit in Walker noted that the videotape did not discredit the
information in the police report even though the tape by itself did not establish that
Ms. Walker was intoxicated after she arrived at the station. Additionally, the court
notes that the video was not taken when Walker was stopped, which is what the
police report evidenced. Noting too that, unlike in Loisel and St. Amant, Ms.
Walker refused to do any sobriety test, which was admissible as evidence of
intoxication under La.R.S. 32:666. The fourth circuit determined there was
sufficient evidence that she was intoxicated while operating her vehicle.
In the current case, both Deputy Miller and Trooper Verret testified that they
could smell alcohol underneath the strong odor of cologne. They both stated that
Defendant swayed and slurred his words. Deputy Miller testified that Defendant‟s
12 speech was so bad, he thought Defendant had a speech impediment. Both officers
stated that Defendant‟s eyes were bloodshot. Although Defendant was able to
walk the fog line, he began the horizontal gaze nystagmus test, but shortly
thereafter refused to continue with the test. Defendant‟s speech was recorded
during this time and sounds thick. While Defendant does not necessarily appear to
be swaying on the video, it is also difficult to tell because of the direction
Defendant stands while taking the nystagmus test. Not to mention Deputy Miller
observed Defendant for approximately twenty minutes before Trooper Verret
arrived and prior to Trooper Verret turning on the dash cam. Trooper Verret also
observed Defendant prior to the dash cam being turned on. Therefore, both
officers may have observed Defendant swaying and slurring his speech prior to the
dash cam recording the incident. While Trooper Verret‟s interaction with
Defendant shown on the video recording was very brief, the video does not
necessarily discredit the officers‟ testimonies regarding Defendant‟s behavioral
manifestations.
While there was no video recording of Defendant‟s behavior at the police
station, Trooper Verret testified that Defendant needed to use the restroom several
times, and was cooperative at times, but then was also combative, so much so that
the trooper finally handcuffed Defendant to the wall to avoid a problem.
Additionally, Defendant asserts the State cannot prove he was intoxicated at
the time he was operating his vehicle. On the other hand, the State argues that
there was no indication that Defendant left the vehicle after it went into the ditch.
In the previously discussed cases, the defendants were stopped by officers
while operating their vehicles. However, in this case, there are no witnesses that
testified to Defendant operating his vehicle. Although Defendant admits to driving
13 the vehicle, the officers did not see him doing so. There is also no evidence in the
record that other witnesses saw Defendant operating his vehicle. However, as can
be seen on the video, cars continuously pass through the area where the crash
occurred. The property owners became aware of the crash and can be heard on the
video discussing their damaged mailbox and getting Defendant‟s insurance
information from Trooper Verret. No alcohol containers were located in the
vehicle. Accordingly, it was unlikely that Defendant drank after the crash, but
before the officers arrived.
Additionally, according to the officers, Defendant‟s explanation of what
caused him to swerve off the road and into the ditch changed. First, Defendant
stated the road was wet, but then changed his story and asserted he swerved to
avoid a tire in the road. However, the video recording verified that the roadway
was not wet at the time, and Trooper Verret testified there was no tire in the road
or anywhere in the area. Conflicting voluntary statements made to law enforcement
officers can be indicative of a guilty mind. State v. Wiley, 03-884 (La.App. 5 Cir.
4/27/04), 880 So.2d 854, writ denied, 04-1298 (La. 10/29/04), 885 So.2d 585.
Considering the evidence in a light most favorable to the prosecution, this
court finds that Defendant was intoxicated while operating a vehicle. Therefore,
this court finds that the State met its burden of proving beyond a reasonable doubt
that Defendant was intoxicated while operating a vehicle in violation of La.R.S.
14:98(A) and, therefore, Defendant‟s first assignment of error lacks merit.
Assignment of Error Number Two—Ineffective Assistance of Counsel
On appeal, Defendant also argues that his trial defense counsel rendered
ineffective performance for failure to object to incorrect and misleading jury
instructions regarding several elements of the offense. Normally when a jury
14 instruction is not objected to, the erroneous instruction cannot be raised on appeal.
La.Code Crim.P. art. 801(C). However, as noted in State v. Collins, 04-1443
(La.App. 4 Cir. 7/26/05), 910 So.2d 454, the claim may be raised under the
auspices of an ineffective assistance of counsel claim. Regarding ineffective
assistance, the fourth circuit stated:
A claim of ineffective assistance of counsel is most appropriately addressed through an application for post- conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. However, it is well settled that when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Young, 99-1054 (La.App. 5 Cir. 2/16/00), 757 So.2d 797, 803.
Id. at 460-61. Furthermore, the court noted:
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the 1974 Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show 1) his attorney‟s performance was deficient, and 2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice for purposes of ineffective assistance of counsel, the defendant must demonstrate that but for counsel‟s unprofessional conduct the outcome of the trial would have been different. Effective assistance of counsel does not mean errorless counsel or counsel who may be judged ineffective on mere hindsight. State v. Young, 757 So.2d at 803.
Id. at 461. The record currently before this court is sufficient to address
Defendant‟s ineffective counsel claim.
First, Defendant argues that the trial court instructed the jury as to a
necessary element of the offense that was impossible to prove because it did not
exist in this case. Yet, without evidence of this element, the jury convicted
15 Defendant. Specifically, Defendant refers to the trial court‟s following instruction
while discussing what elements the State must prove beyond a reasonable doubt to
find Defendant guilty:
The final element is intoxicated[sic]. The operator‟s blood alcohol concentration must be .08 or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.
This element was not present in this case—Defendant never submitted to a blood
alcohol test.
Following the reading of the instruction, the trial court dismissed the jury to
deliberate. The trial court then asked the State and defense counsel if there were
any objections to the instructions. Both the State and defense counsel answered
negatively.
Defendant argues, in brief, that “[t]he jury was instructed to find an element
which was not a basis for the charge . . . . Thus, had the jury followed the
instruction given to them by the court, as they were instructed they were required
to follow, they could not have found Appellant guilty as charged.” However, the
trial court had previously instructed the jury on all elements the State was required
to prove by reading La.R.S. 14:98, as follows (emphasis added):
Defendant is charged with driving while intoxicated, fourth offense. The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist: the operator is under the influence of alcoholic beverages; or the operator‟s blood alcohol concentration is .08% or more by weight based on grams of alcohol per one hundred cubic centimeters or blood[.]
Therefore, the jury was in fact properly instructed on the required elements of the
statute.
16 In State v. Mathews, 50,838, 50,839, (La.App. 2 Cir. 8/20/16), 200 So.3d
895, writ denied, 16-1678 (La. 6/6/17), 220 So.3d 752, the defendant alleged a jury
instruction was erroneous because it added an element to the charge which was not
proved. The second circuit addressed the issue for the reason that “[e]rrors that
affect substantial rights of the accused are reviewable by the appellate court . . . to
preserve the fundamental requirement of due process.” Id. at 909. Citing State v.
Arvie, 505 So.2d 44, 48 (La.1987), the second circuit stated that, “[t]o fall under
the exception, the error must cast substantial doubt, on the reliability of the fact-
finding process.” Id. Although finding the incorrect instruction did not actually
add an additional element to the offense, citing State v. Hongo, 96-2060, p. 5 (La.
12/02/97), 706 So.2d 419, 421, the second circuit stated that the invalid instruction
was harmless “if the evidence is otherwise sufficient to support the jury‟s verdict
and the jury would have reached the same result if it had never heard the erroneous
instruction.” Id. at 910.
In this assignment of error, the question is whether defense counsel‟s
performance was defective because she failed to object to the instruction regarding
the .08 percent blood/alcohol content requirement. Defendant argues that, had
defense counsel objected to the erroneous instruction and argued for clarifying
instructions, the jury may have found that the State failed to prove Defendant was
intoxicated while driving the vehicle. While the instruction was erroneous since
there was no alcohol or blood analysis done in this case, the jury was correctly
informed of the elements required to be convicted under La.R.S. 14:98 because the
court previously read the jury the entirety of the statute.
Defendant further argues that the trial court failed to instruct the jury that it
was their responsibility to find that Defendant was a fourth offender in that he was
17 the person who entered pleas of guilty to the three prior offenses. This allegation,
too, is without merit. The jury was offered sufficient documentation establishing
Defendant‟s three prior offenses—certified copies of Defendant‟s prior convictions
and testimony by Defendant‟s probation officer that Defendant was on probation
for a third conviction of operating a vehicle while intoxicated. Logically then, they
were aware they were deciding a fourth conviction. The trial court also instructed
the jury regarding a fourth offense, specifically and at length that, if they did not
find Defendant guilty of a fourth offense, the responsive verdicts in this case were
guilty of operating a vehicle while intoxicated, third or second or first offense, or
not guilty. Accordingly, the jury was made aware of the fact that there must have
been sufficient evidence that Defendant was a fourth offender in this case for them
to find him guilty of a fourth offense.
Lastly, Defendant asserts the trial court failed to instruct the jury that they
must find that Defendant was intoxicated while he was in control of the vehicle.
This assertion also lacks merit. First, as quoted above, the trial court read the
required elements of La.R.S. 14:98 to the jury, which includes, “The crime of
operating a vehicle while intoxicated is the operating of any motor vehicle . . .
when . . . the operator is under the influence of alcoholic beverages[.]”
(Emphasis added). The operation element is inherent in the very charge of driving
while intoxicated. Additionally, during the State‟s closing arguments, it was
emphasized that Defendant must have been intoxicated while he was driving: “It‟s
circumstantial that given these facts that my witnesses testified to, we‟re asking
you to conclude when you put them all together that the only reasonable
explanation that explains all of this is that Mr. Kees was under the influence of
alcohol when he drove that car[.]”
18 To believe that the jury could not draw the conclusion that Defendant must
be intoxicated while operating the vehicle to be convicted of such would be for this
court to find that the jury was devoid of the common intelligence and sense of duty
that is properly credited to them. The Louisiana Supreme Court has recognized
that “much credit should be accorded to the good sense and fairmindedness of
jurors who have seen the evidence and heard the argument[s.]” State v. Mitchell,
94-2078, p. 11 (La. 5/21/96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117
S.Ct. 614 (1996).
CONCLUSION
For the foregoing reasons, we affirm the trial court‟s conviction. However,
we further remand this case to the trial court with instructions to send written
notice within ten (10) days of the rendition of this opinion, properly advising
Defendant of his time to seek post-conviction relief, and to file written proof in the
record that Defendant received the notice.
AFFIRMED AND REMANDED WITH INSTRUCTIONS. THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.