State v. Akins

687 So. 2d 489, 96 La.App. 3 Cir. 414, 1996 La. App. LEXIS 2958, 1996 WL 709740
CourtLouisiana Court of Appeal
DecidedDecember 11, 1996
DocketNo. 96-414
StatusPublished
Cited by1 cases

This text of 687 So. 2d 489 (State v. Akins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Akins, 687 So. 2d 489, 96 La.App. 3 Cir. 414, 1996 La. App. LEXIS 2958, 1996 WL 709740 (La. Ct. App. 1996).

Opinion

hDOUCET, Chief Judge.

On February 22, 1995, defendant, Urlease Akins, was charged by bill of information with one count of distribution of cocaine, a violation of La.R.S. 40:967(A). On March 24, 1995, defendant waived arraignment and pled not guilty. After a trial by jury held May 22 and 23, 1995, defendant was found guilty as charged. Thereafter, on November 17,1995, defendant was sentenced to eight years in the Louisiana Department of Corrections. Defendant filed a Motion to Reconsider Sentence on December 12, 1995, which was denied on December 14, 1995. Defendant now appeals his conviction, alleging nine assignments of error.

\ ¿FACTS:

On January 21,1994, the Natchitoches Police Department recruited an undercover police officer to purchase illegal drugs in the Natchitoches area. Accompanied by a confidential informant, the officer went to Tur[491]*491ner’s Grocery Store. At the store, the officer and the informant approached someone about purchasing cocaine. As a result of this request, the officer saw the defendant reach into his pocket and hand cocaine to a man by the name of Albert Morris, Jr. Morris delivered the cocaine to the officer in return for $20.00. As a result of the transaction, defendant was arrested on January 27,1995.

ERRORS PATENT:

La.Code Crim.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.

In accordance with this article, all appeals are reviewed by the court for errors patent on the face of the record. A review of the record reveals one error patent.

La.Code Crim.P. art. 930.8 provides that at the time of sentencing the trial court shall inform the defendant of the prescriptive period for post-conviction relief. The record shows the court did not so inform the defendant. This defect has no bearing on whether the sentence is excessive and thus is not grounds to reverse the sentence or remand the case for resentencing. La.Code Crim.P. art. 921. The three year prescriptive period does not begin to run until the judgment is final under La.Code Crim.P. art. 914 or 922, so prescription is not yet running. The purpose of the notice of Article 930.8(C) is to inform defendant of the prescriptive period in advance; thus, we direct the trial court to inform the defendant of the provisions of Article 930.8 by | gsending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).

ASSIGNMENT OF ERROR NO. 1:

By this assignment, defendant claims the prosecutor failed to provide exculpatory evidence in that the prosecutor did not disclose whether or not the confidential informant had a criminal record. Defendant did not argue this assignment in his brief. Failure to argue an assignment of error constitutes a waiver of that error. State v. Lewis, 576 So.2d 1106 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991). See also Uniform Rules—Courts of Appeal, Rule 2-12.4. Therefore, this assignment is deemed abandoned.

ASSIGNMENT OF ERROR NO. 2:

By this assignment, defendant claims the prosecutor failed to disclose the code-fendant had previously testified that defendant was not guilty of the charged offense. After summarizing the law regarding the state’s responsibility to disclose exculpatory evidence to the defendant, defendant simply states, “In this case, the co-defendant had testified at a parole hearing that he had never obtained drugs from defendant.” Neither the date the parole hearing took place nor the name of the co-defendant is given. Additionally, no specifics are given as to the co-defendant’s testimony at the parole hearing and no reference is made to the transcript of the parole hearing. A review of the record reveals no transcript of the co-defendant’s testimony at the parole hearing. In its brief, the state claims it did not have a transcript of the parole hearing, nor was it aware that such a hearing took place. In State v. Thomas, 596 So.2d 327, 331 (La.App. 3 Cir.1992), this court held that “[w]hen a defendant fails to designate the portion of proceedings relating to the assignments of error, it is proper for the | ¿reviewing court to refuse to consider these assignments of error.” Accordingly, we refuse to consider this assignment of error.

ASSIGNMENT OF ERROR NO. 3:

By this assignment, defendant claims the prosecutor made reference to other crimes evidence by alleging the defendant failed to file an income tax return. While questioning the defendant, the prosecution asked, “[Did] You file tax returns for your cement finishing business for the last two or three years?” Defendant responded, “No, I haven’t.” In its [492]*492closing argument, the prosecution again mentioned defendant’s failure to file income tax returns by stating, “Don’t you think that if Mr. Akins was making an honest living he would have had some tax returns up here, he would have some proof of his income?” On appeal, defendant claims the above references were references to the crime of malfeasance in preparation of defendant’s income tax returns, which, defendant claims, is not competent evidence for impeaching a witness’ credibility in a prosecution for distribution of cocaine.

We find defendant has not properly preserved this claim for review. Defense failed to object to both the prosecution’s questioning defendant about his failure to file income tax returns and the prosecution’s reference to such failure in his closing argument. According to La.Code Crim.P. art. 841, “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.” This court has also held that if a defendant does not contemporaneously object to a remark made during the state’s closing argument, the defendant has not properly preserved the remark for review. State v. Pipkins, 628 So.2d 1242 (La.App. 3 Cir.1993), writ denied, 94-0059 (La.4/22/94), 637 So.2d 154. The record does not show an objection was made to the prosecutor’s remark either during closing argument or after arguments were given. Thus, defendant has not properly preserved this issue for review.

_JjAlthough not argued directly in his brief, defendant alludes to an ineffective assistance of counsel claim for his counsel’s failure to object by stating:

The prejudicial effect of other crimes evidence is so great that when defense counsel in a criminal case fails to move for a mistrial under the C.Cr.P. Art. 770, in response to the prosecutor’s bringing inadmissible other crimes evidence to the attention of the jury, the accused may be entitled to habeas corpus relief in federal court on the grounds that the accused was denied his constitutional right to the effective assistance of counsel. Nero v. Blackburn, 597 F.2d 991 (5th Cir.1979).

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State v. Young
216 So. 3d 236 (Louisiana Court of Appeal, 2017)

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Bluebook (online)
687 So. 2d 489, 96 La.App. 3 Cir. 414, 1996 La. App. LEXIS 2958, 1996 WL 709740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-akins-lactapp-1996.