State v. Marlbrough

138 So. 3d 65, 13 La.App. 5 Cir. 688, 2014 WL 970163, 2014 La. App. LEXIS 633
Louisiana Court of Appeal·Decided March 12, 2014·No. No. 13-KA-688·Published·Cited by 1 cases

Opinion

JUDE G. GRAVOIS, Judge.

12Defendant, John Michael Marlbrough, has appealed his conviction of driving while intoxicated (DWI), third offense, in violation of La. R.S. 14:98(A)(D). For the [69] reasons that follow, we affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Louisiana State Trooper Travis Canci-enne1 testified at trial that on July 20, 2012, at approximately 11:00 p.m., he was operating radar on Lapalco Boulevard in Jefferson Parish when he observed defendant’s vehicle traveling westbound on La-palco at “what appeared to be a very high rate of speed.” He activated his radar, which confirmed that defendant was going 63 miles per hour in a 40 miles per hour speed zone. Trooper Cancienne pulled defendant over and asked him for his driver’s license and his vehicle insurance and registration papers. Defendant did not have a driver’s license with him, as it was suspended; he did, however, have a Louisiana identification card in his possession.

| -jUpon speaking to defendant, Trooper Cancienne smelled “a strong odor of an alcoholic beverage on his breath.” Further, defendant “had slurred speech” and “was swaying on his feet as he was talking” to the officer, leading the officer to believe that defendant might be impaired. Based on these observations, Trooper Can-cienne asked defendant to perform a standardized field sobriety test, which he explained was a test to see how defendant would do with his coordination. Defendant agreed. Trooper Cancienne then administered the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test to defendant. Trooper Canci-enne testified that defendant did not perform well on any of these tests.

Based on his observations of defendant, Trooper Cancienne arrested defendant for DWI, handcuffed him, placed him in the rear of his police unit, and advised him of his Miranda2 rights. Defendant was then transported to the Jefferson Parish lockup (the jail) and was subsequently booked with DWI, speeding, driving under a suspended driver’s license, and having an open alcoholic beverage container in his vehicle. At the jail, Trooper Cancienne again advised defendant of his Miranda rights, as well as his rights relating to a chemical test for intoxication. Defendant agreed to submit to an Intoxilyzer test. During the standard interview prior to administration of the test, defendant admitted that he had had three to four drinks at a bar that evening, starting at about 9:00 p.m. and ending at about 10:00 p.m. Defendant subsequently blew into the Intoxilyzer. The results of this breath test showed that defendant had a blood alcohol level of .201 grams per cent as of that time (12:22 a.m.).

Sergeant Joel O’Lear of the Jefferson Parish Sheriffs Office (the “JPSO”), who works in the JPSO Crime Lab, was accepted by the court as an expert in the 14field of latent fingerprint examination and identification, and testified that he took defendant’s fingerprints on the day of trial (identified as State’s Exhibit 8) and compared them to fingerprints found in a certified conviction packet from a DUI (driving under the influence) arrest on November 7, 2010 in Santa Rosa County, Florida (State’s Exhibit 9). He concluded that both sets of prints came “from one individual, and that’s Mr. Marlbrough.”

Sergeant O’Lear also reviewed a certified conviction packet from Case No. S1118500 of Second Parish Court for the Parish of Jefferson for first offense DWI (State’s Exhibit 11); however, the fingerprints in that packet could not be used due to them being of insufficient quality. Therefore, Sergeant O’Lear’s JPSO col[70] league, Nicky Passalaqua, printed and certified a ten-print card (State’s Exhibit 12) taken by the JPSO when defendant was arrested on March 21, 2009 for the same offense as was applicable to State’s Exhibit 11. Sergeant O’Lear then compared the fingerprints contained in State’s Exhibit 8 to those in State’s Exhibit 12 and found that “they were produced by one and the same individual, and that was Mr. Marlbrough.”

At the conclusion of the trial, the six-person jury found defendant guilty as charged.3 On May 31, 2013, after a hearing, the trial judge denied defendant’s motions for post-verdict judgment of acquittal and for a new trial. After defendant waived sentencing delays, the trial judge sentenced defendant to one year in the Department of Corrections without the benefit of parole, probation, or suspension of sentence, and to pay a $2,000.00 fine.4 Also on May 31, 2013, defendant filed a timely motion for an appeal which was granted. This appeal followed.

| ¡ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

The State failed to present sufficient evidence to uphold defendant’s conviction. (Assignment Number One)

The trial court erred in admitting pri- or conviction in Jefferson Parish case number S1118500. (Assignment Number Three)

In these related assignments of error, defendant argues that the evidence was insufficient to support his third offense DWI conviction because the State failed to sufficiently prove one of the prior DWI convictions. Specifically, he contends that the State failed to present sufficient proof that he knowingly, freely, and intelligently waived his constitutional rights in case number S1118500 in Second Parish Court for the Parish of Jefferson on August 9, 2011. Defendant asserts that he did not sign the “Certificate” at the end of the guilty plea form in that case that certifies that his rights had been read and explained to him and that he had no further questions. He thus asserts that the trial judge erred by admitting into evidence the prior conviction in case number S1118500 from Second Parish Court.

The record reflects that on May 28, 2013, defendant filed a motion in limine to prohibit the State from introducing evidence of his 2011 guilty plea in case number S1118500 from Second Parish Court. In that motion, defendant contended that he did not sign the “Certificate” at the end of the form indicating that his rights had been read and explained to him and that he had no further questions. Therefore, in his motion, defendant argued that his plea was not knowingly and intelligently waived.

On May 28, 2013, the trial judge found that the motion in limine was actually a motion to quash and treated it as such; the State agreed. At the hearing on the motion, defendant repeated his arguments. [71] The State responded that ^defendant, his attorney, and the trial judge had signed the Boykin5 form that listed all of the relevant Boykin rights, noting that defendant had cited no law showing that a certification by defendant was necessary to confect a proper Boykinization in a DWI case. The State also noted that certified minute entries showed that defendant was advised of his Boykin rights by the court when he pled guilty to said charge on August 9, 2011.

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State v. Marlbrough, 138 So. 3d 65, 13 La.App. 5 Cir. 688, 2014 WL 970163, 2014 La. App. LEXIS 633 (La. Ct. App. 2014).

138 So. 3d 65 (State v. Marlbrough) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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