Opinion
2015 KA 0472
06-02-2016
STATE OF LOUISIANA v. MARVIN JOHNSON
Ricky L. Babin Thomas Daigle Napoleonville, LA and Donald D. Candell Gonzales, LA Counsel for Appellee, State of Louisiana Prentice L. White Baton Rouge, LA Counsel for Appellant, Defendant-Marvin Johnson
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Third Judicial District Court In and for the Parish of Assumption, State of Louisiana
Trial Court Number 10-94
Honorable Jessie M. LeBlanc, Judge Presiding
Ricky L. Babin
Thomas Daigle
Napoleonville, LA
and
Donald D. Candell
Gonzales, LA Counsel for Appellee,
State of Louisiana Prentice L. White
Baton Rouge, LA Counsel for Appellant,
Defendant-Marvin Johnson BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ.
WHIPPLE, C.J.
The defendant, Marvin A. Johnson, was charged by an amended bill of information with driving while intoxicated (DWI), fourth offense, in violation of LSA-R.S. 14:98. At arraignment, the defendant pled not guilty, but following a jury trial, he was found guilty as charged by a unanimous six-person jury. The defendant was sentenced to fifteen years imprisonment at hard labor, with the first seventy-five days to be served without the benefit of parole, probation, or suspension of sentence. The defendant was also fined $5,000.00. A motion for appeal was not timely made, but the defendant successfully moved for post-conviction relief seeking an out-of-time appeal. He now appeals, assigning error solely to the sufficiency of the evidence presented at trial. For the following reasons, we affirm the defendant's conviction and sentence.
The defendant stipulated to the three predicate DWI convictions used by the State to enhance the instant offense to a fourth offense DWI: (1) a June 21, 2002 guilty plea under 23rd Judicial District Court, Parish of Assumption, docket number 98893; (2) an August 19, 2003 guilty plea under 23rd Judicial District Court, Parish of Assumption, docket number 85365; and (3) an August 3, 2009 guilty plea under 23rd Judicial District Court, Parish of Assumption, docket number 09-60.
Although the State's brief recites that the defendant was tried before a twelve-person jury, the record reflects that the defendant was charged "under LSA-R.S. 14:98" with DWI, fourth offense, and thereafter was actually tried by a jury of six, who unanimously found him guilty as charged. However, the record also shows that as a result of his third-offense DWI, the defendant was previously required to participate in substance abuse treatment and home incarceration. By statute, these two circumstances are the requirements that trigger potential enhanced penalties at sentencing as set forth in former LSA-R.S. 14:98(E)(4)(a) , (prior to amendment by 2014 La. Acts, No. 385, § 1) which requires harsher sentencing penalties, i.e., ten to thirty years at hard labor, three years of which must be served without benefit of probation, parole, or suspension of sentence. In Louisiana, a twelve-person jury is required when the potential sentence is necessarily confinement at hard labor. On appeal, the defendant does not challenge or assign error to the composition of the jury; his only complaint is in regard to the sufficiency of the evidence.
STATEMENT OF FACTS
On May 9, 2010, while patrolling in Napoleonville, Louisiana, Assumption Parish Sheriff's Sergeant David Bailey observed the defendant, who was driving a white pickup truck, turn onto the southbound lane of LA Highway 1. Sergeant Bailey, who was following behind the defendant, "observed him swerving and straddling the fog lines and straddling the centerline." Sergeant Bailey also noted that the defendant was driving at a "low" rate of speed considering the posted speed limit. After following the defendant for approximately two and one-half miles, Sergeant Bailey activated his vehicle's emergency lights, with the defendant complying and pulling off the roadway. The defendant exited his truck and began walking toward Sergeant Bailey's patrol car; however, he did so by holding onto the side of the vehicle. Sergeant Bailey asked for the defendant's driver's license and vehicle registration, to which the defendant replied that he did not have his license, and he could not find the vehicle registration. While speaking with the defendant, Sergeant Bailey "noticed a strong odor of some type of alcoholic beverage on his breath." The defendant granted Sergeant Bailey permission to search the truck for the vehicle's registration, and when Sergeant Bailey opened the driver's side door, he noticed an open bottle of rum inside the door. As he turned to ask the defendant about the bottle, Sergeant Bailey observed the defendant "staggering" and running away at a slow pace. Sergeant Bailey gave chase, eventually locating the defendant lying down in a nearby yard. The defendant was then placed under arrest. Sergeant Bailey noted the defendant "appeared to be impaired, very impaired with the swaying and the slurring of his talk, and trying to plead with me, telling me that he was just going to pick up his son [from The Corner Bar], and [had] the strong odor of the alcoholic beverage on his breath."
When he first observed the defendant, Assumption Parish Sheriff's Deputy Travis Landry, who arrived at the scene as Sergeant Bailey located the defendant in the nearby yard, noted the defendant "appeared to be under the influence of alcohol." He likewise noted a "strong odor of an alcoholic beverage of some sort" coming from the defendant's breath and person, and that his speech was slurred. Deputy Landry stated that he asked the defendant why he ran from Sergeant Bailey, and the defendant replied that "he had already got his Third Offense DWI and that he could not get a Fourth." Deputy Landry transported the defendant to the Assumption Parish jail, where he was administered three standardized field sobriety tests, Deputy Landry testified that the defendant failed the horizontal gaze nystagmus test. Next, regarding the one-legged stand test, Deputy Landry noted that the defendant could not maintain his balance without putting a foot down, and that he continually swayed his arms during the test to maintain balance. Deputy Landry stated that even an individual with a pinched nerve and a bulging disc in their back should be able to stand on one leg for thirty seconds. Deputy Landry testified that during the third test, the walk-and-turn test, the defendant likewise failed, as he used his arms to maintain balance, took the incorrect number of steps, turned incorrectly, did not touch heel to toe on all steps, and could not keep his balance while listening to instructions. Deputy Landry testified the test results were consistent with his initial observation that the defendant was impaired. Due to the defendant's failure on each field sobriety test, Deputy Landry concluded he had probable cause to administer a breathalyzer test. However, the defendant not only refused the test, but refused to sign the form indicating he refused the test.
The defendant also testified at trial. He stated that prior to May 9, 2010, the date of his arrest, he was diagnosed with a herniated disc. Additionally, he originally testified that prior to his arrest, he was diagnosed with "kidney cancer," which prohibited him from drinking alcohol. On cross-examination, the defendant acknowledged that this diagnosis was after his May 9, 2010 arrest. The defendant testified that when he was stopped by Sergeant Bailey, his walk was not staggered, and he did not have a bottle of alcohol in his truck, nor did he drink any alcohol prior to driving his truck. The defendant further claimed that upon his arrival at the Assumption Parish jail, Deputy Landry did not administer any field sobriety tests, nor a breathalyzer test. The defendant later admitted that Deputy Landry did ask him to stand on one leg, but he responded that he was unable to do so because of the injuries to his back. Lastly, the defendant claimed that he never ran away from Sergeant Bailey.
SUFFICIENCY OF THE EVIDENCE
In his sole assignment of error, the defendant avers that "the arresting officer, [Sergeant] Bailey, claimed to have located a half-empty bottle of rum in his truck, but subsequently threw the bottle away after he was arrested. [The defendant] did not submit to any field sobriety tests. Thus, there was absolutely no proof that [he] was intoxicated other than the self-serving testimony from [Sergeant] Bailey, who testified that [the defendant] was the black sheep of his wife's family. With a herniated disk [sic] in his back and deteriorating kidneys, [the defendant] asserts that the district court committed reversible error in accepting the jury's guilty verdict." The defendant argues that without the alleged bottle of rum, field sobriety tests, or evidence that he ran from, or tried to evade Sergeant Bailey, his conviction should be reversed.
The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Patton, 2010-1841 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." LSA-R.S. 15:438; State v. Millien, 2002-1006 (La. App. 1st Cir. 2/14/03), 845 So. 2d 506, 508-09.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157 and 2000-0895 (La. 11/17/00), 773 So. 2d 732.
In order to convict an accused of driving while intoxicated, the State need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. See LSA-R.S. 14:98; State v. Graves, 95-0578 (La. App. 1st Cir. 5/10/96), 675 So. 2d 1141, 1145. Regarding the instant case, there is no dispute that the defendant was operating a vehicle at the time of the offense. Further, he stipulated to the three predicate DWI guilty pleas used by the State to enhance the instant DWI to a fourth offense. Thus, the issue presented is whether the State proved that the defendant was under the influence of alcohol at the time he was operating the vehicle. See State v. Picard, 2003-2422 (La. App. 1st Cir. 9/17/04), 897 So. 2d 49, 54.
Intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify. What behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case by case basis. Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. Furthermore, an officer's subjective opinion that a subject failed a field sobriety test may constitute sufficient evidence of intoxication to support a DWI conviction. Graves, 675 So. 2d at 1145-46; State v. Parry, 2007-1972 (La. App. 1st Cir. 3/26/08), 985 So. 2d 771, 775.
In Parry, 985 So. 2d at 775-76, the defendant was convicted of a third offense DWI and asserted that insufficient evidence was presented at trial to support her conviction. On appeal, this court noted that Louisiana State Police Trooper Coy Canulette was on patrol in Slidell, Louisiana, when he observed a vehicle ahead of him, driven by the defendant, swerve and cross the centerline three times. Trooper Canulette activated his lights and initiated a traffic stop of the defendant's vehicle. The defendant was instructed to exit and walk to the rear of her vehicle, which she did, but she twice grabbed the side of the car. Trooper Canulette detected a strong odor of alcohol on the defendant's breath. Field sobriety tests were conducted at the scene, with the defendant swaying, taking the incorrect number of steps, and turning incorrectly on the walk-and-turn test. Additionally, during the one-legged stand test, the defendant could not maintain her balance with her arms at her side; rather, she moved her arms away from her side to maintain balance. The defendant claimed she had vertigo and could not perform the test, and also asserted that the pavement where the field sobriety tests were administered was uneven, explaining her poor performance. The defendant further denied she consumed any alcohol, and that Trooper Canulette lied about her refusal to perform a breath test after being transported to the local jail. After reviewing the record, this court held that "a rational fact finder could have concluded [the] defendant was operating her vehicle under the influence of alcohol. [The] [d]efendant's vehicle was observed repeatedly weaving between lanes; she exhibited a strong odor of alcohol on her breath and performed poorly on the field-sobriety tests." Id. at 776.
A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was under the influence of alcohol while driving the vehicle and, as such, could find all of the elements of driving while intoxicated, fourth offense, were satisfied. The verdict rendered in this case indicates the jury credited the testimony of Sergeant Bailey and Deputy Landry against the defendant, and rejected his attempts to discredit them. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So. 2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So. 2d 1331. The credibility of witnesses will not be reweighed on appeal. State v. James, 2002-2079 (La. App. 1st Cir. 5/9/03), 849 So. 2d 574, 581.
Although there was also a videotape addressed in Parry, the testimony presented in the instant trial regarding the events surrounding the defendant's arrest and performance on the field tests administered by the trooper similarly revealed that Sergeant Bailey observed the defendant swerve and cross the centerline multiple times while driving at a "low" rate of speed. Next, while exiting the vehicle, the defendant maintained a grip on the side of the truck. Sergeant Bailey also detected a strong odor of alcohol on the defendant's breath. Moreover, an open bottle of rum was located inside the driver's side door of the defendant's vehicle, and when Sergeant Bailey turned to question the defendant about it, he noticed him running away. Deputy Landry noted the defendant's speech was slurred, and likewise detected a strong odor of alcohol on his breath. Deputy Landry testified that the defendant failed the horizontal gaze nystagmus test, that he could not maintain balance without extending his arms during the one-legged stand test, and that during the walk-and-turn test, the defendant took the wrong number of steps, used his arms to maintain his balance, did not touch heel to toe on all steps, and turned incorrectly. Deputy Landry testified that the defendant's performance on the field sobriety tests was consistent with his initial observation of the defendant being impaired.
The verdict returned in this case indicates the jury rejected the defendant's two hypotheses of innocence: (1) that the herniated disc and pinched nerve in his back accounted for his difficulty in walking, and (2) that there was insufficient evidence presented at trial due to the alleged failure to administer field sobriety tests and to preserve the alleged bottle of rum. When a case involves circumstantial evidence and the jury reasonably rejects the hypotheses of innocence presented by the defendant's own testimony, those hypotheses fall, and the defendant is guilty unless there is another hypothesis of innocence which raises a reasonable doubt. See State v. Captville, 448 So. 2d 676, 680 (La. 1984). No such hypothesis exists in the instant case.
In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented at trial. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of exculpatory hypotheses of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). Therefore, the defendant's assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED. Welch, J., dissenting.
I respectfully dissent. The Louisiana Constitution mandates that a defendant charged with an offense "in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons." La. Const. art. 1, § 17(A); see also La. C.Cr.P. art. 782(A). As set forth below, based on the facts presented herein, the punishment in this case was necessarily confinement at hard labor; thus, the defendant's trial before six jurors was improper and requires that the defendant be retried.
Relevant to the consideration of the instant matter is former La. R.S. 14:98's establishment of two penalty ranges for a fourth offense DWI based upon the defendant's prior sentencing history. Under former La. R.S. 14:98(E)(1)(a), a fourth offense DWI, without enhanced provisions, was a relative felony and subject to imprisonment with or without hard labor for not less than ten years and not more than thirty years, seventy-five days of the sentence of imprisonment to be imposed without benefit of probation, parole, or suspension of sentence, and the offense includes a $5,000.00 fine. Yet, where, the defendant has been previously required pursuant to former La. R.S. 14:98(D) to participate in substance abuse treatment and home incarceration, former La. R.S. 14:98(E)(4)(a) mandated that the defendant "shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole." [Emphasis added.]
Pursuant to 2014 La. Acts No. 385, § 1, effective January 1, 2015, the sentencing for a fourth or subsequent DWI offense (formerly provided in LSA-R.S. 14:98(E)), has been redirected to the added provision LSA-R.S. 14:98.4.
Here, the state's bill of information charged the defendant with a fourth offense of DWI under former La. R.S. 14:98. The bill of information did not specify whether the defendant was being charged under the penalty range for an absolute or relative felony. At the beginning of trial, the state introduced evidence to demonstrate that the defendant herein was previously sentenced to substance abuse treatment and home incarceration in connection with his prior conviction for third offense DWI. Following an unanimous guilty verdict by the six-person jury, the defendant was fined $5,000.00, sentenced at hard labor, for a period of fifteen years, seventy-five days to be served without benefit of probation, parole, or suspension of sentence. However, regardless of the lack of specificity in the bill of information as to which provision of former La. R.S. 14:98 the defendant was charged under, the sentence herein was improper, as the defendant's sentencing history mandated a sentence of incarceration at hard labor.
While the bill of information controls the amount of jurors an individual receives, the bill of information must be specific as to the charge against the defendant, and shall inform the accused "of the nature and cause of the accusation against him." La. Const. art. 1, § 13. The Louisiana Constitution mandates that in cases where the defendant will be sentenced to hard labor the defendant is entitled to a twelve-person jury, but if the defendant is subject to a sentence with or without hard labor, the defendant is only entitled to six jurors. Why would the constitution mandate more jurors in absolute felony cases than relative felony cases? The simple fact is that in cases of hard labor incarceration the people of this state and legislature, who passed this constitutional provision, wanted more eyes and ears to view the evidence. The jury has no role in sentencing of the defendant, instead, the focus of the jury's inquiry is the guilt of the defendant. Trying a defendant, who, for whatever reason, faces incarceration at hard labor, requires twelve jurors. Trial by less than the constitutionally mandated number of jurors, regardless of what the bill of information says, is a constitutional violation, which requires reversal.
The state's introduction of uncontroverted evidence of the defendant's previous sentence to substance abuse treatment and home incarceration for a third DWI triggered the mandatory sentence of hard labor sentence under the unequivocal provisions of former La. R.S. 14:98(E)(4)(a), as well as the accompanying constitutional mandate that the case be tried before twelve jurors. As noted by Justice Wiemer in his dissent in State v. Dahlem, 2014-1555 (La. 3/15/16), ___ So.3d ___:
Once the district court was alerted by the state's evidence of the defendant's prior sentence of substance abuse treatment and home incarceration, just as much as the district court was stripped of any discretion to sentence the defendant to incarceration without hard labor, so, too, was the court stripped of the ability to proceed with a six person jury.Consequently, the defective nature of such a proceeding wherein six of the constitutionally mandated fact finders were absent cannot be remedied by a finding that the defendant was sentenced within the range of the unenhanced provision of former La. R.S. 14:98(D).
Relatedly, I find no basis to support the assertion that the defendant can waive or acquiesce in being tried by less than the mandated number of jurors due to his failure to contemporaneously object to the jury's composition at trial. To the contrary, in State v. Jenkins, 406 So.2d 1352, 1353 (La. 1981), the supreme court found that the trial of a defendant charged with simple burglary of an inhabited dwelling, an absolute felony, by a six-person jury absolutely null on the basis that twelve jurors were required under the Louisiana Constitution. In reversing the conviction, the court stated in pertinent part:
We have consistently held that the verdict returned by a jury composed of fewer than the correct number of jurors is null. State v. Bennett, 270 So.2d 840 (1972); State v. Cazes, 262 La. 202, 263 So.2d 8 (1972); State v. Crawford, 195 La. 428, 196 So.2d 921 (1940). Unlike most procedural errors discoverable on the face of the record[...]decreased jury size necessarily affects the fundamental fairness of proceedings against a criminal accused and hence, mandates reversal of his conviction. Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978); Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979); Cf. State v. White, 404 So.2d 1202 (La. 1981).
The court in State v. Jenkins concluded that La. Const. art. 1, § 17 of the 1974 Constitution "represents a considered determination that, as the consequences of conviction stiffen, so should the defendant's procedural safeguards." Id.
Further, a defendant's waiver of his right to jury trial must be made "knowingly and intelligently." L a. Const. Art. 1, § 17(A). In this context, at a minimum, the record should provide evidence of an affirmative acknowledgement by the defendant that he understood that he was entitled to a twelve-person jury, but elected to be tried before a lesser number.
According to the Louisiana Supreme Court's decision in State v. Dahlem, the issue of whether a defendant is denied a fair trial and due process of law because he is, without contemporaneous objection at trial, tried by a six-person jury, instead of a twelve-person jury, on a fourth offense DWI, remains outstanding. Justice Wiemer hit the nail on the head in his dissent in State v. Dahlem, and it is time for the Louisiana Supreme Court to address this important issue. Thus, I respectfully dissent.
In State v. Easter, 2014-1630 (La. App. 1st Cir. 4/24/15), 170 So. 3d 1051, the defendant was similarly charged under "LSA-R.S. 14:98" with DWI, fourth offense, Following his conviction, he appealed, assigning as error his trial before a jury composed of six as opposed to twelve. He argued that during the trial, the State presented evidence to show that he was previously required to complete substance abuse treatment and home incarceration on his third offense DWI conviction. Thus, he contended that his punishment exposure necessarily was confinement at hard labor pursuant to former LSA-R.S. 14:98(E)(4)(a) (prior to amendment by 2014 La. Acts No. 385, §1). This court noted that the defendant was sentenced to fifteen years at hard labor, seventy-five days of which were to be served without benefit of probation, parole, or suspension of sentence, and a fine of $5,000.00, which is exactly the same as in the instant case. In rejecting the defendant's assignment of error in Easter, this court stated that "[a]lthough the State later presented evidence at trial in connection with predicate #3 which, if accepted, allowed for the application of former [LSA-]R.S. 14:98(E)(4)(a), neither the charging instrument, nor the sentence imposed by the trial court, was based upon the enhancement provision. Thus, as noted by the trial court in denying the defendant's motion in arrest of judgment, the defendant was never subjected to the mandatory hard labor or three-year parole restriction of former subsection (E)(4)(a)." Easter, 170 So. 3d at 1059.
Defendant herein was likewise sentenced to fifteen years at hard labor, seventy-five days of which were without benefit of probation, parole or suspension of sentence, with a $5,000.00 fine imposed. Thus, while the charging instrument herein only stated that defendant was charged "under LSA-R.S. 14:98" with DWI, fourth offense, the sentence imposed herein fits within the criteria set forth in former LSA-R.S. 14:98(E)(1)(a) .
In State v. Dahlem, 2014-1555 (La. 3/15/15) ___ So. 3d ___, under virtually identical facts also involving a less-than-clear charging instrument and a defendant who had previously pled guilty to third-offense DWI and had been required to participate in substance abuse treatment and home incarceration, the Supreme Court declined to rule therein on the issue of whether a twelve-person jury was required, and whether or not the trial therein before less than that number was a structural error, stating that despite the defendant's assertion of error, under the facts of the case, this was "an issue of an improper sentence which has been rendered moot by the defendant's multiple offender status. As a result, we decline to find any error that warrants reversal of the defendant's conviction of sentence in this particular instance." State v. Dahlem, 2014-1555 at p. 14.
Therefore, in accordance with Easter, and absent further pronouncement by the Supreme Court on this issue, because the defendant's sentence herein was within the range for a fourth-offense DWI under former LSA-R.S. 14:98(E)(1)(a), without enhancement, we are unable to say the defendant was improperly tried herein, where the trial was by a jury of six members.
In sum, although the defendant was previously subjected to substance abuse treatment and home incarceration, the bill of information simply charged him under "LSA-R.S. 14:98" with a fourth-offense DWI. Moreover, although the trial court noted the "previous opportunities that the defendant had for correctional rehabilitation," he was not actually sentenced to any of the enhanced sentencing provisions under former LSA-R.S. 14:98(E)(4)(a). Thus, absent further pronouncements from the Supreme Court on this issue, pursuant to Dahlem, we likewise pretermit further consideration of whether the trial was interdicted by a structural defect, noting no error was assigned to this mode nor is it demonstrated on the record that he was being tried under the potential enhanced penalties in former LSA-R.S. 14:98(E)(4)(a).