29913 La.App. 2 Cir. 10/31/97, State v. Mandigo

• Decision Date: 31 October 1997
• Citation: 702 So.2d 351
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 351

702 So.2d 351

29913 La.App. 2 Cir. 10/31/97

STATE of Louisiana, Appellee, v. Anthony Mark MANDIGO, Appellant.

No. 29913-KA.

Court of Appeal of Louisiana, Second Circuit.

Oct. 31, 1997.

Opinion on Rehearing Dec. 15, 1997.

Rehearing Denied Feb. 5, 1998.

Stephen Glassell, Shreveport, for Appellant.

Richard Ieyoub, Attorney General, Paul Carmouche, District Attorney, Karen Avery, Assistant District Attorney, for Appellee.

Before BROWN, STEWART and PEATROSS, JJ.

[29913 La.App. 2 Cir. 1] BROWN, Judge.

On September 24, 1995, defendant, Anthony Mandigo, was ticketed for playing loud music and driving without a license. Mandigo was the driver and sole occupant of a 1974 maroon Chevrolet Impala. The patrol officers saw on the front bench seat of the vehicle a .380 semi-automatic Bersa pistol loaded with a magazine. The gun was in the middle of the seat next to Mandigo.

Mandigo, who had a prior conviction in 1993 for possession of cocaine with intent to distribute, ¹ was charged with possession of a firearm by a convicted felon. After waiving trial by jury, Mandigo was tried by the court on December 2, 1996. He was found guilty and sentenced to the statutory minimum term of ten years at hard labor without the benefit of probation, parole or suspension. A $1,000 fine was also imposed, but suspended. Defendant appeals. We affirm.

Discussion

Jury Trial Waiver

Defendant first asserts that his jury trial waiver was invalid.

The right to trial by jury in felony and certain misdemeanor cases is protected by both the federal and state constitutions. U.S. Const. Sixth Amendment; La. Const. art. I, §§ 16, 17; State v. Muller, 351 So.2d 143 (La.1977). A waiver of trial by jury must be knowing and intelligent. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); La.C.Cr.P. art. 780; State v. Muller, supra; State v. McCarroll, 337 So.2d 475 (La.1976).

La.C.Cr.P. art. 780 provides that at arraignment, a defendant shall be informed of his right to waive trial by jury. Louisiana courts have noted that the preferable practice to evidence a waiver is for the trial judge to require defendant to personally waive the right, either in writing or orally. State v. Wilson, 437 [29913 La.App. 2 Cir. 2] So.2d 272 (La.1983); State v. Kahey, 436 So.2d 475 (La.1983). Nevertheless, the Louisiana Supreme Court has specifically refused to adopt an absolute rule that a jury waiver can not made by defendant's attorney. State v. Phillips, 365 So.2d 1304 (La.1978), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979); State v. Muller, supra.

Defendant's attorney can waive his right to a jury trial when defendant is considered to have understood his right and consented to such a waiver. State v. Phillips, supra; State v. Houston, 94-592 (La.App. 5th Cir. 12/14/94), 648 So.2d 948; State v. Richardson, 575 So.2d 421 (La.App. 4th Cir.1991), writ denied, 578 So.2d 131 (La.1991).

In this case, on October 17, 1995, defendant appeared in court with his counsel, waived arraignment and pled not guilty to the charge. The court specifically informed defendant that he could waive his right to trial by jury and elect to be tried by a judge. A year later, on October 14, 1996, defendant was present in court with his counsel. On this date, defendant's counsel stated that, "Mr. Mandigo would like to waive his right to a jury trial," and "by agreement would ask that this judge trial be set for December 2nd." Defendant made no objection to his counsel's assertions. Defendant was present during the trial on December 2, 1996, and made no objection to being tried without a jury. Furthermore, at the trial, defendant testified.

The choice not to testify is also a fundamental constitutional right. In this, as in many cases, defendant was called as a witness by his attorney without being informed by the court that he did not have to testify and without a waiver of such right. Knowledge of the right and its waiver were implied.

[29913 La.App. 2 Cir. 3] Defendant's trial testimony clearly evidenced his awareness and ability to understand and respond appropriately. Obviously, Mandigo desired to testify and knew he was being tried by the judge.

We find no error in the trial court's determination that defendant knowingly and intelligently waived trial by jury. Defendant was expressly informed at his arraignment of his right to trial by either judge or jury. Furthermore, defendant was present in open court when his counsel announced "Mr. Mandigo" chose to waive his right to a jury trial; defendant made no objection. Defendant also heard that an agreement was reached to set the trial date six weeks later. Defendant was present at trial and testified on his own behalf. Under these circumstances, this assignment is without merit.

Sufficiency of the Evidence

Defendant next asserts that the evidence was insufficient to support his conviction.

To support a conviction of possession of a firearm by a convicted felon, the state must prove beyond a reasonable doubt possession of a firearm, prior conviction of an enumerated felony within the ten year statutory time limitation and general intent to commit the offense. La.R.S. 14:95.1; State v. Tatum, 27,301 (La.App. 2d Cir. 09/27/95), 661 So.2d 657.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence both direct and circumstantial, 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. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

[29913 La.App. 2 Cir. 4] It is the function of the judge or jury to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Bonnett, 524 So.2d 932 (La.App. 2d Cir.1988), writ denied, 532 So.2d 148 (La.1988). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Reaves, 569 So.2d 650 (La.App. 2d Cir.1990), writ denied, 576 So.2d 25 (La.1991); State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990).

In the instant case, Officer Carlos Below testified that the gun was in plain view in the middle part of the front seat, just to the right of where the driver (defendant) would sit. The officer further testified that where the gun was positioned, the driver could have reached over and touched it and that no one else was in the vehicle when defendant was stopped.

The evidence established that defendant had been convicted of possession of cocaine with intent to distribute on May 20, 1993. After the state closed its case, defendant testified that he was aware that because of this prior conviction, he was not supposed to be around or possess a firearm.

Defendant called three witnesses in his defense. His mother added nothing to the case except to state that Yolanda Lewis, defendant's girlfriend, did not live with her and defendant at 6025 Tulsa.

Yolanda Lewis testified that she and defendant had a child together. Ms. Lewis stated that the gun found on the seat of defendant's car was hers; according to Ms. Lewis, she bought the gun for safety reasons. On the day of defendant's arrest, Ms. Lewis testified that: she used defendant's car to go the washateria; she had tucked the gun into the side pocket of the baby's diaper bag; she took the car [29913 La.App. 2 Cir. 5] back to defendant and he dropped her and the baby off at her aunt's house; once inside her aunt's house, she noticed that the gun was missing; she immediately beeped defendant on his pager to tell him about the gun. Instead of calling Ms. Lewis, however, defendant returned to her aunt's house. According to Ms. Lewis, she was walking toward defendant's car, which was parked in front of her aunt's house, to get her gun when the police pulled up behind defendant and arrested him. Ms. Lewis surmised that the gun must have fallen out of the side pocket of the diaper bag.

Defendant's account was essentially the same as that of Ms. Lewis. According to defendant, it was only when his girlfriend beeped him that he looked down and saw the gun in the seat; he then immediately went back to Ms. Lewis's aunt's to return the gun. Defendant admitted knowing that he was not supposed to be around weapons because of his conviction for possession of cocaine with intent to distribute. He stated emphatically that he has not possessed a weapon since he has been on probation. Defendant testified that when he saw the gun, he did not know what to do with it other than to return it to his girlfriend. Both Ms. Lewis and defendant's mother stated that they had never known defendant to carry a weapon.

There were some inconsistencies in the defense's presentation. Ms. Lewis stated that defendant dropped her off at her aunt's house about 4:15 p.m. Both defendant and Ms. Lewis testified that defendant got back to Ms. Lewis's aunt's house approximately ten minutes after dropping her off at the residence. The prosecution pointed out that defendant was not arrested until 4:50 p.m. and questioned defendant about what occurred during the 35 minute interval. Defendant, however, insisted that he dropped his girlfriend off and was returning home when he was beeped by her; it was then that he went back to Ms. Lewis's.

[29913 La.App. 2 Cir. 6] The state also asked Ms. Lewis why the receipt for the purchase of the gun listed defendant's residence on Tulsa Street as her address. Ms. Lewis denied living at defendant's address, but claimed that she made a mistake and gave the wrong address when she purchased the gun. Defendant denied knowledge of Ms. Lewis's ownership of the...