NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT KA **********

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1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT KA STATE OF LOUISIANA VERSUS EMILY BRYANT CLEMENT ********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE ********** JOHN D. SAUNDERS JUDGE ********** Court composed of John D. Saunders, Marc T. Amy, and Billy Howard Ezell, Judges. AFFIRMED, WITH INSTRUCTIONS. Charles Gregory Gravel Gravel & Cespiva P. O. Box 1792 Alexandria, LA (318) Counsel for Defendant: Emily Bryant Clement Richard V. Burnes Attorney at Law P. O. Box 650 Alexandria, LA (318) Counsel for Defendant: Emily Bryant Clement

2 Charles Carmen Foti, Jr. Attorney General P. O. Box Baton Rouge, LA (225) Counsel for Plaintiff: State of Louisiana Dmitrc Ian Burnes Burnes & Burnes 711 Washington Street Alexandria, LA (318) Counsel for Defendant: Emily Bryant Clement Molly L. Balfour Louisiana Dept of Justice, AGA P. O. Box Baton Rouge, LA (225) Counsel for Plaintiff: State of Louisiana David Caldwell P.O. Box Baton Rouge, LA (225) Counsel for Plaintiff: State of Louisiana

3 SAUNDERS, Judge: On January 15, 2004, the Defendant, Emily Bryant Clement, was charged by bill of indictment with solicitation for murder, in violation of La.R.S. 14:28.1. The Defendant entered a plea of not guilty on May 3, On May 16, 2006, the Defendant waived her right to trial by jury, and a bench trial commenced. The Defendant was found guilty as charged on May 23, The Defendant filed a Motion for Post-Verdict Judgment of Acquittal and Motion for New Trial. On September 15, 2006, the trial court denied the motions and sentenced the Defendant to ten years at hard labor. A motion seeking reconsideration of sentence was filed and denied on October 12, A Motion for Appeal was filed on October 12, The Defendant is now before this court asserting the following eight assignments of error: 1. The trial court erred in finding McDaniel and LaBauve credible. 2. The evidence presented at trial was not sufficient to sustain a conviction. 3. The trial court erred in denying [the] Defendant s oral motion for acquittal, and Motion for New Trial, and Motion for Post-Verdict Judgment of Acquittal. 4. The recusal of the district attorney and replacement by the attorney general failed to follow statutory requirements thereby depriving [the] Defendant of her rights to due process of law and a fair trial. 5. The prosecutor made improper comments in opening and closing argument. 6. The trial court erred by admitting evidence concerning a) Defendant s statements at Pitt Grill, b) statements on the telephone to witness McDaniel, and c) evidence concerning the Defendant receiving illegal drugs from witness McDaniel without adequate Prieur notice. 7. The trial court erred in denying the Motion to Suppress and admitting statements obtained from the Defendant after she invoked her right to counsel. 8. The trial court erred in denying the Motion to Reconsider Sentence.

4 We find these assignments of error lack merit and affirm the Defendant s conviction and sentence with instructions related to the error patent. FACTS: On May 26, 2003, while in the back of a shrimp truck and again at the home of Nealie McDaniel, the Defendant allegedly solicited McDaniel and/or Daniel LaBauve to kill Wendy Funk. On May 27, 2003, LaBauve informed his attorney, Terry Johnson, about the Defendant s plan and Johnson called Chief of Police Don Dixon. Detective B.J. Turner met with Johnson and LaBauve. LaBauve was then interviewed by Detective Turner and Detective Franklin Fondel. Detective Turner testified that, after a discussion with Assistant District Attorney Wayne Fry on May 28, 2003, Funk was contacted and informed that a subject had solicited someone to kill her. At 12:40 p.m. that day, Funk paged Detective Turner. Funk informed him that she had received a threatening phone call from the Defendant. Detective Turner subsequently prepared a warrant for the Defendant s arrest. At 1:45 p.m., Detective Turner attempted to have Judge Wyatt sign the arrest warrant. However, Judge Wyatt did not feel comfortable signing the warrant because he was involved in an interdiction with the Defendant. Judge Wyatt also turned over six photographs that were given to him by the Defendant. Judge Painter eventually signed the warrant. The Defendant was subsequently located at St. Patrick s Hospital and was arrested. The State asserts the motive behind the Defendant s actions was a medical malpractice suit Funk had successfully brought against the Defendant s husband. On February 7, 2002, Funk was awarded $596,000 plus costs and interest, and her husband was awarded $75,000. The judgment was affirmed on appeal and attempts 2

5 were made to collect on the judgment. On January 22, 2003, a motion for issuance of a Writ of Fifa to seize various real estate owned by the Defendant s husband was filed. The Defendant and her husband obtained a stay by filing a Chapter 11 bankruptcy on February 24, Because no further action was taken in the bankruptcy, the bankruptcy trustee filed a motion to dismiss the bankruptcy on May 1, 2003, and the matter was set to be heard on May 29, Funk s attorneys joined in the motion because, if the bankruptcy court granted the motion, their intent was to immediately proceed to seize real estate to satisfy the judgment. Said real estate presumably could have been seized on May 29, ERRORS PATENT: In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent. The record does not indicate that the trial court advised the Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art Thus, we direct the trial court to inform the Defendant of the provisions of Article by sending 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. State v. Roe, (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, (La. 2/10/06), 924 So.2d 163. ASSIGNMENT OF ERROR NO. 1: In her first assignment of error, the Defendant argues that the trial court erred in finding LaBauve and McDaniel credible. We do not agree. 1 The matter was subsequently sent back to state court and a ruling favoring Funk rendered. 3

6 The Louisiana Supreme Court in State v. Marshall, , pp. 5-6 (La. 11/29/06), 943 So.2d 362, 367, cert. denied, U.S., 128 S.Ct. 239 (2007) stated the following when discussing the standard of reviewing the credibility determinations of a fact finder set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct (1979): [T]he Jackson standard neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial, State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983), nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. The Defendant attacks the credibility of McDaniel and LaBauve by pointing out that McDaniel s statement given to police was inconsistent with some of the statements given by LaBauve and by McDaniel, herself, at trial. While there were various inconsistencies between McDaniel s statement to police and the trial testimony of both LaBauve and McDaniel, during her testimony at trial, McDaniel admitted she lied to police when she gave her statement to them and indicated that she was then testifying truthfully. As such, it is rational or reasonable for the trial court to disregard those discrepancies. 2 3 Finally, the Defendant points out that McDaniel and LaBauve were convicted criminals. While this is true, prior to finding the Defendant guilty of solicitation for murder, the trial court made the following comments: 2 McDaniel testified that she had previously been convicted of three counts of distribution of marijuana, one count of attempted distribution of marijuana, two or three counts of issuing worthless checks, and two counts of theft. Additionally, McDaniel testified the Defendant was aware of her past. However, the Defendant testified she did not know McDaniel had a criminal record. 3 LaBauve testified that he had previously been convicted of burglary, armed robbery, and manslaughter, and had at least five felony convictions. He further testified that McDaniel told the Defendant he had previously committed manslaughter. 4

7 Let me say, and I know that it s been emphasized by Mr. Gravel, that Nealie McDaniel has, you know, is a seven-time convicted felon. Daniel LaBauve is at least a five-time convicted felon. But I have to say I found as I listened to their testimonies, I found that they were credible. And I tried to discern some type of motivation for them to testify the way they testified, and there was never any connection or even hinted at between Nealie Kay McDaniel, Daniel LaBauve and Wendy Funk so that they would somehow conspire to put this together against Ms. Clement. I never saw, and, you know, the way things transpired between Nealie Kay McDaniel and Daniel LaBauve when he immediately went to the police and/or his attorney who then called the police and he gave his statement right after all this stuff happened, I think lends credibility to his testimony, the fact that he had all this information. I don t know where else he would have gotten the information. He didn t discuss this matter. And I believe that he, that he did not tell Nealie McDaniel. I believe... and accept what Mr. LaBauve said about, particularly about the fact that he did not tell Nealie McDaniel about what happened or what he was going to do, and his motivations for doing what he did I thought were, and especially I was impressed with the way he responded to the questions by Mr. Gravel as to why he did what he did, and I know his motives were impuned [sic] with regard to him being interested in saving the victim in this case but not when he was at the grand jury, and, you know, but at that point he had already done, he had already given his statement, he already presumably had protected her at that point and wasn t, his testimony wasn t necessary from what he said he was told.... And I was impressed with his motives for... the fact that he called the police on Nealie Kay and told her, or told OCS and the police about her drug use with the children in the home. I thought his motives were admirable in that case, at least they made sense.... Anyway, I m just saying those things basically to say that I do, I did find Daniel LaBauve s testimony credible, and I did find Nealie Kay McDaniel s testimony credible. You know, things that I didn t, it didn t make sense to me as far as, you know, when the Defense, you know, when Ms. Clement was saying that Nealie Kay would just say, oh, don t worry about it, I ll take care of it. I mean, she s saying basically she didn t know her very well, and if she was complaining and saying she wished that Wendy Funk would just go away and that Nealie Kay would say, don t worry about it, I ll take care of it, that she just blew that off and didn t inquire about that as far as, well, wait a minute, what do you mean, I m not suggesting that anything, you know, that you do anything, you know, that you do anything about that

8 With regard to Wendy Funk, she did -- the fact that she testified that Ms. Clement said, what will it take to make you go away, when they were in the elevator at some point, I found that credible. And I know Ms. Clement testified that she had only seen Ms. Funk twice. And with everything that had gone on with, and the court appearances they ve had and everything else that had gone on over the years, I did not find that believable at all. She said she didn t know Wendy Funk, she had only seen her in court a couple of times. I did not find that credible. I did find it interesting, and with regard to Ms. Clement s credibility, looking at this letter that she filed with, or this statement dated November 22, 2002, I just, you know, this flies in the face of her testimony saying she s only seen her like twice in court and said she didn t know her I mean, as far as... Ms. Clement s credibility, I think this letter says it all, that she has no credibility. It is clear from the statement above that the trial court was well aware of the criminal history of both LaBauve and McDaniel, and further was aware of the inconsistencies set forth by the Defendant. Given such a thorough delineation of the reasons for making his credibility decisions, we cannot say that the fact finders judgment was irrational or unreasonable. ASSIGNMENT OF ERROR NO. 2: In her second assignment of error, the Defendant contends the evidence presented at trial was not sufficient to sustain a conviction. This contention lacks merit. The Louisiana Supreme Court in State v. Draughn, , p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, U.S., 128 S.Ct. 537 (2007), stated the following: In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the 6

9 essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, assuming every fact to be proved that the evidence tends to prove. La. R.S. 15:438; see State v. Neal, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. Neal, p. 9, 796 So.2d at 657. Solicitation for murder is the intentional solicitation by one person of another to commit or cause to be committed a first or second degree murder. La.R.S. 14:28.1. [I]n the absence of qualifying provisions, the terms intent and intentional have reference to general criminal intent. La.R.S. 14:11. Therefore, solicitation for murder requires only general criminal intent. Id. General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La.R.S. 14:10. Testimonial evidence of the Defendant s criminal activity includes that of Nealie McDaniel, Daniel LaBauve, and Wendy Funk. McDaniel was an acquaintance of the Defendant who testified that she often had breakfast or lunch with the Defendant and her husband at Pitt Grill. On one such occasion, McDaniel testified that the Defendant led her to believe she wanted the the lady who had grown a penis hurt and testified that the Defendant wanted [h]er taken care of. McDaniel further testified that, on another occasion at Pitt Grill, the Defendant stated the same lady was harassing her and her husband, that the lady was at Pitt Grill, and the Defendant wanted that lady taken care of. According to McDaniel, the 7

10 Defendant never pointed out the lady while at Pitt Grill, but the Defendant did tell McDaniel she had taken pictures of the lady. McDaniel also testified that during one phone conversation with the Defendant, the Defendant told her she wanted the lady killed because that lady was suing her husband. McDaniel further testified that the Defendant mentioned having the lady killed on one other occasion when McDaniel delivered pills to the Defendant s home. 4 After these incidents allegedly occurred, McDaniel testified that, on May 26, 2003, the Defendant called her and stated that she and her husband would like to see McDaniel to talk to her about the lady. According to McDaniel, the Defendant and her husband subsequently went to her home, and once the Defendant and her husband arrived at McDaniel s home, the Defendant showed her and Daniel LaBauve pictures 5 of the lady. Next, McDaniel testified that the Defendant then circled the lady s name and address in the phone book, and that the Defendant said she wanted the lady killed. McDaniel also testified that later that evening, the Defendant called McDaniel and asked how much it would cost. McDaniel testified that she covered the phone and asked LaBauve about a price. McDaniel then informed the Defendant that it would cost between two and five thousand dollars. McDaniel testified the Defendant agreed to the price. McDaniel testified that after that phone call, the Defendant never spoke to her again. Finally, McDaniel testified the Defendant was serious the day she was shown the lady s picture. 4 McDaniel testified that on four occasions the Defendant bought two to three hundred dollars worth of Xanax from her, at four dollars a pill. However, the Defendant denied purchasing drugs from McDaniel. 5 McDaniel identified the photographs she was shown as those marked as State Exhibits 6A and 6B. 8

11 Further evidence of the Defendants guilt came from the testimony of Daniel LaBauve. LaBauve was an acquaintance of McDaniel s who testified to witnessing events leading up to the Defendant s arrest. While he was at McDaniel s home on May 26, 2003, LaBauve stated that he came into contact with the Defendant. According to LaBauve, McDaniel introduced him to the Defendant and her husband while they were standing in McDaniel s shrimp truck. LaBauve testified that McDaniel subsequently told the Defendant she needed to speak to her in the house and both the Defendant and McDaniel went into McDaniel s trailer. LaBauve then stated that after they returned, LaBauve went inside the trailer with McDaniel where McDaniel told him that the Defendant wanted to kill someone. Once LaBauve and McDaniel got back into the truck, LaBauve testified that the Defendant talked about the malpractice suit and said to him, I want that bitch dead. LaBauve stated that it seemed like the Defendant was drugged that day, but that he could tell she was very serious. Later in his testimony, LaBauve said that on the evening of May 26, 2003, McDaniel and the Defendant spoke on the phone and McDaniel put her hand over the receiver and asked him how much it would cost to have someone killed. LaBauve testified that he told McDaniel five thousand dollars, then McDaniel relayed that price to the Defendant. LaBauve testified that, during the call, McDaniel gave him a name and address. LaBauve said that he wrote down the name Wendy Faulk and Alabama Street. Finally, LaBauve testified that the Defendant was supposed to bring he and McDaniel a picture of the lady and the money the following day, but never did so. 9

12 Further evidence supporting the Defendant s conviction was the testimony of 6 the alleged target, Wendy Funk. Funk testified that once, while in an elevator at the courthouse, the Defendant told her, What is it going to take to make you go away? Funk further testified that there was one incident where the Defendant called and said You are as good as dead. Further, Funk testified that on May 28, 2003, the Defendant called her at approximately 12:40 p.m. and said you re one dead... bitch. Funk called the police later the same day, indicating the Defendant was in her driveway honking her car s horn and blinking her car s lights. Funk also testified that after the Defendant got out of jail on bail, she went to Funk s house and again threatened her with bodily harm and death. However, Funk did not report this incident to police. More evidence that upholds the Defendant s conviction were the items found in the Defendant s purse, and one statement that she made, during the booking process. Detective Fondel inventoried the Defendant s purse and found a business card bearing the name of the Defendant s husband with the name Nealie and the number handwritten on the back of the card. Sixteen photographs similar to those given to Detective Turner by Judge Wyatt were also discovered in the 7 Defendant s purse. Police also found $7,128 dollars, two sheriff s badges, and a policy insuring the Defendant s husband. 6 Funk testified that she had previously been convicted of a crime involving diazepam. 7 The photographs given to Judge Wyatt were admitted as State Exhibit 2 A-F. These photographs have Funk and Mother of Funk written on them, but are not pictures of Funk or her mother. 10

13 The State presented a DVD of the inventory process at trial. During the inventory, the Defendant removed a camera from her purse. Detective Fondel asked the Defendant if she had been taking pictures. The Defendant indicated she had and stated that someone had been stalking her husband. Detective Fondel subsequently asked if the camera was a digital camera. The Defendant indicated the camera was a camera camera for taking pictures. Detective Fondel then stated you say you ve 8 been using it to take pictures. The Defendant responded, a lady had sued my husband and she was following him and some other girl said she was going to take care of her or something. I don t know what was going on.... The Defendant, in her own testimony, admitted that she had previously told McDaniel that she would like Funk to disappear. The Defendant further admitted she showed McDaniel a photograph of the lady she thought was stalking her. Further, the Defendant admitted that on May 26, 2003, she and her husband stopped at McDaniel s home on their way back from Detonville to get some shrimp. The Defendant also admitted that she and McDaniel had spoken on the phone on the night of May 26, 2003, but the Defendant denied discussing how much it would cost to kill Funk. The Defendant argues that this evidence was insufficient to uphold her conviction. We do not agree. First, in brief to this court, the Defendant argues the State had to prove she acted with the specific intent to cause the murder of Funk. This is incorrect, as we have previously noted, solicitation for murder requires only general criminal intent. 8 Detective Turner testified that it is important to know whether stored items such as cameras are digital or film based so they can be kept away from any type of magnetic field. 11

14 Next, the Defendant argues that even if the sequence of events testified to by LaBauve and McDaniel were believed, no agreement or negotiation had been completed during her May 26, 2003, visit with them as no price had ever been agreed upon. The Defendant asserts that when a detail as important as cost has not been worked out, it shows that no conclusion had been reached to any supposed prior discussions. The Defendant further argues there is a distinct difference between saying this person is bothering me, and I wish she would go away and saying here is the money please kill her. The Defendant admits the former happened, but asserts the latter never did. Finally, the Defendant argues that the State cannot say, with any certainty, whether the solicitation occurred in the shrimp truck or in the house. Additionally, the Defendant argues that the State did not prove whether the Defendant solicited LaBauve or McDaniel to kill Funk. We find that these arguments, as well as this assignment of error raised by the Defendant, are without merit. Solicitation for murder consists of the solicitor purposely seeking to have someone killed and trying to engage someone to do the killing. The solicitation is complete when the solicitation is made. Any contingency in the plan, such as the payment of money, may affect whether the victim is killed, but does not change the solicitor s original intent that the victim be murdered. See People v. Sexton, 250 Mich.App. 211, 646 N.W.2d 875 (2002), appeal denied, 467 Mich. 949, 656 N.W.2d 531 (2003). McDaniel testified that when she and the Defendant met at her house, the Defendant said she wanted Funk killed. The Defendant called McDaniel that night, 12

15 asked how much it would cost, and told McDaniel she wanted the job done. Additionally, in her statement to police, McDaniel agreed that the Defendant asked her to take care of this lady. LaBauve testified that McDaniel relayed to him that the Defendant wanted someone killed. Further, LaBauve stated that the Defendant told him that she wanted that bitch dead. Additionally, in his statement to police, LaBauve stated that during the conversation he had directly with the Defendant, he understood her to say that she wanted him to kill Funk and she would pay him money to do so. As discussed in assignment of error no. 1, the trial court made an informed decision to find McDaniel and LaBauve credible. Given their and Funk s testimony, the items found in the Defendant s purse, and the Defendant s statement given to police during the booking process, we find that there is sufficient evidence to support the Defendant s conviction for solicitation for murder. ASSIGNMENT OF ERROR NO. 3: In her third assignment of error, the Defendant contends the trial court erred in denying her oral Motion for Acquittal, Motion for New Trial, and Motion for Post- Verdict Judgment of Acquittal. ORAL MOTION FOR ACQUITTAL At the close of the State s case, the Defendant made an oral Motion for Acquittal, which was subsequently denied. In a bench trial, the trial court shall enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. La.Code Crim.P. art The denial of a motion for judgment of acquittal may be reversed on appeal only if there is no evidence of the crime or an essential element 13

16 thereof or where the denial is a palpable abuse of discretion. State v. Hargrave, 411 So.2d 1058, 1061 (La.1982). Based on the analysis in the previous assignments of error, we find the trial court did not err in denying the Defendant s oral motion for acquittal. MOTION FOR POST-VERDICT JUDGMENT OF ACQUITTAL The Defendant filed a Motion for Post-Verdict Judgment of Acquittal, which was denied. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. La.Code Crim.P. art. 821(B). A motion for post verdict judgment of acquittal raises the question of sufficiency of the evidence. See State v. Thibodeaux, (La. 9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct (2000). As this court has already determined, the evidence was sufficient to support the Defendant s conviction. Accordingly, we cannot say the trial court erred in denying this motion. MOTION FOR NEW TRIAL The Defendant filed a Motion for New Trial, which the trial court also denied. In that motion, the Defendant cited La.Code Crim.P. art. 851(5), which provides that the trial court shall grant a new trial whenever [t]he court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. In State v. Miller, , pp. 1-2 (La. 3/10/06), 923 So.2d 625, 626, the supreme court commented on La.Code Crim.P. art. 851(5) as follows: Nor do we need to address any tension between observations of this Court that a trial judge s ruling on a motion for a new trial to serve the 14

17 ends of justice, see La.C.Cr.P. art. 851(5), presents a question of law reviewable under an abuse of discretion standard, State v. Randolph, 275 So.2d 174, 177 (La.1973); State v. Bolivar, 224 La. 1037, 71 So.2d 559, 560 (1954); State v. Truax, 222 La. 463, 62 So.2d 643, 644 (1952), and other case law which holds that such a ruling is essentially unreviewable. State v. Toomer, 395 So.2d 1320, 1328 (La.1981)(grant or denial of a new trial under art. 851(5) presents nothing for this Court s appellate review ); State v. Williams, 343 So.2d 1026, 1037 (La.1977)(same); State v. D Ingianni, 217 La. 945, 951, 47 So.2d 731, 733 (1950)(same); cf. State v. White, 207 La. 695, 698, 21 So.2d 877, 878 (1945)( The granting of a new trial on... grounds [that the verdict is contrary to the law and evidence] does not present any question of law. ). This court has routinely held that the denial of a motion for new trial to serve the ends of justice is not subject to review upon appeal. State v. Bell, (La.App. 3 Cir. 3/2/05), 896 So.2d 1236, writ denied, (La. 11/28/05), 916 So.2d 143; State v. Giles, (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied, (La. 3/11/05), 896 So.2d 62; State v. Jason, (La.App. 3 Cir. 7/10/02), 820 So.2d Thus, we find the denial of the Defendant s Motion for New Trial is not subject to review. For the reasons asserted herein, we find this assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 4: In her fourth assignment of error, the Defendant contends the recusal of the district attorney and replacement by the attorney general failed to follow statutory requirements, thereby depriving her of her rights to due process of law and a fair trial. The trial court granted the State s Motion and Order for Recusation of the District Attorney on January 4, The Defendant proceeded to trial on May 16, 2006, without filing any motions regarding the recusal or making any objections thereto. 15

18 The Defendant made no argument or objection in the trial court regarding the recusal of the district attorney. Therefore, she waived appellate review of this issue. La.Code Crim.P. art. 841; Uniform Rules Courts of Appeal, Rule 1-3. ASSIGNMENT OF ERROR NO. 5: In her fifth assignment of error, the Defendant contends the prosecutor made improper comments in opening and closing argument. We do not agree. The Defendant contends that in opening statements the State asserted the Defendant was involved in a fraudulent trust and no evidence that a fraudulent trust existed was presented. The Defendant contends that during closing argument the State argued the Defendant filed a false document, to which defense counsel objected. The Defendant further contends that, during closing arguments, the State made several impermissible references to religion and the State argued the trial court should find her guilty, stating it would give people peace of mind knowing the Defendant would be under supervision and that she would get mental health treatment she was obviously desperately in need of. The Defendant argues it is improper argument to request a guilty verdict so someone can obtain mental health treatment. The Defendant asserts the arguments at issue are improper because they concern matters not in evidence or they are impermissible arguments on their face. Therefore, the Defendant asks that the verdict be overturned and her sentence vacated. The Defendant did not object when the State, during its opening statement, referenced a fraudulent trust. The Defendant also did not object when, during closing 16

19 argument, the State said, Well, the old saying, do unto others, and you know the last part, and thank God. Last, the Defendant did not object when the State said, And that will do two things: You will give these people peace of mind when they go home tonight, because she will now be under your supervision, and you can see to it that this lady gets the mental health treatment that she is obviously so desperately in need of. As the Defendant did not object at the time these remarks were made, she waived appellate review of these issues. La.Code Crim.P. art See also State v. Dubroc, (La.App. 3 Cir. 12/15/99), 755 So.2d 297. Defense counsel did object when the State said, One of the things that she did was she filed false documents, and the documents that I just introduced and explained to. In State v. Harris, , p. 23 (La. 1/19/05), 892 So.2d 1238, 1255, cert. denied, 546 U.S. 848, 126 S.Ct. 102 (2005), our Supreme Court stated the following: La.C.Cr.P. art. 774 provides that closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom and to the law applicable to the case.... Even so, the law is clear that prosecutors are allowed considerable latitude in choosing closing argument tactics. The trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981). Even if the prosecutor exceeds these bounds, the Court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict. [State v.] Taylor, p. 19, [(La. 2/28/96),] 669 So.2d [364] at 375. There was testimony in the record concerning whether the Defendant had filed a motion for dismissal in Funk s medical malpractice case. The attorney whose name appeared on the motion executed an affidavit stating he had no specific recollection of preparing the document and did not believe it was his signature on the document. Additionally, the employee of the clerk of court s office whose signature appeared on 17

20 the document certifying no steps had been taken in the prosecution of the matter since 1995, executed an affidavit stating she did not believe she signed such a document, because the information contained therein was false. The Defendant testified that she did not know who filed the document. We need not decide whether the State commented on matters not in evidence because of the nature of the trial being that of a bench trial rather than a jury trial. The potential for prejudice to the defendant is significantly lessened when the trier of fact is a judge and not a jury. State v. Brown, , p. 11 (La.App. 3 Cir. 4/6/94), 635 So.2d 534, 540. Additionally, a trial judge, by virtue of his training in the law, is able to disregard improperly introduced evidence which is possibly prejudicial. State v. Herrin, 562 So.2d 1, 7 (La.App. 1 Cir.), writ denied, 565 So.2d 942 (La.1990). Given that a trial court can disregard improperly admitted evidence, we find that it can easily disregard improper comments in a closing argument, as closing arguments are not evidence. State v. Boatner, (La. 12/3/03), 861 So.2d 149. Thus, even if the trial court improperly denied the objection, we cannot say, bearing in mind that this was a bench trial rather than a jury trial, the State s comments contributed to the verdict. See State v. Johnson, 622 So.2d 845 (La.App. 4 Cir. 1993); State v. Hotoph, (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, writ denied, (La. 6/30/00), 765 So.2d 1062, writ denied, (La. 6/30/00), 765 So.2d Accordingly, this assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 6: In her sixth assignment of error, the Defendant contends the trial court erred by admitting evidence concerning a) statements the Defendant made at Pitt Grill, b) 18

21 statements on the telephone to McDaniel, and c) evidence concerning the Defendant receiving illegal drugs from McDaniel without adequate Prieur notice. We will address these three contentions separately. PITT GRILL Grill. The Defendant argues that she was not apprised of statements she made at Pitt At trial, the State asked McDaniel about conversations she had with the Defendant at Pitt Grill regarding Funk. The Defendant objected, alleging she had not been apprised of the statements prior to that time. The State asserted it had given defense counsel everything, the witness had been available, and the statements at issue were res gestae. The State further asserted it gave notice to the Defendant of its intent to use any oral statements made by the Defendant. Defense counsel argued that what he was provided with was limited to McDaniel s statement from May 28, The State asserted that in that statement, McDaniel spoke about going to Pitt Grill. Defense counsel then asserted there was nothing in the file regarding conversations McDaniel had with the Defendant at Pitt Grill. The State then read the following from a police report provided to the Defendant in open file discovery: Nealie Kay stated that Emily Clement had made numerous statements about having a woman known only to her as the lady who was suing Dr. Clement from making her grow a penis, Wendy Funk, killed and make her disappear.[ ] Nealie Kay stated the last time Emily Clement made a statement about the woman who was suing Dr. Clement was a couple of days ago. Nealie Kay stated that Emily Clement stated she wanted someone to take care of this woman. Nealie Kay stated that she advised Emily that she could take care of that for her, but she had no intention of doing illegal harming. Nealie Kay stated Emily Clement showed her some pictures -- The trial court subsequently denied the objection. 19

22 In support of her argument, the Defendant cites La.Code Crim.P. art. 768, which reads as follows: Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence. In State v. Lewis, 416 So.2d 921 (La.1982), the supreme court discussed Article 768 and inculpatory statements as follows: Article 768 provides that, should the state fail to give notice of its intention to use a confession or inculpatory statement at trial, it is inadmissible. For purposes of this article, the term inculpatory statement refers to defendant s out of court admission made after a crime has taken place which implicates defendant in its commission. State v. Brent, 347 So.2d 1112 (La.1977); State v. Brumfield, 329 So.2d 181 (La.1976). Because the defendant made the challenged statement one hour before the crimes took place, Article 768 does not govern its admission into evidence. (Emphasis added.) Id. at 924. See also State v. Rubin, (La.App. 3 Cir. 2/8/95), 649 So.2d The statements made by the Defendant to McDaniel at Pitt Grill were made before the commission of the offense at issue. Accordingly, those statements would not be considered inculpatory statements and would not be governed by Article 768. Therefore, we find that the Defendant s contention regarding these statements lack merit. PHONE CALLS Defense counsel objected while McDaniel was discussing the phone call wherein the Defendant arranged to stop by her home, stating he would like to make his objection general, on the basis that he had not been furnished the statements the Defendant made to McDaniel. In support of her argument that the statements made 20

23 by the Defendant to McDaniel were inadmissible, the Defendant cites La.Code Crim.P. art While unlike the statements the Defendant made at Pitt Grill, the phone calls at issue occurred on the date of the offense. Louisiana Code of Criminal Procedure article 768 does not apply because the statements at issue were made during the commission of the offense. Thus, according to Lewis, 416 So.2d 921, Article 768 is inapplicable to the statements at issue. Moreover, an offense report dated May 30, 2003, and filed with the Answer to Defendant s Motion for, Disclosure, Inspection, Copying, and For Bill of Particulars under Kyles, Marshall, Brady, Bagley, Giglio, and Louisiana Code of Criminal Procedure Article 716 Et Seq., discussed the Defendant s call to McDaniel after her visit to McDaniel s home. Thus, it is clear that the Defendant was aware of the content of that phone call. Accordingly, we find that this claim lacks merit. ILLEGAL DRUGS On May 12, 2006, the State filed a notice of intent to use evidence of other crimes. Therein, the State asserted the Defendant supplied McDaniel with illegal drugs, which was how the two came to know each other and how the Defendant came to solicit McDaniel to assist in the murder of Funk. The Defendant filed an objection to the notice on the same day. Therein, the Defendant alleged the notice was not made with reasonable particularity of the alleged other crimes. On May 16, 2006, the day trial began, the State informed the trial court that it would like to amend the notice to state that McDaniel and the Defendant were involved in illegal narcotics activity. Defense counsel indicated that he wanted to know the times, dates, and places the transactions occurred in order to impeach the 21

24 new information. The State informed defense counsel that the transactions occurred some time between May 2002 and May The trial court subsequently informed the parties that it would hear the evidence and rule on the motion concerning other crimes evidence at the end of the trial. Defense counsel objected to the Court s ruling. At the end of the trial, the trial court indicated it had denied the Defendant s motion. Louisiana Code of Criminal Procedure Article 720 provides as follows: Upon motion of defendant, the court shall order the district attorney to inform the defendant of the state s intent to offer evidence of the commission of any other crime admissible under the authority of Louisiana Code of Evidence Article 404. Provided however, that such order shall not require the district attorney to inform the defendant of the state's intent to offer evidence of offenses which relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding or other crimes for which the accused was previously convicted. In State v. Blank, , p. 40 (La. 4/11/07), 955 So.2d 90, 124, cert. denied, U.S., 128 S.Ct. 494 (2007) (footnote omitted), the supreme court discussed Prieur violations as follows: [N]ot every violation of pre-trial procedures, including Prieur violations, requires reversal. Before a defendant can complain of such a violation, he must show prejudice. State v. Sanders, , p. 14 (La.11/30/94), 648 So.2d 1272, 1284 (citing State v. Hooks, 421 So.2d 880 (La.1982)); State v. Strickland, 398 So.2d 1062 (La.1981). Prieur speaks of the substantial risk of grave prejudice to a defendant arising out of inadmissible or surprise admission of other crimes evidence, but does not presume that prejudice. Prieur, supra at 128. In brief to this court, the Defendant argues the notice by the State was inaccurate and did not specify the dates, times, or places when the transactions occurred. The Defendant alleges that without the specifics, she was not able to prepare to counter those allegations. 22

25 This court finds that in this particular case, it need not determine whether the State s notice was sufficient because of the Louisiana Supreme Court s ruling in State v. Womack-Grey, (La. 12/7/01), 805 So.2d In Womack-Grey, there was a single line of testimony that the defendant had used drugs. This testimony was also mentioned in the State s rebuttal argument. The supreme court found the testimony regarding drug use had no discernable connection to the charged crime and thereby lacked the compelling nature of the defendant s custodial admissions and did not pose a significant risk of luring jurors into deciding the case on the basis of the defendant s general criminal disposition as opposed to evidence relating directly to the charged offense. At trial, McDaniel testified that the day the Defendant visited her home the Defendant told her she wanted Funk killed and she wanted it done on a Thursday. That night, the Defendant called McDaniel, asked how much it would cost, and told McDaniel she wanted the job done on Wednesday. Additionally, in her statement to police, McDaniel agreed that the Defendant asked her to take care of this lady. LaBauve testified that McDaniel told him the Defendant wanted someone killed and the Defendant later told him she wanted that bitch dead. Additionally, in his statement to police, LaBauve stated that during the conversation he had directly with the Defendant, he understood her to say that she wanted him to kill Funk and she would pay him money to do so. Given this evidence and the fact that the drug offense at issue had no discernable connection to the charged offense of solicitation for murder, we cannot find that one can reasonably conclude that the trial court rested its verdict on the evidence introduced by the State. Accordingly, this issue lacks merit. 23

26 ASSIGNMENT OF ERROR NO. 7: In her seventh assignment of error, the Defendant contends the trial court erred in denying her Motion to Suppress and admitting statements obtained from her after she invoked her right to counsel. The Defendant filed a Motion to Suppress on May 12, Therein, the Defendant argued that statements made by her during the logging of her property should be suppressed. During the logging of the Defendant s property, Detective Fondel came across a camera and directly questioned the Defendant about the camera. The Defendant asserts Detective Fondel questioned her about the camera despite his knowledge that there were pictures allegedly taken of the victim by the Defendant and the Defendant s invocation of her right to counsel. On May 28, 2003, the Defendant was located at St. Patrick s Hospital and was Mirandized and arrested. Once at the police department, Detective Turner again advised the Defendant of her Miranda rights and attempted to interview her. At that time, the Defendant informed Detective Turner that she wished to speak with an attorney. Detectives Fondel and Turner then began to inventory the Defendant s purse. State Exhibit 4 shows that during the inventory process, the Defendant removed a camera from her purse. Detective Fondel asked the Defendant if she had been taking pictures. The Defendant indicated she had and stated that someone had been stalking her husband. Detective Fondel subsequently asked if the camera was a digital camera. The Defendant indicated the camera was a camera camera for taking pictures. Detective Fondel then stated you say you ve been using it to take pictures. The Defendant responded, a lady had sued my husband and she was 24

27 following him and some other girl said she was going to take care of her or something. I don t know what was going on but. The Defendant later stated someone had been following her and her husband and she took pictures of that. At trial, Detective Fondel testified that he asked the Defendant if she had taken pictures with her camera because, if she had, he wanted to make sure it was not stored in a magnetic area where the film could be lost. Detective Turner also testified that it is important to know whether stored items such as cameras are digital or film based so they can be kept away from any type of magnetic field. Detective Fondel further testified that he disregarded the Defendant s statement about someone taking care of the person stalking her husband because he was not in an interrogation. Additionally, Detective Fondel testified he was aware the Defendant had taken pictures and given them to Judge Wyatt. The trial court denied the Defendant s motion, finding that Detective Fondel had not intentionally solicited the response given by the Defendant. The trial court further found the Defendant s response was unexpected, unanticipated, and totally spontaneous. Trial courts are vested with great discretion when ruling on a motion to suppress. Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Leger, 05-11, p. 10 (La. 7/10/06), 936 So.2d 108, 122, cert. denied, U.S., 127 S.Ct (2007). On appeal, the Defendant argues her remarks to police should be suppressed because Detective Fondel asked about her camera even though she had invoked her right to counsel and he knew she had taken pictures of the victim. In Miranda v. Arizona, the United States Supreme Court held that a suspect subject to custodial interrogation has the right to consult with 25

28 an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. Miranda, 384 U.S. at , 86 S.Ct. at The right to counsel established in Miranda was one of a series of recommended procedural safeguards... [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. Davis v. United States, 512 U.S. at 457, 114 S.Ct. at The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Edwards v. Arizona, 451 U.S. at , 101 S.Ct. at Of importance to the present case, the Supreme Court in Miranda explained what is meant by custodial interrogation: [b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Rhode Island v. Innis, 446 U.S. at 298, 100 S.Ct. at 1688 (citing Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612)(emphasis added). The concern of the Court in Miranda was that the interrogation environment created by the interplay of interrogation and custody would subjugate the individual to the will of his examiner and thereby undermine the privilege against compulsory self-incrimination. Innis, 446 U.S. at 299, 100 S.Ct. at 1688 (citing Miranda 384 U.S. at , 86 S.Ct. at 1619). The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. Innis, 446 U.S. at 300, 100 S.Ct. at Interrogation, as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. Id. State v. Payne, , pp. 7-8 (La. 12/4/02), 833 So.2d 927, 934. Id. at 938. The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. [State v.] Abadie, 612 So.2d [1] at 6 [(La.1993)] (citing Innis, 446 U.S. at 301, 100 S.Ct. at ). Our decision in Abadie calls for a reviewing court to apply an objective test that prohibits all police speech or conduct that creates a situation in which the suspect probably will experience the functional equivalent of direct questioning by concluding that the police are trying to get him to make an incriminating response. Id. 26