ROTHENBERG, J.
In 1979, Matthew Faison, Jr. was convicted of five offenses committed during the course of separate sexual attacks on two women: two counts of sexual battery, two counts of kidnapping, and one count of burglary with an assault. On May 19, 1981, this Court affirmed all of Faison's convictions except for the one count of sexual battery committed during the course of the burglary of the home. Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981). Upon review by the Florida Supreme Court, the sexual battery conviction was reinstated and this Court's holding affirming the remaining convictions was affirmed. Faison v. State, 426 So.2d 963 (Fla. 1983).
Since 1983, Faison has filed numerous motions with the trial court and petitions with this Court, the Florida Supreme Court, and the United States Supreme Court, as well as several appeals. All motions, petitions, and appeals have been dismissed, denied or per curiam affirmed, listed in the order in which they were filed: Faison v. Nesbitt, 488 U.S. 841, 109 S.Ct. Ill, 102 L.Ed.2d 86 (1988) (denying petition for writ of certiorari); Faison v. State, 675 So.2d 927 (Fla. 1996) (denying petition for writ of habeas corpus); Faison v. State, 733 So.2d 528 (Fla. 3d DCA 1999) (dismissing appeal); Faison v. State, 743 So.2d 522 (Fla. 3d DCA 1999) (denying petition); Faison v. State, 847 So.2d 478 (Fla. 3d DCA 2003) (denying petition for writ of mandamus); Faison v. State, 861 So.2d 429 (Fla. 2003) (dismissing appeal); Faison v. State, 869 So.2d 560 (Fla. 3d DCA 2004) (dismissing appeal); Faison v. State, 900 So.2d 564 (Fla. 3d DCA 2005) (affirming the trial court's order denying relief); Faison v. State, 907 So.2d 518 (Fla. 2005) (dismissing appeal); Faison v. State, 972 So.2d 189 (Fla. 3d DCA 2007) (affirming the trial court's order denying relief); Faison v. State, 980 So.2d 489 (Fla. 2008) (dismissing petition for review); Faison v. State, 990 So.2d 1073 (Fla. 3d DCA 2008) (denying petition for writ of coram nobis); Faison v. State, 981 So.2d 1210 (Fla. 3d DCA 2008) (affirming the trial court's order denying relief); Faison v. State, 996 So.2d 858 (Fla. 2008) (dismissing appeal); Faison v. State, 21 So.3d 823 (Fla. 3d DCA 2009) (denying petition for writ of mandamus).
Faison's latest attack merely highlights the need to put a stop to his waste of valuable judicial resources. In his latest filing, Faison contends that he is serving an illegal sentence — that he is entitled to receive, and failed to be awarded, eleven million days credit for the time he served while incarcerated in the county jail prior to being sentenced for the convictions in this case. As the State noted: "If the defendant were correct, that would mean he was first arrested some thirty thousand, one hundred, thirty-six years ago." We, therefore, agree with the State, that Faison's motion and appeal are frivolous, without merit, and filed solely to harass this Court and the trial court.
Although we are cognizant of the defendant's right to challenge the lawfulness of his incarceration, he has no constitutional right to file a frivolous lawsuit. Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005): see also Lewis v. Casey, 518 U.S. 343, 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("Depriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps the punishment of . . . sanctions."). As this Court stated in Lanier v. State, 983 So.2d 658, 660 (Fla. 3d DCA 2008), Hicks v. State, 974 So.2d 1116, 1118 (Fla. 3d DCA 2008), and Minor v. State, 963 So.2d 797, 799 (Fla. 3d DCA 2007), "there comes a point where enough is enough," and we believe Faison has reached that point. We, therefore, issued a show cause order directing Faison to demonstrate good cause why he should not be precluded from filing further pro se pleadings in this case in this Court.
Having heard nothing from Faison and for the reasons expressed in this opinion, we affirm the trial court's order denying Faison's motion for postconviction relief and direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this Court any further appeals, pleadings, motions, petitions, or other papers related to Faison's conviction and sentence in lower case number 79-13113, unless they are filed by a Florida Bar member in good standing. Additionally, we direct the clerk to forward a certified copy of this opinion to the Department of Corrections for consideration of disciplinary measures against Faison pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2007). See Pettway v. McNeil, 987 So.2d 20 (Fla. 2008).
Affirmed with directions.
s accorded great weight and should not be
overturned absent a clear abuse of discretion.
State v. Stringer, 06-800 (La. App. 3 Cir. 12/6/06),
949 So.2d 464,
writ denied, 07-0004 (La.9/14/07),
963 So.2d 996.
On review, we find no abuse of discretion in the determination that the testimony was relevant in that it explained the divorce process to the jury. The trial court could have determined that this questioning was related to the State's argument that fear of public exposure of bigamy allegations was a potential motive in the killing. Even if arguably irrelevant, however, the admission of the evidence was harmless. See State v. Casey, 99-23 (La.1/26/00), 775 So.2d 1022 (wherein the supreme court explained that erroneous admission of evidence requires a reversal only if there is a reasonable possibility that the evidence might have contributed to the verdict), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). The State's evidence in this case was ample, with no indication that this limited evidence might have contributed to the verdict.
Supplemental Argument
In his supplement to defense counsel's argument regarding other crimes evidence, the defendant contends that the State impermissibly implied that he was a member of the Mafia. He points out that the State did not file notice regarding its intent to use evidence on this issue and no Prieur hearing was held in this regard. The defendant further asserts the State failed to produce evidence that he had ever been connected to a criminal organization, but made repeated references to the Mafia. He cites a portion of U.S. v. Kemp, 156 F.3d 1233 (6th Cir. 1998), for the proposition that a prosecutor's association of a defendant with a particularly negative historical figure may warrant reversal.
In Kemp, the court found the defendant failed to timely object to the prosecutor's reference to Al Capone. Thus, the matter would only be reviewed for plain error. The court noted that plain error references a particularly egregious error and should be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. Even if we were to find this opinion persuasive here, which we do not, resort to plain error would not be appropriate as Louisiana courts have rejected adoption of a general "plain error rule" in review of criminal cases. See State v. Pyke, 93-1506 (La.App. 3 Cir. 5/4/94), 640 So.2d 460. An exception to the contemporaneous objection requirement has been found in rare cases but has been found where the error involves the definition of the crime and "`the record bears full and sufficient proof of the error which no posterior hearing could augment. `" Id. at 463 (quoting State v. Williamson, 389 So.2d 1328, 1331 (La. 1980)).
The defendant cites the following portions of the record:
Q. Mr. Marinello, do you have a fascination with the Mafia?
A. I don't know what the Mafia is.
Q. You don't?
A. No, sir, I don't.
Q. You are kidding, right?
A. Why would I kid? No, sir.
. . . .
Q. Okay, but you don't know what the Mafia is?
A. I don't know specifically, no. I'm not in the Mafia, so I wouldn't know specifically what the Mafia is.
Q. You were fascinated with John Gotti; were you not?
A. I knew of John Gotti, yes.
However, the defendant waived his objection to a lack of notice of the State's intent to use evidence when he failed to object at trial. Welch, 615 So.2d 300. Further, he did not object to testimony regarding the Mafia for the argument now made, i.e., on a "bad acts" basis. Accordingly, it was not preserved for review.
Also in his supplemental argument, the defendant contends that the State violated La. Code Crim.P. art. 774 by attempting to exploit the jury's sympathy. He cites the following remarks in the State's closing argument:
Article 774, pertaining to the scope of argument, provides:
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state's rebuttal shall be confined to answering the argument of the defendant.
The reason we are here, ladies and gentlemen, is not because Vincent Marinello, he enjoys the attention, he enjoys the adoration. This is a big show for him. The reason we are here is for Liz Marinello, who was 45 years old w[hen] she was murdered, when she was shot two times in the face.
Why do you shoot someone two times in the face, Mr. Marinello? In the mob life what does that mean? Shoot them two times in the face, why. It is personal, and you don't want them to have an open casket. What kind of man does this, leaves a ten year old child without a mother. The child turned ten years old two days before her mother was murdered. This case isn't about Vincent Marinello, it is about his actions, his arrogance, his greed, his cold and calculated demeanor.
Liz Marinello, she liked to garden, she liked riding bikes, she liked to go to the [movies] and see plays, and she loved her daughter. . . .
Yet, the defendant failed to object to the remarks made during closing argument. Thus, he failed to preserve the alleged error for review. La. Code Crim.P. art. 841.
This assignment lacks merit.
Disqualification
In pretrial proceedings, the defendant attempted to disqualify several assistant district attorneys and, also, sought recusal of the district attorney's office. The claim stems from conversations the defendant had with the district attorney and assistant district attorneys, beginning in January 2006 regarding Mr. Marinello's allegation that Liz's former husband was harassing them and, later in July 2006, his own allegation that he was the victim of domestic abuse by Liz. Ultimately, the trial court disqualified five assistant district attorneys from participating in the case before the petit jury or from acting as an advocate in the matter. The trial court denied the motion to recuse the district attorney.
The record indicates that Liz was arrested on August 7, 2006 due to Mr. Marinello's complaint.
The State stipulated to the disqualification of three of these assistant district attorneys as they would be likely witnesses at trial. The defense accepted this stipulation.
Article 787 provides that: "The court may disqualify a prospective petit juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case."
The defendant re-urges his argument that the district attorney's office should have been recused. He contends that the assistant district attorneys would likely serve as witnesses at trial and, as they serve at the pleasure of the district attorney, they would be unlikely to be forthcoming for the defense. He additionally contends they were privy to personal information they would not have otherwise had, and some of this information was related to trial issues. Thus, he contends, it was impossible for him to receive a fair trial absent the recusal of the office of the district attorney. He alternatively contends recusal is appropriate in the interests of fairness and to avoid the appearance of impropriety. He seeks a new trial by a different prosecutor due to this claimed error.
Louisiana Code of Criminal Procedure Article 680(1) provides that "[a] district attorney shall be recused when he . . . [h]as a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice[.]" A defendant attempting to recuse a district attorney has the burden of proving this ground for recusal by a preponderance of the evidence. State v. King, 06-2383 (La.4/27/07), 956 So.2d 562. In King, the supreme court remarked it had interpreted Article 680(1) to embody a policy favoring recusal when a situation raises questions as to whether the district attorney's ability to fairly and impartially perform the duties of office has been impaired, even unconsciously or despite assertions to the contrary. Id. Further,
La.C.Cr.P. art. 680(1) does not envision a subjective determination as to whether the district attorney would, in fact, be unfair. Rather, it employs an objective decision as to whether a reasonable person would believe the facts at issue regarding the district attorney's personal interest in the cause would impair his ability to act fairly and impartially in conducting defendant's prosecution.
Id. at 567.
In denying the motion to recuse, the trial court explained:
In this case the Court finds that there was no significant evidence presented tending to show that District Attorney Paul Connick has any personal interest in this case which is in conflict with the fair and impartial administration of justice.
In addition, the Court finds that recusation is not mandated by the Louisiana Rules of Professional Conduct, particularly Rules 1.7 and 1.9.
The testimony presented at the hearing on the defendant's recusal motion does not indicate that the trial court erred in finding that he failed to meet his burden of proof. District Attorney Paul Connick denied that he had a relationship with the defendant, but he explained that he would speak if he saw him in passing. In January 2006, the defendant called him regarding an allegation of harassment by Liz's ex-husband. At that time, he explained to the defendant that a complaint could be filed with the appropriate authorities and told him that he would be happy to advise him through the office's Family Violence Prosecution Unit. Mr. Connick forwarded the information he had to the chief of that unit.
Mr. Connick explained that, afterwards, the only contact he had with the defendant was when he encountered him at a restaurant. They only had a short conversation at that time, wherein the defendant spoke about his radio show. As the two were leaving, Mr. Connick inquired whether the incident had been resolved. The defendant responded that it was "fine[.]"
Mr. Connick also testified that he did not know Liz, or Mr. Marinello's former wife, Andrea. He denied a personal interest in the case and explained that his only interest in the case was the same as in any other case, "insure that justice is served, and that a conviction is based beyond a reasonable doubt on the evidence presented."
Based on Mr. Connick's knowledge and actions in this matter, the defendant failed to prove by a preponderance of the evidence that Mr. Connick had a personal interest in the matter. Thus, the trial court properly denied the motion to recuse the district attorney. Neither is there merit in the defendant's contention that the district attorney's office should have been recused due to the assistant district attorneys' knowledge of the Marinellos domestic disputes. First, La. Code Crim.P. art. 680(1) requires evidence of the " personal interest" of the district attorney. (Emphasis added.) The knowledge the assistant district attorneys acquired in their professional roles did not indicate a personal interest of the district attorney. Also, the trial court disqualified and restricted the participation of those assistants who had contact with the defendant.
This assignment lacks merit.
Motion to Quash — Grand Jury
The defendant next contests the denial of his motion to quash the grand jury indictment. He advances two grounds for quashing of the indictment. First, he points out that one of the grand jurors worked in Metairie Towers and had conversations about the incident with law enforcement officials and her co-workers. He also contends that the indictment should have been quashed due to the participation of Second Assistant District Attorney David Wolff. The defendant contends that, at the time Mr. Wolff presented the case to the grand jury, he likely knew he was going to be a witness at the trial of the matter.
Individual Grand Juror
The defendant first questions whether a grand juror with prior knowledge of the offense could have permissibly served on the jury. With regard to recusal of a grand juror, La. Code Crim.P. art. 533 provides:
A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds:
. . . .
(2) An individual grand juror was not qualified under Article 401. The defendant references La. Code Crim.P. art. 401(B)(2), which provides that a grand or petit juror may be challenged for cause: "When reasonable doubt exists as to the competency of the prospective juror to serve as provided for in Code of Criminal Procedure Article 787." He contends that Article 78721 must to be read
in pari materia with La. Code Crim.P. arts. 797 and 798, which set forth grounds for challenging a potential juror for cause. He cites
State v. Letulier, 97-1360 (La.7/8/98),
750 So.2d 784, in support of his argument.
The defendant further contends that Article 797(2) permits the challenge for cause of a potential juror who is not impartial and that the record does not reflect that the juror was examined regarding the ability to put aside knowledge of the shooting obtained from law enforcement and/or co-workers. He contends that this was necessary to insure that the ultimate verdict would not be influenced. He cites State v. Frank, 99-553 (La.1/17/01), 803 So.2d 1.
However, the cases and line of reasoning advanced by the defendant are applicable to petit jurors. Louisiana Code of Criminal Procedure Article 438 specifically addresses a grand juror's knowledge of the offense, stating:
If a grand juror knows or has reason to believe that an offense triable by the district court of the parish has been committed, he shall declare such fact to his fellow jurors, who may investigate it. In such investigation or any subsequent criminal proceeding the grand juror shall be a competent witness.
Also, in State v. Vial, 153 La. 883, 96 So. 796, 799 (1923) (citations omitted), the supreme court explained that:
The mere fact that a member of a grand jury has made an affidavit against a citizen for the violation of a criminal statute does not disqualify such member and render him incompetent to deliberate upon the case and to vote for the return of a true bill against such offender. The finding of a grand jury is not a verdict or judgment; it amounts, at most, to an accusation, and there is no law which fixes the nature or the quantum of evidence on which the grand jury must rest their conclusions.
It is the legal duty of every member of a grand jury to inform his fellows of any crime or misdemeanor committed within the parish since the sitting of the last grand jury, which may have come to his personal knowledge, or of which he may have been informed, and a violation of this duty is made a criminal offense by section 2140 of the Revised Statutes of 1870, punishable by severe penalties. This section of the Revised Statutes makes it plain that even personal knowledge of the commission of a crime does not disqualify a grand juror. He may therefore be a witness in the case, and still be competent to serve as a member of the inquisitorial body. Hence, the making of an affidavit in a criminal case is not a legal cause for the disqualification of a grand juror.
A grand jury may return a valid indictment into court based on knowledge of the facts by its members, and without having witnesses summoned before that body.
See also State v. Corley, 617 So.2d 1292 (La.App. 3 Cir. 1993),
rev'd on other grounds, 93-1934 (La.3/11/94),
633 So.2d 151,
cert. denied,
513 U.S. 930, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994).
Based on the record and the clear authority above, we find no error in the trial court's denial of the motion to quash the indictment due to the presence of the juror.
Prosecutor
With regard to Assistant District Attorney Wolffs involvement in the grand jury proceedings, the defendant asserts that La. Rules Prof.Conduct, Rule 3.7 prohibits a lawyer from being an advocate at a trial in which he is likely to be a necessary witness. He also asserts that a lawyer should avoid the appearance of impropriety and that, because of Mr. Wolffs participation in the domestic matters which the State opined led up to the murder, he should not have presented the case to the grand jury.
Rule 3.7 addresses lawyers as witnesses as follows:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
However, the party moving to quash an indictment due to defects or irregularities in the constitution of the grand jury must specify the grounds of the motion and support them by distinct and competent evidence. State v. Pierre, 198 La. 619, 3 So.2d 895 (1941), cert. denied, 314 U.S. 676, 62 S.Ct. 186, 86 L.Ed. 541 (1941).
Review indicates that the defendant presented no evidence sufficient to quash the indictment. Further, the defendant's motion does not set forth a proper basis for a motion to quash under La. Code Crim.P. arts. 532, 533 or 534. Finally, the defendant's citation to La. Rules Prof.Conduct, Rule 3.7 is unpersuasive insofar as it prohibits lawyers from acting as an "advocate at trial in which the lawyer is likely to be a necessary witness." (Emphasis added.) Mr. Wolffe did not act as an advocate at trial; instead, his participation was limited to a pretrial matter.
This assignment of error lacks merit.
Motion to Suppress Evidence
The defendant next contends that the trial court erred in denying his motion to suppress evidence. The defendant alleged four grounds in support of the motion: 1) judge shopping in violation of the court rules in obtaining a search warrant; 2) nighttime searches; 3) seizure of the vehicle absent a warrant or extenuating circumstances; and 4) information seized from the vehicle fell outside the scope of the search warrant.
After the trial court denied the motion, the defendant applied for supervisory writs in the fifth circuit. The court denied the writ, stating: "WRIT DENIED. On the showing made, we find no reason to disturb the ruling of the trial court." See State v. Marinello, an unpublished writ bearing docket number 08-K-4 (La.App. 5 Cir. 1/15/08). The supreme court later denied the defendant's application. See State v. Marinello, 2008-KK-0258 (La.2/13/08), 976 So.2d 167.
In light of this history, we do not consider this assignment of error, as the issues presented were litigated during pre-trial proceedings. In State v. Chambers, 99-678 (La.App. 3 Cir. 1/19/00), 758 So.2d 231, writ denied, 00-551 (La.9/22/00), 768 So.2d 600, this court explained that a defendant may seek review of a pretrial ruling even after the denial of a pretrial supervisory writ application seeking review of the same issue. However, when a defendant does not present additional evidence on the issue after the pre-trial ruling, the issue can be rejected on appeal. Id. Judicial efficiency demands that this court accord great deference to its pre-trial decision unless it is apparent that the determination was patently erroneous and produced unjust results. Id.
The defendant's arguments remain the same as those presented to the trial court and later reviewed by the fifth circuit and the supreme court. Also, we find no patent error in those rulings nor will the determination produce an unjust result. Accordingly, we do not further review this assignment.
Motion to Suppress — Cellular Telephone Records
The defendant next questions the denial of his motion to suppress cell phone records. He argues that these records were not kept in the ordinary course of business and, therefore, the State should have been required to demonstrate probable cause for the production of the records rather than by use of a subpoena. He also argues that because there is no specific statutory procedure for obtaining cellular telephone information, the pen register law requirements of La.R.S. 15:1301, et seq., should have been found applicable.
The defendant also asserts that the evidence was improperly introduced due to improper authentication. However, the record does not reveal an objection to the evidence on this point.
After the trial court's denial of the motion, both this court and the supreme court denied relief. See State v. Marinello, an unpublished writ ruling bearing docket number 08-1318 (La.App. 3 Cir. 11/12/08) (remanding the matter for an evidentiary hearing); State v. Marinello, an unpublished writ ruling bearing docket number 08-1427 (La.App. 3 Cir. 11/26/08) (finding no error in the trial court's ruling based on the record submitted), writ denied, 08-2817 (La.12/2/08), 997 So.2d 549.
As in the preceding assignment of error, this court could refrain from reviewing this matter due to its consideration of the pre-trial writ applications and the law of the case doctrine. However, we review this issue as the parties introduced additional evidence on the topic at trial. See Chambers, 758 So.2d 231.
United States Constitution Amendment IV provides in part that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." Further, La.Const., art. 1, § 5 ensures that: "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy."
We note that, by this assignment, the defendant seeks suppression of telephone records, alleging a constitutional violation. We address the assignment in this constitutional context. However, we recognize that much of the jurisprudence on this topic relates to a governmental entity's attempt to obtain communications information through the statutory procedures of the Stored Communications Act (SCA), 18 U.S.C. § 2701, et seq., and not strictly on the constitutional question. See in re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't., 620 F.3d 304 (3d Cir. 2010) (wherein the Third Circuit recently addressed the avenues available to a governmental entity under the SCA to procure wire or electronic communications). As such, the jurisprudence related to this statutory provision, at times, does not fully reach the suppression issue as an exclusion/suppression remedy is not included among the SCA's remedies for non-constitutional violations of its provisions. See 18 U.S.C. § 2701, § 2707 and § 2708. See also City of Ontario, California v. Quon, ___ U.S. ___, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010).
The defendant asserts that, because of his privacy interest in the records recovered from AT T, the State was required to obtain these records by warrant. However, the United States Supreme Court has recognized that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979). Specifically, as it may relate to this case, the Supreme Court has determined that there is no legitimate expectation of privacy in numerical information conveyed to a telephone company in the ordinary course of business. Id.
Louisiana jurisprudence has not yet addressed a defendant's privacy interest in historical cell phone information obtained and stored by a telephone provider. However, other jurisdictions have considered similar issues in determining that a warrant is not required for telephone records obtained from a service provider. In Rehberg v. Paulk, 611 F.3d 828, 843 (11th. Cir. 2010), the Eleventh Circuit cited Smith, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, in concluding that an individual "lacked a legitimate expectation of privacy" in telephone and fax numbers he dialed and that "[o]nce he voluntarily provided that information to BellSouth and Alltel (later Sprint), [he] lacked any further valid expectation that those third parties would not turn the information over to law enforcement officers."
Further, several courts have considered the specific issue of a State's request for historical cell phone records and concluded that a warrant is not required. See Mitchell v. Florida, 25 So.3d 632 (Fla. DCA 2009) (wherein the Florida court found that historical cell site information is not content based and that a cell phone's user has no expectation of privacy in such records. It noted that "because historical cell site information discloses only the defendant's past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections." Id. at 635.). See also United States v. Suarez-Blanca, 2008 WL 4200156 (N.D.Ga. 2008) (wherein a magistrate for the federal district court for the northern district of Georgia discussed Smith, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, in its determination that the Fourth Amendment was not implicated when historical cell phone data did not reveal a defendant's location in private areas); In re Applications of U.S. for Orders Pursuant to Title 18, U.S. Code Section 2703(d), 509 F.Supp.2d 76 (D.Mass. 2007); and People v. Hall, 14 Misc.3d 245, 823 N.Y.S.2d 334 (2006). But see In re Application of U.S. for an Order Authorizing Release of Historical Cell-Site Information, 2010 WL 3463132 ___ F.Supp.2d ___ (E.D.N.Y. 2010); In re Application of United States For An Order: (1) Authorizing Use of a Pen Register and Trap And Trace Device, (2) Authorizing Release of Subscriber And Other Information, (3) Authorizing Disclosure of Location-Based Services, 121 F.Supp.2d 571 (W.D.Tex. 2010).
Review of the records acquired and introduced in this case reveals no error in the trial court's determination that their acquisition by subpoena was sufficient. AT T's representative, Mr. Andre, was accepted at trial as an expert in radio frequency engineering. He stated that AT T stores information from each call: the mobile number, the electronic serial number of the phone, the calling number, the time, the location of the phone, the cell site, and the area code for the location. The information is automatically collected and sent to the billing department.
At a pre-trial hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Mr. Andre testified that AT T retains a database of cell site locations for troubleshooting, billing, and legal purposes. He explained it is maintained as regularly kept business records. He also stated that AT T has a promulgation tool its employees use to interpret cell site locations. He explained that the company does not share this information with third parties, but that it produces the information if it is subpoenaed and the party produces a court order.
Mr. Andre identified State's Exhibits 133 through 137, which included: a detailed customer bill record which would be provided to the customer, a detailed billed usage record maintained as an internal record; a billing operations record kept for legal and trouble shooting purposes, which lists the mobile phone number, the calling and called numbers, the location code for the cell site, the cell site's identification, the answer time, the release time, and call duration in seconds; a cell site database kept as a record of all active cell sites for the network in Louisiana, which also provided the location of the cell sites; and a file he compiled showing the cell sites in service in 2006. Mr. Andre maintained that this information was kept in AT T's ordinary course of business. He also expressed his reliance on this information in the performance of his job. Mr. Andre further identified State's Exhibits 138 through 143 which were maps he prepared for trial depicting the physical location and addresses of the cell sites and calls to/from the defendant's cell phone.
We find support for the trial court's ruling. Mr. Andre's testimony indicates these records were kept in the ordinary course of AT T's business, as they were maintained for billing and troubleshooting purposes. Further, the records were limited to historical usage data. In light of the nature of this evidence, we find no implication of the United States Constitution's Fourth Amendment insofar as the defendant had no reasonable expectation of privacy in the data received and maintained by AT T. Smith, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. Neither do we find that the trial court was required to find that the protections of La.Const., art. 1, § 5 obligated the State to obtain these records by warrant rather than subpoena.
Finally, insofar as the defendant argues that the State was required to make application for the information by an application for a pen register, we note that La.R.S. 15:1302(15) specifically excludes this type of information.
Louisiana Revised Statutes 15:1302(15) provides that:
"Pen register" means a device which records and decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached,
but this term does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.
(Emphasis added.)
This assignment lacks merit.
Prosecutorial Demeanor
The defendant next contends that the trial court erred in failing to grant a mistria1 pursuant to La. Code Crim.P. art. 770. In addition to the errors he alleges in the preceding assignments, the defendant contends that the prosecutor's demeanor, actions, and arguments exceeded those acceptable and were so prejudicial as to deny him his right to a fair trial. He contends that he was badgered on cross-examination, that the State made repeated prejudicial comments, and that the prosecutor stated to the jury that he could not be believed. He also alleges that the State went beyond the scope of the evidence presented at trial during its closing arguments.
The defendant asserts that defense counsel requested several mistrials, including the following: 1) during the State's opening statement when it referenced a judge's refusal to issue a protective order; 2) during the State's opening statement when it referenced the defendant's invocation of his right to remain silent; 3) regarding the introduction of State's Exhibit 151 after the testimony of Captain Pernia; 4) after Captain Thornton was questioned about the manner in which the defendant's second interview ended; and 5) during rebuttal when the State said there was clear evidence of bigamy. He also points out a number of objections which were overruled.
Article 770 provides:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
Having found no merit in the defendant's preceding assignments of error, we do not revisit those claims as they relate to the defendant's request for a mistrial. Also, the defendant presents no legal or factual argument regarding claims that his motions for mistrial should have been granted and his objections sustained. Accordingly, we do not address those claims as we deem them abandoned pursuant to Uniform Rules — Courts of Appeal, Rule 2-12.4.
The defendant failed to include specific page references regarding his claims that the State went beyond the scope of the evidence during closing arguments. However, the transcript reveals no objection to the comments the defendant alleges were improper. Accordingly, this issue has not been preserved for appellate review. La. Code Crim.P. art. 841.
We also reject the defendant's assertion that, if his complaints cannot be reviewed due to lack of a contemporaneous objection, they should be considered as a pattern of presenting the defendant as a bad person.
The combined effect of assignments of error, none of which warrant reversal on its own, does not deprive a defendant of
his right to a constitutionally fair trial.
State v. Rochon, 98-717, p. 14 (La.App. 5 Cir. 3/10/99),
733 So.2d 624, 633. The Supreme Court has noted that the "cumulative error" doctrine has lost favor in the Louisiana courts.
State v. Draughn, 05-1825, p. 70 (La.1/17/07),
950 So.2d 583, 629. Significantly, the Supreme Court in
State v. Manning, 03-1982 (La.10/19/04),
885 So.2d 1044, quoted with approval
Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987), where the federal Fifth Circuit rejected the cumulative error doctrine by noting that "twenty times zero equals zero."
State v. Ayo, 08-68, pp. 29-30 (La.App. 5 Cir. 3/24/09),
7 So.3d 85, 104,
writ denied, 09-1026 (La.3/5/10),
28 So.3d 1006.
This assignment of error lacks merit.
Motion to Quash
In his final assignment, the defendant questions the denial of his motion to quash the indictment wherein he argues that the format used failed to specify whether the grand jury found that specific intent to kill was present or whether there was an aggravating factor present and there was no specific intent. While the defendant acknowledges that the Louisiana Supreme Court has upheld the constitutionality of the short form indictment in State v. Baylis, 388 So.2d 713 (La. 1980), and State v. Liner, 373 So.2d 121 (La. 1979), he observes that these decisions predated the United States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
Louisiana Constitution Article 1, § 13 provides, in part, that "an accused shall be informed of the nature and cause of the accusation against him." As explained in Draughn, 950 So.2d 583, this requirement is implemented by La. Code Crim.P. art. 464, which states that:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
Article 465 sets forth specific forms permissible for certain offenses. The form for second degree murder at Article 465(A)(32) reads: "Second Degree Murder — A.B. committed second degree murder of CD." The indictment charging the defendant reflects this format and provides in pertinent part, that:
VINCENT J. MARINELLO
late of the PARISH OF JEFFERSON, on or about the 31st day of August in the year of our Lord, Two Thousand and Six with force and arms, in the Parish aforesaid, and within the jurisdiction of the Twenty-Fourth Judicial District Court of Louisiana, in and for the Parish aforesaid, violated 14:30.1 in that he did commit second degree murder of Mary Elizabeth Norman Marinello. . . .
In Draughn, 950 So.2d 583, the Louisiana Supreme Court reviewed whether the short form indictment was constitutionally deficient for failure to list the aggravating factors necessary for first degree murder or the aggravating circumstances necessary to impose a death sentence. The supreme court stated:
The constitutionality of short forms has been consistently upheld by this Court.
State v. Baylis, 388 So.2d 713, 718-19 (La. 1980);
State v. Liner, 373 So.2d 121, 122 (La. 1979). When those forms are used, it is intended that a defendant may procure details as to the statutory method by which he committed the offense through a bill of particulars.
Baylis, 388 So.2d at 719;
State v. Johnson, 365 So.2d 1267, 1270-71 (La. 1978); La.C.Cr.P. art. 465, Official Revision Comment (a).
Id. at 624. As noted by the defendant,
Draughn does not include discussion of recent United States Supreme Court decisions.
However, the second circuit considered federal jurisprudence in State v. Dixon, 42, 594 (La.App. 2 Cir. 1/16/08), 974 So.2d 793, writ denied, 08-711 (La.10/10/08), 993 So.2d 1282 , cert. denied ___ U.S. ___, 129 S.Ct. 1989, ___ L.Ed.2d (2009) ___ when it reviewed the short form indictment for first degree murder. It addressed each of the cases cited by the defendant, ultimately observing that:
[W]hile the United States Supreme Court stated that the Due Process Clause of the Fifth Amendment requires all the elements of an offense be alleged in the indictment for federal criminal prosecutions, the Fourteenth Amendment has not been construed to extend that same indictment requirement to the states.
Id. at 800 (footnote omitted). The second circuit further remarked that:
The fact that the short-form indictment was used does not diminish the grand jury's role in the indictment process, and, as noted by the Louisiana Supreme Court in
State v. Draughn, supra, the process for filing an application for bill of particulars gives the defendant additional notice of the charge against which he must defend.
In the present case, the indictment complied with the short form of Article 465(A)(31), and the state completely responded to defendant's application for bill of particulars. There is no state or federal precedent requiring Louisiana indictments to allege the aggravating facts which are
required for first degree murder or to allege the aggravating circumstances to be considered at the penalty phase of trial. To the contrary, the short-form indictment has been upheld in regard to the Louisiana Constitution. We note, that alleging such aggravating factors in the indictment, which would be read to the jury before trial, could prove prejudicial to defendant.
Id.
As explained in Dixon, 974 So.2d 793, federal jurisprudence requiring that all elements of an offense be alleged in an indictment pursuant to U.S. Const., art. V has not been construed to extend to the states. Instead, the Supreme Court has specifically refused to determine whether elements used to enhance a penalty must be included in an indictment in a state prosecution. See Apprendi 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. Furthermore, the Louisiana Supreme Court has found the short form indictment consistent with the Louisiana Constitution. See Draughn, 950 So.2d 583. Accordingly, we find no error in the trial court's denial of the motion to quash.
This assignment lacks merit.
DECREE
For the foregoing reasons, the conviction of the defendant, Vincent Marinello, is affirmed.
AFFIRMED.