
    STATE of Louisiana v. Herbert FOSTER.
    No. 95-KA-0585.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1996.
    
      Harry F. Connick, District Attorney, Jack Peebles, Assistant District Attorney, New Orleans, for State.
    Archie B. Creech, New Orleans, for Defendant.
    Before BYRNES, LOBRANO and MURRAY, JJ.
   1 .BYRNES, Judge.

Herbert Foster appeals his conviction for simple burglary in violation of La.R.S. 14:62. We affirm.

In the early morning hours of March 24, 1990, Charlie Johnson, a security guard at the Meridien Hotel in New Orleans, was advised by two of the hotel’s guests that someone was trying to break into a car near the hotel’s receiving area. Mr. Johnson looked out of a nearby door and saw a man “working on” the driver’s side window of a white Volvo. After asking the hotel operator to call the police, the guard went outside and observed the defendant using a screwdriver to pry open the driver’s side window. Johnson approached the car after the window had been broken, and the door was opened. He asked if there was a problem. The defendant said he lost his keys, and then put two pairs of tennis shoes on the back of the car. Johnson noted a yellow-handled screwdriver was inside one of the shoes. Two French Quarter police officers appeared and detained the defendant until a First District unit took him and the evidence into custody. The defendant was arrested and booked, giving his address as 2325 Gravier Street in |2New Orleans. However, he was released from custody without bail under an Orleans Parish Prison population control order.

The defendant was initially charged with attempted simple burglary by bill of information dated May 3, 1990, and a capias was issued. Arraignment was set for May 14, and a notice to that effect was sent to the Criminal Sheriffs office for service on the defendant. Although the return showed domiciliary service had been made at 2325 Gra-vier on May 10, 1990, the defendant failed to appear for arraignment. The trial court ordered an alias capias issued, and set a bond at $20,000.

On October 4, 1993, the defendant was arrested in the 2300 block of Gravier Street on other charges, and the outstanding burglary warrant was noted. After his arraignment the defendant posted a surety bond and was released, giving his address as 2325 Gra-vier Street.

The defendant moved to quash the prosecution because more than two years had elapsed since the bill of information was filed. The trial court granted the defendant’s motion to quash; however, this court reversed on the State’s application for writs. State v. Foster, unpub., 93-K-2113 (La.App. 4 Cir. 4/6/94). After the State amended the charge to simple burglary, the defendant was found guilty as charged after a jury trial, and he was sentenced as a multiple offender to forty months at hard labor. His appeal followed.

The defendant contends that the State failed to prove that he had been properly notified of his arraignment and that the State failed to provide sufficient evidence to show an interruption of the two-year time limit for prosecution under La.C.C.P. art. 578. This court previously reviewed this issue, granted the State’s | ^application for writs, reversed the trial court’s ruling, and denied the defendant’s motion to quash.

Generally, an appellate court will not review issues previously considered under its exercise of supervisory jurisdiction where' no new evidence or argument is presented on appeal. State v. Johnson, 438 So.2d 1091, 1105 (La.1983). While a different decision on appeal is not absolutely precluded, great deference is given to pretrial decisions. State v. Joseph, 573 So.2d 1248, 1252 (La.App. 4 Cir.1991), writ denied 577 So.2d 31 (La.1991). The defendant has not presented any additional evidence. Domiciliary service was initiated at 2325 Gravier Street, which was the address given by the defendant, who failed to appear pursuant to that notice. The defendant did not appear until he was arrested and required to post a $20,000 bond after his arraignment. At that time the defendant again gave his address at 2325 Gravier Street. The period of limitation under La.C.Cr.P. art. 579 A is interrupted when the defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record. This court properly found that the defendant’s actions interrupted the time limitation for prosecution because the defendant failed to appear although he was notified at his stated address, proof of which was in evidence. The court issued a capias for his arrest. The State was unable to try the defendant within the period specified by statute through no fault of its own so that the period for prescription was interrupted.

The defendant also argues that the trial court erred in placing the screwdriver and its evidence tag into evidence because the State failed to lay the proper foundation linking them to the offense and establishing a chain of custody.

|4To introduce demonstrative evidence, a foundation must be laid to show that it is more probable than not that the object introduced is the same one originally seized, but it is not necessary to establish a continuous chain of custody. State v. Frey, 568 So.2d 576, 578 (La.App. 4 Cir.1990), writ denied, 573 So.2d 1118 (La.1991). A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. Id.

Testimony at trial established that it was more probable than not that the screwdriver admitted into evidence was the same one that Mr. Johnson saw being used to break into the ear. Mr. Johnson testified that he did not touch the screwdriver after finding it inside the tennis shoe, and Officer Abreaee Daniel testified that he took the tennis shoe and screwdriver from the officers who had initially detained the defendant. Officer Daniel further testified that he turned the screwdriver in as evidence and that his name appeared on the evidence tag as one of the officers who logged it in. The State laid a proper foundation for the introduction of both items into evidence.

The record reveals an error patent regarding the defendant’s sentence of forty months at hard labor as a second felony offender. Under La.R.S. 15:529.1(A)(l)(a), the defendant should have received a sentence of no less than one-half the longest possible sentence for simple burglary. Since the maximum sentence for that crime is twelve years under La.R.S. 14:62, the minimum sentence the defendant should have received as a second offender was six years. However, because the State did not raise the issue on appeal, the sentence cannot be vacated. State v. Fraser, 484 So.2d 122 (La.1986); State v. Johnson, 94-1170 (La.App. 4 Cir. 8/23/95), 660 So.2d 942.

1 {Accordingly, the defendant’s conviction and sentence are affirmed.

Affirmed

MURRAY, J., dissents.

| iMURRAY, Judge,

dissenting.

While judicial efficiency demands that great deference be given to pretrial decisions, such determinations do not absolutely preclude a different decision on appeal if the earlier ruling was patently erroneous and produced an unjust result. State v. Johnson, 438 So.2d 1091, 1105 (La.1983); State v. Moran, 584 So.2d 318 (La.App. 4th Cir.1991).

At the hearing held October 13, 1993 on the motion to quash in this ease, Mr. Foster’s counsel argued only that the prosecution “was initiated over three years ago.” The District Attorney responded that since the defendant had been at large rather than in the state’s custody or control, prescription had been interrupted. Without taking any evidence or further argument, the trial court found that any delay could not be attributed to Mr. Foster because there was “no effort to have him subpoenaed at any addresses [sic], at any last known address that he gave,” and therefore granted the motion to quash.

When the State applied for writs, this court reversed, noting the May 10, 1990 service return in the record and stating that “[t]he defendant’s absence from his stated address, the State’s effort to subpoena him at that address, and the issuance of the capias for his arrest establish the defendant’s actions interrupted the time limitation on prosecution” (emphasis added). In my view, in the absence of additional evidence, this finding is contrary to the applicable statute and the well-established case law interpreting it.

1¾Article 579 A of the Code of Criminal Procedure states:

The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, ... is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried ... because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.

Our Supreme Court has repeatedly held that under this Article, “(t)he state has a heavy burden of justifying an apparently untimely commencement of trial on grounds that the time limits in Art. 578 were either interrupted or suspended.” State v. Joseph, 93-2734, p. 1 (La. 6/3/94), 637 So.2d 1032, 1032. Furthermore, “(t)hat burden requires the state to exercise' due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Estill, 614 So.2d 709, 710 (La.1993). Prescription is interrupted only if “thé state is unable, through no fault of its own, to try a defendant within the period specified by statute.” State v. Rome, 93-1221, p. not designated, (La. 1/14/94), 630 So.2d 1284, 1287. Even if a defendant is found to be absent from his usual place of abode, “the record must ‘clearly’ establish that the purpose of the defendant’s absence was to avoid detection, apprehension or prosecution.” State v. Campbell, 404 So.2d 956, 959 (La.1981).

In State v. Taylor, 439 So.2d 410 (La.1983), the state first attempted service of a notice of arraignment on a DWI defendant at the address written on the traffic citation issued at the time of the offense. When this was returned showing there was no such address, service was attempted at the address shown hon the defendant’s bond. However, an unidentified man told the Sheriff he did not think the defendant lived there, so the return was endorsed “unable to locate” and filed in the record. The Sheriff testified that he made one more unsuccessful attempt at that address, but the record did not reflect this effort. An arrest warrant was issued when the defendant failed to appear for arraignment. The defendant subsequently moved to a new residence in Baton Rouge, notifying his probation officer but not the court handling the DWI charge; he also failed to notify the court of his later move out of state. While the state argued that the defendant’s actions made his presence unobtainable and evidenced an intent to avoid prosecution, the Supreme Court held that the state had not made a “due and diligent effort to subpoena the defendant,” and that there was insufficient evidence of any intent to elude the authorities. Taylor at 414. Therefore, prescription was not interrupted and the charges had to be dismissed.

As in Taylor, the record in this case does not reflect any efforts by the State to secure Mr. Foster’s attendance other than the May 10, 1990 service return and an alias capias issued on January 30, 1991 pursuant to the trial court’s May 14, 1990 order. Additionally, the service return indicates that the notice of arraignment was left with a “Ms. Lewis” who “stated she do [sic] not see subject often.” Thus, it is not clear that “Ms. Lewis” also resided at 2325 Gravier Street, as required for proper domiciliary service under La.Code Civ.Proc.Ann. art. 1234. Furthermore, although domiciliary service is permitted under Article 210 of the Code of Criminal Procedure, Article 579 A(3) specifies that the record must reflect actual notice, not mere service, before a failure to appear constitutes an interruption of prescription.

Mr. Foster has consistently given 2325 Gravier as his home address, even after the three-year hiatus in prosecution, yet there is no indication in the record |4that the police attempted to arrest him on the outstanding warrant prior to October 1993. Additionally, although he was free on bond from October 6, 1993 until his conviction July 28, 1994, he appeared in court for all proceedings. Thus, on the face of this record, the denial of Mr. Foster’s motion to quash appears patently erroneous and unjust.

However, because the trial court did not afford the State the opportunity to present evidence in opposition to Mr. Foster’s motion, I would find it appropriate to remand this case for a reopened hearing on the motion to quash and a new decision under La. Code Crim.Proe.Ann. art. 579 and the applicable cases. State v. Collins, 546 So.2d 1246 (La.App. 1st Cir.1989), writs denied, 558 So.2d 599 (La.1990). If the trial court then determined the State failed to carry its burden, this prosecution for simple burglary should be dismissed. La.Code Crim.Proc. Ann. art. 581.  