Opinion
19-792
05-20-2020
STATE OF LOUISIANA v. DONALD BROUSSARD
Pride J. Doran Dwazendra J. Smith Doran and Cawthorne 521 East Landry Street Opelousas, LA 70571 (337) 948-8008 Attorneys for Defendant/Appellant: Donald Broussard Hon. M. Bofill Dune´ District Attorney, Sixteenth Judicial District Janet M. Perrodin, Assistant District Attorney W. Claire Howington, Assistant District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 Attorneys for Appellee: State of Louisiana
APPEAL FROM SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NO. 17-284
HONORABLE CURTIS SIGUR, DISTRICT JUDGE
Court composed of Sylvia R. Cooks, Phyllis M. Keaty and Van H. Kyzar, Judges.
AFFIRMED. REMANDED WITH INSTRUCTIONS.
Pride J. Doran
Dwazendra J. Smith
Doran and Cawthorne
521 East Landry Street
Opelousas, LA 70571
(337) 948-8008
Attorneys for Defendant/Appellant:
Donald Broussard Hon. M. Bofill Dune´
District Attorney, Sixteenth Judicial District
Janet M. Perrodin, Assistant District Attorney
W. Claire Howington, Assistant District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
Attorneys for Appellee: State of Louisiana COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
On July 8, 2016, twenty-four-year-old Rakeem Blakes' (Blakes) Ford SUV "bumped" Donald Broussard's (Defendant) Cadillac Escalade from the rear when the traffic light turned green in an intersection near Highway 90 and Ambassador Caffery Parkway, Broussard, Louisiana. Damage to Defendant's vehicle was minor. A photo placed in evidence showed a bent license plate as the only visible damage to the vehicle. Nevertheless, Blakes immediately left the scene and Defendant went after him in hot pursuit. Defendant called 911 and relayed the victim's license plate number. The dispatcher advised Defendant not to pursue Blakes but to return to the scene of the accident where a police officer awaited. The 911 dispatcher informed Defendant the authorities had all they needed to address the hit-and-run accident. Defendant pursued Blakes, driving at speeds of eighty to one-hundred miles per hour, crossing from the service road to the highway, back and forth, nearly causing accidents with other motorists several times. Multiple eyewitnesses testified that both vehicles proceeded through traffic at high rates of speed. One testified she feared for her life. Another witness testified Blakes looked scared as he was driving and was looking back over his shoulder. A third witness agreed that Blakes looked scared as he was being pursued by Defendant.
Defendant testified that he sued the victim's insurer for damages to his vehicle and alleged injury and was settling for the policy limits. He did not state any amount.
In Iberia Parish, approximately nine miles away from the scene of the original accident, while being pursued by Defendant, Blakes lost control of his vehicle and collided head-on into an oncoming eighteen-wheeler. Blakes' vehicle quickly became engulfed in flames. The truck driver and others tried to assist him but were unable to rescue Blakes from the burning vehicle. Blakes died at the scene. Defendant stopped at the second scene within moments of the crash. Various witnesses described him as appearing to be angry at Blakes for damaging his vehicle. According to several witnesses Defendant was brandishing a gun and cursing Blakes. Defendant also told the 911 dispatcher he was carrying a gun, but at trial, he denied having a gun and averred the eyewitnesses were lying. He testified at trial he lied about having a gun just to get help. Law enforcement at the scene did not search Defendant or his vehicle for a gun.
Chancey Nelson, a national guardsman, testified he saw Defendant "dressed pretty nice[,] wielding a gun, running towards [Blakes' SUV] very aggressive, raising hell, and [he] decided it was time to get out," fearing for the safety of his two sons and their friend in his car. He testified as an experienced military man he knows what a gun looks like. Nelson helped the injured truck driver out of his vehicle and assisted him with his fire extinguisher trying to put the fire out on Blakes' SUV to no avail. The truck driver, Billy Romero (Romero), suffered "broken ribs and busted knees" but tried to help Blakes. As he tried to extinguish the fire his extinguisher ran out and the fire resumed. He could not save Blakes. As he tried to save the motorist who ran into him, he heard Defendant shout at him "Get away from that son-of-a b**ch." Another witness at the scene, Tyler Nelson, testified that "a man came out in an Escalade with a gun, yelling that he was gonna kill this dude cause (sic) he hit him in Broussard." Tyler further testified Defendant stated at the scene while Blakes' car burned "that mother-fu**er rear-ended me in Broussard and I've been chasing him since." (emphasis added) He described Defendant's attitude as "harsh—No sympathy." Defendant testified that when he told the 911 dispatcher "Oh yeah. Yeah. God don't sleep. Oh yeah," he simply meant people's actions have consequences and "we are all accountable for our actions." When asked by the prosecutor on cross-examination what he meant by this statement, Defendant offered no direct explanation but said "Do you know what Karma means?"
On March 17, 2017, an Iberia Parish grand jury returned a true bill against Defendant charging him with manslaughter, a violation of La.R.S. 14:31, and aggravated obstruction of a highway, a violation of La.R.S. 14:96. The obstruction of a highway charge was later severed. The jury found Defendant guilty of a lesser offense, negligent homicide, a violation of La.R.S. 14:32. Defendant was sentenced to four years at hard labor. On February 4, 2019, he filed a motion to reconsider sentence, which the State opposed. The trial court reconsidered the original sentence and resentenced Defendant to four years at hard labor but suspended three years and imposed three years of supervised probation.
Defendant seeks review, assigning two errors that each contain multiple claims.
ANALYSIS
In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find there is one error patent. As special conditions of his probation, Defendant was ordered to pay a fine of $2,000.00 and court costs. The trial court, however, did not establish a payment plan as required. In State v. Arisme, 13-269, pp. 3-4 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259, 1262, this court addressed this issue:
First, as a condition of probation, the trial court ordered a $250.00 fee to the Louisiana Crime Lab, for which a payment plan was not established. In State v. Wagner, 07-127, pp. 7-8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held in pertinent part:
When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of
prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).
We view this procedure as no different from payment plans for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-3413 (La.5/26/00), 762 So.2d 1101 (restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board), and State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim's fund, Indigent Defender Board, and District Attorney).
We, therefore, remand this case to the trial court for establishment of a payment plan for the fine, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.
Similarly, the trial court's ordering the payment to the crime lab fund during the period of probation is an insufficient payment plan. We also remand the case to the trial court for establishment of a payment plan for these costs, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.
This issue has been similarly resolved in other cases. See State v. LaCombe, 09-544 (La.App. 3 Cir. 12/9/09), 25 So.3d 1002, and State v. Snelling, 09-1313 (La.App. 3 Cir. 5/5/10), 36 So.3d 1060, writ denied, 10-1301 (La.12/17/10), 51 So.3d 16. Accordingly, we remand this case to the trial court for the establishment of a payment plan for the fee, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. See Stevens, 949 So.2d 597.
Likewise, we will remand this case to the trial court for the establishment of a payment plan for the fine and court costs imposed as conditions of probation. We note that the payment plan may either be determined by the trial court or by the Office of Probation and Parole with approval by the trial court.
In his first assignment of error, Defendant argues the evidence does not support his conviction. Specifically, he contends the evidence did not prove beyond a reasonable doubt that his actions caused the victim's death. The basis for our analysis of a sufficiency of evidence claim is well settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Defendant focuses on the testimony of Ramona Gautreaux who saw the fatal accident but says she saw no other vehicles following the victim's vehicle closely. Several other witnesses, however, testified that both Blakes and Defendant were speeding through traffic, going onto the shoulder, and into the median. Denise Alexander testified it looked like the Escalade was trying to block the SUV from getting back onto the interstate. At one point during Defendant's chase, at least two witnesses, Lamont Bergeron and Paul Robicheaux (Robicheaux), thought the drivers might be racing but Robicheaux characterized Defendant's actions as chasing the victim. Another witness, Jasper Pitre, who witnessed the first accident, described it as "just a little bump." He characterized Defendant's actions pursuing Blakes as "chasing," based upon his eyewitness observations. He further corroborated Romero's testimony at the scene of the fatal accident regarding Defendant's remarks and demeanor. Denise and Danielle Alexander each stated that Defendant was "right behind" the victim during the high-speed chase. Romero also testified Defendant spoke to him at the scene and stated he was "chasing" the victim. Tyler Nelson, who stopped at the scene of the fatal crash, hoping to lend assistance, testified Defendant made a similar statement to him. Nelson's friend, Daniel Foreman, also had the same recollection. Shirley Mouton testified consistent with Danielle and Denise.
"Median" is also known as the "neutral ground."
Defendant testified on his own behalf. He denied chasing the victim, asserting he followed the victim at a safe distance, acknowledging he was told by the 911 dispatcher to fall back. Defendant presents a factual argument that the State did not establish he was chasing the victim. But, under Kennerson, credibility of witnesses is a matter for the jury. We cannot say the jury was not rational in crediting the testimonies of Bergeron, Robicheaux, Romero, the Nelsons, Foreman, the Alexanders, Pitre, and Mouton over that of Gautreaux and Defendant. "It is well-settled that a jury is free to believe some, none, or all of any witness's testimony." State v. Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817. For the reasons discussed, we find the evidence was sufficient to prove beyond a reasonable doubt Defendant was chasing Blakes. Thus, we find, Defendant's argument lacks merit.
Defendant's next argument is legal rather than factual. He argues the evidence did not establish that his actions caused the victim's death. He acknowledges language from our supreme court, which we quote here at greater length:
Regarding causation, this Court has addressed the type of causal connection the state must show between a defendant's conduct and the victim's death for a defendant to be criminally culpable where multiple causes led to the death. In State v. Matthews, 450 So.2d 644 (La.1984), we held that "[i]t is not essential that the act of the defendant should have been the sole cause of the death; if it hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree
sufficient to be a clearly contributing cause, that is sufficient." Matthews, 450 So.2d at 646 (quoting State v. Wilson, 114 La. 398, 38 So. 397 (1905) (involving death from pneumonia caused by gunshot wound)). The Matthews court noted that a similar standard for determining causation-in-fact approved by LaFave and Scott in their treatise on substantive criminal law was adopted by the Court in State v. Durio, 371 So.2d 1158 (La.1979). Matthews, 450 So.2d at 646. In Durio, this Court found that the state could establish causation by showing that the "defendant's conduct was a substantial factor in bringing about the forbidden result." Durio, 371 So.2d at 1163-64. In State v. Martin,[ 539 So.2d 1235, 1238 (La. 1989)], we upheld Martin's conviction as a principal to negligent homicide even though it was his partner in a drag race who struck the victim's vehicle. We held that Martin's participation in the drag race was a "substantial factor in the victim's death." 539 So.2d at 1239.State v. Small, 11-2796, pp. 21-22 (La. 10/16/12), 100 So.3d 797, 812 (footnotes omitted) (emphasis added).
Again, Defendant refers only to Gautreaux's testimony. As we have recounted in detail above, the State produced several eyewitnesses who testified Blakes and Defendant were driving recklessly, at very excessive speeds, driving on the shoulder, or cutting across the median. As already stated, several witnesses testified that Defendant was chasing the victim and that Defendant himself stated he was chasing Blakes. Applying the precepts articulated in Small, we find this argument lacks merit.
In his third argument included under this assignment of error, Defendant maintains conflicting evidence "made it difficult to determine what occurred on July 8, 2016," i.e., the jury should have believed him instead of the other witnesses. Multiple witnesses' testimonies explained very clearly the high-speed chase for over nine miles and how the fatal crash occurred. As we have already noted, the credibility of the witnesses was a matter for the jury. This argument also lacks merit.
In his fourth and final argument under this assignment of error, Defendant asserts there was no conclusive testimony that he "was directly behind" the victim at the moment of the fatal crash. Although such evidence might add to the State's case, it was not required for a conviction. The jury heard ample testimony that Defendant chased the victim at high speed through traffic endangering several innocent motorists on the public highways. In his ongoing effort to escape Defendant's wrath, Blakes crashed head-on into an eighteen-wheeler and died. The innocent driver of the truck suffered broken ribs and "busted knees" and retired from truck driving.
Defendant also claims the evidence was inconclusive regarding whether he possessed a gun during the chase. There was ample testimony, including Chancey Nelson's, an experienced military man, from which the jury could rationally conclude that Defendant was brandishing a gun during the whole episode. But, whether or not Defendant had a gun is not a determinative factor in this case. Given the witnesses' testimony that Defendant was chasing Blakes and admitted he was chasing him; the testimony that he was driving recklessly behind the victim endangering several members of the general public who testified as eye witnesses to their fears for their own safety; and the testimony that he refused to stop pursuing the victim even when told to do so by law enforcement multiple times, we cannot say the jury's verdict of negligent homicide was not rational. See, Kennerson. For the reasons discussed, this assignment of error also lacks merit.
In his second assignment of error, Defendant argues his four-year sentence, with three years suspended, is excessive. Under the provisions of La.R.S. 14:32(C)(1), Defendant faced a sentence of up to five years imprisonment at hard labor. This court has explained:
The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. " '[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.' " State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of
that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. . . . The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183,] stated that the reviewing court should consider three factors in reviewing the trial court's sentencing discretion:
State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59.1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.
Defendant argues the trial court failed to properly consider the sentencing factors set forth in La.Code Crim.P. art 894.1. But we note that in his motion to reconsider sentence, Defendant listed specific factors from Article 894.1 that he wanted the court to reconsider. We further note, that at the original sentencing hearing, the State's argument specifically set forth several factors listed under La.Code Crim.P. art. 894.1. In its original reasoning, the trial court stated it considered La.Code Crim.P. art. 894.1 and articulated some of the factors. Thus, the record shows the article was duly considered. Further, Defendant's motion to reconsider did not allege that the trial court failed to consider Article 894.1.
Turning to the analysis in Whatley and Lisotta, the offense at issue is inherently serious and thus worthy of a serious form of punishment. As mentioned earlier, the trial court elected to reduce the sentence by suspending three of the four years it originally ordered. However, it expressed at the resentencing hearing that some incarceration was appropriate in view of the young victim's death. We strongly agree.
Regarding the nature and background of the offender, the record shows that in 1997 Defendant had one prior offense in another state which was described as unlawful wounding. Considering the age of that offense, it does not weigh heavily against Defendant in the context of the current analysis. It is, however, worth mentioning that the trial court noted at the initial sentencing hearing, Defendant exhibited a lack of remorse for the death of the victim, which the trial court considered a significant factor in the original, harsher, sentence and again in imposing jail time on resentencing.
In State v. Toups, 16-993, pp. 17-19 (La.App. 3 Cir. 7/5/17), 224 So.3d 990, 999-1001, writ denied, 17-1363 (La. 5/25/18), 242 So.3d 1230 (emphasis added), this court upheld a two-year sentence for a stabbing based on our review of convictions for negligent homicide:
In [State v.] Rogers, [07-276 (La.App. 3 Cir. 10/3/07),] 966 So.2d 1212, the defendant was convicted of negligent homicide. The defendant was driving a friend and her young son home one evening at a speed of ninety miles per hour when he lost control of the vehicle and struck a tree. The friend burned to death in the vehicle. The defendant and the victim's son were not seriously injured. The defendant hitchhiked with the boy and left him on his grandparents' front porch. The defendant did not report the accident. Although he was additionally charged with hit-and-run driving, that charge was dismissed when he pled guilty to negligent homicide. He received three-and-a-half years imprisonment at hard labor. On appeal, the defendant claimed the sentence was excessive for the reason he had no prior criminal history and was only nineteen at the time of the accident. Citing State v. Beverly, 03-1348, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 107, 110 (footnotes omitted), this court noted in Rogers, 966 So.2d at 1214, that:
A trial court must look at the particular circumstances of the case and the defendant's background in order to impose a sentence that is suited for him. On review, the issue is not whether another sentence would have been more appropriate; rather, it is whether the trial court abused its discretion.
This court found the defendant's sentence appropriate and noted the following cases in comparison:
In State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ denied, 04-663 (La. 9/24/04), 882 So.2d 1165, the maximum sentence of five years imposed on a conviction for negligent homicide was found not to be excessive even though Hughes was a first time felony offender and the mother of four children. In that case, Hughes attempted to commit suicide by driving at a high rate of speed into the path of an oncoming pick-up truck. The driver of the pick-up was killed. This court stated:
The trial court cited the applicable factors set forth in La.Code Crim.P. art. 894.1, noted Defendant's lack of a criminal record and letters of support in her favor; but, concluded Defendant's "wanton and reckless disregard for the lives and safety of others . . . dictates a sentence that fits the nature of this offense." The trial court did not abuse its discretion in sentencing this Defendant to the five-year maximum term of imprisonment.
Id. at 860.
In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court affirmed a sentence of three years imposed on a conviction for negligent homicide. Gregrich, who was legally intoxicated at the time, drove his car left of center and hit an oncoming car head on, killing the driver. In State v. Clark, 529 So.2d 1353 (La.App. 5 Cir.1988), the fifth circuit affirmed a three-year sentence imposed on a conviction for negligent homicide. In that case, Clark was also determined to be intoxicated at the time and drove through a stop sign, striking the victim's vehicle. The victim died as a result of the accident. Clark had previous convictions for driving while intoxicated.
Rogers, 966 So.2d at 1215.
Finally, in [State v.] Pope,[47,486, 47,487 (La.App. 2 Cir. 9/26/12),] 106 So.3d 600, the defendant went to his estranged wife's home where he argued with her for losing a credit card. Giving up on the argument, the defendant went out to his vehicle to leave. The wife followed him out and began beating his vehicle with a toy lawn mower. As he attempted to get into the vehicle, she grabbed him and a gun he was carrying discharged and shot her in the head, killing her. The second circuit did not find the maximum sentence of five years to be excessive, stating:
Here, the trial court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1, and neither sentence was excessive. First, the record reflects that during Pope's sentencing hearing, the trial court stated its consideration of the factors enumerated within La. C. Cr. P. art. 894.1. Specifically, as to the negligent homicide conviction, the trial court noted that it had read letters from both the defendant's family and from the victim's family. Further, the court noted that the crime involved the use of a firearm. Finally, the trial court stated that any lesser sentence than that given to Pope would deprecate the seriousness of the offense which Pope committed. As to the felony theft, this crime was committed while Pope was out on bond. Considering the seriousness of the convictions and Pope's callous disregard for the law while on bond, the trial court's sentences do not reflect a needless infliction of pain and do not shock the sense of justice.
Id. at 603.
In the current case, considering the nature of the offense, the circumstances surrounding the stabbing, and the comparison of similarly situated defendants, we cannot say that the trial court abused its vast discretion when it sentenced Defendant to two years imprisonment at hard labor, less than one half of the potential term of imprisonment. The sentence does not shock this court's sense of justice, and thus, it will be affirmed.
Toups, and the cases cited therein, show that the current sentence is not outside the norms of Louisiana jurisprudence. Defendant endangered the lives of several innocent citizens on the road that day and caused the death of a young person through his deliberate and utterly irresponsible, inexcusable behavior. In his own words, "we are all accountable for our actions." This axiom also applies to Defendant. We cannot say the trial court erred by concluding that some incarceration should be imposed. Further, in light of the cases cited, we cannot say the trial court abused its discretion by imposing a one-year period of incarceration with three years of probation. Under the facts and circumstances of this case we find Defendant's sentence is far from excessive.
Defendant's conviction and sentence are affirmed. The matter is remanded to the trial court for the establishment of a payment plan for the fine and court costs imposed as conditions of probation.
AFFIRMED REMANDED WITH INSTRUCTIONS.