Opinion
NO. 2015 KA 0308
12-17-2015
STATE OF LOUISIANA v. THAYER GREEN
Sherry Watters New Orleans, Louisiana Counsel for Defendant/Appellant Thayer Green Hillar C. Moore, III District Attorney Cristopher J. M. Casler Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Case No. 07-12-0447
The Honorable Richard "Chip" Moore, Judge Presiding
Sherry Watters
New Orleans, Louisiana Counsel for Defendant/Appellant
Thayer Green Hillar C. Moore, III
District Attorney
Cristopher J. M. Casler
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. THERIOT, J.
The defendant, Thayer Green, was charged by bill of information with home invasion, a violation of La. R.S. 14:62.8 (count 1); armed robbery, a violation of La. R.S. 14:64 (count 2); and aggravated battery, a violation of La. R.S. 14:34 (count 3). The defendant pled not guilty to the charges and, following a jury trial, was found guilty as charged on count 1 (home invasion). On count 2, he was found guilty of the responsive offense of simple robbery, a violation of La. R.S. 14:65; on count 3, he was found guilty of the responsive offense of second degree battery, a violation of La. R.S. 14:34.1. The defendant filed a motion for post-verdict judgment of acquittal, which was denied. For the home invasion conviction, the defendant was sentenced to ten years imprisonment at hard labor; for the simple robbery conviction, he was sentenced to four years imprisonment at hard labor; and, for the second degree battery conviction, he was sentenced to four years imprisonment at hard labor. The sentences were ordered to run consecutively. The State, seeking to enhance the sentence for the home invasion conviction, filed a habitual offender bill of information; a hearing was held on the matter and the defendant was adjudicated a third-felony habitual offender. The court resentenced the defendant to imprisonment at hard labor for the remainder of his natural life without benefit of parole, probation, or suspension of sentence. The other two sentences for the simple robbery conviction and second degree battery conviction remained in effect. The defendant filed a motion to reconsider the life sentence, which was denied. The defendant now appeals, designating four assignments of error. We affirm the convictions, habitual offender adjudication, and sentences. We also vacate the original ten-year sentence for the home invasion conviction.
FACTS
Seventeen-year-old K.L. and the defendant had at one time been in a relationship and had a child together, but were no longer dating at the time of the criminal incident. However just prior to the incident, they had been communicating with one another through cell phone text messaging. On July 10, 2012, at about 4:30 a.m., K.L. was talking to a male friend of hers, sitting with him in his car. They were in the parking lot of Bent Tree Apartments off of Plank Road on the north side of Baton Rouge, Louisiana. K.L. was staying with her cousin, Jessica Williams, who lived in a second floor apartment. Ms. Williams's younger sister, eleven-year-old R.W., was also staying with her.
The victim and a juvenile witness are referenced by their initials to protect their anonymity. See La R S 46:1844(W).
While K.L. was sitting in the car in the parking lot, she saw the defendant circle around the apartment complex twice in his mother's car, a green Toyota Camry. In order to avoid a confrontation, K.L. got out of her friend's car and ran up the stairs toward Ms. Williams's apartment. The defendant parked his car in the complex's parking area, left the vehicle running as he exited the vehicle, and pursued K.L. Once inside the apartment, K.L. tried to shut the front door, but the defendant began pushing against the door from the outside. K.L. continued to struggle to shut the door, but the defendant overpowered her and pushed the door open, knocking K.L. to the floor. She tried to crawl away, but the defendant grabbed her by the hair and started punching her. K.L. began screaming and telling R.W., who had been sleeping on the couch, to call the police. Ms. Williams, who was asleep in her bedroom, was awakened by the screaming. Not yet fully aware of what was happening, Ms. Williams grabbed her cell phone and hid in her closet while she called 911. The defendant continued to attack K.L., punching, kicking, and choking her. The defendant then grabbed a metal candlestick holder that was nearby and began striking K.L. on the head and in the face with it.
In the 911 phone call, Ms. Williams was able to name the defendant because, as she testified, she could hear K.L. shouting his name. Eventually she left the closet while still on the phone with the 911 dispatcher and visually identified the defendant.
Ms. Williams came out of her bedroom and told the defendant she was calling the police. R.W. had just begun to call her mother on her cell phone. The defendant took R.W.'s cell phone from her hand and left the apartment. A description of the defendant's car was sent out, and the police stopped and arrested the defendant several blocks away.
ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, the defendant argues that the evidence was insufficient to support any of the convictions. Specifically, the defendant contends that the State failed to prove the entry into the apartment was without invitation or that the entry was with intent to use force or violence; the State failed to prove R.W.'s cell phone was taken by threat or force; and the State failed to prove the battery upon K.L. was intended to cause "great bodily harm or that it did permanent disfigurement."
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821 of the Louisiana Code of Criminal Procedure, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
Home Invasion
Louisiana Revised Statutes 14:62.8(A) defines home invasion as follows:
[T]he unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another.
To convict the defendant of home invasion, the State had to prove beyond a reasonable doubt the following elements: (1) the defendant entered the apartment without permission or authorization; (2) that the place he entered was an inhabited dwelling or a place used in whole or in part as a home by another person; (3) that a person was present in the home when the defendant made entry; and (4) the defendant had the intent to use force or violence against a person in the home or to vandalize, deface, or damage the property. See State v. Smith, 2013-0143 (La. App. 4th Cir. 5/21/14), 141 So.3d 853, 859, writ denied, 2014-1470 (La. 5/15/15), 170 So.3d 155.
The defendant argues in brief that he was invited to the apartment and that he did not have the intent to use force or violence against K.L. when he entered the apartment. The other elements of La. R.S. 14:62.8 are not contested. Regarding the element of entering the apartment without permission or authorization, the defendant asserts in brief that K.L. invited him over by text message.
On direct examination K.L. explained that her "invitation" to the defendant was in jest, and that she was being sarcastic in her text messages to him. On cross-examination, K.L. testified that earlier that same day, she and the defendant had been arguing over the phone. She told the defendant that she did not "want him" anymore, to leave her alone, and for him to go on with his life and she was going to go on with her life. K.L. made it clear at trial that she had no intention of having the defendant come to Ms. Williams's apartment at 4:30 in the morning, and that her texts were not meant to be taken seriously.
Moreover, Ms. Williams testified that the defendant was not welcome in her house, and the defendant knew this. She further testified that she had been in the process of obtaining a temporary restraining order against the defendant regarding a prior incident. It is very clear from both K.L.'s and RW.'s testimony that K.L. had attempted to keep the door closed on the defendant, but that he overpowered her, opening the door with enough force to throw K.L. to the floor. Regardless of what the defendant may have thought hours before when he was texting with K.L., their actions when he arrived at the apartment indicated he was not invited into the apartment and that he, in fact, entered the apartment without permission or authorization.
The defendant suggests in brief that his entry into the apartment was not unauthorized because the door was not locked and there was no forced entry. Both of these issues have no bearing on the sufficiency analysis and are not elements of the crime. Moreover, the door was unlocked because K.L. was still outside at the time she ran back up to the apartment; and, as already noted, the defendant forced his way into the apartment.
The defendant also argues the State did not prove he had intent to use force or violence on K.L. Specific intent can be formed in an instant. See State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. See State v. Collier, 2013-189 (La. App. 3rd Cir. 10/9/13), 161 So.3d 653, 655-56, writ denied, 2013-2554 (La. 4/11/14), 137 So.3d 1213. Thus, when the defendant saw K.L. in the car talking to another young man, chased K.L. up the stairs, forced his way into the apartment, and then began beating K.L. while telling her she was "playing" him, any rational juror could have reasonably inferred that the defendant had the intent to use force or violence on K.L.
Simple Robbery
Simple robbery is defined as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon." La. R.S. 14:65(A). The elements necessary to sustain a conviction of simple robbery are: 1) the taking of anything of value; 2) belonging to another; 3) from the person of another; 4) by use of force or intimidation. State v. Robinson, 97-269 (La. App. 5th Cir. 5/27/98), 713 So.2d 828, 830, writ denied, 98-1770 (La. 11/6/98), 727 So.2d 444. The property taken in a robbery must be sufficiently under the victim's control that, absent violence or intimidation, the victim could have prevented the taking. State v. Thomas, 447 So.2d 1053, 1055 (La. 1984).
Specific intent is not necessary to commit simple robbery; thus it is a general intent crime. See La. R.S. 14:10(2); State v. Doucet, 93-1523 (La. App. 3rd Cir. 5/4/94), 638 So.2d 246, 248-49. An offender has the requisite general intent when "from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of any subjective desire on his part to have accomplished such result." La. R.S. 14:10(2); State v. Elzie, 343 So.2d 712, 714 (La. 1977).
The defendant contends he did not use force or intimidation to take R.W.'s phone. This assertion is baseless. R.W., who was eleven years old at the time of the incident, testified that when she witnessed the defendant beating, kicking and dragging K.L. by her hair, she (R.W.) was too frightened to move from the couch. As R.W. attempted to call her mother on the cell phone. The defendant approached R.W. and took her cell phone out of her hand, and left the apartment with her phone. According to K.L., the defendant "snatched it out her hand."
On direct examination, the following exchange took place between R.W. and the prosecutor:
Q. You had your phone - What kind of phone was it?
A. It was a flip phone.
Q. It was a flip phone - Was it your phone?
A. Uh-huh.
Q. Okay. So what happened to your phone?
A. Thayer took it.
Q. Thayer took it - Did he take it out of your hand?
A. Uh-huh.
Q. You have to say yes or no.
A. Yes, sir.
* * * *
Q. Okay. Let me ask you this. Do you remember what the defendant did to your cousin?
A. Yes, sir.
Q. And what did he do to your cousin?
A. He hit her, kicked her and punched her, and he started hitting her with a candlestick.
Q. Okay. So when he took the phone out of your hand, had you just seen all that?
A. Yes, sir.
Q. Were you scared?
A. Yes, sir.
Q. Were you afraid that he might hurt you?
A. Sir?
Q. Were you afraid that he might hurt you?
A. Yes, sir?
Based on these facts and testimony, any rational juror could have reasonably concluded the defendant took R.W.'s cell phone from her by force, as well as by intimidation, given that R.W. had just witnessed the defendant beat her cousin. The defendant clearly created an atmosphere of fear and intimidation. See State v. Quac Tran, 2008-1103 (La. App. 4th Cir. 8/13/09), 18 So.3d 165, 172, writ denied, 2009-2247 (La. 4/16/10), 31 So.3d 1053. Moreover, resistance by the victim and the use of physical force by the perpetrator are not necessary to complete a simple robbery. State v. Jones, 2000-190 (La. App. 5th Cir. 7/25/00), 767 So.2d 808, 810, writs denied, 2000-2449, 2493 (La. 6/22/01), 794 So.2d 782, 783. See Robinson, 713 So.2d at 830-31 (where the intimidation element of simple robbery was proved based on the victim's being intimidated by the defendant's demeanor and use of slang, despite the absence of any evidence that the defendant used any threatening words or gestures). See State v. Johnson, 2010-611 (La. App. 5th Cir. 1/25/11), 60 So.3d 43, 46; State v. McCall, 577 So.2d 764, 766-67 (La. App. 2nd Cir.), writ denied, 582 So.2d 1304 (La. 1991).
The defendant also asserts in brief that he took R.W.'s phone by mistake thinking it was his, but it is not clear how the defendant could have thought R.W. was using his phone when he entered the apartment. The defendant had an iPhone and R.W. had a black Verizon flip phone. Corporal Jimmy Santangelo, with the East Baton Rouge Sheriff's Office, testified at trial that he was at both the stop of the defendant and at the apartment shortly following the incident. The corporal made clear in his testimony that the phones bore no resemblance to each other.
The jury was presented with the defendant's theory of mistaken identity of the phones but was not persuaded by it. The Jackson standard neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial, nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So.2d 362, 367, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). The jury's verdict on simple robbery must therefore stand.
Second Degree Battery
Louisiana Revised Statutes 14:34.1 provides in pertinent part:
A. Second degree battery is a battery[] when the offender intentionally inflicts serious bodily injury[.]
B. For purposes of this Section... "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
In the present context, battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33.
In order to prove a second degree battery, the State must prove the defendant: (1) committed a battery upon another, (2) without the victim's consent, and (3) intentionally inflicted serious bodily injury. State v. Young, 2000-1437 (La. 11/28/01), 800 So.2d 847, 852. Second degree battery is a crime requiring specific criminal intent. State v. Fuller, 414 So.2d 306, 310 (La. 1982). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. Cousan, 684 So.2d at 390. Specific intent need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1st Cir. 1986).
In his brief, the defendant argues that his physical assault of K.L. was not intentional. He also argues that the State failed to prove K.L. suffered any "serious bodily injury." The defendant notes in brief that: K.L. did not lose consciousness; she had a knot on her head that was not bleeding and did not require stitches; she did not testify about any extreme physical pain, disfigurement, or protracted loss or impairment of a function; and she was not hospitalized.
However, the defendant's physical attacks upon K.L. indicated he clearly intended to inflict serious bodily injury. Whether the defendant in fact inflicted such injury was a determination for the factfinder. Despite the defendant's contentions, the State did prove extreme physical pain beyond a reasonable doubt. See La. R.S. 14:34.1(B) (prior to the 2012 amendment).
The testimony of the witnesses indicates the defendant pulled K.L. around by her hair and that he punched her in the face, causing bruising and bleeding. When K.L. was on the floor, the defendant kicked her and continued punching her. He also choked her. It was also established during Ms. Williams's testimony that in her written statement to the police, she indicated the defendant had his hands around K.L.'s throat. At one point the defendant grabbed a metal candlestick holder and beat K.L. on the head with it. Based on the 911 call made by Ms. Williams and KX.'s following testimony on direct examination, it appeared the defendant carried out a ruthless, violent physical attack upon K.L.:
Q. Okay. So you get to the corner right there, okay. What happened exactly - walk me through it. When you got to that corner, what happened next?
A. Then I was just still screaming and telling [R.W.] to call the police. [The defendant] still had my hair. I was just crying. Like, I was in shock, like, thinking, like - I was passing - like, I was dazed. Like, in the moment, like, I ain't know, like, I was - basically, I was dazed. I'm just trying to get help to get him from beating me. He just had my hair and just steadily beating me, just steadily kicking me. Anything in his power to hurt me, he was doing it.
Q. Okay. He grabbed a candlestick?
A. Yes, sir.
Q. Where did he hit you with the candlestick?
A. In the top of my head, in my face.
Q. Okay. Did it hurt?
A. Yes, sir.
Q. Okay. Did you [want] him to hit you with that candlestick?
A. No, sir.
* * * *
Q. Okay. Do you know whether or not [Ms. Williams] called the police?
A. I'm not sure.
Q. Okay. Now, you were talking about --
A. I was dazed at that time. By the time -- I was dazed. And, like, I was black -- I was, like, blacking out because, like, he just keep punching me and hitting me in my head and I was blacking out. And by the time, like, we got in the front, he end up grabbing the candleholder stick and he got to -- keep hitting me in my head with it.
K.L.'s injuries appeared to be severe enough that EMT was called to the scene by the police; K.L. did not go by ambulance, but she was taken to the hospital that night. Cpl. Santangelo testified that when he arrived at the apartment, K.L. had blood on her face and a cut on her lip that had been bleeding. He saw that she also had more swelling around the nose area than what was indicated by the picture taken of K.L. shortly after the incident and submitted into evidence. He also felt two knots and an indention on her head. He also testified that K.L. and R.W. were quite upset when he arrived at the apartment and that each of the three female's versions of the events that transpired was consistent.
Based on the foregoing, a rational juror could have reasonably concluded that the defendant's attack on K.L. caused her extreme physical pain, loss of consciousness, or more broadly, caused serious bodily injury. See State v. Abercrumbia, 412 So.2d 1027, 1028 (La. 1982), where the defendant hit the victim with boards across his head, neck, and arm, causing a deep cut over his eye; State v. Robertson, 98-883 (La. App. 3rd Cir. 12/9/98), 723 So.2d 500, writ denied, 99-0658 (La. 6/25/99), 745 So.2d 1187, where the defendant knocked the victim to the ground and repeatedly kicked and hit her until she momentarily lost consciousness; the victim had bruises over the entire extent of her body, which left significant scars and lacerations on her nose; Young, 800 So.2d at 852-53, where the victim suffered a bloody nose, tenderness in hyoid area below the larynx, and complained of pain at incision in his lower abdominal area. The physician testified that the defendant's act of choking the victim could have resulted in substantial risk of death, and three months after the attack, the victim continued to have throat problems; State v. Accardo, 466 So.2d 549, 552 (La. App. 5th Cir.), writ denied, 468 So,2d 1204 (La. 1985), where a 17-year-old female victim was struck on the head by the defendant with either his fist or a blackjack, causing the side of her face to swell.
Regarding all three of the defendant's convictions, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.
The jury's three verdicts indicate that, after considering the credibility of the witnesses and weighing the evidence, it accepted the testimony of K.L., Ms. Williams, and R.W, and rejected the defendant's version of what transpired on the night of the crimes. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Further, the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d.467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988).
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury's verdicts reflected the reasonable conclusion that the defendant entered Ms. William's apartment with the intent to punish K.L. for talking to another man; that he physically attacked K.L. with his hands, feet, and a metal candlestick, causing serious bodily injury to K.L.; and that he took R.W.'s cell phone from her without her permission as he was leaving the apartment. In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence. See Moten, 510 So.2d at 61. Assignment of error number one is without merit.
After a thorough review of the record, we find that the evidence supports the jury's guilty verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of irmocence, that the defendant was guilty of home invasion, simple robbery, and second degree battery. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, the defendant argues the trial court erred in denying his motion for mistrial and motion for new trial based on the State's belated disclosure of exculpatory evidence.
During voir dire, defense counsel informed the trial court that it had come to his attention that the State had in its possession text messages from the defendant's cell phone. The State indicated to the trial court that the defendant's cell phone had been seized some time ago, but no one had looked at the phone contents until then. The cell phone, according to the State, had not been "dumped" (text messages extracted by a specialist). Defense suggested that there could be Brady material in these texts, and that he was entitled to see them.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
We note that neither the State nor the defense filed into evidence any of the texts from the defendant's phone. As an appellate court, we have no authority to receive or review evidence not contained in the record. See State v. Dilosa, 2001-0024 (La. App. 1st Cir. 5/9/03), 849 So.2d 657, 672, writ denied, 2003-1601 (La. 12/12/03), 860 So.2d 1153; State v. Trahan, 93-1116 (La. App. 1st Cir. 5/20/94), 637 So.2d 694, 709. Moreover, there is nothing for us to review because defense counsel did not proffer any of the hundreds of pages of text that allegedly contained exculpatory evidence. See State v. Hatfield, 2013-0813 (La. App. 4th Cir. 7/2/14), 155 So.3d 572, 607, writ denied, 2014-1648 (La. 3/27/15), 162 So.3d 383 (phone records allegedly contained exculpatory information; however, the representations as to the content of the record cannot be verified because they are not in the record).
Based on the foregoing, the trial court did not err in denying the defendant's motion for mistrial or the motion for new trial. This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues the trial court erred in adjudicating him a third-felony habitual offender.
The State sought to enhance the sentence for the home invasion conviction. The State filed a habitual offender bill of information, and the trial court conducted a hearing on the matter. At the habitual offender hearing, the State submitted the bills of information and minutes for the defendant's two predicate convictions, both based on guilty pleas. On April 18, 2012, the defendant pled guilty to simple burglary in the 19th JDC, which he committed on August 15, 2011; and on the same date, he pled guilty to simple robbery in the 19th JDC, which he committed on December 2, 2011. The trial court adjudicated the defendant a third-felony habitual offender and sentenced him to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.
19th JDC Criminal Docket numbers 10-11-0693 and 04-12-0619, respectively.
The defendant argues in brief that his two predicate convictions should have been counted as one conviction. The defendant cites to State v. LeBlanc, 2014-0163 (La. 1/9/15), 156 So.3d 1168, 1169 (per curiam), which stated:
The legislature responded to our decision in [State v. Johnson, 2003-2993 (La. 10/19/04), 884 So.2d 568] in less than a year by amending La. R.S. 15:529.1(B) to express its unequivocal intent that "[m]ultiple convictions obtained on the same day prior to October 19, 2004 [i.e., the date Johnson was decided], shall be counted as one conviction for the purpose of this Section." 2005 La. Acts 218. The amendment sharply curtailed the scope of our decision in Johnson. Thus, in the span of some 50 years, from the decision in Jackson in 1973 to the present day, relator's convictions entered on the same day in 1993 count as only one conviction for habitual offender sentencing purposes in all but the brief, 10-month window opened by this Court's decision in Johnson and then promptly closed by the legislature in its 2005 amendment of La. R.S. 15:529.1(B).
Based on this language in LeBlanc, the defendant suggests all convictions obtained on the same date are counted as one conviction for multiple offender purposes. Thus, according to the defendant, he should be adjudicated a second-felony habitual offender.
The defendant misconstrues the language in LeBlanc. In Johnson, 884 So.2d at 578, the supreme court found that the Habitual Offender Law did not contain a sequential conviction requirement; thus, any predicate convictions entered on the same date could be counted as separate convictions. Thus, according to Johnson, the defendant's two guilty pleas could be counted as separate convictions for purposes of habitual offender adjudication. Id. This remained the law until the legislature severely restricted the effects of Johnson by amending La. R.S. 15:529.1(B), which prior to its amendment stated:
It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender have been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.
The amendment to this provision, which became effective on August 15, 2005, added the following single sentence: "Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section." See 2005 La. Acts No. 218, § 1. October 19, 2004 was the date the Johnson decision was handed down. As of August 15, 2005, same-day convictions prior to October 19, 2004 are counted as one conviction; however, those same-day convictions on or after October 19, 2004 may be counted as separate convictions, per the August 15, 2005 amendment to the Habitual Offender Law.
The only issue at this point is whether the defendant's predicate convictions for which he pled guilty on April 18, 2012 arose from a single criminal act or from separate and distinct events. Given that the defendant committed simple burglary on August 15, 2011 and, about four months later, committed simple robbery on December 2, 2011, it is clear the convictions arose from separate and distinct events and not part of a single criminal act. Accordingly, the trial court properly adjudged the defendant to be a third-felony habitual offender. See State v. Lowery, 2004-0802 (La. App. 1st Cir. 12/17/04), 890 So.2d 711, 721-22, writ denied, 2005-0447 (La. 5/13/05), 902 So.2d 1018. Cf. State v. Cass, 44,411 (La. App. 2nd Cir. 8/19/09), 17 So.3d 486. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER 4
In his fourth assignment of error, the defendant argues that his sentences are excessive. The defendant also argues ineffective assistance of counsel for failure to file a motion to reconsider sentence.
The defendant's ten-year sentence for home invasion was enhanced for habitual offender purposes; thus, as a third-felony habitual offender, the defendant was sentenced to imprisonment for the remainder of his natural life, the mandatory sentence pursuant La. R.S. 15:529.1(A)(3)(b). At the habitual offender hearing, the court made no mention of the two four-year sentences for simple robbery and second degree battery, and therefore they remained consecutive to each other and to the life sentence. The defendant argues that the three offenses arose out of a single incident and, as such, the sentences should be concurrent.
Defense counsel timely filed a motion to reconsider the life sentence, wherein he argued that, pursuant to State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the defendant is entitled to a lesser sentence. At sentencing for the three underlying convictions, defense counsel did not object to the sentences. Accordingly, the defendant in brief argues ineffective assistance of counsel for defense counsel's failure to file a motion to reconsider or to object at sentencing that the sentences were excessive because they were ordered to be served consecutively.
The defendant further argues in brief that pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct 2011, 176 L.Ed.2d 825 (2010), the trial court erred in imposing a life sentence without the possibility of parole. Graham held that the Eighth Amendment precludes sentencing juvenile offenders, which were defined as persons under eighteen years of age, to life imprisonment without parole for crimes that are not homicides. Id., 560 U.S. at 74-75. The defendant was seventeen years old when he committed the instant three offenses. While the defendant was a "juvenile" under Graham at the time of the offense, he was an adult with regard to criminal prosecution under the law of this State. See State v. Tate, 2012-2763 (La. 11/5/13), 130 So.3d 829, 832, cert. denied, ___ U.S. ___, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014). According to the defendant, since under his habitual offender sentence he was not given the opportunity for parole, La. R.S. 15:529.1, to the extent it imposes a life sentence without parole, violates the Eighth Amendment to the United States Constitution.
Finally, the defendant argues that his case is exceptional under State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672. He notes he was young, impulsive, and provoked; and that any injuries K.L. sustained were superficial. Thus, according to the defendant, his exceptional case requires a downward departure of his sentence(s).
The record does not contain an oral or written motion to reconsider the sentences for the simple robbery conviction and the second degree battery convictions. Louisiana Code of Criminal Procedure article 881.1(E) provides that the failure to file or make a motion to reconsider sentence precludes the defendant from raising an excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this article and the holding of State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam), we would not consider an excessive sentence argument. However, in the interest of judicial economy, we will consider the defendant's argument that his sentences are excessive, even in the absence of a motion to reconsider sentence, in order to address the defendant's claim of ineffective counsel. See State v. Wilkinson, 99-0803 (La. App. 1st Cir. 2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La. 4/20/01), 790 So.2d 631.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating the performance of counsel, the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La. App. 1st Cir. 1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La. App. 1st Cir.), writ denied, 476 So.2d 350 (La. 1985).
Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel's error, his sentences would have been different, a basis for an ineffective assistance claim may be found. See State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 370, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454.
The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.
The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
We first address the defendant's argument regarding consecutive sentences. Concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct, at least for a defendant without a prior criminal record. See La. Code Crim. P. art. 883. However, even if convictions arise out of a single course of conduct, consecutive sentences are not necessarily excessive; other factors must be taken into consideration in making this determination. For instance, consecutive sentences are justified where an offender poses an unusual risk to public safety. State v. Breland, 97-2880 (La. App. 1st Cir. 11/6/98), 722 So.2d 51, 53.
Despite the trial court's failure to articulate reasons for why it imposed consecutive sentences, remand is not necessary because the record provided an adequate factual basis to support consecutive sentences. See State v. Hampton, 38,017 (La. App. 2nd Cir. 1/28/04), 865 So.2d 284, 295, writs denied, 2004-0834 (La. 3/11/05), 896 So.2d 57, 2004-2380 (La. 6/3/05), 903 So.2d 452. The record clearly shows a course of repeated criminal conduct by the defendant, the defendant's disregard for others and their property, and an indication of little to no potential for the defendant's rehabilitation - all of which are factors that favor consecutive sentences. See Hampton, 865 So.2d at 294. The hearing where the defendant was sentenced for the three instant convictions was also a probation revocation hearing. Before the defendant was sentenced, his probation was revoked for the two prior convictions (simple burglary and simple robbery) subsequently used as predicate offenses in the habitual offender proceedings.
Moreover, despite the defendant's contention that these offenses were part of a common scheme, these acts by the defendant did not necessarily arise out of a single course of criminal conduct. See La. Code Crim. P. art. 883. While the crimes all occurred during a single episode, there were three distinct victims. Jessica Williams had her home invaded by the defendant; K.L. was battered by the defendant; and R.W. had her cell phone stolen by the defendant. See State v. Massey, 2008-839 (La. App. 3rd Cir. 12/10/08), 999 So.2d 343, 348-49. See also State v. H.B., 2006-1436 (La. App. 3rd Cir. 4/4/07), 955 So.2d 255, 260 (review of the jurisprudence shows that different victims, places, or dates mean different transactions and different schemes or plans).
Finally, La. Code Crim. P. art. 883 specifically excludes from its scope sentences which the court expressly directs to be served consecutively. The trial court expressly directed that the sentences were to be served consecutively with other sentences. As such, those sentences are outside the scope of La. Code Crim. P. art. 883. See State v. Palmer, 97-0174 (La. App. 1st Cir. 12/29/97), 706 So.2d 156, 160.
Here, the trial court did not err in ordering the sentences to be served consecutively. Accordingly, the sentences are not excessive. Because we find the sentences are not excessive, defense counsel's failure to file a motion to reconsider sentence did not prejudice the defendant. See Wilkinson, 754 So.2d at 303; Robinson, 471 So.2d at 1038-39. His claim of ineffective assistance of counsel, therefore, is without merit.
We turn now to the defendant's argument that La. R.S. 15:529.1 violates the Eighth Amendment because under Graham, a juvenile cannot be sentenced to life imprisonment without parole.
It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. While there is no single procedure for attacking the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. State v. Schoening, 2000-0903 (La. 10/17/00), 770 So.2d 762, 764, citing Vallo v. Gayle Oil Co., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-65.
Our supreme court has expressed the challenger's burden as a three step analysis. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. The purpose of these procedural rules is to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. The opportunity to fully brief and argue the constitutional issues provides the trial court with thoughtful and complete arguments relating to the issue of constitutionality and furnishes reviewing courts with an adequate record upon which to consider the constitutionality of the statute. State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 718-19. In addition to the three step analysis for challenging the constitutionality of a statute, the specific plea of unconstitutionality and the grounds therefor must be raised in a pleading. Hatton, 985 So.2d at 720; Schoening, 770 So.2d at 765.
The defendant never raised the issue of the constitutionality of La. R.S. 15:529.1 before the trial court. The constitutionality of La. R.S. 15:529.1 was never addressed or discussed by any party in the trial court. This issue of the applicability of Graham to our Habitual Offender Law was raised for the first time by the defendant on appeal. Accordingly, the issue is not properly before this court.
Finally, we address the defendant's argument regarding a downward departure of his life sentence. In Dorthey, 623 So.2d at 1280-81, the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he has the option to reduce such sentence to one that would not be constitutionally excessive. In Johnson, 709 So.2d at 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences under the Habitual Offender Law.
A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So.2d at 676.
To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Given the legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So.2d at 676-77.
There is nothing particularly unusual about the defendant's circumstances that would justify a downward departure from the life sentence imposed under La. R.S. 15:529.1. The defendant has not proven by clear and convincing evidence that he is exceptional such that the life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offenses and, therefore, is not unconstitutionally excessive. This assignment of error is without merit.
SENTENCING ISSUE
The transcript of the habitual offender sentencing proceeding indicates that the home invasion sentence was enhanced to a life sentence, but remains silent as to the simple robbery and the second degree battery sentences. The court minutes suggest that the home invasion sentence was vacated, while the commitment order suggests that a sentence was vacated, but does not indicate which one. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). The Habitual Offender Law requires a sentencing court, when imposing a habitual offender sentence, to vacate any sentence already imposed. State v. Jackson, 2000-0717 (La. App. 1st Cir. 2/16/01), 814 So.2d 6, 8-11, writ denied, 2001-0673 (La. 3/15/02), 811 So.2d 895 (en banc). Accordingly, we vacate the defendant's original ten-year sentence for home invasion, which was handed down on March 18, 2014.
ORIGINAL TEN-YEAR SENTENCE VACATED. CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED. McCLENDON, J., dissenting in part.
The majority fails to address whether the imposition of a life sentence without parole under the habitual offender statute is violative of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), opining that the defendant raises the constitutionality of the habitual offender statute for the first time on appeal. However, despite the manner in which the defendant raises the issue, the defendant is seeking redress for an alleged illegal sentence. See State v. Brown, 12-0872 (La. 5/7/13), 118 So.3d 332, 341 (whether mandatory life sentence without parole is violative of Graham reviewed as an attack on the legality of the sentence rather than a constitutional challenge to the underlying criminal statute). An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. See LSA-C.Cr.P. art. 882(A).
The issue of whether Graham would be applicable to an enhanced sentence under the habitual offender statute is unresolved. In Brown, the Louisiana Supreme Court indicated "we see nothing in Graham that even applies to sentences for multiple convictions, as Graham conducted no analysis of sentences for multiple convictions and provides no guidance on how to handle such situations." Brown, 118 So.3d at 341. Therefore, the Louisiana Supreme Court indicated that a life sentence for aggravated kidnapping could not be served without benefit of parole, but that four consecutive ten-year armed robbery sentences without parole was not violative of Graham. Unanswered in light of Brown, however, is whether an enhanced single sentence under the habitual offender statute that provides life in prison without the benefit of parole is violative of Graham. Because I find this issue to be properly before this court, I dissent to the extent the majority fails to address it.
In Brown, 118 So.3d at 341, the Louisiana Supreme Court recognized that the legislature, in order to comply with Graham, added LSA-R.S. 15:574.4(D) in 2012. Thus, it is now clear under Louisiana law, a juvenile defendant serving a life sentence for a non-homicide offense committed before the age of 18 will be parole eligible after serving 30 years, assuming the other provisions of LSA-R.S. 15:574.4(D)(1) are met. Brown, 118 So.3d at 341.