Opinion
2015 KA 1805
06-03-2016
STATE OF LOUISIANA v. ARTY JAMES MARCEL
Joseph L. Waitz, Jr. James Christopher Erny Ellen D. Doskey Houma, LA Counsel for Appellee, State of Louisiana Bertha M. Hillman Covington, LA Counsel for Defendant/Appellant Arty James Marcel
NOT DESIGNATED FOR PUBLICATION Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne, State of Louisiana
Trial Court Number 686,293
Honorable Randall L. Bethancourt, Judge Presiding
Joseph L. Waitz, Jr.
James Christopher Erny
Ellen D. Doskey
Houma, LA Counsel for Appellee,
State of Louisiana Bertha M. Hillman
Covington, LA Counsel for Defendant/Appellant
Arty James Marcel BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WHIPPLE, C.J.
The defendant, Arty James Marcel, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62. He entered a plea of not guilty and, following a jury trial, was found guilty as charged. The defendant filed motions for new trial and postverdict judgment of acquittal, both of which were denied. The State filed a habitual offender bill of information, and, after a hearing, the defendant was adjudicated a fourth-felony habitual offender. He was then sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, consecutive to any other sentence that he was currently serving. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, asserting two counseled assignments of error and one pro se argument. For the following reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
The defendant's predicate offenses included: (1) a September 6, 1996, guilty plea to possession of stolen things under docket number 268,501 in the 32nd Judicial District Court ("32nd JDC"), Parish of Terrebonne; (2) an October 19, 1998, guilty plea to simple burglary of an inhabited dwelling under docket number 306,364 in the 32nd JDC, Parish of Terrebonne; (3) a March 14, 2005, guilty plea to theft (amount over $500.00) under docket number 443,654 in the 32nd JDC, Parish of Terrebonne; (4) an August 14, 2006, guilty plea to aggravated battery under docket number 477,087 in the 32nd JDC, Parish of Terrebonne; (5) a December 1, 2008, guilty plea to simple burglary of an inhabited dwelling under docket number 530,426 in the 32nd JDC, Parish of Terrebonne; (6) a January 14, 2014, plea to simple burglary under docket number 639,752 in the 32nd JDC, Parish of Terrebonne; (7) an April 14, 2014, guilty plea to driving while intoxicated, third offense, under docket number 664,239 in the 32nd JDC, Parish of Terrebonne; and (8) an April 14, 2014, guilty plea to theft (amount over $500.00, but less than $1,500.00) under docket number 664,310 in the 32nd JDC, Parish of Terrebonne.
FACTS
Terrebonne Parish Sherriff's Office Deputy Jonathan Matherne responded to a burglary complaint on Bull Run Road in Schriever, Louisiana, on July 26, 2014. Upon arrival, Officer Matherne noticed that the victim had video surveillance and had set up a "booby trap" in the back portion of his shop near his house. The officer viewed the surveillance footage, which showed someone wearing a white shirt walk back and forth behind the residence multiple times. The victim identified the defendant as the person in the surveillance video. The "booby trap" consisted of a bucket filled with diesel and purple dye attached to a saw horse. When the saw horse was moved, the bucket turned over, spilling the liquid mixture. The officer located shoeprints through the liquid and onto the concrete, which he photographed.
Officer Matherne then spoke with the defendant, who was the victim's neighbor. Officer Matherne later testified that the defendant resembled the person shown walking toward the victim's shop in the surveillance video. The officer observed a plastic container filled with water and white clothes as well as a pair of shoes outside of his home. The officer smelled a heavy odor of detergent and bleach, and he noticed that the shoes were wet. The shoes had recently been cleaned, but there was a purple substance between a crack in their sole. The officer also observed two "drag marks" leading toward the woods directly behind the defendant's home that were consistent with someone dragging a generator or pressure washer. Officers followed the trail of the marks and located some of the victim's stolen items, including a generator and pressure washer. Other stolen items were located across the street from the victim's home. Certain other items, including a rifle and tools, were never recovered. According to the trial testimony, the investigating officers took the wet shoes from the defendant's home and compared them to the print left in the purple dye mixture. The officers testified that the impression from the shoe that was photographed was very similar to the tread pattern on the recovered shoes. Officers also found a Bose remote controller in the defendant's pocket, which the victim identified as one that was stolen from him two weeks prior. The defendant was advised of his rights and stated that he was at his home all day, but denied any involvement in the burglary of his neighbor's shop and property.
OTHER CRIMES EVIDENCE
In his first assignment of error, the defendant contends that the district court erred in allowing other crimes evidence from nine witnesses rather than "a more selective presentation of [the] evidence." Specifically, he argues that the district court improperly allowed the State to call nine witnesses regarding eight other crimes, which "served no purpose other than to prove that [the defendant] had committed prior burglaries and acted in conformity therewith." The defendant also complains that calling nine witnesses was more prejudicial than probative "when a selection of a few of the more similar crimes would have accomplished the same purpose without prejudicing the jury."
Prior to trial, the State filed a notice of its intent to use other crimes, wrongs, or acts of the defendant, including eleven of the defendant's prior convictions, pursuant to LSA-C.E. art. 404(B), to show proof of opportunity, intent, preparation, plan, knowledge, identity, absence of mistakes or accident at trial. The defendant filed a motion in limine to prohibit the introduction of the other crimes evidence.
At the hearing on the State's notice of intent and the defendant's motion in limine, the defense specified that its motion was not limited to the eleven convictions listed in the State's notice of intent, but also extended to evidence of any other crimes or bad character traits and any opinion testimony regarding the source of the footprints or shoeprints involved in the case. The State offered into evidence the bills of information, transcripts, minutes, and police reports for the defendant's prior convictions. (1) Possession of Stolen Things under Docket Number 268 , 501
The first offense that the State sought to introduce was the defendant's 1996 conviction for possession of stolen things (valued between $100.00 and $500.00) belonging to Kelly Martinez and Brandi Anderson. The State pointed out that this prior offense was similar to the instant offense because it occurred during the day, and the stolen items were taken from a home on Bull Run Road and subsequently pawned, which it claimed was relevant to the defendant's intent. The defendant argued that because the crime was for possession of stolen things and was committed eighteen years prior to the instant offense, it was not relevant. The district court allowed the State to present evidence of this prior offense at trial. (2) Simple Burglary under Docket Number 306 , 364
The second offense that the State sought to introduce was the defendant's 1998 conviction for simple burglary, wherein the defendant stole a television, VCR, power tools, a boiling pot, and gumbo bowls from Denise Fritch's residence at 1940 Bull Run Road and sold them at a pawn shop. The State argued that the defendant's knowledge of the area, the sale of the items to a pawn shop, and the fact that the defendant denied committing the offense demonstrated the defendant's modus operandi, motive, intent, and knowledge. According to the defendant, the 1998 simple burglary was not similar in any way to the instant offense, other than the fact that it was the burglary of a neighbor's dwelling. The district court allowed the State to present evidence of this prior offense at trial. (3) Misdemeanor Theft under Docket Number 318 , 952 and (4) Forgery/Simple Escape under Docket Number 318 , 826
The third and fourth offenses that the State sought to introduce at trial involved the defendant's charges of misdemeanor theft of a tool in Walmart and forgery/simple escape. Both offenses were nol-prossed by the State pursuant to the defendant's plea agreement under docket number 306,364. The district court did not allow the State to present evidence of these two charges at trial. (5) Theft under Docket Number 443 , 654
The fifth offense that the State sought to introduce at trial was the defendant's 2005 conviction of felony theft of limestone and diesel from a business entity for which he previously worked. The State argued that evidence of this offense established the defendant's guilty knowledge, intent, and motive because the offense took place during daylight hours and was an opportunity for "easy pickings to go and take stuff." The defendant responded that the offense was not relevant because the theft was from a business that the defendant "had some sort of access to." The district court allowed the State to introduce evidence of this offense. (6) Simple Burglary of an Inhabited Dwelling under Docket Number 530 , 426
The sixth offense that the State sought to introduce was the defendant's 2008 conviction of simple burglary of an inhabited dwelling belonging to Karl Unbehagen at 1706 Bull Run Road during daylight hours. The defendant entered the bathroom window of the residence and stole a table saw. The State argued that this offense was similar to the instant offense because it occurred on Bull Run Road, during the day, the defendant entered through a window, and the defendant stole an "easily pawnable" table saw. The defendant argued that the prejudicial effect of introducing the offense would outweigh any probative value. The district court allowed the State to introduce evidence of this offense. (7) Theft under Docket Number 522 , 359
The seventh offense that the State sought to introduce was the defendant's 2008 conviction of misdemeanor theft, wherein the defendant stole copper from a trailer that burned on Bull Run Road. The State argued that the offense was similar to the instant offense because it occurred on Bull Run Road, and the defendant stole something that was "easily scrapable," then denied committing the offense. The defendant argued that the relevance was "slight" because the offense was not a burglary. The district court allowed the State to introduce evidence of this offense. (8) Theft under Docket Number 530 , 798
The eighth offense that the State sought to introduce was the defendant's 2008 conviction for theft, wherein the defendant stole an outdoor fireplace from Norma Donaldson's residence on Bull Run Road during daylight hours. The State argued that the offense showed the defendant's familiarity with the area, intent, motive, and the theft of something "easily pawnable." The defendant argued that because this offense did not involve entering a dwelling or structure, the relevancy far outweighed the prejudicial effect. The State responded that the stolen item was in the victim's backyard, and although the defendant did not break into a house or dwelling to take the item, he did trespass onto the victim's property. The district court allowed the State to introduce evidence of this offense at trial. (9) Theft under Docket Number 635 , 833
The ninth offense that the State sought to introduce was the defendant's 2012 conviction of theft for taking a six-pack of beer from a distributing truck. The district court did not allow the State to introduce evidence of this offense. (10) Theft under Docket Number 639 , 752
The tenth offense that the State sought to introduce was the defendant's 2013 conviction of theft of tools from a house in Bayou Blue. The State argued that the fact pattern of this offense was very similar to that of the instant offense and relevant to the defendant's motive, intent, and modus operandi because the defendant saw an "easily pickable situation in a rural area[.]" The defendant argued that the prejudicial effect outweighed any probative value. The district court allowed the State to introduce evidence of this offense at trial. (11) Theft under Docket Number 664 , 310
The last offense that the State sought to introduce was the defendant's 2014 conviction for theft (amount between $500.00 and $1,500.00), wherein the defendant stole industrial batteries located at a church in Schriever, Louisiana, and sold them to a scrapyard. The State argued that this offense was the "same type of situation" because the defendant sold the batteries at a scrapyard showing his motive and intent, and also because the church from which the defendant stole the batteries was near Bull Run Road. The defendant argued that theft of batteries from a church did not fit the facts of the instant case and also that the defendant did not "scrap" the batteries; rather, the batteries were taken to the scrapyard by a co-defendant. The State responded that, as in other cases, the defendant denied involvement and blamed his co-defendant for the theft, establishing the defendant's modus operandi. The district court allowed the State to introduce evidence of this offense at trial.
A deacon of the church owned a battery recycling company and stored the batteries for his business at the church.
The State argued that "virtually every [prior offense] was either during the day, broad daylight, something that could easily be pawned or scrapped at a scrap yard or a burglary, some of the burglaries tools that were stolen. It shows intent of [the defendant]." The defendant argued that the prior offenses were not "peculiarly distinctive" or so related to the crime on trial or a material issue that if admitted their relevancy would outweigh their prejudicial effect.
In rendering its ruling, the district court cited State v. Hardy, 2014-1569 (La. 11/21/14) 154 So. 3d 537, 539 (per curiam), wherein the Supreme Court found that evidence of the defendant's prior burglary convictions was probative because they were sufficiently similar to his simple burglary charge and substantially relevant to the question of whether he had specific intent to commit a theft when he entered the residence rather than entering for an innocent purpose. The district court pointed out that almost all of the other offenses that he allowed the State to introduce were committed in the same area of Bull Run Road and were very similar in that the defendant stole items to pawn and sell.
At trial, the State presented evidence of the defendant's prior convictions including: Possession of Stolen Things under Docket Number 268 , 501
In 1995, the defendant plead guilty to possession of stolen things (valued between $100.00 and $500.00) belonging to Kelly Martinez and Brandi Anderson. Terrebonne Parish Sherriff's Office Captain David LeBoeuf testified that the burglary occurred at a home on Bull Run Road during the day and that a microwave, VCR, and television were taken. The items were recovered in a pawn shop in Morgan City. Simple Burglary under Docket Number 306 , 364
In 1998, the defendant pled guilty to simple burglary of an inhabited dwelling. The burglary occurred while the victim, Denise Fritch, who lived at 1940 Bull Run Road, was on vacation. Items stolen included appliances, fishing equipment, and tools. Another stolen item, a gumbo bowl, was found in the defendant's residence. Theft under Docket Number 443 , 654
In 2005, the defendant pled guilty to theft of goods (valued at $500.00 or more). The defendant stole a large amount of limestone and some diesel from his employer on September 7, 2004. Simple Burglary of an Inhabited Dwelling under Docket Number 530 , 426
In 2008, the defendant pled guilty to simple burglary of an inhabited dwelling. When the victim returned to his home on Bull Run Road after being out of town for the day, he discovered that a window had been broken, and someone had defecated on his living room floor. Additionally, a table saw, fan, extension cords, and hand tools were taken from his home. Theft under Docket Number 522 , 359
In 2008, the defendant pled guilty to theft (amount less than $300.00). Terrebonne Parish Sherriff's Office Lieutenant Troy Boquet testified that he investigated the theft of copper and plywood from a burned-down trailer next to the defendant's home. He questioned the defendant, who indicated that he took plywood, but not any copper, from the scene. Theft under Docket Number 530 , 798
In 2008, the defendant pled guilty to theft (amount less than $300.00). Norma Donaldson testified that a four-foot tall outdoor fireplace was stolen from her home on Bull Run Road and subsequently located at the defendant's home. Theft under Docket Number 639 , 752
In 2013, the defendant plead guilty to theft (value between $500.00 and $1,500.00). Andre Guilfou testified that tools were stolen from his shed in Blue Bayou while he was at work. He stated that the defendant was working at his house six months prior to the theft, and the defendant had knowledge of the contents of his shed. Terrebonne Parish Sherriff s Office Detective Chris Dehart testified that he investigated the incident, and the defendant was arrested for the offense. Theft under Docket Number 664 , 310
In 2014, the defendant pled guilty to theft (value between $500.00 and $1,500.00). Thomas Novak, who owns a battery recycling company, testified that in 2013, approximately forty batteries were stolen from his inventory which he kept at the church where he served as a deacon. He proceeded to a nearby scrapyard where he located his batteries. He contacted the police and learned that the batteries were stolen by the defendant and another man.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So. 2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So. 2d 115. A district court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 2002-2849 (La. 1/10/03), 839 So. 2d 932, 934 (per curiam).
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.
Before other crimes evidence can be admitted as proof of intent, three prerequisites must be satisfied: (1) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect. See LSA-C.E. arts. 403 & 404(B); State v. Day, 2012-1749 (La. App. 1st Cir. 6/7/13), 119 So. 3d 810, 814-15. Where the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed. Id. at 815; see also State v. Blank, 2004-0204 (La. 4/11/07), 955 So. 2d 90, 125-26, cert. denied, 552 U.S. 994, 128 S. Ct. 494, 169 L.Ed.2d 346 (2007); State v. Williams, 96-1023 (La. 1/21/98), 708 So. 2d 703, 725-26, cert. denied, 525 U.S. 838, 119 S. Ct. 99, 142 L. Ed. 2d 79 (1998).
As to the first requirement, in this case, the prior acts were similar to the offense being tried. The offenses took place in generally the same area, were committed during daylight hours, and involved the taking of items that could easily be pawned or sold.
Second, in this case, intent was a genuine issue at trial, in that specific intent is an essential element of the crime of simple burglary. In order to convict the defendant of simple burglary, the State was required to prove beyond a reasonable doubt that the defendant entered a dwelling or other structure with the intent to commit a felony or any theft therein. See LSA-R.S. 14:62; Hardy, 154 So. 3d at 539 ("[s]imple burglary requires proof of specific intent that the perpetrator who made the unauthorized entry did so with the specific intent of committing a theft or other felony once inside."). Evidence, therefore, of the defendant's involvement in prior burglaries, acts of theft, and possession of stolen things had an independent relevance to show intent pertaining to the instant offense and was therefore admissible for this purpose under Article 404(B)(1). See Day, 119 So. 3d at 815. That some of the prior convictions occurred several years before the instant offense had no bearing on their admissibility in this case. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility. State v. Jackson, 625 So. 2d 146, 149 (La. 1993).
As to the third element, the defendant argues that he was unduly prejudiced by the introduction of these offenses. In determining whether the probative value of evidence outweighs its prejudicial effect, the underlying policy is not to prevent prejudice (since evidence of other crimes is always prejudicial), but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Humphrey, 412 So. 2d 507, 520 (La. 1981) (on rehearing).
Based on the facts and circumstances herein, we conclude that the other crimes evidence at issue was relevant to the defendant's motive, knowledge, and plan. Therefore, we find no abuse of discretion in the district court's ruling that evidence of the defendant's convictions for theft, simple burglary, and possession of stolen things were admissible at the instant trial. In its jury charges following closing arguments, the district court instructed the jury on the limited nature of the other crimes evidence, stating that evidence that the defendant was involved in the commission of offenses other than the instant offense was to be considered only for a limited purpose, and the sole purpose for which such evidence may be considered is whether it tends to show the defendant's motive, opportunity, plan, knowledge, identity, or absence of mistake or accident. The court also instructed the jury that it "cannot find [the defendant] guilty of this offense merely because he may have committed some other offense."
Nonetheless, even if we were to determine that the other crimes evidence was improperly admitted in this case, that would not end our inquiry, as the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis. The standard applied in making this determination is whether the verdict rendered was surely unattributable to the error. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993); State v. Johnson, 94-1379 (La. 11/27/95), 664 So. 2d 94, 101-102. In the instant case, the victim identified the defendant, whom he knew as his neighbor, as the person seen walking back and forth in the surveillance video. Officer Matherne confirmed that the person in the surveillance video resembled the defendant. When officers went to the defendant's home to question him, they observed tennis shoes with a purple substance in a crack of the sole as well as white clothing being washed or bleached. Moreover, many of the stolen items were found in the woods behind the defendant's home. Based on our review of the record, we find that the guilty verdict returned in the instant case was surely unattributable to any error in the admission of the extraneous other crimes evidence. Thus, even if the admission of the evidence were erroneous, the error was harmless beyond a reasonable doubt. See LSA-C.Cr.P. art. 921.
Accordingly, this assignment of error is without merit.
EXCESSIVE SENTENCE
In his second assignment of error, the defendant argues that the sentence imposed by the district court was excessive. Specifically, he argues that he has never committed a violent crime, and his sentence is "a waste of scant economic and human resources."
Louisiana Constitution article I, § 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A district court judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So. 2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So. 2d 962.
In State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court recognized that if a district court judge determines that the punishment mandated by the Habitual Offender Law makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he is duty bound to reduce the sentence to one that would not be constitutionally excessive.
But the holding in Dorthey was made only after, and in light of, express recognition by the Court that, "the determination and definition of acts which are punishable as crimes is purely a legislative function. It is the Legislature's prerogative to determine the length of the sentence imposed for crimes classified as felonies. Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional." Dorthey, 623 So. 2d at 1278. (Citations omitted.)
In State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. The court explained the considerations involved when finding a mandatory minimum sentence constitutionally excessive as follows:
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 non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. [La.] R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a "crime of violence" under [La.] R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant's record of non-violent offenses may play a role in a sentencing judge's determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.Johnson, 709 So. 2d at 676. The court further held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to "clearly and convincingly" show that:
[he] is exceptional, which in this context 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. (Citation omitted.)Johnson, 709 So. 2d at 676. Pursuant to LSA-R.S. 14:62(B), whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both. Louisiana Revised Statutes 15:529.1 provides, in pertinent part:
A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
* * *
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under [La.] R.S. 14:2(B), a sex offense as defined in [La.] R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
Herein, the instant offense and predicate numbers 2, 5, and 6 were punishable by imprisonment for twelve years. In addition, predicate number 4 was a crime of violence. Thus, the mandatory sentence required by Section 15:529.1(A)(4)(b) was imprisonment for the remainder of the defendant's natural life, without the benefit of parole, probation, or suspension of sentence.
At the sentencing hearing, the district court noted that the fifty-one-year-old defendant "has been continuing to break the laws of this state continuously, continually" and that it was "convinced if let out sooner [the defendant] would break the law again." The court opined that the defendant was a "career criminal" and "exactly what the Louisiana legislature envisioned when it passed this law, that when someone commits crimes so many times, enough is enough. And in this particular case, enough is enough." The court also pointed out that the defendant "created a horrible situation in the neighborhood that [he] lived in." In its written reasons for judgement, the district court described the defendant as a "non-violent, albeit remorseless, thief/burglar who has pilfered structures in south Louisiana for much of his adult life." The court acknowledged that although the defendant's criminal record was "extensive, none of the offenses involved death, serious bodily injury, rape or other sexually-charged offenses, or involved minors or other special victims. Nevertheless, the punishment meted out for [the defendant's] eight previous felony convictions accomplished nothing." The court further noted that the defendant "had multiple opportunities to choose another path in life" and was "far from rehabilitated[.]" The court further stated that the defendant would "likely, if not probably, reoffend if quickly released. Under these circumstances, society will be best protected by permanently removing [the defendant] from its midst."
The defendant failed to clearly and convincingly show that because of unusual circumstances, he was a victim of the legislature's failure to assign sentences meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Accordingly, there was no reason for the district court to deviate from the mandatory provisions of Section 15:529.1(A)(4)(a) in sentencing the defendant.
This assignment of error also lacks merit.
PRO SE ARGUMENT
In his pro se brief, the defendant does not set forth assignments of error, but argues that the record is incomplete and that accordingly, the record does not show the "facts of all the errors during [the] trial." Specifically, he contends that the record does not include "video film of trial" or the testimony of Detective Donald Bourg and Officer Jonathan Matherne, where they both purportedly stated that they could not identify the defendant as the suspect in the victim's surveillance video. The defendant asks this Court to "look at the entire record."
Contrary to the defendant's assertions, the record before us does contain surveillance video and the testimony of both Detective Bourg and Officer Matherne. Moreover, the record reflects that Officer Matherne testified that the defendant "resembled" the person in the surveillance video. Detective Bourg was asked whether he could "identify by facial features the individual depicted on the surveillance video" and responded, "No. It's pretty difficult." Thus, these contentions in the defendant's pro se argument are without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.