Opinion
NUMBER 2017 KA 1333
02-21-2018
STATE OF LOUISIANA v. CHARLES A. SMITH
Scott M. Perrilloux, D.A. Patricia Amos, A.D.A. 21st Judicial District Amite, Louisiana Attorneys for Appellee State of Louisiana Prentice L. White Louisiana Appellate Project Baton Rouge, Louisiana Attorney for Appellant Defendant - Charles A. Smith
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Livingston, Louisiana
Trial Court Number 32020 Honorable Elizabeth P. Wolfe, Judge Scott M. Perrilloux, D.A.
Patricia Amos, A.D.A.
21st Judicial District
Amite, Louisiana Attorneys for Appellee
State of Louisiana Prentice L. White
Louisiana Appellate Project
Baton Rouge, Louisiana Attorney for Appellant
Defendant - Charles A. Smith BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
The Grand Jury of Livingston Parish, Louisiana indicted the defendant, Charles A. Smith, with one count of aggravated rape, a violation of La. R.S. 14:42, and with two counts of aggravated kidnapping, violations of La. R.S. 14:44. The defendant pled not guilty. Following a trial by jury, the jury found the defendant guilty as charged on each count. The trial court denied the defendant's motion for new trial. The trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on each count, to be served consecutively. The defendant now appeals, assigning error to the trial court's denial of his motion for new trial, alleging systematic and intentional underrepresentation of African-Americans (males in particular) of the jury venire. The defendant also filed a pro se list of additional claims, but only provides a plausible briefing for his claim that the trial court failed to impose a separate sentence on each count. For the following reasons, we affirm the convictions and sentences.
In 2015, the Louisiana State Legislature amended the title of La. R.S. 14:42 from "aggravated rape" to "first degree rape." The amendments did not materially alter the substance of the statute. Based on the date the defendant committed the offense, this opinion references the prior version of La. R.S. 14:42. See 2015 La. Acts No. 184, § 1 (eff. Aug. 1, 2015) and 2015 La. Acts No. 256, § 1 (eff. Aug. 1, 2015), amending La. R.S. 14:42(A), (D)(1), and (E); see generally State v. Hyde, 2007-1314 (La. 11/21/07), 968 So.2d 726, 726 (the statute in effect at the time of the offense governs the applicable punishment for the crime, not the statute in effect on the date of conviction).
FACTS
On January 25, 2015, Deputy Tolar Smith of the St. Helena Parish Sheriff's Department was travelling eastbound on Highway 16 when he observed a white Chrysler PT Cruiser travelling at a high rate of speed. Although Deputy Smith activated his emergency lights as the vehicle approached his unit, the vehicle accelerated. Deputy Smith positioned his unit behind the vehicle and activated his sirens, pursuing the vehicle in an attempt to pull it over. Deputy Smith's unit travelled up to 110 miles per hour during the pursuit until the vehicle came to an abrupt stop. Deputy Smith drove slightly pass the vehicle before repositioning his unit, and at this point, an additional sheriff's deputy arrived to assist Deputy Smith. The driver, the defendant, fled through a wooded area. The vehicle's other two occupants, T.B. and her two-year-old daughter, C.S. (the victims), remained in the vehicle. The victims were screaming. T.B., who Deputy Smith described as hysterical and scared, indicated that she had been raped and kidnapped by the defendant. With the assistance of dogs, sheriff's deputies searched the wooded area. Though they did not find the defendant, the deputies recovered a black hoodie during the search.
Initials will be used to identify the victims in order to protect their identities. See La. R.S. 46:1844(W).
According to T.B., on the day in question, she brought C.S. to a Dollar General Store located near her home in Livingston Parish. After exiting the store, T.B. returned to her vehicle and secured C.S. in her car seat. T.B. became nervous when she observed an unknown male (the defendant) at the front of her vehicle wearing a hoodie. As T.B. attempted to shut the driver's door, the defendant forced the door open, placed a gun against the victim's stomach, and stated, "scoot the F over, or I'll hurt you." The defendant repeated his demand as T.B. scanned the parking lot to see if there was anyone around who could assist her. As she did not see anyone, T.B. complied with the defendant's demands. The defendant closed the driver's door, claiming that he had been shot and needed a ride. T.B. asked the defendant where he was going to take them and attempted to console C.S., who began to panic as she observed her mother crying in fear. The defendant stopped at a gas station and initially instructed T.B. to buy a box of condoms. However, the defendant hurriedly pulled out of the parking lot, as T.B. would not calm down. The defendant stopped at another gas station, again instructing T.B. to go into the store and purchase condoms and cigarettes, and to leave C.S. in the vehicle with him. The defendant warned T.B. that she "better not even make a peep to anyone, or talk to anyone, or he'll take off with [C.S.]." T.B. complied and when she reentered the vehicle, the defendant instructed her to put her head down as he drove to a wooded area on the side of a building and graveyard off of Hano Road, just outside of St. Helena in Tangipahoa Parish.
As C.S. remained in the vehicle, the defendant instructed T.B. to exit the vehicle and proceeded to force T.B., at gunpoint, to engage in sexual intercourse before reentering the vehicle. As the defendant drove off, he again instructed T.B. to put her head down. Just prior to seeing blue lights, T.B. observed the defendant as he began to panic. T.B. asked the defendant to pull over, but he refused and demanded that T.B. give him her driver's license, indicating that he would have someone kill her if she told anyone about his actions. After T.B. gave him her driver's license, the defendant stopped the vehicle, opened the driver's door, and fled from the vehicle. When the sheriff's deputies approached, T.B. told them what happened. Deputies took T.B. to an Our Lady of the Lake after-hours clinic, where a rape kit examination was conducted. T.B. later gave a recorded interview and identified the defendant as the perpetrator from a photographic lineup. A detective with the Livingston Parish Sheriff's Office then obtained a warrant for the defendant's arrest.
The defendant testified at the trial, indicating that he and T.B. knew each other, and that they had made plans to meet at the Dollar General Store in Livingston Parish. The defendant further indicated that T.B. asked him to drive as she attended to C.S., and that he and T.B. subsequently engaged in consensual sexual intercourse.
During the first post-arrest police interview, the defendant denied being in T.B.'s vehicle or ever touching the victim. At trial, the defendant testified that he initially told the police that he did not know T.B. because she had informed him that her boyfriend would hurt or kill her if he knew she had been with the defendant sexually.
PRO SE CLAIMS
As noted above, the defendant filed a pro se document in which he lists five "additional claims" which he labels as "constitutional issues which went unchallenged." We note that claim two appears to be an attempt to restate the issue raised in the counseled brief and fully addressed hereafter. We further note that claims three, four, and five were not developed or briefed. Pursuant to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. A mere statement of an assigned error in brief without argument or citation of authority does not constitute briefing. See State v. Gordon, 2004-0633 (La. App. 1st Cir. 10/29/04), 896 So.2d 1053, 1065, writ denied, 2004-3144 (La. 4/1/05), 897 So.2d 600. Accordingly, assignments of error numbers three, four, and five in the pro se brief are deemed abandoned.
The defendant appears to assert, without developing any discernable argument in support thereof, a claim of ineffective assistance of counsel. We note that as a general rule, a claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court, where a full evidentiary hearing may be conducted under La C.Cr.P. art. 930. The defendant would have to satisfy the requirements of La. C.Cr.P. art. 924 et seq., to receive such a hearing. --------
As to claim one, the defendant's pro se brief provides a discernable argument in support thereof. The defendant alleges that the record contains a patent sentencing error. He specifically argues that the trial court failed to impose a separate sentence on each count. Thus, the defendant argues that based on the absence of valid sentences, his appeal is not properly before this court.
The defendant is correct in asserting that a defendant can appeal from a final judgment of conviction only where a sentence has been imposed. La. C.Cr.P. art. 912(C)(1); State v. Chapman, 471 So.2d 716 (La. 1985) (per curiam). Patent sentencing error occurs when a trial court, in sentencing for multiple counts, does not impose a separate sentence for each count. See State v. Russland Enterprises, Inc., 542 So.2d 154, 155 (La. App. 1st Cir. 1989); State v. Brady, 506 So.2d 802, 803 (La. App. 1st Cir. 1987). Herein, the trial court unambiguously imposed "on each count" a sentence of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served "consecutive with each other." In this case, the trial court properly imposed a valid sentence on each count and the appeal is properly before us. Thus, we find no merit in claim one of the pro se brief. However, we note the following patent sentencing error.
PATENT ERROR
This court routinely reviews criminal appeals for patent error. Our review has revealed the existence of a patent sentencing error in this case. The defendant filed a motion for new trial on the date previously set for sentencing. The trial court denied the motion, without delay, just prior to the imposition of the defendant's sentences. Louisiana Code of Criminal Procedure article 873 mandates, in pertinent part, that "[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." Herein, the trial court erred by sentencing the defendant immediately after ruling on the motion for new trial.
Nevertheless, in State v. Augustine, 555 So.2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court indicated that a failure to observe the twenty-four hour delay provided in Article 873 will be considered harmless error where the defendant could not show that he suffered prejudice from the violation. See State v. White, 404 So.2d 1202, 1204-05 (La. 1981). In Augustine, the supreme court concluded that prejudice would not be found if the defendant had not challenged the sentence imposed, and the violation of the twenty-four hour delay was merely noted on patent error review. Augustine, 555 So.2d at 1334. In the instant case, the defendant has not assigned error to the trial court's failure to wait twenty-four hours prior to imposing the sentences after denying the motion for new trial, nor has he contested the sentences imposed. Under these circumstances, this patent sentencing error is harmless.
Furthermore, the trial court lacked sentencing discretion in this case. The defendant received mandatory sentences of life imprisonment at hard labor on each count. See La. R.S. 14:42(D)(1) and La. R.S. 14:44. Accordingly, any error in the trial court's failure to observe the twenty-four hour delay is harmless beyond a reasonable doubt and does not require a remand for resentencing. See State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).
MOTION FOR NEW TRIAL
In his sole assignment of error raised in the counseled brief, the defendant argues the trial court committed reversible error by denying his motion for new trial on the basis that African-American residents were either not summoned to appear or purposefully excluded from the jury selection process. The defendant further argues that the lack of a fair cross-section of the community during jury selection made inevitable a unanimous guilty verdict against the defendant, a black male, who was accused of raping and kidnapping a Caucasian female and her two-year-old child. The defendant notes that defense counsel brought to the trial court's attention during the voir dire process that while the African-American population in Livingston Parish was approximately 6.6% based on data from the 2010 U.S. Census, not one African-American citizen was present in the jury pool during the voir dire process. The defendant contends that a selection of the petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial.
The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. C.Cr.P. art. 532(9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. C.Cr.P. arts. 521, 532(9), and 535(C); see also State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 39, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288. Herein, the record shows that the defendant did not move to quash the petit jury venire by oral or written motion. Thus, the defendant did not properly raise his challenge to the jury venire's composition. Any grounds for that potential motion were waived. See La. C.Cr.P. art. 535(D).
Moreover, a general jury venire "shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race." La. C.Cr.P. art. 419(A). The defendant bears the burden of proving the grounds for setting aside the venire. State v. Liner, 397 So.2d 506, 516 (La. 1981); State v. Manning, 380 So.2d 54, 57 (La. 1980). The defendant must show more than the underrepresentation of blacks on the petit jury venire in order to prove a systematic exclusion of blacks. Manning, 380 So.2d at 57. The law requires that there must not be a systematic exclusion of blacks in the source or sources from which jury venires are chosen. A defendant is not entitled to a petit jury which reflects the population of the community in every respect. "Defendants are not entitled to a jury of any particular composition[.]" Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975); see also State v. George, 371 So.2d 762, 764 (La. 1979), cert. denied, 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325 (1979). A jury comprising a complete representation of the various groups within the community would be virtually impossible to seat. State v. Lee, 559 So.2d 1310, 1314 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).
Just before the voir dire of the first panel of prospective jurors, the defense counsel orally noted his observation for the record that there were no African-Americans on the panel of prospective jurors. Specifically, the following colloquy took place:
THE COURT:
All right. We need to bring up fourteen jurors - or perspective [sic] jurors.
BY MR. TOWN [defense attorney]:
Your Honor, I do have one more thing and -
THE COURT:
Yes, sir?
BY MR. TOWN:
In - when we read the venire initially, Your Honor, my observation was that there were no African-Americans whatsoever in the panel, and I know this parish has a percentage of African-Americans in this parish, and, therefore, I would just like the record to reflect that it is not - the panel is not reflecting the parish in its entirety.
THE COURT:
All right. So noted. I didn't notice when I was preclearing and if we need to note the record we'll note that there - you noted that there were no African-American perspective [sic] jurors, and we'll see who was brought up randomly. So, we need fourteen perspective [sic] jurors brought up.
The next day, after the jury selection was complete, the defense counsel reiterated his concern regarding the jury pool. The trial court allowed the defense counsel to introduce into the record data from the 2010 U.S. Census to show that the jury pool in this case was not a fair cross-section representation of the parish as a whole. After allowing the defense to introduce the documentation, the trial court reiterated that African-Americans were not excluded from the jury pool. The trial court specifically noted that prospective jurors were subpoenaed by normal routine and that the pool was reflective of the voluntary turnout among those subpoenaed. The trial court further noted that the jury pool routinely consisted of registered voters. The trial court overruled any objection to the trial commencing, and the case proceeded to trial.
Herein, the defendant failed to provide any basis to show that the venire should have been quashed because "persons were systematically excluded from the venires solely upon the basis of race." See La. C.Cr.P. art. 419(A). The defense counsel did not specifically allege fraud and offered no evidence of discrimination or irreparable injury attributable to the petit jury venire. The defendant merely observed that no African-Americans were in the venire, and made no effort to establish his claim. Other than mere allegations of impropriety in the selection of jury venires, the defendant has failed to show any evidence of a systematic exclusion of any distinct population from his venire.
In his motion for new trial, the defendant notes that Livingston Parish relies exclusively on voter registration in the composition of its petit jury venires. We note that La. C.Cr.P. art. 408.1(A) specifically allows for the exclusive use of voter registration rolls to call jury venires. It is well settled that the use of voter registration lists as the sole source from which a venire is compiled is a constitutionally sound practice unless the defendant can show that such a practice discriminates against a certain class of persons to the extent that the venire does not represent a fair cross-section of the community. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 446, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. Herein, the defendant has not shown that the procedure for drawing the venire worked any injustice in his case. La. C.Cr.P. art. 851. Thus, we find that the trial court properly denied the defendant's motion for new trial based on the racial composition of the jury venire. The counseled assignment of error is without merit.
For the foregoing reasons, the defendant's convictions and sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.