Opinion
2016 KA 1480
04-12-2017
STATE OF LOUISIANA v. JOHNDELL RAYMOND TAYLOR
Hiller C. Moore, III Monisa L. Thompson Baton Rouge, LA Counsel for Appellee, State of Louisiana Bertha M. Hillman Covington, LA Counsel for Defendant/Appellant, Johndell Raymond Taylor
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana
Trial Court Number 10-13-0656
Honorable Louis R. Daniel, Judge Presiding
Hiller C. Moore, III
Monisa L. Thompson
Baton Rouge, LA Counsel for Appellee,
State of Louisiana Bertha M. Hillman
Covington, LA Counsel for Defendant/Appellant,
Johndell Raymond Taylor BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. WHIPPLE, C.J.
The defendant, Johndell Taylor, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. He entered a plea of not guilty and, following a jury trial, was found guilty as charged by a unanimous vote. After a habitual offender adjudication, the defendant was adjudicated a second-felony habitual offender. He was sentenced to fifty years at hard labor without the benefit of probation, parole, or suspension of sentence. He filed a motion to reconsider sentence, which was denied. The defendant now appeals, alleging one counseled and two pro se assignments of error. For the following reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
Dwight Kenneth Dozier was charged with the same offense by the same bill of information, but the charge against him was subsequently dismissed.
The defendant's predicate offense was his December 13, 2012 guilty plea to simple burglary and bank fraud under Nineteenth Judicial District Court docket number 08-12-0728.
FACTS
On May 11, 2013, around midnight, East Baton Rouge Parish Sheriff's Office Corporal David Arcediano was dispatched to an armed robbery near the corner of Joor and Prescott Road in Baton Rouge, which is a wooded area with limited streetlights. Upon arrival, he observed a small red Mazda partially in the road and came into contact with victims Brittney Dix and Johnathan Cador. According to the victims, while they were on their way home from picking up take-out dinner, their vehicle ran out of gasoline. A white vehicle pulled up behind them, and two black males, one later identified as the defendant, approached them. The defendant assisted the victims in moving their vehicle out of the roadway and offered to drive them to purchase gasoline. At some point, the other individual returned to the white vehicle, and the defendant continued to talk to the victims. Cador testified that because the defendant seemed "persistent" and the encounter seemed "sketchy," he declined further assistance from him and told Dix to get inside of their car. After Dix entered the vehicle, the defendant continued to talk to Cador. The defendant stated that he was going to get a gasoline canister from his vehicle, but he returned with a gun.
According to Cador, when the defendant approached him, he said, "Give me your money." Cador attempted to give the defendant a dollar bill, but the defendant hit him on his head with the gun. Dix testified that while she was sitting inside the vehicle, she heard the defendant say, "Bitch, stop playing with me." According to Dix, after she heard that statement, she heard a "click," which she explained was the sound of the defendant's gun hitting Cador's head. The defendant pointed the gun at Cador and again ordered him to hand over his money, so Cador tossed his money, which he testified was a few hundred dollars, to the defendant. The defendant also asked Cador for his cellular telephone, which he tossed to the defendant. The defendant then returned to the vehicle he arrived in. The vehicle then drove away from the scene. The victims walked to a gas station and called the police.
A few weeks after the incident, Baton Rouge City Police Department Corporal Jordan Lear created photographic lineups and provided them to the East Baton Rouge Parish Sheriff's Office, Both Dix and Cador identified the defendant as the person who robbed them.
EXCESSIVE SENTENCE
In his sole counseled assignment of error, the defendant argues that the sentence imposed by the district court is constitutionally excessive. Specifically, the defendant contends that the district court failed to give adequate consideration to four mitigating circumstances: (1) the defendant is the father of a five-year-old son; (2) the defendant was seventeen years old at the time he committed his first felony offense; (3) the defendant was twenty years old at the time of the instant offense; and (4) the defendant has a "drug problem" that caused him to drop out of school when he was thirteen years old. The defendant argues that he should receive drug rehabilitation and an education.
The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate the defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). 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. Further, 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.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the trial court adequately considered the guidelines. See State v. Herrin, 562 So. 2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So. 2d 942 (La. 1990). The articulation of the factual basis for a sentence is the goal of Article 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 Article 894.1. State v. Lanclos, 419 So. 2d 475, 478 (La. 1982). Even when the district court assigns no reasons, the sentence will be set aside on appeal and remanded for sentencing only if the record is inadequate or clearly indicates the sentence is excessive. State v. Knight, 2011-0366 (La. App. 1st Cir. 9/14/11), 77 So. 3d 302, 304, writ denied, 2011-2240 (La. 2/17/12), 82 So. 3d 283. On appellate review of sentence, the relevant question is whether the district 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).
Herein, the defendant was adjudicated a second-felony habitual offender and sentenced pursuant to Louisiana Revised Statutes 15:529.1A(1), which provides:
If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.
Pursuant to Louisiana Revised Statutes 14:64B, armed robbery carries a sentence of imprisonment at hard labor "for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence." As such, the defendant's sentencing exposure as a second-felony habitual offender was forty-nine and one-half years to one hundred and ninety-eight years without benefit of parole, probation, or suspension of sentence. See LSA-R.S. 14:64B; LSA-R.S. 15:529.1A(1); State v. Bruins, 407 So. 2d 685, 687 (La. 1981). He was sentenced to fifty years at hard labor without benefit of parole, probation, or suspension of sentence.
Prior to imposition of sentence, the district court ordered a pre-sentence investigation report ("PSI"). At sentencing, the district court noted that it reviewed the PSI in its entirety and considered the defendant's criminal, social, educational, and medical history. The court specifically stated that the defendant continued to deny responsibility for the instant offense. It also noted that the defendant's prior criminal history was extensive and included multiple arrests between 2008 and 2012, when the defendant was a juvenile. The court pointed out that the defendant received probation for his first felony conviction, but subsequently had it revoked and was sentenced to five years at hard labor. Regarding the defendant's educational history, the court noted that he dropped out of school around age thirteen due to "drug usage and apathy." The court noted that the defendant had a history of substance abuse including marijuana, ecstasy, and heroin. The court also took into account the defendant's medical history and diagnosis. Additionally, the court pointed out that the defendant never held a job and had been incarcerated "pretty much since [he was seventeen] years old." The district court stated that the defendant had a son who was five-years old and lived with the child's mother in Baton Rouge.
In reference to the instant offense, the district court stated that the defendant "knowingly created a dangerous situation in which someone could have been seriously hurt . . . I've considered the facts of this case in which basically you preyed on people that had the misfortune of being more or less helpless and [in] the guise of being a good Samaritan[,] you chose to be a thief and armed robber[.]"
In addition to the information provided in the PSI, the court stated that it considered the recommendation of the Office of Probation and Parole and the sentencing guidelines listed in Article 894.1. The court concluded that there was "almost a certainty that if [the defendant] were probated[,] [he] would commit another crime. That a lesser sentence . . . would deprecate the seriousness of [the instant] offense and that [the defendant is] in need of a custodial or correctional environment best served by commitment to an institution,"
Based on our review of the record, we find that the district court adequately considered the criteria of Article 894.1 and did not abuse its discretion in imposing the sentence. See LSA-C.Cr.P. art. 894.1A(1), A(2), A(3), B(1), B(5), & B(6). The court specifically rioted that it considered the Article 894.1 sentencing provisions. Contrary to the defendant's argument, the court noted that it took into account the defendant's age, educational level, work history, social history, and criminal history. The court also specifically stated that the defendant had a five-year-old son, who lived with the child's mother in Baton Rouge. Additionally, the sentence imposed was not grossly disproportionate to the severity of the offense and, thus, was not unconstitutionally excessive.
For all of the above reasons, this assignment of error is without merit.
RIGHT TO CONFRONT ACCUSER
In his first pro se assignment of error, the defendant argues that the State violated his right to confrontation of his accuser by presenting the photographic lineups without any testimony from his co-defendant. According to the defendant, the Baton Rouge City Police Department obtained an admission from his co-defendant implicating him in the aimed robbery, and he was "harmed by not being able to impeach [his co-defendant.]"
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004). Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224 (2006).
At trial, Lear testified that he created two identical photographic lineups containing a photograph of the defendant and provided them to the East Baton Rouge Parish Sheriff's Office. The State then introduced the two photographic lineups created by Corporal Lear into evidence. Dix and Cador testified that on June 6, 2013, a detective came to Cador's house and showed them the photographic lineups. They separately viewed the lineups and identified the defendant as the person who robbed them. Dix testified that she was able to identify the defendant "pretty quickly." Cador explained that he would not have circled anyone if he had not seen the person who robbed him.
The defendant failed to object to the introduction of the photographic lineups or the testimony surrounding their admission into evidence. Accordingly, he failed to preserve any Crawford issue for review. See LSA-C.E. art. 103A(1) ("Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of a party is affected, and . . . a timely objection . . . appears of record, stating the specific ground of objection."); LSA-C.Cr.P. art. 841A ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence."). Moreover, contrary to the defendant's assertion, the State did not present an admission from Dwight Dozier that implicated the defendant in the instant offense. Therefore, this assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second pro se assignment of error, the defendant contends that his counsel was ineffective for his failure to investigate and interview potential alibi witnesses, despite the defendant's "clear reliance on an alibi defense[.]" Specifically, the defendant argues that his trial counsel failed to interview his co-defendant and three black females, who he claims were present at the time of the offense.
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).
A claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the district court, where a full evidentiary hearing may be Conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1st Cir. 11/8/96), 684 So. 2d 432, 438. The allegations of ineffectiveness, as contained in the defendant's pro se brief herein, constitute an attack upon strategy decisions made by trial counsel.
This court, in State v. Martin, 607 So. 2d 775, 788 (La. App, 1st Cir. 1992), held that the investigation of strategy decisions requires an evidentiary hearing and, therefore, could not possibly be reviewed on appeal. For example, the three females and co-defendant that the defendant argues should have been interviewed by counsel may have testified at trial that the defendant was at the scene of the armed robbery. Accordingly, the claim of ineffectiveness as raised by the defendant in his pro se brief, regarding defense counsel's strategy, is not subject to appellate review. See State v. Johnson, 2006-1235 (La. App. 1st Cir. 12/28/06), 951 So. 2d 294, 302. See also State v. Albert, 96-1991 (La. App. 1st Cir. 6/20/97), 697 So. 2d 1355, 1363-64; State v. Allen, 94-1941 (La. App. 1st Cir. 11/9/95), 664 So. 2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So. 2d 433.
To the extent that the defendant argues that his counsel was ineffective for failing to raise an objection under Crawford to Corporal Lear's testimony regarding the photographic lineups, we note that there was no hearsay evidence presented by Corporal Lear to which counsel could have objected. Therefore, this assignment of error is also without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.