Opinion
NUMBER 2017 KA 1648
04-11-2018
STATE OF LOUISIANA v. RANDY LEE TURNER
Joseph L. Waitz, Jr., D.A. Ellen Daigle Doskey, A.D.A. Houma, LA Attorneys for Appellee State of Louisiana Bertha M. Hillman La. Appellate Project Covington, LA Attorney for Appellant Defendant - Randy Lee Turner
NOT DESIGNATED FOR PUBLICATION
Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne, Louisiana
Trial Court Number 717086 Honorable Juan W. Pickett, Judge Joseph L. Waitz, Jr., D.A.
Ellen Daigle Doskey, A.D.A.
Houma, LA Attorneys for Appellee
State of Louisiana Bertha M. Hillman
La. Appellate Project
Covington, LA Attorney for Appellant
Defendant - Randy Lee Turner BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
The defendant, Randy Lee Turner, was charged by bill of information with aggravated flight from an officer, a violation of Louisiana Revised Statutes 14:108.1C. He entered a plea of not guilty and, following a jury trial, was found guilty as charged by unanimous verdict. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied. The State subsequently filed a habitual offender bill of information. After a hearing, the defendant was adjudicated an eighth-felony habitual offender. He was sentenced to forty years at hard labor without the benefit of probation or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, alleging two counseled and two pro se assignments of error. For the following reasons, we reverse the defendant's conviction, vacate his habitual offender adjudication and sentence, and remand for a new trial.
The habitual offender bill of information lists the defendant's predicate offenses as: (1) December 18, 1996, conviction for possession of stolen things under Thirty-Second Judicial District Court ("32nd JDC"), Parish of Terrebonne, docket number 271,561; (2) December 18, 1996, conviction for possession with intent to distribute cocaine under 32nd JDC, Parish of Terrebonne, docket number 276,213; (3) September 19, 1997, conviction for possession of cocaine in a drug-free zone under 32nd JDC, Parish of Terrebonne, docket number 293,057; (4) November 20, 2003, conviction for distribution of cocaine under 32nd JDC, Parish of Terrebonne, docket number 420,869; (5) October 22, 2007, conviction for possession of cocaine under Seventeenth Judicial District Court ("17th JDC"), Parish of Lafourche, docket number 432,108; (6) July 3, 2009, conviction for possession with intent to distribute cocaine under 17th JDC, Parish of Lafourche, docket number 414,622; and (7) November 16, 2009, conviction for possession of a Schedule II controlled dangerous substance under 17th JDC, Parish of Lafourche, docket number 472,070.
FACTS
On January 8, 2016, at approximately 11:00 p.m., Terrebonne Parish Sheriff's Office Deputy Joseph Creppell was parked in a marked police unit at a shopping center located on Alma Street in Houma, Louisiana. His unit faced Hollywood Road and Monarch Drive. While parked, Deputy Creppell observed the defendant, who was driving a red truck, as he approached a stop sign and "rolled right through it." The deputy followed the truck and activated his lights and siren as the truck made a left turn on Alma Street. The deputy continued to follow the defendant as he turned right on Ninth Street. According to Deputy Creppell, at that point, the defendant pulled to the side of the road, but he then reentered the roadway and continued driving on Ninth Street. The defendant then turned left and approached a stop sign on Morrison Avenue, which he failed to obey. Next, the defendant made a right turn on Morrison Avenue. The defendant was driving approximately forty-five miles per hour as he failed to obey a second stop sign and made a left turn on Rightor Street. Deputy Creppell testified that the defendant was increasing in speed and approaching another vehicle that was driving the same direction in the same lane of travel. The vehicle moved over toward the grass, and the defendant crossed over into the other lane in order to get around the vehicle. The defendant then failed to obey a third stop sign and made a right turn on McKinley Street, where his passenger exited the truck. Deputy Creppell testified that he exceeded fifty miles per hour while driving on McKinley Street and that the defendant also exceeded fifty miles per hour on that stretch of McKinley Street. The deputy testified that the posted speed limit was twenty-five miles per hour. The defendant failed to obey a fourth stop sign at Robbie Street. According to Deputy Creppell's testimony, during the entire pursuit, the defendant would travel into the middle of the roadways and "ride in the middle." When the defendant finally came to a stop at West Park and McKinley Streets, Deputy Creppell exited his police unit and ordered the defendant to exit his truck. The defendant complied with the deputy's commands and was placed under arrest. According to Deputy Creppell, when the defendant was asked why he would not stop, he responded that he thought he had outstanding arrest warrants. The defendant denied speeding or failing to obey any stop signs and claimed that he stopped at every traffic light.
SUFFICIENCY OF THE EVIDENCE
In his second counseled and first pro se assignments of error, the defendant argues that the evidence presented by the State was insufficient to support his conviction of aggravated flight from an officer. In cases where a defendant has raised issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992). Accordingly, we first address the defendant's second counseled and first pro se assignments of error, which challenge the sufficiency of the evidence. Specifically, the defendant contends that the State failed to prove that he committed more than one of the aggravating acts listed in Louisiana Revised Statutes section 14:108.1D.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 2013-2973 (La. 2/21/14), 133 So.3d 1255, 1258 (per curiam); see also La. C.Cr.P. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence "assuming every fact to be proved that the evidence tends to prove . . . must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; Oliphant, 133 So.3d at 1258.
The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. See State v. Mire, 2014-2295 (La. 1/27/16), ___So.3d___, 2016 WL 314814 (per curiam). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 2014-1619 (La. App. 1st Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 2015-1912 (La. 1/25/16), 185 So.3d 748. The weight given evidence is not subject to appellate review; therefore, evidence will not be reweighed by an appellate court to overturn a fact finder's determination of guilt. State v. Wilson, 2015-1794 (La. App. 1st Cir. 4/26/17), 220 So.3d 35, 41.
Aggravated flight from an officer, in relevant part, is the intentional refusal of a driver to bring a vehicle to a stop under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe the driver has committed an offense. La. R.S. 14:108.1(C). The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle. La. R.S. 14:108.1(C). Circumstances whereinhuman life is endangered shall be any situation where the operator of the fleeing vehicle commits at least two of the following acts: (1) leaves the roadway or forces another vehicle to leave the roadway; (2) collides with another vehicle; (3) exceeds the posted speed limit by at least 25 miles per hour; (4) travels against the flow of traffic; (5) fails to obey a stop sign or a yield sign; or (6) fails to obey a traffic control signal device. La. R.S. 14:108.1(D). These exclusive aggravating factors elevate the crime of flight from an officer from a misdemeanor to a felony. See State v. Williams, 2007-0931 (La. 2/26/08), 978 So.2d 895, 896 (per curiam).
The testimony indicates that the defendant saw Deputy Creppell's marked police unit, with its emergency lights and siren engaged, and responded by failing to obey four stop signs and accelerating his vehicle to a speed in excess of the speed limit by twenty-five miles per hour. This evidence supports a finding that the defendant, knowing he had been given a visual and audible signal to stop by a police officer, intentionally refused to stop his vehicle and committed at least two of the enumerated acts defined as "circumstances wherein human life is endangered." See La. R.S. 14:108.1(C) & (D)(3) & (5).
Having reviewed the evidence in its entirety, we cannot say that the determination of the jury was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant committed the crime of aggravated flight from an officer. Accordingly, the defendant's second counseled and first pro se assignments of error are without merit.
JURY INSTRUCTIONS
In his first counseled and second pro se assignments of error, the defendant argues that the district court erred in allowing the State to argue to the jury that they could find human life was endangered if the defendant committed one of the enumerated acts listed in Louisiana Revised Statutes 14:108.1(D) more than once and in giving a supplemental instruction to the jury that a repeated enumerated act could constitute "at least two" acts.
As noted above, "Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop . . . under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer[.]" La. R.S. 14:108.1(C). Subsection D of the statute further defines circumstances wherein human life is endangered as any situation where the operator of the fleeing vehicle commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.La. R.S. 14:108.1(D).
(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic[.]
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.
In its opening statement, the State opined that in order for the defendant to be guilty of aggravated flight from an officer, the jury had to decide "whether two or more of the [enumerated] acts, or two times of some of the same act, in fact, were committed by [the defendant]." The State also explained to the jury, "if [the defendant] committed any one of these things, at least two or more times, and he was being followed by emergency lights and siren, and he failed to stop - and that's it. Then, your job is done, and he is guilty as charged."
Prior to closing arguments, the State filed a motion wherein it sought to prevent the defendant from arguing that two separate, distinct acts are required under La. R.S. 14:108.1(D). In support of its argument, the State cited State v. Byrd, 49,142 (La. App. 2nd Cir. 6/25/14), 145 So.3d 536, writ denied, 2014-1613 (La. 3/6/15), 161 So.3d 14. The defendant responded that the State should be prevented from presenting its argument to the jury and pointed out that the State's interpretation would make the statute impossible to apply. Specifically, defense counsel argued, "if someone is just constantly speeding at a rate of 85 miles an hour. . . . How do you count that as being more than once?"
After hearing arguments from both the State and the defense, the district court ruled in favor of the State, granting its motion to prohibit the defense from arguing that two separate, different acts are required under the statute. The district court cited Byrd and State v. Brown, 2015-96 (La. App. 5th Cir. 9/15/15), 173 So.3d 1262, writ denied, 2015-1872 (La. 10/10/16), 207 So.3d 403, in support of its ruling. Defense counsel objected to the district court's ruling.
In the State's closing argument, it stated that "circumstances wherein human life is endangered shall . . . be any situation where the operator of the vehicle fleeing commits at least two of the following acts - okay, which means it could be - one act multiple times[.]" The State then argued that the defendant failed to obey four stop signs, exceeded the posted speed limit by at least twenty-five miles per hour, entered the other lane of travel, and traveled against the flow of traffic. See La. R.S. 14:108.1(D)(1)(3), (4), & (5). In its rebuttal argument, the State noted that even if the defendant did not exceed the speed limit by at least twenty-five miles per hour, there was still testimony that the defendant failed to obey stop signs and traveled against the flow of traffic.
When the district court gave its jury instructions, it explained to the jury that "in order to convict the accused of Aggravated Flight from an Officer, you must find: . . . (6) that the circumstances were such that human life was endangered by the defendant's commission of two or more of the following acts[.]" The court then listed the six enumerated acts in Louisiana Revised Statutes 14:108.1(D). Approximately twenty minutes after retiring for their deliberations, the jury presented a question to the court, "under circumstances of Aggravated Flight from an Officer, he would have had to do two of the five; can he be counted with two of the same, or would he need to be charged with one of two different circumstances?" In response to the jury's question, the district court reread the statute to the jury and also instructed them, "It is sufficient to have a repeated act to constitute the two or more acts necessary to illustrate the circumstances wherein human life is endangered as required under the Statute."
It is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. State v. Carouthers, 618 So.2d 880, 882 (La. 1993) (per curiam). Thus, criminal statutes are given a narrow interpretation and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the State. State v. Becnel, 93-2536 (La. 5/31/96), 674 So.2d 959, 960 (per curiam); Chevalier v. L.H. Bossier, Inc., 95-2075 (La. 7/2/96), 676 So.2d 1072, 1076 (citing State v. Piazza, 596 So.2d 817, 820 (La. 1992)). The principle of lenity is premised on the idea that a person should not be criminally punished unless the law provides a fair warning of what conduct will be considered criminal. Piazza, 596 So.2d at 820. The rule is based on principles of due process that no person should be forced to guess as to whether his conduct is prohibited. Id. (citing Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979)). See State v. Carr, 99-2209 (La. 5/26/00), 761 So.2d 1271, 1274.
We find the district court's reliance on Byrd and Brown to be misplaced. In Byrd, the court found that "[h]uman life was endangered during the pursuit of Defendant because he failed to stop at several stop lights in downtown Shreveport at approximately 2:20 in the afternoon on a busy work day with both pedestrian and automobile traffic." 145 So.3d at 543. The State relied on the Byrd court's finding in support of its position. However, in Byrd, there was testimony by more than one law enforcement officer that in addition to failing to stop at stop lights, the defendant also failed to stop at stop signs and exceeded the posted speed limit by more than twenty-five miles per hour. 145 So.3d at 539-40. As noted in the footnote immediately after the quote relied upon by the State in the instant case:
Testimony offered by the officers also suggests that Defendant was speeding, but they did not testify as to his exact speed. Further, the officers testified that Defendant did not stop at stop signs on Traffic Street, which is located in Bossier Parish. We note that Defendant's failure to stop occurred in downtown Shreveport, Caddo Parish, and that the pursuit of Defendant began in Caddo Parish and continued across the Texas Street bridge into Bossier Parish.Byrd, 145 So.3d at 543, n.12.
Similarly, in Brown, the court found that the evidence was sufficient to support the defendant's conviction of aggravated flight from an officer and stated, "[r]ather than pulling over, defendant led the officer on a high-speed chase, disregarding traffic signals and speeding in excess of one hundred miles per hour." 173 So.3d at 1276. Despite the State's position, the Brown opinion does not appear to suggest that the defendant's failure to obey more than one traffic signal was sufficient to constitute circumstances under which human life was endangered. Although there was no testimony as to the posted speed limit in Brown, the defendant's one-hundred-mile-per hour speed indicates that he was driving in excess of that posted by at least twenty-five miles per hour.
In Williams, 978 So.2d at 896, the Louisiana Supreme Court noted that Louisiana Revised Statutes 14:108.1(D) "provides a specific and seemingly exclusive definition of the aggravating factors which elevate" the misdemeanor crime of flight from an officer to the felony crime of aggravated flight from an officer. The defendant in Williams was charged with aggravated flight from an officer in the Twenty-Fourth Judicial District Court, Parish of Jefferson. He was also charged in the Second Parish Court, Jefferson Parish, with a variety of traffic offenses arising out of the same incident. He entered guilty pleas to the traffic offenses in the Second Parish Court and filed a motion to quash the pending prosecution for aggravated flight in the Twenty-Fourth Judicial District Court on grounds that it would subject him to trial for the same conduct for which he had previously been convicted and punished in the Second Parish Court. The district court denied the motion to quash and the defendant entered a plea of guilty as charged. The court of appeal reversed the defendant's conviction, agreeing with him that his protection against double jeopardy precluded the second prosecution for aggravated flight from an officer following his guilty pleas to the traffic violations. State v. Williams, 2006-1898 (La. App. 5th Cir. 2/27/07) (unpublished). The Louisiana Supreme Court granted the State's writ application and reversed the ruling of the appellate court. The Williams court found:
The police report introduced at the hearing on the motion to quash established that defendant forced other vehicles off the roadway during the chase, a point conceded by the court of appeal, Williams, 2006-1898 at 6, and that he may have traveled against the flow of traffic by backing away from Officer McCartney as she approached and nearly collided with the patrol unit occupied by Officers Hill and Matthews. The court of appeal did not concede the latter point, id., but the state correctly notes that by pleading guilty defendant avoided a trial at which it would have the burden of proving beyond a reasonable doubt the required combination of acts in support of the aggravated circumstances of danger to human life to the satisfaction of a trier of fact. In the present case, the information contained in the police report held open the possibility that a rational trier of fact, considering all of the evidence presented at trial, could have found that defendant engaged in conduct giving rise to a risk to human life by first traveling against the flow of traffic however briefly when he backed away from Officer McCartney and nearly collided with the patrol unit occupied by Officers Hill and Matthews and then forced other vehicles from the road in the ensuing high-speed chase with the officers. Thus, from a functional perspective offered by the information contained in the police report, defendant's guilty plea to aggravated flight from an officer did not necessarily subject him to a second prosecution for conduct as to which he had already been prosecuted. (Emphasis added.)Williams, 978 So.2d at 898-99.
The Louisiana Supreme Court's analysis in Williams suggests that forcing more than one vehicle off the roadway is not sufficient to constitute "at least two" of the enumerated acts. Rather, the opinion appears to support the defendant's position that committing the same enumerated act more than once, i.e., forcing more than one vehicle off of the roadway, would not be sufficient circumstances to prove that human life was endangered.
We agree with the analysis in Williams, and find Byrd and Brown to be distinguishable. Moreover, under the principle of lenity, we must interpret Louisiana Revised Statutes 14:108.1(D) in the manner favorable to the defendant. Accordingly, we find that the district court erred in granting the State's motion and in instructing the jury that it was sufficient to have a repeated enumerated act. Thus, the defendant's conviction is reversed, his habitual offender adjudication and sentence are vacated, and the matter is remanded to the district court for a new trial.
The test for determining whether an error is harmless is whether the verdict actually rendered "was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 192 (1993). See also La. Code Crim. P. art. 921. While an erroneous jury instruction can be a trial error subject to a harmless-error analysis, see State v. Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419, 421-22, based on the jury's question posed twenty minutes after retiring for deliberations and the district court's response, we cannot say that the verdict actually rendered was surely unattributable to the district court's error in instructing the jury that it was sufficient under the statute to have repeated enumerated acts. Cf. State v. Fuentes, 2013-0957 (La. App. 1st Cir. 2/18/14) (unpublished), 2014 WL 651849, writ denied, 2014-0501 (La. 10/3/14), 149 So.3d 793.
Double jeopardy does not preclude the State from retrying a defendant whose conviction is set aside because of judicial error. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). --------
CONVICTION REVERSED, HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED; REMANDED FOR NEW TRIAL.
NO. 2017 KA 1648
THERIOT, J., dissenting in part and assigning reasons.
While I agree that the defendant's argument regarding the sufficiency of evidence lacks merit, I would also find that the defendant's argument as to the district court's jury instructions lacks merit. As such, I respectfully disagree with the majority in reversing the defendant's conviction, vacating the defendant's habitual adjudication and sentence, and remanding the defendant's case for a new trial.
The defendant argues that in order to prove that he committed aggravated flight from an officer, the state must prove that the defendant committed two separate acts proscribed by La. R.S. 14:108.1(D). The majority agrees with this assertion, finding that the district court erred in instructing the jury that "[i]t is sufficient to have a repeated act to constitute the two or more acts necessary to illustrate the circumstances wherein human life is endangered as required under [La. R.S. 14:108.1]."
I disagree. Allowing a defendant to commit any of the enumerated acts more than once without being deemed to have endangered human life would not serve the purpose of La. R.S. 108.1. The statute lists six acts; the violation of two of these acts would constitute circumstances wherein human life is endangered. La. R.S. 108.1(D)(1) considers an offender leaving the roadway or forcing another vehicle to leave the roadway. The legislature used the singular form of "vehicle" rather than its plural. Thus, it appears that forcing one vehicle from the roadway constitutes one "act" under the statute, and forcing a second vehicle off the roadway would constitute an additional "act." Similarly, failing to obey a single stop sign or yield sign constitutes one "act," but an offender who fails to obey multiple stop signs has committed multiple "acts" under the statute.
Further, Deputy Creppell's testimony indicates that the defendant committed two or more separate enumerated acts. Specifically, Deputy Creppell testified that the defendant ran four stop signs, forced a car to move to the side of the road so that the defendant could pass, entered into the other lane of traffic in order to pass the car, and travelled in the middle of the road throughout the pursuit. Accordingly, Deputy Creppell's testimony indicates that the defendant violated La. R.S. 14:801(D)(1), (4), and (5).
For the foregoing reasons, I would affirm the defendant's conviction.