text:
    STATE of Louisiana v. Nina Lambert NEWTON.
    No. 12-541.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.

      John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.

      Todd S. Clemons, Todd Clemons & Associates, APLC, Lake Charles, LA, for Defendant/Appellant, Nina Lambert Newton.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL and J. DAVID PAINTER, Judges.
   COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

Defendant, Nina Lambert Newton, is the mother of Sean and Brandon Newton. Sean, Brandon, Joshua Lambert (their cousin), and three friends became involved in a gang dispute at Prien Lake Mall. The two gangs continued their confrontation in a neighborhood behind the mall. The six young men were all in the Newtons’ father’s car and Sean Newton was driving. The boys drove through the neighborhood looking for the other gang. When they saw the men, Sean fired a gun from the driver’s side window into the crowd. A fourteen-year-old girl who happened to be walking through the neighborhood was shot in the head. She died as a result of the gunshot wound. The six young men then drove to Lambert’s house, hid the gun, and burned Sean’s tee shirt. The two brothers and Lambert then went to the Newtons’ house and told Defendant and her husband, Rodney Bernard Newton, about the shooting. Defendant attempted to cover up the drive-by shooting by concocting a story and lying to the police about her sons’ and nephew’s whereabouts at the time of the shooting. After giving false information to the police, Defendant recovered the gun and got rid of it.

Defendant was indicted on April 19, 2010, for obstruction of justice, a violation of La.R.S. 14:130.1, and accessory after the fact to first degree murder, a violation of La.R.S. 14:25. A jury trial commenced on May 16, 2011, and on May 24, 2011, the jury returned a guilty as charged verdict.

Defendant filed a “Motion for New Trial with Incorporated Memorandum.” A hearing was scheduled for September 19, 2011. On September 19, Defendant argued why a new trial should be granted; however, the trial court denied the motion. After waiving all delays, Defendant was sentenced on the same date to ten years hard labor on the conviction for obstruction of justice, credit for time served, and five years hard labor on the conviction for accessory after the fact to first |2degree murder, with credit for time served. The five-year sentence was ordered to be served concurrently with the ten-year sentence. Defendant filed a “Motion to Reconsider Sentence.” Following a hearing, the trial court denied the motion on December 15, 2011.

Defendant has perfected a timely appeal, alleging her due process rights were violated when the State failed to disclose exculpatory evidence and that her sentences are constitutionally excessive considering the circumstances of her case.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find the following errors patent.

Defendant’s sentence for accessory after the fact to fust degree murder is indeterminate. Louisiana Revised Statutes 14:25 provides in pertinent part:

Whoever becomes an accessory after the fact shall be fined not more than five hundred dollars, or imprisoned, with or without hard labor, for not more than five years, or both; provided that in no case shall his punishment be greater than one-half of the maximum provided by law for a principal offender.

The sentencing transcript indicates the trial judge did not designate whether this sentence was imposed with or without hard labor, thus rendering it indeterminate. Accordingly, Defendant’s sentence for accessory after the fact to first degree murder should be vacated and the case remanded for resentencing with the trial court instructed to specify whether the sentence is to be served with or without hard labor. State v. Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243 (La.12/14/07), 970 So.2d 531.

We also find the record does not indicate that the trial court advised the Defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of article 930.8 at resentencing.

^ANALYSIS

Assignment of Error Number One

In her first assignment of error, Defendant asserts she suffered violations of her right to due process pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when the State failed to disclose exculpating evidence prior to trial. She alleges the State failed to disclose inconsistent statements given by two witnesses, Joshua Lambert and Terri Brown, who testified at trial. She further contends the State failed to inform her that one of the boys in the car with Sean Newton when he fired the gun, Jarius Watson, was offered immunity in exchange for his testimony.

In State v. Harper, 10-356, pp. 8-12 (La.11/30/10), 53 So.3d 1263, 1269-71 (alterations in original) (second omission in original), the supreme court discussed the Brady principle, as follows:

In accordance with the due process clause of the Fourteenth Amendment to the United States Constitution, the State must disclose evidence which is favorable to the defense when “the evidence is material either to guilt or to punishment” or impeaches the testimony of a witness where “the ‘reliability [or credibility] of a given witness may well be determinative of guilt or innocence.’ ” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see also, State v. Rosiere, 488 So.2d 965, 970 (La.1986). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also Rosiere, 488 So.2d at 970-71. Contrarily, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). “Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” Bagley, 473 U.S. at 675, 105 S.Ct. at 3380. Significantly, because the prosecution “alone can know what is undisclosed,” it is “assigned the consequent responsibility to gauge the likely net effect of all such [favorable] evidence [unknown to the defense] and make disclosure when the point of ‘reasonable probability’ is reached.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995).
_k--.
Nevertheless, the State’s constitutional obligation to disclose exculpatory evidence does not relieve the defense of its obligation to conduct its own investigation and prepare a defense for trial as the State is not obligated under Brady or its progeny to furnish defendant with information he already has or can obtain with reasonable diligence. State v. Kenner, 05-1052, p. 2 (La.12/16/05), 917 So.2d 1081, 1081 (citing United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988)); see also, Michigan v. Harvey, 494 U.S. 344, 348, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990) (“The essence of [defendant’s] right [to assistance of counsel for his defense] ... is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.”). It follows, therefore, “ ‘[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.’ ” State v. Hobley, 98-2460, p. 25 n. 10 (La.12/15/99), 752 So.2d 771, 786 (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998)), cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000). As the United States Fifth Circuit Court of Appeal has noted:
Regardless of whether the request was specific or general, and regardless of whether the evidence was material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.
The constitutional requirement of due process mandates that the defendant have a right to a fair trial. The prosecutor’s duty not to suppress material information favorable to defendant flows from his office as representative of the Government’s interest in and due process obligation to justice. Truth, justice, and the American way do not, however, require the Government to discover and develop the defendant’s entire defense.... In no way can information known and available to the defendant be said to have been suppressed by the Government.
United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980) (citations omitted). Moreover, the State has, “of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor,” and there is no corresponding “constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Agurs, 427 U.S. at 106-09, 96 S.Ct. at 2399-2400; see also Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972).

| r>Joshua Lambert

Joshua Lambert testified at trial he was riding in the passenger front seat in the vehicle when Sean Newton fired a shot out the driver’s side window into the group of men approaching the car. Lambert testified, after the shooting, they drove to his house, where the gun was hidden in a carport, and Sean Newton burned his tee shirt. During this time, one of the boys received a text telling them a little girl had been shot. The Newton boys and Lambert then went to Defendant’s apartment where they told Defendant and her husband Sean had shot a little girl. In an effort to cover for the boys, Defendant immediately called the police and reported that the boys had been assaulted at the mall by a gang of men.

Officer Mark Chatman was dispatched to Defendant’s apartment regarding her complaint that the boys were accosted by a group of men at the mall. Officer Chat-man testified he was not there regarding the shooting of the young girl and no one was Mircmdized. He stated Defendant did most of the talking, and she told him the boys had heard a shot as they left the mall. After Sean Newton asked the officer how the little girl was, the officer asked the Newtons, along with the boys, to go to the police station. The officer did not speak with them again after this initial meeting. He did state, while he was carrying a recording device at the time he talked to Defendant, he did not know if the device recorded the conversation or what became of the recording.

The following day, Defendant took Lambert back to his house where he retrieved the gun and gave it to her. When she returned to pick him up about forty-five minutes later, Lambert stated she told him not to worry about the gun — “It’s gone.”

Defendant argues in brief had she known of the inconsistent statements made by Lambert to Officer Chatman, she could have more properly prepared for her defense. “Most importantly, the defense could have used Lambert’s testimony |6to impeach him during cross examination.... Therefore, the fact that the State withheld Lambert’s previous inconsistent statement, alone, is sufficient to prove that the [sic] Nina Newton was deprived of a fair trial.”

Defendant refers to the following cross-examination of Officer Chatman regarding Lambert’s alleged inconsistent and exculpatory statements:

Q. Okay. And when you went there,you spoke to Nina and Rodney Newton?
A. That’s correct. I mainly spoke with Ms. Newton.
Q. Ms. Newton, right?
A. Yes.
Q. But you also spoke to Sean and Josh Lambert, correct, Sean Newton and Joshua Lambert?
A. No. Most of my conversation was with Nina Newton.
Q. Officer, I’m not asking about “most of your conversation.” My question is very clear. Didn’t—
A. Uh-huh (yes).
Q. —you speak to Joshua Lambert at his aunt and uncle’s apartment on the night of March 27th of 2010?
A. Yes.
Q. Okay. And he told you that he was in some type of altercation with another group of guys near the mall, correct?
A. That’s correct.
Q. He never told you that Sean Newton shot any gun that night, did he?
A. That’s correct.
Q. He never — and you spoke with him, right?
A. That’s correct.
Q. You (sic) never told you after the shooting he went by his apartment and Sean burned a shirt, did he?
A. No.
ItQ- Okay.
A. Uh-huh (yes).
Q. And he never told you that after the shooting, he went to his apartment and got rid of the gun, did he?
A. No.

Defendant contends the supposed inconsistent and exculpatory evidence was Lambert never told the officer Sean shot the victim, burned his shirt, or hid the gun. We note it is difficult to classify statements never made as non-disclosed inconsistent and exculpatory evidence. Lambert never made such statements because, as he explained at trial, Defendant concocted a story to tell the police in an attempt to cover up the boys’ participation in the shooting of the victim, and everyone, including Lambert, went along with the story. Defendant’s argument that the State either intentionally or negligently failed to disclose what the witness did not say to Officer Chatman is absurd, particularly as everyone, Defendant, her husband, and sons, all co-defendants, were present when the alleged inconsistent and exculpatory statements were not made.

Jarius Watson

Defendant also contends the State failed to reveal that Jarius Watson was offered immunity for his testimony. Watson testified he was in the back seat of the vehicle driven by Sean Newton and heard a gunshot. Watson stated he had seen the gun on the console between the driver’s seat and the passenger’s seat, and it sounded like the driver of the car — whom, he testified, was Sean Newton — had shot the gun out the window. Watson was charged with obstruction of justice and inciting a riot as a result of his participation in the incident.

Defendant asserts Watson “reasonably expected that he would receive immunity if he testified at trial.” Defendant asserts “[tjhis sort of information should have been presented to the defense prior to trial.... [Ajny inducement or | Rperceived inducement for Watson’s testimony is a bias that the jury, as triar [sic] of fact, should be made aware in determining his credibility as a witnesses.”

At trial, during cross-examination, Watson stated:

Q. Okay. Now, have you spoken with your attorney about any type of deal in this case?
A. No, sir.
Q. Okay. Do you expect any kind of benefit for your testimony?
A. Yes, sir.
Q. What do you expect?
A. Immunity.
Q. Okay. So you got immunity?
Q. Okay. When did you get that?
A. I’m not sure if I have it yet, but they was [sic] talking about it.
Q. Who was talking about it?
A. My lawyer and I.
Q. And she told you that it’s okay to testify, because you have immunity, that it won’t be used against you?
A. No, sir.
Q. And she told you she got that from the DA’s office?
A. No, sir. She just said she was talking to Ms. Jennifer about it. She didn’t tell me if it’s exact or nothing like that.
Q. Who is Ms. Jennifer — Bellon?
A. I guess. The DA?
Q. She works at the DA’s office?
A. Yes, sir.
Q. So your lawyer talked to Ms. Jennifer about immunity for you?
19A. Yes, sir.
Q. And in return, what did she say would happen with the immunity?
A. She didn’t tell me nothing. She— like she—
Q. She just said she had a conversation with Jennifer about immunity?
A. Yes, sir.
Q. And in return, that encouraged you to testify?
A. Yes, sir.
Q. And isn’t it true, Jarius, that you expect your charges to be dropped, don’t you?
A. Yes, sir.
Q. And you got that expectation from your lawyer, correct?
A. Yes, sir.
Q. And your lawyer got that expectation from the DA’s Office, correct?
A. Yes, sir.

During redirect examination, the witness stated no one from the district attorney’s office made any promises to him regarding immunity in exchange for his testimony. He agreed he was at trial pursuant to a subpoena. He stated, shortly before trial, he and his attorney met with Ms. Bellon. He further stated:

Q. Did she — at any time, did Ms. Bel-lon say anything about giving you any immunity or any promises?
A. No, sir.
Q. Okay. Okay. That’s just what you’re hoping for in connection with this case?
A. Yes, sir.

It is well-settled jurisprudence in Louisiana that a witness’s hope he might receive leniency from the state may be highly relevant to establish bias or interest, even though he has made no agreements with the state regarding the conduct. State v. Sparks, 88-17 (La.5/11/11), 68 So.3d 435, cert. denied, — U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). In Sparks, the defendant alleged the state had withheld information regarding the benefits its witness received for her testimony. It was learned during the murder trial the witness testifying against the defendant had several theft charges pending and had violated her parole, yet her parole was not revoked. It was later learned she received a Crime Stoppers reward of three hundred dollars for her testimony against defendant. The supreme court noted:

The Brady rule encompasses evidence which impeaches witness testimony when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 So.2d 956, 959 (La.1991). Brady also requires the disclosure of evidence concerning a promise of leniency or immunity to a material witness in exchange for his testimony at trial. Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).
Moreover, to the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope of knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); State v. Vale, 95-577, p. 4 (La.1/26/96), 666 So.2d 1070, 1072. A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding his conduct. Vale, 666 So.2d at 1072; State v. Nash, 475 So.2d 752, 755-756 (La.1985); see also State v. Bailey, 367 So.2d 368, 371 (La.1979) (When circumstances indicated the witness might have received the impression that testimony favorable to the State would result in dropping of charges against him, defendant was entitled to new trial where information was not revealed.)

Id. at 485-86.

In brief, the State argues Watson’s attorney’s request for immunity from the State’s investigator, Jennifer Bellon, was not the same as a promise of immunity as she did not have the authority to agree to immunity in this case. After the defense rested, Assistant District Attorney Cynthia Killingsworth advised the trial court she never offered immunity to Watson in exchange for his testimony. However, it was not clear from Watson’s testimony whether the investigator ever actually indicated to him directly there may be a possibility of immunity. In Sparks, at the hearing | ])for a new trial, the assistant district attorney testified he was not aware of the witness’s theft charges. He further testified she was not arrested because of the structure of the “bad check program” in their office. The supreme court noted:

[B]ecause the District Attorney’s office is charged with knowledge available to all acting on the State’s behalf in the case, Strickler [v. Greene ], 527 U.S. [263] at 281, 119 S.Ct. [1936] at 1948 [144 L.Ed.2d 286 (1999)], he has the duty to timely disclose “favorable evidence to provide the defense with adequate opportunity to present the material effectively in its case.” State v. Kemp, 2000-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545. Here, whether or not the prosecutors knew about the pending charges and attachment, this still constituted impeachment evidence regarding Ms. Broadway’s credibility and motivation to cooperate with the State. Thus, defendant has satisfied the first Strick-ler factor requiring the evidence have impeachment value.

Id. at 487.

The Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), factors referred to in Sparks, when determining whether a Brady violation undermines confidence in the outcome of the trial, are: “1) favorable (impeaching or exculpatory) evidence; 2) that must have been withheld; and 3) prejudice must have been caused thereby.” Sparks, 68 So.3d at 486. In the current case, while there may have been nondisclosure of impeachment evidence, as in Sparks, the nondisclosure did not rise to the level of materiality necessary to establish prejudice sufficient to undermine confidence in the outcome of the trial. As noted in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), evidence is material under Brady only if there is a reasonable probability that the result of the proceeding would have been different had the alleged impeachment evidence been disclosed. In the current case, Watson’s testimony was effectively corroborated by the testimony of Andre Broussard, who was also in the car with Sean Newton the night of the shooting. At the time of trial, Broussard’s felony charge of inciting a riot was still pending, and he testified, though he hoped for leniency from the State, he had not been offered anything in exchange for his testimony.

|12We find, even if Watson had received the impression he might gain leniency or immunity for his testimony, Defendant failed to show disclosure of this information would have altered the outcome of her trial.

Terri Brown

Defendant argues the State withheld from her a statement made by a witness telling where she saw the car Sean Newton was driving that night when parked at the mall. Detective Kevin Kirkum, a sergeant with the Lake Charles Police Department, testified Terri Brown had originally pointed out to the police where she saw Newton’s vehicle parked at the mall. However, a surveillance video utilized by the mall showed the vehicle in a different location than where Brown said she saw the car. Defendant argues this inconsistent information was never turned over to the defense prior to trial; accordingly, the defense was prejudiced by not being able to properly investigate the inconsistency.

We note Defendant does not explain how this inconsistent statement of Brown is exculpatory. Furthermore, the inconsistency was disclosed to Defendant in the State’s “Response to Defendant’s Motion for Discovery and Inspection” filed on August 16, 2010. In paragraph 6 of the response, the State reported “[W]hen T.B., age 16, showed detective where she remembered the car being parked, it was different from the area of the parking lot where Det. Thomas saw the defendants enter their vehicle and wrote down the license plate number.” As noted above, evidence is material and reversal warranted only if it is reasonably probable the result of the proceeding would have been different had the evidence been disclosed to the defense. State v. Marshall, 81-3115, 94-461 (La.9/5/95), 660 So.2d 819. Defendant has failed to show how this inconsistency would have changed the outcome of the trial. Three eyewitnesses, who were in the car with Sean Newton, testified he fired into the crowd of men. As a result, an innocent bystander, a fourteen-year-old girl, was shot in the head and killed. Lambert and [ is0fficer Chat-man each testified regarding the lies Defendant told to the police, and Lambert testified as to Defendant’s actions to destroy evidence. It is extremely doubtful the fact a witness described the car parked in a different location than what was seen on the mall’s surveillance video — a fact that the jury did hear — would have changed the outcome of Defendant’s trial.

Finally, as pointed out by the State, these alleged inconsistent or biased statements had little to do with the charges filed against Defendant. Regardless of the guilt or innocence of her co-defendants, the evidence was overwhelming she actively sought to cover up alleged crimes committed by her sons which resulted in the death of an innocent child.

This assignment of error is meritless.

Assignment of Error Number Two

In this assignment, Defendant argues her sentences, totaling ten years of imprisonment, are constitutionally excessive. She argues the trial court failed to consider several mitigating factors that “inure to the benefit of Nina Newton’s sentence.” As noted above in the errors patent discussion, the sentence of five years imposed on the conviction for accessory after the fact was found to be indeterminate, and that sentence will be vacated and the matter remanded to the trial court for further proceedings. Accordingly, we will review only the sentence of ten years imposed on the conviction for obstruction of justice.

The penalty provision of La.R.S. 14:130.1, obstruction of justice, provides, in pertinent part, as follows:

B. Whoever commits the crime of obstruction of justice shall be subject to the following penalties:
(1) When the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both.

|14In the current case, the criminal proceeding was for first degree murder. The punishment for the offense of first degree murder is either life imprisonment or death. La.R.S. 14:30(C).

Defendant was sentenced on September 19, 2011. At the sentencing hearing, she argued there were substantial factors which tended to excuse or justify her action and pointed out that her conduct neither caused nor threatened serious harm. She argued she was a first time felony offender, that her criminal conduct was unlikely to reoccur, and that the ten-year sentence was grossly out of proportion to the severity of the crime. The State argued not only did Defendant lie to the police to throw off their investigation into the death of an innocent child, but she took evidence, the gun, and destroyed it. She was sentenced to one fourth of the potential maximum sentence — ten years.

Defendant then filed a “Motion to Reconsider Sentence.” At the hearing on the motion, Defendant made the same argument she made at the sentencing hearing. However, the trial court did not agree that her actions were justified because of her “maternal instincts” and noted that her actions were not likely to reoccur because her son would be imprisoned for the rest of his life. The trial court stated the term of imprisonment was both a punishment and a deterrent, as was the purpose of the legislature when it enacted the obstruction of justice statute and put a range of imprisonment up to forty years in a situation where a death occurred.

This court discussed the standard of review applicable to claims of ex-cessiveness in State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted), as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad 11Bdiscretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

Furthermore, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

In State v. Newton, 42,743 (La.App. 2 Cir. 12/19/07), 973 So.2d 916, writ denied, 08-1147 (La.1/16/09), 998 So.2d 90, (a case unrelated to the current Defendant) the defendant and her husband apparently concocted a scheme to collect insurance money after they torched their home. However, the husband died as a result of the activity. The defendant was ultimately convicted of obstruction of justice. She was originally sentenced to ten years imprisonment, but after she was adjudicated a second time felony offender, she was sentenced to fifteen years imprisonment.

In State v. McKnight, 98-1790 (La.App. 1 Cir. 6/25/99), 739 So.2d 343, writ denied, 99-2226 (La.2/25/00), 755 So.2d 247, the appellate court did not find the defendant’s maximum sentence of forty years for obstruction of justice excessive under the circumstances. While McKnight was babysitting, the baby died for whatever reason. The defendant disposed of the baby’s body in a river. She encouraged her young son to lie regarding the disappearance of the baby. While |1Rthe court acknowledged the defendant was a first time felony offender, they found the fact that the defendant allowed hope of finding the child alive by not revealing what happened was heinous enough to merit a maximum sentence in this case.

In State v. Zachary, 07-678 (La.App. 1 Cir. 12/26/07), 973 So.2d 176, writ denied, 08-634 (La.11/21/08), 995 So.2d 631, cert. denied, 556 U.S. 1183, 129 S.Ct. 2003, 173 L.Ed.2d 1087 (2009), the defendant, convicted of obstruction of justice, helped her boyfriend dispose of the body of the person he murdered. She received twenty years after she was adjudicated a second felony offender.

Finally, in State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192, and writ denied, 08-2370 (La.1/30/09), 999 So.2d 753, Uloho received twenty-five years as a second time felony offender and alleged the sentence was excessive. The underlying conviction was obstruction of justice. After being apprehended as a suspect in a bank robbery, she hid two bags of money in the back of a police car. While a police car is routinely searched after a suspect is transported, in this case, the bags of money were not located. Later, the defendant told other police officers she saw the transporting officer remove two bags from the getaway vehicle and put them under the front seat of his vehicle. After the bags were located, the officer was falsely implicated in the robbery.

In the current case, we cannot say the trial court abused its vast discretion when it sentenced Defendant to ten years imprisonment. As in McKnight, she encouraged her sons and nephew to lie to the police. Her “justification” was to protect her son from the consequences of killing a child after shooting a gun into a crowd of people. We do not find the sentence of ten years imprisonment under the circumstances of this case is so disproportionate to the offense as to shock this court’s sense of justice. Therefore, we find no merit to this assignment of error.

hvDECREE

For the foregoing reasons, Defendant’s convictions are affirmed. Defendant’s sentence imposed on the conviction for obstruction of justice is affirmed. Defendant’s sentence for accessory after the fact to first degree murder is vacated and the case remanded for resentencing with the trial court instructed to specify whether the sentence is to be served with or without hard labor. The trial court is directed to inform Defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8 at resentencing.

CONVICTIONS AFFIRMED; SENTENCE FOR ACCESSORY AFTER THE FACT TO FIRST DEGREE MURDER VACATED AND REMANDED FOR RESENTENCING WITH INSTRUCTIONS.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brady HARRINGTON.
    No. 12-886.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.
    . Michael Harson, District Attorney, Fifteenth Judicial District Court, Ted L. Ayo, Assistant District Attorney, Abbeville, LA, for Appellee, State of Louisiana.

      Beth S. Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Brady Harrington.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

1 ] Defendant’s friend, Paxton Trahan, kicked open a door and Defendant, Brady J. Harrington, shot and killed Trahan’s father. A Vermilion Parish grand jury indicted Defendant and Trahan for second degree murder, a violation of La. R.S. 14:30.1. On the same date, the men were separately indicted for obstruction of justice, a violation of La.R.S. 14:13o.!. A jury convicted Defendant of these crimes.

The trial court sentenced Defendant to the mandatory term of life in prison without benefit of parole, probation, or suspension of sentence on the second degree murder conviction and to five years at hard labor on the obstruction of justice conviction. The sentences were ordered to be served concurrently.

Defendant now appeals his convictions and sentences. He assigns five errors but effectively abandons the fifth. This court upholds both convictions and the sentence for obstruction of justice but must vacate the second degree murder sentence and remand for resentencing based on a recent pronouncement by the United States Supreme Court.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues that the State’s evidence was not sufficient to support his convictions. Specifically, he argues that both of his experts at trial testified that he was unable to know right from wrong at the time of the offense or to form specific intent. Jurisprudence requires that we address this assignment first. State v. Hearold, 603 So.2d 731 (La.1992), and State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

|2The core of Defendant’s argument is that two trial experts testified that he did not have the cognitive capacity to be criminally liable for his actions, while the State produced a single expert to refute them. He notes that the State expert spent less time with him and did not perform behavioral testing on him. Also, one of Defendant’s friends, Mason Bedgood, testified that he was “somewhat slow” and was a drug addict with a passive personality who looked up to Trahan. Bedgood also testified that Trahan told him that he got Defendant to kill the victim for him.

These points were all before the jury, including Defendant’s mild mental retardation and drug usage. “It was within the jury’s wide purview to make credibility determinations and decide the weight of the expert testimony. See State v. Mussall, 523 So.2d [1305], 1310 [ (La.1988) ].” State v. Williams, 07-1407, p. 27 (La.10/20/09), 22 So.3d 867, 887, cert. denied, 560 U.S. 905, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010). Defendant claims the jury’s decision was irrational, but this is not supported by the mere fact that he produced one more expert than the State or that his experts performed more testing than the State’s expert. The evidence showed that Defendant obtained his G.E.D. certificate; also one of Defendant’s experts acknowledged “there are certainly times when he can distinguish right from wrong.”

Further, Defendant mentions that the State’s expert would not give an opinion regarding whether he was able to premeditate the murder. Such a refusal did not harm the State’s case, as premeditation is not an element of the crime. The elements of the crime include intent and act but not premeditation. La.R.S. 14:8; La. R.S. 14:30.1. This court has explained, “Defendant also points out that there is no evidence of any premeditation to attack or commit theft or any other crime against Mr. Bernard. We do not find that any of these arguments present a reasonable hypothesis of innocence. No premeditation is required to prove specific |sintent.” State v. Latiolais (La.App. 3 Cir.), 453 So.2d 1266, 1269, writ denied, 458 So.2d 125 (La.1984).

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the trial court erred by ruling that his statements to police were free and voluntary, as the court did not consider psychologists’ reports regarding his mental status. Although the State acknowledges that Defendant objected to the admissibility of his recorded statements at a pretrial hearing, it argues that the issue is moot because he failed to take a pretrial writ or renew his objection at trial.

The admissibility of the confession was contested at a pretrial hearing. However, when the video confession was offered at trial, Defendant initially expressed no objection. After most of the confession was played, Defendant moved for a mistrial, arguing that despite the pretrial hearing and ruling on admissibility, the court was required to make a separate determination at trial that the confession was free and voluntary.

The trial court denied the motion, stating that it was untimely. The trial court also stated that it had “reviewed the entire confession” and found it to be free and voluntary. The State briefly questioned Lieutenant Sammy Laporte of the Vermilion Parish Sheriffs Office on the issue, and the officer indicated that the confession was given freely and voluntarily.

Thus, defense counsel affirmatively stated that he had no objection when the video confession was initially offered at trial and failed to include the current argument regarding the psychologists when he finally challenged its admissibility. We find no jurisprudence that indicates Defendant’s second, more limited, argument at trial waived or precluded appellate review of his earlier arguments.

LThe second circuit has stated a general analysis regarding admissibility of confessions:

Before a confession may be introduced into evidence, “it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” La. R.S. 15:451. The state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession at a hearing on a motion to suppress. State v. Coleman, supra; State v. Hills, 354 So.2d 186 (La.1977). The state must also affirmatively prove that the defendant was first advised of his Miranda rights and that the confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. State v. Johnson, 36,014 (La.App.2d Cir.6/12/02), 821 So.2d 652. The testimony of the interviewing police officer alone may be sufficient to prove the defendant’s statement was given freely and voluntarily. State v. Trotter, 37,325 (La.App.2d Cir.8/22/03), 852 So.2d 1247, writ denied, 2003-2764 (La.2/13/04), 867 So.2d 689, recon. denied, 2003-2764 (La.4/23/04), 870 So.2d 282; State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240.
In State v. Jackson, 381 So.2d 485 (La.1980), and State v. Morvant, 384 So.2d 765 (La.1980), the Louisiana Supreme Court stated the principles under which the admissibility of a confession must be judged. As a matter of federal constitutional law, a confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897) and State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.
The admissibility of a confession is a question for the trial court, whose conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Coleman, supra; State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). Because the trial court has the opportunity to observe the witnesses and assess their credibility, we place great weight on its factual determinations. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082.

State v. Roshell, 40,374, pp. 6-7 (La.App. 2 Cir. 12/14/05), 916 So.2d 1268, 1271-72, writ denied, 06-771 (La.10/6/06), 938 So.2d 69.

Laporte stated that he advised Defendant of his Miranda rights; Defendant then waived said rights and made factual admissions about the murder. Under | f,cross-examination, Laporte testified that he questioned Defendant about his educational level, but trial counsel did not ask what reply was made. On re-direct, La-porte observed that Defendant also wrote out a statement.

Defense counsel recalled Laporte to ask him about an earlier incident in which then-juvenile Harrington threatened to commit suicide. The deputy testified he did not remember such an incident and did not recognize Defendant when he encountered him in the current investigation. The trial court then ruled that the statement was free and voluntary. As Defendant now argues, the trial court did not view the confession or refer to the psychological reports, which were produced after the confession was made.

On appeal, Defendant cites no jurisprudence showing that the trial court should have viewed the psychological reports; also, the trial court clearly stated that it viewed the recorded confession. Defendant argues that he should have had an interested adult with him during questioning but acknowledges that having such an adult present is not absolutely required.

The State argues that Defendant was seventeen years old when he shot the victim and, thus, was not eligible for the protections that Louisiana jurisprudence affords a juvenile. Further, the State argues that the key issue is not whether Defendant had any degree of mental retardation but whether he understood his Miranda rights. Defendant’s written confession shows his date of birth as September 20, 1990; the offense occurred in April 2008. Thus, he was not a “child” as defined by Louisiana law. La.Ch.Code art. 804(1); La. Const, art. 5, § 19. As for the State’s other point, the supreme court has explained:

When the issue in a ease on appeal is whether a defendant’s lack of intellectual ability precluded him from effectively understanding the essential nature of his constitutional rights, much weight is accorded the Trial Court’s assessment. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Coleman, 395 So.2d 704 (La.1981). | ^Moderate mental retardation or low intelligence does not vitiate a knowing and voluntary waiver of rights. State v. Thomas, 470 So.2d 413 (La.App.3rd Cir.1985). The critical factor is whether the defendant was able to understand the rights explained to him and make a knowing and voluntary statement. There was evidence presented from which the Trial Judge could determine that the defendant was able to understand his rights and validly waive them.

State v. Boothe, 532 So.2d 203, 207 (La.App. 3 Cir.1988).

Like the court below, this court has reviewed the entire DVD of the recorded confession. Defendant appears lucid throughout and appears to fully understand the circumstances. Giving due weight to the determinations of the trial court, and in view of Laporte’s testimony and Defendant’s demeanor and responses during his recorded confession, together with our own review of the confession, we conclude that this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that the trial court erred by denying his challenge for cause of a venire member who expressed doubts regarding sanity-based and intoxication-based defenses.

This court recently explained:

By the time the jury selection process was completed, the defendant had exhausted all of his peremptory challenges.
When an accused has exhausted all of his peremptory challenges before completion of the jury panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. State v. Monroe, 366 So.2d 1345 (La.1978), appeal after remand, 397 So.2d 1258 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411, reh. denied, 463 U.S. 1249, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983).
State v. Scriber, 605 So.2d 661, 664 (La.App. 2 Cir.1992).
As it applies in this matter, La.Code Crim.P. art. 797(4) provides that “[t]he state or the defendant may challenge a juror for cause on the ground that ... [t]he juror will not accept the law as given to him by the court[.]” Additionally, the supreme court has held that:
17Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Kang, 02-2812, p. 3 (La.10/21/03), 859 So.2d 649, 651; State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280. A district court’s erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant’s rights and constitutes reversible error. Kang, 02-2812, at p. 3, 859 So.2d at 652; State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686; State v. Bourque, 622 So.2d 198, 225 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16; State v. McIntyre, 365 So.2d 1348,1351 (La.1978). When a defendant uses a peremptory challenge after a challenge for cause has been denied, the defendant must show: (1) erroneous denial of the challenge for cause; and (2) use of all peremptory challenges. Kang, 02-2812, at p. 3, 859 So.2d at 652; Cross, 93-1189 at p. 6, 658 So.2d at 686; Robertson, 92-2660 at p. 2, 630 So.2d at 1280; State v. Lee, 559 So.2d 1310, 1316 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). In the instant case, defendant exhausted all of his peremptory challenges, and therefore, his objection to the ruling refusing to sustain his challenge for cause is properly before the court.

State v. Lindsey, 06-255, pp. 2-3 (La.1/17/07), 948 So.2d 105, 107. State v. Barnes, 11-1242, pp. 4-5 (La.App. 3 Cir. 5/2/12), 93 So.3d 666, 669.

The record indicates that Defendant exhausted his peremptory challenges, and the State does not dispute this point. During voir dire, venire member Rachael Lormand expressed reservations about the viability of an insanity-based defense. At one point she said, “I think it’s somewhat of a copout.” Later, the following colloquy occurred:

Q Yes, Ms. Lormand. Do you take the same position that Mr. Bengston does?
A Well, I don’t agree with it. It’s the law that I don’t agree with.
Q So it’s a law that you just couldn’t follow?
A Right.
|SQ And wouldn’t follow?
A Again, I’d have to hear the case, I guess.
Q Well, sure; absolutely.
A Again, it’s somewhat of a copout.

As the parties discussed their peremptory challenges, the following comments were made:

BY THE COURT: Mr. Ayo, Rachel Lormand?
BY MR. AYO: State accepts.
BY MR. CARROT: Defense moves for cause. She said it was a copout. Voluntary intoxication defense was a copout.
BY MR. AYO: But she said she could accept the law. She just had to hear all the evidence, Your Honor.
BY MR. CARROT: The last thing she said that she couldn’t, that she thought it was a copout. She said what you said about the insanity defense.
BY THE COURT: Y’all don’t talk to each other; y’all talk to me. What I have written down is that she said she doesn’t agree with the law. She doesn’t know if she could accept it. But after that, she said she couldn’t follow the law. Then she said, “Well, I would have to hear the case.” So I’m going to deny cause.

The prospective juror’s final response appears equivocal. However, a trial court’s decision on a challenge for cause is subject to deference on review as a majority opinion by the supreme court stated:

Both in brief and oral argument, the defendant places much emphasis on Mr. Whitcomb’s use of the word “probably” in response to defense counsel’s question regarding his likely vote if he thought “maybe” the defendant was guilty. The voir dire transcript of defense counsel’s question and Mr. Whitcomb’s response reads as follows:
Q: If you were a juror that decided this case, and after having heard all of the evidence in the case, you thought that maybe the Defendant did this?
A: Maybe, it would probably be Not Guilty.
|flThe defendant argues that “probably” indicates Mr. Whitcomb’s unacceptable hesitancy to find the defendant not guilty if the state fails to prove its case beyond a reasonable doubt. However, we note that Mr. Whitcomb first used the word “probably” when he stated that he would “probably” tend to believe the testimony of police officers over that of lay witnesses; therefore, if we were to give “probably” the inference that the defendant desires, we would not be here in the first place. It seems that Mr. Whitcomb did not utilize the word “probably” to demonstrate his “insistence” on crediting police testimony or out of an unwillingness to follow the law as provided by the trial court, but rather, it seems that Mr. Whitcomb utilized the word more from his hesitancy to answer questions in a process to which he was unaccustomed.
In reversing the judgment of the trial court, the court of appeal found Mr. Whitcomb “clearly indicated that he would give more weight to the testimony of a police officer than a lay witness.” Kang, 01-1262, p. 12 (La.App. 5 Cir 10/29/02), 831 So.2d 409, 415. Further, the court of appeal found that Mr. Whit-comb never unequivocally indicated he could disregard his initial bias toward police officers. Id. These conclusions are not supported by the record and demonstrate the court of appeal’s failure to give proper deference to the trial court’s findings. Mr. Whitcomb’s responses during voir dire should be viewed as a whole, not on a piecemeal basis. [State v.] Lee, 93-2810 at p. 9, 637 So.2d [102] at 108 [(La.1994)]. Though some of Mr. Whitcomb’s remarks or references could be viewed as questionable standing alone and out of context, when the voir dire is properly reviewed as a whole, there is no evidence of Mr. Whitcomb’s partiality. The record supports the trial court’s conclusion that Mr. Whitcomb did not state he would give an officer’s testimony more weight simply because he was employed as a police officer. The court of appeal erred in concluding that Mr. Whitcomb’s voir dire testimony clearly indicates his predisposition towards the testimony of a police officer than to that of a lay witness. Moreover, it is apparent from this conclusion that the court of appeal incorrectly failed the [sic] give the trial court’s conclusions any degree of deference. Properly reviewing the voir dire record as a whole, we find no facts from which we may reasonably imply Mr. Whitcomb’s bias, prejudice or inability to render a judgment according to law.
In sum, the court of appeal should not have disturbed the trial court’s proper refusal to strike Mr. Whitcomb for cause. The defendant’s assignment of error is without merit. Therefore, we reverse the court of appeal’s judgment to the contrary and remand this case to the court of appeal to consider the defendant’s remaining assignment of error.

State v. Kang, 02-2812, pp. 7-9 (La.10/21/03), 859 So.2d 649, 654-55.

11flThe Kang opinion, viewed as a mandate for deference to trial court rulings, supports a holding that the court in the present case did not err. Thus, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Defendant argues that his life sentence for second degree murder, although mandated by statute, violates the United States Supreme Court’s recent pronouncement in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Miller court held that the Eighth Amendment prohibits mandatory life sentences without parole for those under eighteen at the time the offense was committed. The Supreme Court explained that “[s]uch mandatory penalties, by their nature, preclude the sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” Id. at 2467.

Pursuant to La.R.S. 13:4448, this court notified the Attorney General’s Office of this issue. On December 10, 2012, this court received that office’s brief. Its first argument is that there is no showing this argument was raised below. However, sentencing took place on February 28, 2012. The Supreme Court issued the Miller opinion on June 25; therefore, Defendant did not have the opportunity to raise the issue below.

The State’s original brief notes that the defendant in Miller was fourteen years old, while the present Defendant was seventeen years old at the time of the offense. However, this fact has no bearing on the current analysis. The record shows that Defendant received the mandatory sentence prescribed by La.R.S. 14:30.1: life in prison, without benefit of parole, probation, or suspension of sentence.

|nThe Attorney General’s Office concedes that if the merits are addressed, the murder sentence must be vacated, and the case remanded for resentencing. However, it suggests resentencing should be postponed until the legislature acts to bring the statutory sentence in line with Miller. Alternatively, it proposes that Defendant should have to serve at least thirty years in prison before becoming eligible for parole, pursuant to La.R.S. 15:574.4, which states in pertinent part:

D. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1), shall be eligible for parole consideration pursuant to the provisions of this Subsection if all of the following conditions have been met:
(a) The offender has served thirty years of the sentence imposed.

We are not at liberty to declare all or part of La.R.S. 15:574.4(D) unconstitutional as no challenge to that statute has been brought before us. Neither can we take it upon ourselves to rewrite the statute so as to bring it in line with Miller or apply a reformed version to our analysis of Defendant’s assigned error. At this juncture, we can only recognize that Defendant’s sentence must be vacated and remanded because it clearly runs afoul of Miller.

For the reasons discussed, this assignment has merit. The second degree murder sentence must be vacated, and the case remanded for resentencing in accordance with Miller.

ASSIGNMENT OF ERROR NUMBER FIVE

In the original brief, appellate counsel advised that she was requesting the transcript of the hearing on Defendant’s motion for new trial and motion for post-_jverdict12 judgment of acquittal. She reserved the right to file a supplemental brief, but did not file one. We consider this assignment abandoned.

DECREE

Defendant’s conviction for second-degree murder is affirmed. However, the sentence for second degree murder is, hereby, vacated, and the case remanded for resentencing in accordance with Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . This matter is consolidated with docket number 12-887 in which Defendant’s conviction and sentence for obstruction of justice are affirmed.

      . The Attorney General’s Office cites State v. Crockett, an unpublished case bearing docket number 12-415 (La.App. 1 Cir. 11/14/12), 2012 WL 5506870, which vacated a sentence and remanded for resentencing, pursuant to Miller.


author: COOKS, Judge. PAINTER, Judge,

text:
    David EARLY v. R AND J TECHNICAL SERVICES, INC.
    No. 12-686.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.

      Harry Burdette, Lafayette, LA, for Plaintiff-Appellant, David Early.
    Paul W. Jones, Salt Lake City, UT, for Defendant-Appellee, R and J Technical Services, Inc.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   COOKS, Judge.

| plaintiff, David Early, appeals the judgment of the Workers’ Compensation Judge (WCJ) dismissing his claim against Defendant, R and J Technical Services (R and J) with prejudice. For the following reasons, we affirm.

FACTS

Plaintiff was contacted in Lafayette Parish, Louisiana to perform work for R and J in North Dakota. He allegedly sustained an electrical shock injury on July 10, 2010. A claim was filed with the North Dakota Workforce Safety and Insurance (NDWSI). On September 23, 2010, the NDWSI issued a “NOTICE OF DECISION DENYING BENEFITS.” It was determined that Plaintiff did not sustain a work-related injury. The Notice also included language notifying Plaintiff of his right to dispute the decision within thirty days by notifying his claims adjuster. Rather than disputing that decision, on October 10, 2010, Plaintiff filed a disputed claim for compensation with the Louisiana Office of Workers’ Compensation. The disputed claim was served on the NDWSI, as well as R and J. A motion to dismiss the disputed claim for compensation was filed by R and J, asserting that the claim was adjudicated in the North Dakota tribunal and, that because Plaintiff failed to properly dispute the decision of the NDWSI, that decision is res judicata and, as the judgment of another state, it is entitled to the full faith and credit of the courts of this state. The WCJ granted the motion. Early appeals.

ANALYSIS

In his first issue, Plaintiff asserts he was not “properly noticed that [NDWSI] was an alleged tribunal and not an insurance company.” We find no merit in this argument.

|2The North Dakota legislature created the NDWSI, which is a tribunal with authority to render judgments in all workers’ compensation claims that have the same effect as a court. It is the equivalent of Louisiana’s Office of Workers’ Compensation. Plaintiff has set forth no reasonable assertion or any authority for his erroneous belief that the NDWSI was an insurance company.

As to Plaintiffs argument that he was not “properly noticed” by the NDWSI, he unequivocally acknowledged that he received from NDWSI a “Notice of Decision Denying Benefits,” which gave the following instructions with regard to disputing the decision:

If you feel this decision is incorrect, please write to your claims adjuster within 30 days of the date on this notice to request reconsideration. Please explain why you think the decision is wrong and what you think the correct decision should be. Also enclose any additional information for WSI to consider. The request for reconsideration must be in writing from you, not your physician. If a request for reconsideration is not received within 30 days, this decision will be final. If you agree with this decision, nothing more is required.

Plaintiff argues this notice “does not advise [him] that this is a judicial determination or that if he fails to request reconsideration within thirty days that all remedies for his workers’ compensation claim will have been judicially exhausted.” We note, initially, this assertion is untrue as the notice from the NDWSI does advise him of his legal rights to appeal. Further, Plaintiff has cited no legal authority as to why his erroneous belief the NDWSI was an insurance agency would relieve him of his duty to adhere to North Dakota workers’ compensation law and appeal procedures considering he voluntarily filed his claim there.

In his second assignment of error, Plaintiff argues the NDWSI “was divested from any jurisdiction in claimant’s workers’ compensation claim when claimant filed a Disputed Claim for Workers’ Compensation Benefits (Form 1108) in ^Louisiana prior to a final adjudication by [the- NDWSI].” Again, Plaintiff cites to no legal authority for this proposition.

In his oral reasons for judgment, the OWC judge noted the United States Supreme Court case of Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980). In that case, The United States Supreme Court stated “the fact findings of state administrative tribunals are entitled to the same res judi-cata effect in the second State as findings by a court.” Id. at 281, 100 S.Ct. at 2660. Therefore, the Louisiana Office of Workers’ Compensation is compelled by the Full Faith and Credit Clause to give preclusive effect to the fact findings of a North Dakota administrative tribunal.

In the present case, Plaintiffs claim for benefits in Louisiana is completely conditional upon his having sustained his alleged injury while working in North Dakota. However, the administrative tribunal of North Dakota (the NDWSI) has already ruled on the fact and found that Plaintiff did not sustain such an injury. Under Thomas, the Louisiana court must give full faith and credit to that factual determination. Without an injury, the Louisiana Office of Workers’ Compensation was required to dismiss Plaintiffs claim. There was no error in the OWC’s grant of the motion to dismiss.

Finally, R and J asks this court to award damages for frivolous appeal pursuant to La.Code Civ.P. art. 2164. However, R and J failed to file an answer to the appeal requesting such damages, and therefore, we are precluded from considering this issue. La.Code Civ.P. art. 2133.

RDECREE

The judgment of the Louisiana Office of Workers’ Compensation dismissing Plaintiffs claim is affirmed. All costs of this appeal are assessed to Plaintiff-Appellant, David Early.

AFFIRMED.

PAINTER, Judge, dissents and assigns written reasons.

PAINTER, Judge,

dissents.

hi respectfully dissent from the majority opinion herein and would reverse the judgment of the Workers’ Compensation Judge dismissing Early’s claim and would order the matter stayed

I believe that the filing of the claim and service thereof on the NDWSI was suffi-eient notice of intent to dispute the decision to interrupt the delay for disputing it set out in the notice issued by the NDWSI.

Therefore, it is my opinion that no final judgment exists such as to support an exception of res judicata or the existence of a final judgment entitled to the full faith and credit of the courts of this state. I would, however, find that the doctrine of Us "pendens is, however, applicable. Louisiana Code of Civil Procedure Article 5B2 provides that:

When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same transaction or occurrence, between the same parties in the same capacities, on motion of the defendant or on its own motion, the court may stay all proceedings in the second suit until the first has been discontinued or final judgment has been rendered.

Because suit is pending in the North Dakota court, I would reverse the judgment of the trial court dismissing Early’s claim and order this matter stayed until the North Dakota proceeding is discontinued or a final judgment has been rendered.

      . Counsel for Defendant, Paul W. Jones, applied for and was granted admission to the Louisiana State Bar Association pro hac vice.