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    STATE of Louisiana v. Emma J. RAINE
    NO. 2017-KA-0330
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 7, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Orleans Parish, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE, STATE OF LOUISIANA
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, COUNSEL FOR DEFENDANT/APPELLANT, EMMA RAINE
    (Court composed of Judge Terri F. Love, Judge Paula A. Brown, Judge Dennis R. Bagneris, Pro Tempore)
    Judge Terri F. Love This appeal arises from the conviction and sentencing of defendant for the second degree murder of her husband. Defendant contends on appeal that the evidence was insufficient to support her conviction, that the trial court improperly admitted hearsay evidence, and that the jury was improperly influenced by prosecutorial misconduct.
    After reviewing the record, we find that sufficient evidence was presented at trial to sustain the defendant's conviction for second degree murder. As for the alleged admittance of hearsay evidence, we find that the declarant was unavailable, thus allowing the admittance of the declarant's nontestimonial statements against his penal interest, as recounted by numerous witnesses. Lastly, we find that any alleged misconduct contained in the State's closing arguments was cured by the trial court's jury instructions. As such, the conviction and sentence of Ms. Raine is affirmed.
    FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    Earnest Smith was murdered in New Orleans on April 12, 2006, at his residence on Roger Drive. He died of multiple gunshot wounds.
    Sergeant Randi Gant of the New Orleans Police Department ("NOPD") responded to the homicide by shooting call and described arriving on the scene. Sgt. Gant saw Mr. Smith lying on the bottom of a set of stairs, with a trail of blood leading to his body. Later, police discovered two spent nine-millimeter casings near where Mr. Smith's motorcycle was parked outside the front door. Sgt. Gant testified that Emma Raine, Mr. Smith's wife, dialed 911. Ms. Raine told Sgt. Gant that she had been in her bedroom sleeping all day after taking medication for a toothache. According to Ms. Raine, Mr. Smith went with a friend to a motorcycle racing event. As he came home, Ms. Raine heard a popping noise. When she came down the stairs, Mr. Smith told her, "Babe, I've been shot," and then collapsed.
    Mr. Smith's daughter, Quentine Jefferson, learned about her father's murder from Ms. Raine, who told Ms. Jefferson that "[s]he asked him to go outside to get his motorbike. When he went around to get his motorbike, someone shot him." Ms. Jefferson later briefly lived with Ms. Raine in Picayune, Mississippi. However, Ms. Jefferson moved out after a friend of Ms. Raine's daughter told her Ms. Raine was involved in her father's death.
    Ms. Jefferson testified that at the time of her father's death, she was unaware that she was the beneficiary of a life insurance policy on him. Ms. Raine originally purchased the policy in 1997 in the amount of $100,000, naming herself as the sole beneficiary. The policy was increased several times between 2000 and 2005. In November of 2005, Ms. Raine increased the policy to $800,000. On February 20, 2006, less than two months before the victim's death, Ms. Raine changed the beneficiary of the policy, removing herself and naming James Raine (who would become her third husband) and the victim as beneficiaries, so that the proceeds of the policy would be divided between Mr. Raine and the victim's estate, his sole heir being Ms. Jefferson.
    Ms. Jefferson testified that she discovered the existence of the insurance policy in the summer of 2010 when she "googled" her own name. Ms. Jefferson believed that she should have received $400,000 upon her father's death. Ms. Jefferson stated that she later learned that Ms. Raine's daughter, Keisha Judge, forged her signature on an insurance document to allow her mother, Ms. Raine, to collect the proceeds.
    Lieutenant Brad Garrett, who investigated the death of Ms. Raine's third husband, confirmed that Ms. Judge signed the policy. Ms. Judge pled guilty to conspiracy and forgery in 2014, and was sentenced to ten years probation. Lt. Garrett explained that Ms. Raine was charged with the same crime, but that the case against her was still pending.
    The State also introduced evidence of the death of Ms. Raine's third husband, James Raine. Mr. Raine and Ms. Raine married in 2008 and moved to Poplarville, Mississippi. On October 21, 2011, Mr. Raine's body was found lying on a bed in the home they shared, with multiple gunshot wounds to the head. Although there were signs of forced entry, the home's video surveillance system was turned off the previous day, recording Ms. Raine as the last person in the house. After the discovery of his body, many of Mr. Raine's family members gathered at the house. Among them were Enoch Raine, Mr. Raine's brother, and William Fowler, Mr. Raine's uncle. At the scene, the family overheard rumors that Mr. Raine and another relative, Alfred "Terry" Everette, were involved in the murder of Mr. Smith, the victim in this case. Fearing for Mr. Everette's safety, the family later confronted him.
    Enoch, Mr. Everette's step-brother, and Mr. Fowler, Mr. Everette's uncle, took Mr. Everette for a drive so they could discuss the rumors. The men went to "a secluded area where nobody could hear or see [them] while [they] were discussing the situation." According to Enoch, Mr. Everette began to cry and said, "I want to do everything to make it right." Pressed about what happened, Mr. Everette said, "James and Emma got me to kill Ernest." Mr. Fowler testified similarly about Mr. Everette's confession in the car. According to both Enoch and Mr. Fowler, Mr. Everette continued to describe how he murdered Mr. Smith. Afterwards, the men went to pick up the family's oldest male, Henry Fowler, Mr. Everette's uncle. Henry testified that Mr. Everette said "James and Emma gave him [the gun] to shoot this man down there." The men offered to help and believed that Mr. Everette would turn himself in.
    Soon after the confession, an anonymous caller told Enoch that she was going to leave some papers in his mailbox. The papers involved the beneficiary change on Mr. Smith's life insurance policy, as well as documents surrounding a suit filed by the insurance carrier against Mr. Raine and Ms. Raine. Enoch shared these documents with the police investigating the murder of Mr. Raine. After seeing a television program that referred to the murder of Mr. Smith as a cold case, Enoch contacted the New Orleans detective assigned to the case. Enoch, Mr. Fowler, and Henry eventually drove to New Orleans to give statements to Detective DeCynda Barnes. After investigating further, Detective Barnes secured warrants for the arrest of Mr. Everette and Ms. Raine, charging Mr. Everette as the shooter and Ms. Raine as a principal to murder.
    Donald Glover testified that he and Mr. Everette became friendly during their incarceration in Orleans Parish Prison, talking every day during their seven or eight months there together. Mr. Glover testified that Mr. Everette admitted to him that he had killed Mr. Smith and claimed that he was to be paid for the murder by his half-brother, Mr. Raine and the half-brother's (soon-to-be) wife, Ms. Raine. According to Mr. Glover, Mr. Everette explained that he was caught because he drunkenly confessed to a family member. Mr. Glover was offered an eight-year plea offer before revealing the information about Mr. Everette. He ultimately received a six-year sentence after pleading guilty to the charge against him after Mr. Everette's trial.
    At trial, Mr. Everette took the stand and refused to testify. The State called him as a witness, but he refused to answer the State's questions and would not give a response when counsel for Ms. Raine asked if there was any question he would answer.
    PROCEDURAL HISTORY
    An Orleans Parish grand jury returned an indictment charging Ms. Raine and Mr. Everette with one count of violating La. R.S. 14:30.1, relative to the second degree murder of Mr. Smith. At their arraignment, both defendants pled not guilty to the charge.
    In December of 2014, the State severed the cases of Mr. Everette and Ms. Raine, proceeding to trial with Mr. Everette. After a three-day trial, a jury found Mr. Everette guilty as charged. His conviction and sentence of life imprisonment at hard labor were affirmed by this Court.
    In preparation for Ms. Raine's trial, the State filed in open court its notice of intent to use evidence of similar crimes, wrongs, and/or acts against Ms. Raine, pursuant to La. C.E. art. 404(B) and the rules set forth in State v. Prieur , 277 So.2d 126 (1973). Specifically, the State sought to introduce evidence surrounding the deaths of Ms. Raine's first husband, Leroy Evans, and her third husband, Mr. Raine. Ms. Raine filed an Opposition to the State's use of the evidence.
    The trial court held a Prieur hearing, ruling that evidence related to Mr. Evans's death was inadmissible but that evidence pertaining to the death of Mr. Raine was admissible as res gestae and as substantive evidence of planning, preparation, and motive with respect to the charged murder of Mr. Smith. This Court denied Ms. Raine's supervisory writ, as did the Louisiana Supreme Court.
    Ms. Raine stood trial for second degree murder from August 9, 2016 to August 12, 2016. The jury found Ms. Raine guilty as charged of second degree murder. Ms. Raine was sentenced to life imprisonment at hard labor. The trial court granted Ms. Raine's motion for appeal.
    ERRORS PATENT
    A review of the record for errors patent reveals none.
    SUFFICIENCY OF THE EVIDENCE
    Ms. Raine asserts that the evidence was not sufficient to convict her of violating La. R.S. 14:30.1, second degree murder.
    La. R.S. 14:30.1(A)(1) provides in pertinent part as follows: "A. Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm." "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act." La. R.S. 14:10(1). Pursuant to La. R.S. 14:24, "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals."
    The legal standard for reviewing an argument of insufficient evidence is set forth in Jackson v. Virginia , which provides that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id.

      State v. Everette , 15-0805 (La. App. 4 Cir. 4/20/16), 192 So.3d 249, writ denied , 16-1005 (La. 5/26/17), 221 So.3d 854.

      State v. Raine , 16-0780 (La. App. 4 Cir. 8/4/16).

      State v. Haine [sic], 16-1487 (La. 8/5/16), 198 So.3d 1188.

   In State v. Jones , this Court enumerated the following key principles governing a sufficiency of the evidence review:

First, we examine all the evidence considered by the jury, including evidence which may have been erroneously admitted. Second, all the evidence is viewed in the light most favorable to the prosecution. Thus, we may consider all reasonable inferences from the evidence which the factfinder could have made.
Finally, as a reviewing court, we are highly deferential to the findings of the trier of fact. A jury may accept as true the testimony of any witness, even a single witness, and find such testimony sufficient to establish each essential element beyond a reasonable doubt. And, we will only tread on a jury's presumed acceptance of a witness's testimony when that testimony is implausible or clearly contrary to the evidence.

15-0956, p. 5 (La. App. 4 Cir. 3/22/17), 214 So.3d 124, 133 (citations omitted).

"Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts." State v. Shapiro , 431 So.2d 372, 378 (La. 1982). When circumstantial evidence forms the basis of the conviction, such evidence must consist "of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience." Id. The elements must be proven such that "every reasonable hypothesis of innocence" is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather an

"evidentiary guideline" to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 820 (La. 1987).

"A reasonable alternative hypothesis is not one 'which could explain the events in an exculpatory fashion,' but one that 'is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt' " State v. Mack , 13-1311, p. 9 (La. 5/7/14), 144 So.3d 983, 989 (quoting State v. Captville , 448 So.2d 676, 680 (La. 1984) ). Therefore, "where the evidence is purely circumstantial, if it does not exclude every reasonable hypothesis of innocence, a rational juror cannot find defendant guilty beyond a reasonable doubt without violating constitutional due process safeguards." State v. Monds , 91-0589 (La. App. 4 Cir. 1/14/94), 631 So.2d 536, 539.

Ms. Raine contends that the circumstantial evidence does not exclude every reasonable hypothesis of innocence. She maintains that the State presented no direct proof that she spoke with Mr. Everette about killing Mr. Smith. Additionally, Ms. Raine advances two bases for her theory of innocence. First, she claims that Mr. Raine may have acted without her knowledge, claiming that she would pay for the killing because Mr. Everette likely knew that Mr. Raine did not have the money. Second, Ms. Raine avers that evidence indicating that she increased the life insurance policy on Mr. Smith does not show a motive to kill, as she increased the policy because the victim bought a motorcycle and she was not a beneficiary on the policy at the time of his death.

In State v. Mack , the Louisiana Supreme Court found that direct evidence that the defendant threatened the victim and thereafter used a cell phone, along with circumstantial evidence of a web of phone calls between the defendant and the shooter, was sufficient to support a conviction of second degree murder. 13-1311, p. 10, 144 So.3d at 989. In Mack , the defendant interjected himself into an argument between the victim and a third party and then threatened the victim. Id. , p. 4, 144 So.3d at 986. After the argument, witnesses observed the defendant on his phone. Id. , p. 3, 144 So.3d at 985. About twenty minutes later, another person shot and killed the victim. Id. Phone records revealed a total of twelve calls between the defendant and the shooter in the hours before and after the shooting, along with numerous phone calls between the two during the days before and after the shooting. Id. at pp. 2-6, 144 So.3d at 985-87. Despite the defendant introducing alternative hypotheses of innocence, such as that someone else recruited the shooter or that the shooter and victim had an underlying dispute, the Louisiana Supreme Court found sufficient evidence to support the jury verdict. Id. at pp. 10-14, 144 So.3d at 989-92.

Likewise, in State v. Shapiro , the deceased victim and the defendant were the only witnesses to the crime. 431 So.2d at 373. The State's case relied almost entirely on circumstantial evidence. However, the Louisiana Supreme Court upheld the conviction for second degree murder, finding ample evidence "that a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded." Id. at 378-79. The circumstantial evidence in Shapiro included evidence that the victim died from a gunshot fired from a gun owned by the defendant, that the defendant had gunshot residue on his hands but the victim did not, and that the defendant and victim had an altercation earlier in the night. Id. at 377-78.

In the instant case, viewing all the evidence in a light most favorable to the prosecution, it cannot be said that the jury's conclusion that the State proved Ms. Raine guilty of second degree murder was clearly erroneous. As in Shapiro , there exists ample evidence such "that a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded." Id. at 378-79.

The uncontested evidence showed that Ms. Raine had a life insurance policy on Mr. Smith, which she originally purchased in 1997. From 2000 to 2005, Ms. Raine increased the amount of that insurance policy from its original value of $100,000 to the $800,000 the policy paid upon the victim's death. On February 20, 2006, two months before the shooting of Mr. Smith, Ms. Raine executed a beneficiary change form, removing herself as a beneficiary and naming instead Mr. Raine (who would become her third husband) and Mr. Smith (so that the proceeds would go to his estate). The evidence showed that Mr. Raine signed the "Assignment, Declaration and Disclaimer" for the policy and Ms. Judge, Ms. Raine's daughter, forged a signature for Quentine Jefferson. As such, Ms. Raine (through her daughter and third husband) collected the $800,000 from the policy.

Additionally, Enoch, the brother of Mr. Raine and step-brother of Mr. Everette, testified that Mr. Everette confessed that "James and Emma got me to kill Ernest." Similarly, Mr. Fowler testified to this same conversation, stating that Mr. Everette confessed that "Emma and James had hired him to murder Mr. Smith." Henry, who was also present for this confession, likewise testified that Mr. Everette said that "James and Emma gave him money to shoot this man down there."

Mr. Glover also testified that Mr. Everette admitted killing Mr. Smith and that Mr. Everette was to be paid for the murder by his half-brother, Mr. Raine and Ms. Raine.

Lastly, the testimony revealed that Ms. Raine became physically involved with Mr. Raine while Mr. Smith was still alive. However, Mr. Raine was later found dead in the bed he shared with Ms. Raine with multiple gunshot wounds to the head. The home's video surveillance system had been turned off the day before, and Ms. Raine was the last person recorded inside.

Like in Mack , where the circumstantial evidence was found to exclude most reasonable hypotheses of innocence, here, the evidence showed that Ms. Raine increased the value of a life insurance policy on Mr. Smith, removed herself as a beneficiary before the shooting, and then hired someone to shoot Mr. Smith, eventually committing insurance fraud to collect the proceeds of the policy. Additionally, the evidence revealed that Ms. Raine's third husband also died under suspicious circumstances.

The circumstantial evidence, when viewed in a light most favorable to the prosecution, demonstrates that a rational trier of fact could have found Ms. Raine guilty beyond a reasonable doubt, reasonably rejecting the hypotheses of innocence she advanced. The hypothesis that Mr. Raine acted without her knowledge could be rejected because at the time of the killing, Mr. Raine was positioned to receive $400,000 from Mr. Smith's life insurance policy. Thus, he would have had no need to involve Ms. Raine in persuading Mr. Everette that he would actually receive the $10,000 promised. Additionally, a rational factfinder could reject the hypothesis that Ms. Raine purchased the life insurance policy because Mr. Smith purchased a motorcycle and was not a beneficiary at his death. Given the gradual increase in the value of the policy, the change of beneficiaries just two months before the victim's death, the subsequent insurance fraud, and that Ms. Raine eventually did receive the full amount of the victim's life insurance policy, a rational trier of fact could reject this hypothesis. As such, we find that the State presented sufficient evidence to sustain Ms. Raine's conviction for second degree murder.

HEARSAY EVIDENCE

Ms. Raine asserts that the trial court improperly admitted hearsay testimony from Enoch, Mr. Fowler, Henry, and Mr. Glover. Defense counsel filed a motion in limine seeking to prevent the State from introducing inculpatory statements made by Mr. Everette as hearsay, which the trial court denied. The trial court also denied the motion based on the defense assertion that admission of the evidence would violate Ms. Raine's rights under the Confrontation Clause.

"[A] trial court's ruling on the admissibility of evidence will not be disturbed in the absence of a clear abuse of the trial court's discretion." State v. Bernard , 14-0580, p. 17 (La. App. 4 Cir. 6/3/15), 171 So.3d 1063, 1075.

After Mr. Everette refused to testify at trial, defense counsel moved for a mistrial based on the earlier objections, which the trial court denied. Several witnesses relayed statements made to them by Mr. Everette. Enoch, Mr. Fowler, and Henry testified about a confession made by Mr. Everette wherein he confessed that Ms. Raine and Mr. Raine hired him to kill Mr. Smith. Enoch testified that Mr. Everette confessed that "James and Emma got me to kill Ernest." Similarly, Mr. Fowler testified to this same conversation, stating that Mr. Everette confessed that "Emma and James had hired him to murder Mr. Smith." Henry, who was also present for this confession, likewise testified that Mr. Everette said that "James and

Emma gave [sic] him to shoot this man down there." Also, Mr. Glover testified about conversations with Mr. Everette while they were in jail together where Mr. Everette explained that he was paid to murder Mr. Smith and that a woman, who later married Mr. Everette's half-brother, was watching before the murder and called him when the victim pulled up to the house. Mr. Glover additionally corroborated the testimony of Enoch, Mr. Fowler, and Henry about the confession made to them by Mr. Everette.

Pursuant to the Louisiana Code of Evidence Article 804, certain statements made by a witness who is unavailable are not excluded by the hearsay rule. "[A] declarant is 'unavailable as a witness' when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court." La. C.E. art. 804(A). This includes a situation where the declarant "[p]ersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." La. C.E. art. 804(A)(2). Here, Mr. Everette refused to testify despite being ordered by the trial court to do so. In fact, Mr. Everette took the stand and refused to testify. As such, he was "unavailable" as a witness.

When a declarant is unavailable, a statement against the declarant's penal interest is not excluded by the hearsay rule. La. C.E. art. 804(B)(3). A statement against interest is one "which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true." Id. "The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest 'that a reasonable person in the declarant's position would not have made the statement unless believing it to be true,' and this question can only be answered in light of all the surrounding circumstances." Williamson v. United States , 512 U.S. 594, 603-04, 114 S.Ct. 2431, 2437, 129 L.Ed.2d 476 (1994). The Louisiana Supreme Court opined:

When the statement is one against the declarant's penal interest, the circumstances surrounding the making of the statement may be significant in determining its trustworthiness. If a declarant admits sole responsibility for a serious crime, the statement is generally prima facie against interest so as to satisfy this requirement of the rule. However, if the statement is clearly self-serving, as when the declarant is seeking favorable treatment for himself in return for cooperation, the statement may be deemed not against his interest and thus may fall outside the exception. Likewise, when the declarant unknowingly speaks to informants or undercover agents, the statement is usually admissible under the exception.

State v. Hammons , 597 So.2d 990, 996 (La. 1992) (citations omitted).

While statements against the declarant's penal interest are admissible, non-self-inculpatory statements are not admissible, " 'even if they are made within a broader narrative that is generally self-inculpatory.' " State v. Lucky , 96-1687, p. 21 (La. 4/13/99), 755 So.2d 845, 857 (quoting Williamson , 512 U.S. at 600-601, 114 S.Ct. 2431 ). Those portions of a statement which are not in and of themselves against the declarant's penal interest are not admissible. Id. As such, statements of an accomplice that are collateral to a self-inculpatory statement, or statements that are self-serving, will not be admissible under Rule 804(B)(3). Williamson , 512 U.S. at 599-604, 114 S.Ct. 2431-37. However, "the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Id. at 603, 114 S.Ct. at 2436.

For example, in Williamson v. United States , the declarant made statements to police that he was transporting drugs for the defendant. Id. at 597, 114 S.Ct. at 2433. While portions of the statement were self-inculpatory, such as the admission that the declarant was transporting drugs, other portions of the statement, such as that he was carrying drugs for the defendant, were not considered self-inculpatory because the declarant was trying to shift the blame for the crime. Id. at 603-04, 114 S.Ct. at 2436-37.

In United States v. Manfre , the declarant testified that her fiancé told her that he was going to burn down a nightclub for the defendant. 368 F.3d 832, 840 (8th Cir. 2004). Although the statement inculpated both the defendant and the declarant, it was admitted as a reliable statement against penal interest. Id. at 841. The context of the statement, made in private to the declarant's fiancé, corroborated its reliability. Thus, the court admitted the statement as one against penal interest and found that the admission did not violate the Confrontation Clause, as the statement was non-testimonial. Id. at 841-42.

Similarly, this Court has admitted a statement against penal interest where the declarant implicated both herself and the defendant in the crime. In State v. Moore , this Court admitted a declarant's statements to police that she took a bag from the defendant, which contained items stolen from the victim, that the defendant gave her money, and that she fled with the defendant despite knowledge of a robbery. 10-0314, pp. 5-6 (La. App. 4 Cir. 10/31/10), 57 So.3d 1033, 1037-38. Although these statements implicated both the defendant and the declarant, this Court found that they qualified as a declaration under penal interest. 10-0314, p. 6, 57 So.3d at 1038.

However, since the statements were made in police custody, they were considered testimonial, and thus their admission violated the Confrontation Clause. 10-0314, p. 7, 57 So.3d at 1038.

Unlike in Williamson , where the declarant implicated the defendant to shift the blame amid police interrogation, here, Mr. Everette did not implicate Ms.

Raine in order to shift the blame. Rather, Mr. Everette first confessed surrounded by family members in the car and again later in the privacy of his jail cell. Those confessions to his participation in the murder-for-hire were made not to law enforcement but to his family and cellmate. Like in Manfre , where the declarant admitted to committing a crime for someone else in an intimate setting to his fiancé, here, Mr. Everette confessed to committing a crime for Mr. Raine and Ms. Raine in a car surrounded by his family. Like in Moore , where the witness' statement that she took a bag from the defendant which contained items stolen from the victim was admissible despite inculpating both the defendant and the witness, here, Mr. Everette's statement that he shot Mr. Smith for Mr. Raine and Ms. Raine should likewise be admissible as a statement against interest. Unlike in Moore , where the statement was testimonial, as it was made in police custody, and thus violated the Confrontation Clause, Mr. Everette's statements were nontestimonial, as they were made to family members and a cellmate, thus giving the statements further indicia of reliability. Mr. Everette had no reason to lie to Mr. Glover in jail, nor to his family in the car. The statements were not made to shift the blame or curry favor with law enforcement. Rather, Mr. Everette was relaying his involvement in a murder for hire in circumstances indicating the trustworthiness of the statements. As such, the statements were properly admitted as nontestimonial statements against interest pursuant to La. C.E. art. 804(B)(3).

ALLEGED PROSECUTORIAL MISCONDUCT

Ms. Raine asserts that the jury was improperly influenced by prosecutorial misconduct when the prosecutor stated in closing arguments that if the jury "believe[s] that she's probably guilty, then the State has proved with sufficient evidence the case that is presented before you."

During closing argument, defense counsel stated "You can even say she's probably guilty, but that's not enough. You have to be able to say I am certain, and there is no reasonable doubt, there's guilt." In rebuttal, the prosecutor responded:

The Defense said that you may believe at the end of this case that she's probably guilty. She's probably guilty. If you believe that she's probably guilty, then the State has proved with sufficient evidence the case that is presented before you.
* * *
If you believe she's probably guilty, you don't just wake up in the morning and come here and believe she's probably guilty. You have reviewed the evidence, they're asking you to say she's probably guilty, but then I'm going to let her walk out of the front door.
Why do you believe she's probably guilty? Ask yourselves those questions. Why do you believe she's probably guilty?

Defense counsel objected, claiming that the prosecutor had made a "misstatement of the law" because "[p]robably guilty does not equal beyond a reasonable doubt." The trial court noted the objection and stated it would charge the jury with the definition of reasonable doubt during its instructions.

The legal standard for reviewing an argument of prosecutorial misconduct in a closing argument is set forth in State v. Casey , 99-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036.

The general rule concerning the scope of closing arguments is that they are confined to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." La. C. Cr. P. art. 774. Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics ... Further, the trial judge has broad discretion in controlling the scope of closing arguments. State v. Prestridge , 399 So.2d 564, 580 (La. 1981). And, even if the prosecutor exceeds these bounds, the court will not reverse a conviction unless "thoroughly convinced" that the argument influenced the jury and
contributed to the verdict. See State v. Martin , 93-0285, p. 17 (La. 10/17/94), 645 So.2d 190, 200 ; State v. Jarman , 445 So.2d 1184, 1188 (La. 1984) ; State v. Dupre , 408 So.2d 1229, 1234 (La. 1982).

Additionally, "a prosecutor's misstatements of the law ... in his ... closing remarks, do[es] not require reversal of a defendant's conviction if the court properly charges the jury at the close of the case." State v. Cavazos , 610 So.2d 127, 128-29 (La. 1992).

For example, in State v. Hill , the prosecutor misstated the burden of proof by stating, " 'We've met the prima facie burden of giving you evidence of defendant's guilt.' " Id. , 41,031, p. 5 (La. App. 2 Cir. 5/17/06), 930 So.2d 336, 340. "A prosecutor's burden is not a 'prima facie' case; however this misstatement was cured by the judge's instructions to the jury," which properly stated the burden of proof. Id. , 41,031,p. 6, 930 So.2d at 340.

Similarly, in State v. Roy , the defense claimed that the state misled the jury when it claimed during closing argument that "the law ... presumes that a person intends the natural consequences of his actions." 95-0638, pp. 14-15 (La. 10/04/96), 681 So.2d 1230, 1239. While that statement could arguably have improperly shifted the burden of proof from the State to Defendant, leading the jury to believe that there's a mandatory presumption, the Court found the misstatement was cured by the judge's instruction, which included a correct statement of the law. Id. The misstatement of the law by the prosecutor was not "so dominant that the jurors could not adhere to their charged duty to accept and to apply the law as given by the court." Id.

Here, like in Hill , where the prosecutor misstated the burden of proof in closing argument, the prosecutor misstated that if the jury believed Ms. Raine was

"probably guilty, then the State has proved with sufficient evidence the case that is presented before you." Similarly to Roy , where the prosecutor misstated the law in closing argument, here, the prosecutor misstated the law as it relates to the burden of proof in the closing argument. However, as in Hill and Roy , any misstatement was cured by the judge's instructions to the jury. The trial court charged the jury as follows, in pertinent part:

The defendant is presumed to be innocent until each element of the crime is necessary to constitute her guilt is proven beyond a reasonable doubt. The defendant is not required to prove that she is innocent. Thus, the defendant begins the trial with the presumption of innocence.
The burden is upon the State to prove the defendant's guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant every benefit, or the benefit of every reasonable doubt arising out of the evidence or the lack of evidence.
If you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find her not guilty. While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt.
Reasonable doubt is doubt based on reason and common sense, and is present when, after you have carefully considered all the evidence, you cannot say that you are firmly convinced of the truth of the charge.
* * *
The Opening Statements and Closing Arguments are not to be considered evidence.

Thus, the trial court gave a lengthy jury instruction as to the burden and the meaning of beyond a reasonable doubt. As such, any misleading statement concerning the burden of proof by the prosecutor was not "so dominant" that it was not cured by the trial court judge's instruction, which properly stated the burden of proof. Accordingly, the conviction and sentence of Ms. Raine is affirmed.

DECREE

For the above-mentioned reasons, we find that sufficient evidence was presented to sustain Ms. Raine's conviction for second degree murder. Additionally, the hearsay statements were properly admitted as nontestimonial statements against interest. Further, the alleged prosecutorial misconduct during closing arguments was cured by the trial court's jury instructions. As such, we affirm the conviction and sentence of Ms. Raine.

CONVICTION AND SENTENCE AFFIRMED


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Marvin DIXON
    17-459
    Court of Appeal of Louisiana, Third Circuit.
    January 24, 2018
    Paula Corley Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Marvin Dixon
    Asa Allen Skinner, District Attorney, Thirtieth Judicial District Court, Terry Wayne Lambright, Assistant District Attorney, P. O. Box 1188, Leesville, LA 71446-1188, (337) 239-6557, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

Defendant, Marvin Dixon, has previously sought review by this court of a related matter. In connection with an earlier guilty plea to one count of attempted aggravated crime against nature, we vacated Defendant's illegally excessive sentence and remanded the case for resentencing. State v. Dixon , 16-132 (La.App. 3 Cir. 9/28/16), 2016 WL 5405329 (unpublished opinion).

On December 20, 2016, the State filed a bill of information charging Defendant with two counts of aggravated incest and one count of aggravated crime against nature. On March 10, 2017, Defendant filed a motion to quash, which was denied on March 15, 2017. On the same date, he entered an Alford plea to one count of aggravated incest, a violation of La.R.S. 14:78.1. He waived sentencing delays and received a sentence of twenty years at hard labor. The trial court dismissed the other two counts pursuant to a State motion.

Defendant appeals and assigns a single error, but breaks it into three main arguments. For the following reasons, we affirm the trial court's denial of Defendant's motion to quash, and we affirm Defendant's sentence.

FACTS

At the plea hearing, the State recited the following facts, without objection by Defendant:

Your Honor, this offense happened between January 1st, 2012 and June 1st, 2012. The victim's date of birth is April 5th, 2000, making her between eleven and twelve years of age at all times herein, and the victim was related to Mr. Dixon as his granddaughter. And at times when she was exposed to him and in his presence, he did commit a sexual battery upon her, also indecent behavior with juveniles, and molestation of a juvenile in that he would lewdly fondle and touch her with the intent to arouse and satisfy his sexual desires. Specifically, the
behavior that he did with this victim, who's [sic] initials are E.D., was touch her breast, vagina, and buttocks with his hand. In support of that I'd like to offer, file, and introduce the documents filed in discovery in this matter and the actual filing of discovery relates to 87,680, but is also related to the new docket number, 90,481. And I would like to rely on those as part of my factual basis, but I would submit to the Court that were this case to go to trial, that is what the State would prove at trial.

ASSIGNMENT OF ERROR

Defendant assigns a single error, but divides it into three major arguments. His general argument is that the trial court erred by denying his motion to quash.

Double Jeopardy

Defendant first argues the current case was a second prosecution which violated the constitutional protection against double jeopardy. Although double jeopardy was mentioned in the written motion, the State observes that Defendant did not argue it at the March 15 hearing. However, we will address the argument because double jeopardy can be raised at any time. La.Code Crim.P. art. 594. Further, a double jeopardy error would require dismissal of the conviction.

As the State points out, Defendant pled guilty to a sex offense involving the victim, E.D. In the prior case, he pled to a sex offense committed against D.D. The present appeal and the previous appeal address two pleas to two different offenses against two different victims. Thus, it is clear that double jeopardy is not implicated in the guilty plea. To the extent Defendant's argument raises concerns regarding the bill of information, any argument regarding the bill is moot given the ultimate plea.

Plea Agreement

Defendant next argues that the present prosecution violates the plea agreement from the earlier case. In the earlier case, the State agreed to dismiss two counts: one count of aggravated crime against nature, which was alleged to have been committed against D.D. between July 11, 2010 and February 14, 2015, and another count of aggravated crime against nature, alleged to have been committed against E.D. between May 1, 2012 and September 30, 2012. The dismissal of the latter count appears problematic in the context of the current argument because, as already noted, Defendant entered an Alford plea to a sex offense, aggravated incest, against E.D.

Thus, Defendant contends he was prosecuted for conduct that was dismissed pursuant to the plea agreement in the earlier case. It is true that both bills alleged that he committed improper sexual acts against the victim: "sexual battery, indecent behavior with juveniles and molestation of a juvenile." The second bill also charged that Defendant "did lewdly fondle and touch" E.D. The former bill alleged the acts occurred between May 1, 2012 and September 30, 2012; the present bill alleged acts between January 1, 2012 and June 1, 2012. Thus, both bills alleged the same general sex acts against the same victim and both alleged that at least some of the acts occurred in May and June of 2012.

Although the record is difficult to decipher, after a careful analysis of the facts and circumstances surrounding the pleas, we find Defendant is not being prosecuted again for conduct dismissed as part of the plea agreement in the previous case. Rather, as discussed below, the second bill was brought to correct errors that resulted from all parties relying on an incorrect version of a statute.

Vindictive Prosecution

Defendant's third and final argument is that the current prosecution violates constitutional due process protections because the State is punishing him for his success in his earlier appeal. As he points out, vindictive prosecution is prohibited by North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This court has discussed Pearce :

However, the fact that he received harsher treatment, i.e., being charged with the previously dismissed crimes after he successfully appealed his prior guilty pleas and received a longer sentence, requires a determination as to whether he has suffered a deprivation of due process. Id. (citing North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ).
The Pearce court explained the due process issue raised, as such:
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge.
[North Carolina v. ]Pearce , 395 U.S. [711] at 725, 89 S.Ct. 2089 [23 L.Ed.2d 656 (1969) ].

State v. Cloud , 06-877, p. 3 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, 268-69, writ denied , 07-86 (La. 9/21/07), 964 So.2d 331.

In State v. Leger , 11-1127, pp. 16-19, 23 (La.App. 3 Cir. 5/2/12), 92 So.3d 975, 984-86, 989, a panel of this court summarized the law pertaining to vindictive prosecution:

In State v. Lewis , 461 So.2d 1250 (La.App. 1 Cir.1984), the court explained, in pertinent part:
The leading case on prosecutorial vindictiveness is Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge , the defendant was convicted of a misdemeanor by a North Carolina State court. After the defendant claimed his right to a trial de novo in a higher court, the prosecutor obtained a superseding indictment charging the defendant with a felony rather than a misdemeanor. Both the original misdemeanor (assault with a deadly weapon) and the subsequent felony (assault with a deadly weapon with intent to kill) charges were based on the same set of facts.
In Blackledge , 94 S.Ct. at 2102-3, the Court stated:
A person convicted of an offense is entitled to pursue his statutory right to a trial de novo , without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. [citation omitted]
Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo .
In applying Blackledge , the 5th Circuit Court of Appeals in Hardwick v. Doolittle , 558 F.2d 292 (5th Cir.1977), cert. denied , 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), noted that there is a broad ambit to prosecutorial discretion, most of which is not subject to judicial control. However, the court went on to state that a prosecutor's discretion to reindict a defendant is constrained by the due process clause. Thus, once a prosecutor exercises his discretion to bring certain charges against a defendant neither he nor his successor may, without explanation, increase the number or severity of those charges in circumstances which suggest that the increase is in retaliation for defendant's assertion of statutory or constitutional rights.
The court in Hardwick stated that a prosecutor could negate allegations of vindictiveness by proof of mistake or oversight in his initial action, a different approach to prosecutorial duty by a successor prosecutor, or public demand for prosecution on additional crimes allegedly committed [sic], a list the court noted was illustrative rather than exhaustive.
The most recent statement of the law on prosecutorial vindictiveness by the 5th Circuit Court of Appeals appears in U.S. v. Krezdorn , 718 F.2d 1360, 1365 (5th Cir.1983)cert. denied , 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984). In that case, at 718 F.2d at 1365, the court stated:
If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor's actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to "punish a pesky defendant for exercising his legal rights," a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutors discretion.
The procedural history in the instant case is rather straight forward. Defendant was initially indicted by a grand jury for manslaughter. More than a year later he pled guilty to manslaughter and was then sentenced to twenty-one years at hard labor. Defendant then sought to withdraw his guilty plea. Ultimately, he appealed to the Louisiana Supreme Court, and his case was remanded to the trial court where he was allowed to withdraw his guilty plea. A second indictment was then brought against defendant charging him with second degree murder.
The sequence of events as outlined above provides no "objective indication" as to the reason for the increase in the severity of the charges. Therefore, a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of evidence that events occurring since the time of the original charge
decision altered the initial exercise of the prosecutor's discretion. U.S. v. Krezdorn , 718 F.2d at 1365.
We remand this case to the trial court for a hearing to allow the district attorney an opportunity to rebut the presumption of vindictiveness.
Id. at 1252-53.
In United States v. Walker , 514 F.Supp. 294 (E.D.La.1981), the court held as follows:
In a series of cases following [North Carolina v. ] Pearce [, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1979) ] and Blackledge [ v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ], the Fifth Circuit has adopted a procedure for reviewing the government's exercise of its charging discretion to determine whether the government has legitimately exercised its authority in a constitutionally forbidden manner. Because this test was designed to cover the multitude of situations of which Pearce and Blackledge were only two particular instances, it is necessary to examine this rule.
2. The Fifth Circuit Rule
The rule in this circuit to assess the validity of the government's exercise of its charging authority has developed over a series of cases attempting to accommodate the state's constitutionally protected authority to prosecute Defendants for crime and the Defendant's constitutional right as set forth in the Blackledge case. See Hardwick v. Doolittle , 558 F.2d 292 (5th Cir.), on petition for rehearing and rehearing en banc, 561 F.2d 630 (1977) (per curiam), cert. denied , 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978) ; Jackson v. Walker , 585 F.2d 139 (5th Cir.1978) ; Miracle v. Estelle , 592 F.2d 1269 (5th Cir.1979) ; United States v. Thomas , 593 F.2d 615 (5th Cir.), modified on rehearing, 604 F.2d 450 (1979) (per curiam), appeal after remand, 617 F.2d 436 (1980) ; United States v. Shaw , 615 F.2d 251 (5th Cir.1980) (per curiam). This test sets forth both the elements of proof of and defense to a claim of prosecutorial vindictiveness as well as the allocation of burdens and order of proof on this claim.
The Defendant bears the burden of establishing a prima facie case of prosecutorial vindictiveness .... The defendant's establishment of a prima facie case of vindictiveness, in effect, creates a presumption that the government did act vindictively in bringing the second
prosecution. The nature of this presumption varies according to the balance struck between the government's interests in enforcing the law and allocating wide discretion to individual prosecutor's to make charging decisions, and the Defendant's interests in being free from both actual vindictiveness and the apprehension of vindictiveness as the consequence of challenging his original conviction. Where the Defendant's interests outweigh the government's interests, the presumption created by the Defendant's establishment of a prima facie case is irrebuttable, and the Defendant is entitled to prevail based entirely upon his initial showing. This occurs where the government baldly escalates the original charge as in Blackledge. But where the balance weighs in favor of the government, as occurs where the escalation of the second charge was possible only because of events occurring between the first and second prosecutions or where the second charge accuses the Defendant of "different and distinct" offenses from the first charge, even despite a common origin in the same "spree of activity," the government is entitled to rebut the presumption of vindictiveness by going forward to demonstrate legitimate, nonvindictive reasons for the second charge. In these situations, if the government fails to come forward with any such reasons or fails adequately to rebut the presumption of vindictiveness, the Defendant is entitled to a judgment in his favor based upon the presumption created by his establishment of a prima facie case. But if the government successfully carries its burden of rebutting the presumption, the Defendant must then demonstrate actual vindictive motivation by the government to prevail on his claim. Alternatively, where the government institutes a second prosecution against a Defendant who has had his first conviction set aside but who cannot establish a prima facie case because the second charge carries a less severe penalty than the first, the Defendant may still challenge the second prosecution as vindictive but must demonstrate actual vindictive motivation by the government.
Id. at 313-15 (footnotes omitted).
....
The record does not reflect an "objective indication" as to the reason for seeking enhancement of the sentence. Therefore, a presumption of vindictiveness applies which cannot be overcome unless the state proves by a preponderance of evidence that events occurring since the time of the original decision altered the initial exercise of the state's discretion. Accordingly, this court is remanding this case to the trial
court for a hearing to allow the state an opportunity to rebut the presumption of vindictiveness.

In this case, there was no escalation of the overall sentence that Defendant agreed to in his first plea deal. In fact, his sentence was reduced from the-agreed-upon sentence of thirty years to a total sentence of twenty-seven-and-a-half years. Thus, there was no escalation of charges for the purpose of an increased sentence, and thus no evidence of a vindictive motivation. The crime of aggravated incest ( La.R.S. 14:78.1(A) and (D)(2) ) involving E.D., as charged in the second bill, carried the same sentence range as the cited charge for aggravated crime against nature ( La.R.S. 14:89.1(A)(2) and (C)(2) involving E.D. in the first bill. Both were felonies, and both carried prison sentences of twenty-five to ninety-nine years. A mistake was made in the first bill however, because La.R.S. 14:89.1(C) did not exist in 2012; it was added in 2014, at which time La.R.S. 14:78.1 (aggravated incest) was repealed and folded into La.R.S. 14:89.1 (aggravated crime against nature). But the defense attorney, the district attorney, and two judges all thought the statute was properly cited. This was the same statute pled to in the first conviction involving D.D., and the same mistake that led to the first appeal and remand. The original intent in the first conviction was to sentence Defendant to thirty years for all of his crimes; and that was never exceeded as a result of the second conviction, which involved a different victim. The basis for the Pearce presumption does not exist in this case.

Further, where there are multiple offenses and interdependent sentences, adherence to an original sentencing intent and scheme of punishment is a legitimate reason that negates a claim of vindictiveness. State v. Neville , 572 So.2d 1161 (La.App. 1 Cir. 1990), writ denied , 576 So.2d 46 (La.1991). There, in addressing double jeopardy and vindictiveness, the court found:

In a case involving multiple convictions, a trial judge often imposes interdependent sentences according to a scheme of punishment for a defendant's conduct as a whole. When raising a double jeopardy claim, a defendant is effectively contesting the entire scheme of punishment. A finding that the convictions violate double jeopardy disrupts the carefully crafted, interdependent sentences imposed by the trial judge.

Id. at 1164.

In Neville , where the defendant was sentenced to consecutive terms of ten and fifteen years on two felony counts, but one was dropped due to double jeopardy, the court found that the new thirty-four-year sentence on the remaining count did not invoke the Pearce presumption of vindictiveness. The Neville court stated that the judge's intent was to impose a sentence which would be consistent with the original sentencing judge's intent that the defendant serve thirty-five years. The defendant initially was sentenced to twenty and fifteen years consecutively. The thirty-four-year sentence he received on resentencing is

"in accordance with the original scheme of punishment" and is "no more severe than the defendant's original composite sentence." State ex rel. Adams [v. Butler ], 558 So.2d [552] at 554 [ (La.1990) ]. Thus, due process was not violated and defendant's claim is without merit.

Id. at 1165-66.

While factually different, the court in United States v. Cataldo , 832 F.2d 869 (5th Cir. 1987), cert. denied , 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988), reasoned that sentencing under an incorrect statutory provision during the original sentencing could justify a more severe sentence in keeping with the original sentencing scheme without invoking the presumption of vindictiveness.

Here, the trial court, in originally sentencing Defendant to thirty years for the crime of aggravated crime against nature for his conduct against D.D. in the first bill, intended to cover Defendant's conduct as a whole against both victims, because he referenced the counseling that the girls would have to undergo.

It is well-settled that a prosecutor is free to file new charges after a dismissal if he or she files within the timeframes of La.Code Crim.P. art. 576. See State v. Gray , 16-687 (La. 3/15/17), 218 So.3d 40. In this case, the felony prosecution had to be brought within six years from the date the offense was committed, pursuant to La.Code Crim.P. art. 572(A)(1). The aggravated incest against E.D. was committed in 2012, and the bill of information was filed in 2016. Thus, the 2016 bill was timely.

However, Defendant's argument is not based upon timeliness of the second bill. Rather, he argues that the earlier 2015 count for aggravated crime against nature involving E.D. in 2012 was dismissed pursuant to a plea agreement, and the district attorney's filing of the second bill charging aggravated incest against E.D. in 2012 was technically for the same offense and, therefore, violated the earlier plea agreement. Under certain circumstances, plea agreements are dischargeable.

In United States v. Moulder , 141 F.3d 568 (5th Cir. 1998), the court held that the government's obligations under plea agreements became dischargeable under the frustration of purpose doctrine and that reinstatement of the dismissed charges did not support a prosecutorial vindictiveness claim. The court in Moulder stated that the defendant should have known that having his conviction overturned would motivate the prosecutor to refile charges.

While we do not suggest that Moulder be applied in all cases, the reasoning renders it more than persuasive under the facts of this case. Citing its approval of United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998), the court defined the frustration of purpose doctrine, which is based upon contract law:

Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language of the circumstances indicate the contrary.
RESTATEMENT (SECOND) OF CONTRACTS § 265 (1981).
The comments to this section provide that "the purpose that is frustrated must have been a principal purpose of that party in making the contract.... The object must be so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense. " RESTATEMENT (SECOND) OF CONTRACTS § 265 cmt. a (1981) (emphasis added).
"The application of contract law to plea agreements is premised on 'the notion that the negotiated guilty plea represents a bargained-for quid pro quo.' " United States v. Asset, 990 F.2d 208, 215 (5th Cir.1993) (quoting United States v. Escamilla, 975 F.2d 568, 570 (9th Cir.1992) ). In this regard, the underlying purpose of the plea agreement in issue was to "avoid the uncertainty of a jury verdict ... [and] to ensure that the [defendants] served time for violating § 924(c)". Bunner, 134 F.3d at 1004-05. And, needless to say, "[a] basic assumption underlying the parties' purposes was their belief that the conduct ... pled guilty to amounted to a violation of § 924(c)". Id. at 1005.
But, the parties' assumptions and obligations were altered by Bailey [v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ] and the subsequent successful § 2255 challenges. As a result of those events "the underlying purpose of the [plea] agreement [was] frustrated and the basis of the government's bargain [was] destroyed. Thus, under the frustration of purpose doctrine, the government's plea agreement obligations became dischargeable". Bunner, 134 F.3d at 1005. Accordingly, it was free to reinstate the drug charges.

Moulder , 141 F.3d at 571-72.

Here, Defendant signed a plea agreement on October 7, 2015, pleading guilty to attempted aggravated crime against nature. The plea agreement stated the following:

I understand the elements and the nature of the charge and that it is a felony offense which could result in a penitentiary sentence if I am convicted thereof. I am aware of the minimum and maximum sentences provided by law after having the same explained to me by my attorney.

The charge shown on the bill of information cited the aggravated crime against Nature provision as La.R.S.14:89.1(A)(2) and (C)(2), which carried a sentence of twenty-five to ninety-nine years. And, as shown in the sentencing transcript, all parties, judges, and counsel, including defense counsel Mr. Williams, thought the lesser offense of attempt to commit that crime carried a sentence of up to forty-nine-and-a-half years. Thus, Defendant entered the agreement under those conditions, and the sentence was an essential part of the plea agreement.

Further, the plea agreement does not state that other charges will not be filed. In fact, it states:

I further understand that should I plead guilty or be convicted of a similar offense in the future the penalty which could be imposed may be greater or the grade of the offense may be greater as a consequence of this guilty plea.

At sentencing, after discussing the rape and oral sex with one child and molestation of the other, the trial court gave its reasons for the thirty-year sentence:

Other factors taken into consideration by this Court in the determination of sentence include the offender's conduct during the commission of this offense manifested a deliberate cruelty to the victims who are the defendant's granddaughters. Also taken into consideration, this offender knew, or should have known, that the victims were particularly vulnerable or incapable of resistance due to their youth, specifically as the facts include one of these children were eleven years of age at the time of the commission of this offense. Further, this offense has resulted in significant permanent injury to the victims and the victims' family.
....
The Court does not feel that this defendant is likely to respond to probationary treatment, that there is an undue risk that during the period of suspended sentence or probation, that this defendant would commit another crime. It is the-the defendant-or the Court feels that this defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by commitment to an institution. A lesser sentence will deprecate the seriousness of the defendant's offense.

Defendant never denied the charges. In open court after sentencing, he merely apologized and said "this is what too much drinking can do to you."

A seven-and-a-half-year sentence is not what was bargained for in this case. It is not what the prosecutor or the trial court intended, and it is not what Defendant himself agreed to or anticipated when he took the plea bargain. Thus, the purpose of the plea bargain and sentence were frustrated. The filing of new charges and the second plea agreement and sentence for the abuse of the other victim were all in keeping with the original sentencing scheme. This is particularly true where both plea agreements and both sentences for two different crimes resulted in a total of twenty-seven-and-a-half years, which is two-and-a-half years less than the original sentencing scheme of thirty years.

DECREE

The judgment of the trial court denying Defendant's motion to quash is affirmed, and his sentence is affirmed.

AFFIRMED.

      In an Alford plea, the defendant does not explicitly admit guilt. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      This statute was repealed in 2014 when it was subsumed in the 2014 revision of La.R.S. 14:89.1.

      The victim's initials are used throughout pursuant to La.R.S. 46:1844(W).

      Documents from the prior appeal under docket number 16-132 are included as an exhibit to the current record.

      Louisiana Code Criminal Procedure Article 576 provides:
      When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant's consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
      A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.
      Under La.Code Crim.P. Article 578, trial must be commenced within two years from the date of institution of the prosecution.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Robert Earl SANDERS
    KA 17-679
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018
    Edward Kelly Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Robert Earl Sanders
    Robert Earl Sanders, Rapides Parish Detention Center DC-111, 400 John Allison Drive, Alexandria, Louisiana 71303, PRO SE DEFENDANT/APPELLANT: Robert Earl Sanders
    Phillip Terrell, Jr., District Attorney, Numa V. Metoyer, III, Assistant District Attorney, 9th Judicial District Court, Post Office Box 1472, Alexandria, Louisiana 71309, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

Defendant, Robert Earl Sanders, was convicted of second degree kidnapping, a violation of La.R.S. 14:44.1 ; second degree battery, a violation of La.R.S. 14:34.1 ; and three counts of domestic abuse aggravated assault, violations of La.R.S. 14:37.7. He was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence for second degree kidnapping; six years at hard labor for second degree battery; and four years at hard labor without benefit of parole, probation, or suspension of sentence for each count of domestic abuse aggravated assault. Each sentence was to run concurrently.

On appeal, this court affirmed all three of Defendant's convictions and his sentence of fifteen years without benefit of parole or suspension of sentence for second degree kidnapping. This court found an error patent because Defendant's sentence for second degree battery was beyond the statutory maximum, vacated his sentence, and remanded the matter for resentencing. This court also amended Defendant's sentences for each of the three counts of domestic abuse aggravated assault to allow for the benefits of parole, probation, or suspension of sentence, as required by La.R.S. 14:37.7. This court instructed the trial court to make an entry in the court minutes to reflect the amendment. See State v. Sanders , 16-470 (La.App. 3 Cir. 12/7/16), 209 So.3d 143.

On remand, the trial court resentenced Defendant to the maximum of five years at hard labor for the second degree battery conviction. Rather than making a an entry in the court minutes reflecting this court's amendment of Defendant's sentences for domestic abuse aggravated assault, the trial court resentenced Defendant to four years with benefit of parole, probation, or suspension of sentence on each of the three counts of domestic abuse aggravated assault. The sentences imposed were to run concurrently with each other and with any sentence Defendant was currently serving for his conviction for second degree kidnapping.

Appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging no non-frivolous issues exist on which to base an appeal and seeking to withdraw as Defendant's counsel. Defendant has also filed a pro se brief and a supplemental pro se brief that argues his innocence but fails to set out any assignments of error. We therefore grant counsel's motion to withdraw and affirm Defendant's sentences for second degree battery and domestic abuse aggravated assault.

FACTS:

Defendant was found guilty of second degree kidnapping, second degree battery, and three counts of domestic abuse aggravated assault. The trial court resentenced him according to this court's order.

ERRORS PATENT:

We review all appeals for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ANALYSIS:

Counsel seeks to withdraw. Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, Defendant's appellate counsel filed a brief stating he could find no errors on appeal that would support reversal of Defendant's sentence.

In State v. Benjamin , 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries, and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin , this court has performed a thorough review of the record, including minute entries, the trial court's written reasons, and the resentencing transcript, and has confirmed the statements by counsel. The trial court resentenced Defendant as ordered by this court, subject to the error patent discussion above. He was present and represented by counsel at the resentencing. His new sentence complies with the statutory sentencing range, and review of the transcript in the record provides only frivolous issues for appeal.

Counsel's Anders brief must " 'assure the court that the indigent defendant's constitutional rights have not been violated.' " State v. Jyles , 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of Appeals of Wisconsin , 486 U.S. 429, 442, 108 S.Ct. 1895, 1903, 100 L.Ed.2d 440 (1988) ). Thus, counsel's Anders brief must fully discuss and analyze the record and also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." State v. Mouton , 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

Counsel's brief to this court recites the facts found in the record. He notes the trial court resentenced Defendant within the sentencing range of the statute for second degree battery in effect at the time of the offense. The trial court also resentenced the Defendant to four years on each count of domestic abuse aggravated assault, with the benefit of parole, probation or suspension of sentence, which was the amended sentence ordered by this court.

Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant to make or file a motion to reconsider his sentence within thirty days of imposition of the sentence. A defendant who fails to make or file such a motion is precluded from raising any objection to the sentence on appeal. State v. White , 03-1535 (La.App. 3 Cir. 4/28/04), 872 So.2d 588 ; State v. Prudhomme , 02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied , 02-3230 (La. 10/10/03), 855 So.2d 324. While Defendant objected to the sentence when the trial court imposed it, he did not file a motion to reconsider it.

This court has held a defendant waived his right to seek review of his sentence where he lodged no objection to it and failed to file a motion to reconsider. State v. Duplantis , 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, writ denied , 14-283 (La. 9/19/14), 148 So.3d 949. This court noted the defendant received a legal sentence, as did Defendant here. Thus, his assignment of error on appeal concerning sentencing lacks merit.

Even so, this court has reviewed claims of excessiveness where the defendant made no objection and did not file a motion to reconsider his sentence. See State v. Johnlouis , 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied , 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied , 562 U.S. 1150, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011) ; State v. Bergeron , 12-71 (La.App. 3 Cir. 10/3/12), 99 So.3d 90, writ denied , 12-2388 (La. 4/26/13), 112 So.3d 837 ; State v. Arceneaux , 12-1047 (La.App. 3 Cir. 4/3/13), 111 So.3d 1177. Accordingly, we will review Defendant's sentence from the standpoint of a bare claim of excessiveness to determine whether a claim of an excessive sentence would be a non-frivolous argument on appeal. State v. Baker , 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.

This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

At the time of the offense, Defendant was exposed to a sentence of up to five years and a fine of not more than $2,000 for his conviction for second degree battery. La.R.S. 14:34.1. Thus, he received the maximum term sentence.

Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:

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. 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." 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. 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 (citations omitted). "The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.Code Crim.P. art. 881.4(D).

In State v. Hopkins , 96-1063 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, the defendant struck the victim on the buttocks with a thick branch. He made her remove her clothing, and he struck her some more. The blows left a four-inch bruise. The victim went to the hospital and was prescribed pain medication. This court affirmed the defendant's maximum sentence of five years at hard labor and a $2,000 fine. This court found the evidence supported the greater charge of aggravated battery. Thus, "[b]ecause the conduct involved is not adequately described by the conviction, the defendant need not be the 'worst type of offender' to receive the maximum sentence." Id. at 541.

This court's original opinion in this case ( Sanders , 209 So.3d 143 ), shows Defendant grabbed his victim, threw her down stairs, held her in his apartment against her will, threatened to "juke" her with a metal meat skewer, sprayed her with lighter fluid, made her think he would set her on fire and "make her look like a mummy[,]" repeatedly struck her on the top of her head with a knife, kicked her in the head, threw her to the ground, caused a serious head injury, poured lighter fluid into her head wound, and slapped her face. Id. at 145-46.

At the original sentencing, the trial judge considered Defendant's conduct during the commission of the offenses to manifest deliberate cruelty to his victim. He should have known the victim was particularly vulnerable. He used threats of violence and actual violence in the commission of the offenses. He used a dangerous weapon. The trial judge did not find testimony that the offenses resulted from "a lover's quarrel," which occurred before the offense, to be a mitigating factor. Defendant's acts support the greater charge of aggravated battery, which is the intentional use of force or violence with a dangerous weapon, just as in Hopkins , 692 So.2d 538.

Defendant's sentence was within the statutory guidelines. The trial court considered Defendant's indigent status and did not impose the fine allowed by statute. Defendant received a significant benefit from the trial court's ruling that the sentences are to run concurrently, and also received credit for time served. Accordingly, the trial court did not err in sentencing Defendant to the maximum term for second degree battery. Further, Defendant failed to make a non-frivolous argument of an excessive sentence on appeal.

Our review of the record reveals no non-frivolous issues Defendant could raise on appeal. Accordingly, we grant the motion to withdraw filed by counsel. We also affirm Defendant's sentences imposed by the trial court for second degree battery and domestic aggravated assault.

SENTENCES AFFIRMED. MOTION TO WITHDRAW GRANTED.