author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Amanda WILLIAMS, Appellant
    No. 52,519-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, JASON WALTMAN, TRENEISHA HILL, Assistant District Attorneys Counsel for Appellee
    Before GARRETT, COX, and BLEICH (Pro Tempore ), JJ.
   GARRETT, J.

The defendant, Amanda Williams, was convicted by a unanimous jury of the second degree murder of Bryan Savage. Williams was ordered to serve the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, she claims the evidence was insufficient to support the conviction. For the following reasons, we affirm the conviction and sentence.

FACTS

The victim in this murder case was Bryan Savage. Williams had previously been employed by Elite Services as a sitter and sat with Savage's elderly father at Savage's home on Woolworth Road in Shreveport. In the early morning hours of February 22, 2016, firefighters responded to a fire at the home. When they entered the house, they found Savage's dead body lying face up in the living room. He had a gunshot wound to the chest. He also had wounds on his head and his body was partially burned. A garden tool was found near the body.

It was determined that Williams and an accomplice, Cameron Lewis, broke into the house; killed Savage; took numerous items from the residence, including two safes; stole Savage's Ford F250 work truck; and set fire to the house. On April 14, 2016, Williams was charged by grand jury indictment with the second degree murder of Savage. On March 8, 2018, Williams was convicted as charged by a unanimous jury.

Williams filed motions for post verdict judgment of acquittal and new trial, asserting that the evidence presented was insufficient to support her conviction and that the verdict was contrary to the law and evidence. The motions were denied and she was sentenced to serve the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. A motion to reconsider her sentence was denied. Williams appealed her conviction.

SUFFICIENCY OF THE EVIDENCE

On appeal, Williams argues that the evidence is insufficient to support her conviction of second degree murder as a result of an aggravated burglary and the death of the victim. While she admits committing a burglary, she claims that she did not commit an aggravated burglary because she was not the person who had the weapon that killed the victim. She asserts that she was not aware that Lewis had a gun and she did not know or intend for anything to occur, other than a burglary. These arguments are without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Brooks , 49,024 (La. App. 2 Cir. 5/14/14), 139 So.3d 1072, writ denied , 2014-1202 (La. 2/13/15), 159 So.3d 459.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Brooks , supra .

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Brooks , supra . A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Brooks , supra .

La. R.S. 14:30.1 defines second degree murder, in part, as follows:

Second degree murder is the killing of a human being:
...
(2) When the offender is engaged in the perpetration or attempted perpetration of ... aggravated burglary, ... even though he has no intent to kill or to inflict great bodily harm.
La. R.S. 14:60 defines aggravated burglary as follows:
A. Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon.
(2) If, after entering, the offender arms himself with a dangerous weapon.
(3) If the offender commits a battery upon any person while in such place, or in entering or leaving such place.
La. R.S. 14:67 defines theft as follows:
Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

The parties to crimes are classified as: (1) principals, and (2) accessories after the fact. La. R.S. 14:23. The law of principals, as set forth in La. R.S. 14:24, states that:

All 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 defendant's mere presence at the scene is not enough to "concern" an individual in the crime. State v. Hampton, 98-0331 (La. 4/23/99), 750 So.2d 867, cert. denied , 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999) ; State v. Schwander , 345 So.2d 1173 (La. 1977). Nor can a jury's inference that an accused aided and abetted in a crime be founded upon mere speculation based upon guilt by association. State v. Schwander , supra. Only those persons who knowingly participate in the planning or execution of the crime are principals. State v. Pierre , 631 So.2d 427 (La. 1994). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Lewis , 46,513 (La. App. 2 Cir. 9/28/11), 74 So.3d 254, writ denied , 2011-2317 (La. 3/9/12), 84 So.3d 551.

There is a general principle of accessorial liability that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts, but also for the acts of the other, including deviations from the common plan which are the foreseeable consequences of carrying out the plan. State v. Smith , 2007-2028 (La. 10/20/09), 23 So.3d 291 ; State v. Anderson , 97-1301 (La. 2/6/98), 707 So.2d 1223.

While possession of a dangerous weapon is an essential component of the commission of the aggravated burglary, a person may be a principal to the offense even though he did not personally have possession of the weapon used in the commission of the crime. State v. McFarland , 07-26 (La. App. 5 Cir. 5/29/07), 960 So.2d 1142, writ denied , 2007-1463 (La. 1/7/08), 973 So.2d 731. The rule has particular application in cases of felony murder. Thus, a simple burglary may turn into an aggravated burglary and then escalate further into a second degree felony murder well beyond the original plan of the defendant or his accomplice who then unexpectedly kills during commission of the underlying felony offense. State v. Smith , supra.

In State v. McFarland , supra , the fifth circuit affirmed a conviction for second degree felony murder in the course of an aggravated burglary, finding that the fact that the defendant claimed he did not know the co-perpetrator was armed did not absolve him from responsibility, as the risk that the unauthorized entry of an inhabited dwelling may escalate into violence and death is a foreseeable consequence of burglary which every party to the offense must accept no matter what he or she actually intended. One need not possess specific intent to kill or inflict great bodily harm to be a principal to a second degree felony murder. State v. McFarland , supra . Under the law of principals, a person may be convicted of an offense even if he has not personally fired the fatal shot. State v. Hampton , supra ; State v. Lewis , supra ; State v. Brooks , supra.

Discussion

A review of the record shows that the evidence was more than sufficient to support Williams's conviction for second degree murder. The evidence clearly shows that Williams was a willing participant and actively involved in the planning, execution, and aftermath of this horrific murder.

At trial, Eric Mayes of the Caddo Parish Sheriff's Office testified that, at approximately 5:45 a.m. on the morning of February 22, 2016, he responded to a call about a suspicious vehicle parked near a house on Woolworth Road in Shreveport. Deputy Mayes pulled up behind a white Chevrolet Avalanche, which started to pull away. Deputy Mayes executed a traffic stop to determine if there was a problem. The driver of the vehicle, Lewis, indicated that he was having trouble with the vehicle. Lewis produced a Louisiana identification card, not a driver's license, and the vehicle registration, showing it was registered to Jerry Compton, who was later determined to be Williams's grandfather. According to Deputy Mayes, Lewis was sweaty and behaving suspiciously. Lewis did not have proof of insurance. He called a female to determine where the proof of insurance was located. When the search for the document proved futile, Deputy Mayes asked Lewis to step out of the vehicle. Lewis rapidly drove away, leaving his identification card and registration with Deputy Mayes. A chase ensued. According to Deputy Mayes, Lewis was driving in excess of 100 mph on wet roads. At that point, Deputy Mayes had no indication that Lewis had committed a felony. He was instructed by his supervisor to end the pursuit and to get a warrant for Lewis's arrest.

Robert Smith with the Shreveport Fire Department testified that on February 22, 2016, at 5:45 a.m., he was dispatched to a fire at a two-story log cabin on Woolworth Road. The call was received as a fire alarm, but when firefighters arrived the house was on fire. The attached garage appeared to be "pretty much involved." The firefighters decided to enter the house and try to push the fire back toward the garage and save the house. They kicked in the front door and noticed a body lying on the floor. According to Smith, there was a puncture wound to the chest and the person appeared to have been dead for some time. A three-pronged garden tool was lying on the floor near the feet of the body.

John Phelan, a videographer with the Caddo Parish Sheriff's Office, testified that, on the morning of this incident, he saw the fire and went to the Woolworth Road location. He used a drone to video the fire in progress. The footage was admitted into evidence and shown to the jury.

Josh McCollum, an arson investigator with the Shreveport Fire Department, testified that he investigated this fire. He took numerous photographs at the scene which were introduced into evidence. A sliding glass door on the house was broken and it was determined that the fire department did not break the door. A bottle of charcoal lighter fluid was found near the victim's body. A Ford Explorer belonging to the victim was parked in the driveway and had radiant heat damage. McCollum took samples of carpet from various places in the house, including near the victim's body, to be tested for accelerants.

Bruce Stentz with the North Louisiana Crime Laboratory testified that he analyzed the samples submitted by the fire department and some of them contained accelerants. The samples taken near the body contained the highest concentration of accelerants.

David Bonillas of the Shreveport Police Department Violent Crimes/ Homicide Unit was the lead investigator. He arrived on the scene while the fire department was still present. He noted damage to the sliding glass door and observed a wound to the upper chest of the victim. He was advised of Deputy Mayes's encounter with Lewis in the Avalanche registered to Compton. According to Bonillas, Compton is Williams's grandfather, who adopted her. Law enforcement officers were advised to be on the lookout for the Avalanche. It was learned that Williams had been employed with Elite Services as a sitter and sat at Savage's home for several weeks in November and December 2015.

During the course of the investigation, surveillance video was obtained from Sam's Town Casino parking garage and shown to the jury. On the date of this offense, at 6:53 a.m., approximately one hour after Lewis's traffic stop at the scene of the crime, the Avalanche and Savage's work truck pulled into the parking garage. Lewis and Williams were driving the vehicles. The pair got out; Lewis left in the work truck and Williams left in the Avalanche. They returned to the parking garage shortly after noon. Williams was still driving the Avalanche, but Lewis was driving a green Honda Accord. They parked side by side and exited their vehicles. Williams was seen in the passenger side of the Accord going through items. Lewis was touching a safe in the back seat of the Accord. Two safes were taken from Savage's home. Williams and Lewis were in the garage for approximately two hours. Lewis left in the Accord at 2:39 p.m. and Williams left in the Avalanche at 2:42 p.m.

Jason Saiz of the Shreveport Police Department testified that, on the evening of February 22, 2016, when he reported for work around 11:00 p.m., there was talk about the fire. Around 1:00 a.m. on February 23, 2016, he got a call from a homicide detective to be on the lookout for a white Chevrolet Avalanche that might have been involved in this homicide and fire. He located the vehicle at the Merryton Inn on Monkhouse Drive. It was determined that Cameron Lewis had rented a room at the motel and another room was registered to Lewis's wife, Sanchasity Lewis. Saiz called in the Special Response Team, which made entry and apprehended Williams, Lewis, and Lewis's wife.

Betsy Huey Pickett, a crime scene investigator with the Shreveport Police Department, made photographs of the Savage home. She said the house was in disarray with all kinds of papers on the floor, drawers and cabinets opened up, and dresser drawers emptied. An expended cartridge casing was retrieved. The body had not yet been removed and, while she was processing the scene, part of the ceiling caved in near the body. Pickett testified that Savage's wallet was found in the Explorer at the house. The vehicle was damaged by the fire.

It was determined that Savage had a Ford F250 work truck that was missing from the house. Later in the day, patrol officers located the abandoned truck at Ford Park in Shreveport. Pickett made photographs of the truck.

She also made photographs of things found in the motel room where Williams and Lewis were apprehended. These included a sock containing foreign currency, as well as some commemorative coins. She photographed the Avalanche and a green Honda Accord belonging to Lewis's wife. Both vehicles were retrieved from the Merryton Inn and were impounded. A live round was found in the Accord, as well as the keys to Savage's work truck and a black bag containing medicine bottles with Savage's name on them.

Dr. Long Jin, the forensic pathologist who performed the autopsy on Savage, testified that Savage had a gunshot wound to the upper chest with an exit wound on the back. The bullet perforated the aorta and Savage died from massive internal bleeding. The body also sustained blunt force injuries. There was a laceration on the temple around the right eye, a fracture at the right orbital plate, and a fracture at the base of the skull with intracranial hemorrhage in the brain. Small cuts were also found on the victim's hands. Dr. Jin stated that someone struck the victim in the head before he died. Dr. Jin did not detect any smoke in the victim's trachea. There were first and second degree burns on 20% of the body, which occurred postmortem.

On cross-examination, Dr. Jin said that Savage had severe lung disease, heart disease, and severe coronary artery disease. He had hypertension that had caused changes to the kidneys. Although Savage was "not in good shape," Dr. Jin said that what killed him "was being shot in the chest."

Williams and Lewis were arrested on February 23, 2016. On February 29, 2016, Williams asked to speak to officers about the offense. After she was informed of and waived her Miranda rights, Williams was interviewed by Bonillas and Detective Johnny Elie on March 3, 2016. The recording of the interview was admitted into evidence and was played for the jury.

In her statement, Williams said that she had worked as a sitter at Savage's house and was familiar with the layout. Williams and Lewis went to Savage's home to take two safes they knew were in the house. They traveled to the house in her grandfather's Avalanche and arrived at approximately 3:00 a.m. They parked the Avalanche on the side of the road and found a hole in the fence around the house to gain entrance to the property. They expected that Savage would be at home; she looked in a window and determined that Savage was either asleep or watching television. Williams said Lewis planned to knock Savage out if necessary. She admitted that they knew they might have to harm Savage if they had to knock him out.

They entered a garage apartment, thinking that the garage door would be open. She knew that Lewis had a loaded rifle. Lewis broke through the glass door with the butt of the gun to gain entrance to the house. Williams originally claimed she was outside when she heard a gunshot. She later said that she heard Lewis make a grunting sound and then heard the gunshot. She said she checked a bedroom to see if Savage's father was in the house. He was not.

According to Williams, Lewis said he shot Savage in the throat to shut him up. Williams said she did not know where the garden tool came from. At first, she said that when Lewis told her Savage was dead, she went to Savage's Ford Explorer and sat there while Lewis continued to take things. She later said that they both continued to take jewelry, guns, televisions, and the two safes in the closet. They were in the house for an extended period of time after shooting Savage. They loaded the items from the burglary into Savage's Explorer, but then discovered that the vehicle would not start. They transferred the items into Savage's work truck. Lewis showed Williams a projectile and they wondered whether it was the bullet used to kill Savage.

Williams said that Lewis emptied numerous liquor bottles and some charcoal lighter fluid in the house in order to start the fire. She said they spent 45 minutes to an hour trying to start the fire. Williams left the scene in the work truck, loaded with the goods from the burglary. Lewis was driving the Avalanche that was briefly detained by Deputy Mayes.

After Lewis eluded Deputy Mayes, Williams and Lewis met in Texas to exchange vehicles. They drove back to Louisiana and Williams briefly went to Diamond Jack's Casino. She then met Lewis at Sam's Town Casino to give Lewis the keys to his wife's green Honda Accord. She went home to get her children off to school. She met Lewis at Sam's Town later that day and he was driving the Accord.

Williams agreed to return to the house and do a walk-through with law enforcement officers, which was recorded and played for the jury. During the walk-through, Williams again recounted that the plan was to burglarize the house and knock Savage out if necessary. She said they knew that Savage's father might be present and they might have to tie them both up. She admitted that she and Lewis knew there was a possibility they would have to use force to accomplish the burglary.

She said that Lewis entered through a window and opened a door for her. They took some tools and after Savage was shot, Williams said she got the safes and put them in the victim's Explorer. She said Lewis pulled out drawers and took televisions, a laptop computer, and went through paperwork looking for cash. She said she was going through jewelry boxes when Lewis came to her with the projectile they thought might have killed Savage. Lewis put it in his pocket. Williams said that, prior to the burglary, she saw Lewis load the gun and that it had small bullets. She said they spent an hour in the house after Savage was killed.

Williams claimed that she was outside "in the truck" when Lewis set the fire. She said she saw Lewis get pulled over. They talked on the phone during that stop and she heard him speed away. Williams said that she was trained in CPR, but she did not use those skills to try to help Savage.

The testimony and evidence presented at trial, particularly with statements made by Williams herself, show there was ample evidence to convict her of the second degree murder of Savage, which occurred during the commission of an aggravated burglary. In her appellate brief, Williams contends that she did not intend to commit aggravated burglary, only a simple burglary, and that she did not know that Lewis had a gun. The evidence adduced at trial clearly shows otherwise. Williams's statements to the police described in great detail the manner in which she and Lewis planned the burglary. They expected Savage to be present and anticipated using force against him. She said Lewis planned to knock Savage out, if necessary, and tie him up. They also anticipated restraining Savage's elderly father, if he had been present. Williams stated that she knew they might have to harm Savage to accomplish the burglary.

Williams also said she knew that Lewis had a rifle, she watched him load it at a motel prior to the burglary, she saw him carrying the gun as they broke into the house, and that he used the butt of the gun to break a sliding glass door to gain entry into the dwelling.

The evidence shows that Williams intended to commit the unauthorized entry of Savage's inhabited dwelling with the intent to commit a theft therein. Williams and Lewis entered Savage's home, took numerous items, and stole a truck. Williams knew Lewis was armed with a dangerous weapon and, while Williams and Lewis were in the dwelling, Savage was struck in the head, and then shot and killed. To be a principal to second degree murder in this case, it was not necessary that Williams personally possess the weapon or fire the shot that killed Savage. All of the elements necessary to prove that Williams committed the second degree murder of Savage while engaged in the perpetration of an aggravated burglary were proven beyond a reasonable doubt. Her claims that the evidence was insufficient to support her conviction are unfounded, unsupported by the evidence, and without merit.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Amanda Williams, for second degree murder.

AFFIRMED.

      Lewis was also convicted of second degree murder in this matter. His conviction was affirmed on appeal. See State v. Lewis, 52,289 (La. App. 2 Cir. 9/26/18), 256 So.3d 510.

      The indictment charging Williams with second degree murder did not specify whether she was charged with specific intent under La. R.S. 14:30.1(A) and/or felony murder under La. R.S. 14:30.1(A)(2). However, the jury was instructed that Williams was charged with the second degree murder of Savage while engaged in the commission or attempted commission of an aggravated burglary.

      This was approximately the same time that Deputy Mayes stopped the Avalanche driven by Lewis. On the traffic stop video, sirens can be heard.

      A hearing was held by the trial court on August 29, 2017. The statements given by Williams were found to have been made freely and voluntarily and were admissible at trial.

      We also observe that, in State v. Lewis , 256 So.3d at 516, Williams's accomplice stated that Williams was armed with a pistol and it was Williams who fired the shot that ended Savage's life. While it cannot be determined which of the two perpetrators fired the fatal shot, as explained above, proof of that fact is not necessary. This record contains ample evidence to support Williams's conviction for second degree murder.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    Andy LONG DUC BUI and Thang Van Bui, Plaintiffs-Appellants v. Raza Ali MUGHAL, NTR, Inc., Tony E. Saba and Tamara H. Vartainian Saba, Defendants-Appellees
    No. 52,514-CA
    Court of Appeal of Louisiana, Second Circuit.
    February 27, 2019
    SHUEY SMITH, LLC, By: Richard E. Hiller, Shreveport, Counsel for Appellants
    BETHARD & BETHARD, L.L.P., By: Benjamin T. Bethard, Coushatta, Counsel for Appellees, Tony E. Saba and Tamara H. Vartainian Saba
    JAMES E. CALHOUN, Baton Rouge, Counsel for Appellees, Raza Ali Mughal and NTR, Inc.
    Before PITMAN, STONE, and McCALLUM, JJ.
   PITMAN, J.

Plaintiffs Andy Long Duc Bui and Thang Van Bui appeal the judgment of the trial court sustaining an exception of no cause of action filed by Defendants Tony E. Saba and Tamara H. Vartainian Saba, which was filed in response to a petition to revoke a sale of immovable property. The sale of the property took place prior to the recordation of Plaintiffs' judgment against other codefendants who sold the property to Defendants. For the following reasons, we affirm the judgment of the trial court.

FACTS

In October 2013, Plaintiffs sold all of their shares of stock in Bui Enterprises, Inc., d/b/a Lo Mart Supermarket, to Raza Ali Mughal for $ 200,000. Mughal executed a promissory note in the amount of $ 178,618, which was payable over 37 months. He defaulted on the monthly payments; and, on June 2, 2016, Plaintiffs filed suit in Bossier Parish against him ("the Mughal Suit"). A curator was appointed to represent Mughal, who could not be located; and, after several attempts to notify him, the matter was set for a hearing. A default judgment was rendered against him on November 14, 2016, in the amount of $ 136,272.50, together with interest and court costs ("the Mughal Judgment").

After the Mughal Judgment was rendered, Plaintiffs became aware that Mughal owned two pieces of property in Winnfield, Winn Parish, Louisiana, which were assessed in his name. They filed a suit in Winn Parish to make the Mughal Judgment executory and for a writ of fieri facias ("writ of fifa") to be issued. An order granting the writ of fifa was signed by the trial court on May 3, 2017, commanding that the sheriff of Winn Parish seize and sell the two tracts of property: 1) a .45-acre piece of land at municipal address of 1829 South Jones Street, on which was located a convenience/grocery store ("the Jones Street Property"); and 2) Mughal's house at 215 Faith Drive ("the Mughal House"). A notice of seizure was issued and a sheriff's sale on both pieces of property was set for July 19, 2017.

Prior to the sheriff's sale, Plaintiffs reached an agreement with Mughal to release the Mughal House from the order of seizure and granted a partial release of the Mughal Judgment only insofar as it affected his home.

Also prior to the sheriff's sale, Plaintiffs became aware that Mughal no longer owned the Jones Street Property, so they cancelled the sheriff's sale and ordered an abstract of title on that property, which revealed the following entries concerning the chain of title:

On April 19, 2011, Mughal's company, NTR, donated, via act of donation to Mughal, the Jones Street Property. This donation was recorded April 25, 2011.
Also on April 19, 2011, but not recorded until May 16, 2016, Mughal donated the Jones Street Property back to NTR.
In March 2017, by cash sale deed recorded March 17, 2017, NTR sold and conveyed the Jones Street Property to Tony E. Saba and Tamara H. Vartainian Saba in consideration of the sum of $ 175,000 ("the Saba Deed").

Because Plaintiffs believed Mughal's donation of the Jones Street Property back to his company, NTR, by act dated April 19, 2011, but not recorded until May 16, 2016, was a deliberate attempt to evade the debt he owed them, they filed this instant action to revoke the Saba Deed and have it declared null and void.

Defendants filed a peremptory exception of no cause of action in response to Plaintiffs' petition to revoke the sale of the property to them and pointed out that Plaintiffs had not filed any notice in the records of Winn Parish and did not put third parties on notice of the matters described in the petition. They asserted that as a result of the Louisiana Public Records Doctrine, Plaintiffs cannot seek to annul the sale. They pointed out that they bought the property from NTR, not Mughal (against whom the judgment was rendered), and the order for the writ of fifa was issued against Mughal, not NTR. For these reasons, they sought dismissal of the suit against them.

The hearing on the exception of no cause of action was held and a judgment sustaining the exception and dismissing Defendants from the suit to revoke the sale was signed on July 10, 2018. Plaintiffs appeal this judgment.

DISCUSSION

Plaintiffs argue that the trial court erred in sustaining the exception of no cause of action and dismissing Defendants because the decision was based on the fact that the Mughal Judgment was rendered only against Mughal, individually, not against NTR or Defendants. The trial court found that Defendants were unaware that the Jones Street Property might have been subject to the Mughal Judgment at the time they purchased it from NTR on March 17, 2017. Plaintiffs contend that, "In other words, the trial court ruled that, since the Mughal Judgment did not mention either NTR or Saba," they had no cause of action against Defendants to revoke the transfer of the Jones Street Property. This decision, they argue, could result in crippling the revocatory cause of action in Louisiana.

Plaintiffs further argue that a revocatory action is one where an obligee seeks to annul an act of an obligor, or the result of a failure to act, that is made or effected after the right of the obligee arose and that causes or increases the obligor's insolvency. They claim that subsequent to their initial demand of February 1, 2016, for the money due on the loan, Mughal increased his insolvency by donating the Jones Street Property to his company, NTR, which, in turn, sold the property to Defendants.

Plaintiffs also assert that the existence of the debt and insolvency of the debtor are the two prerequisites to revocation of the transaction. They claim that although the Mughal Judgment did not mention either NTR or Defendants, they still have a cause of action to revoke the transaction between the company and the buyers. They contend that they have a cause of action to revoke the Saba Deed and that the merits of the action are suitable for consideration either on motion for summary judgment or trial. They point out that the exception of no cause of action is tried on the face of the petition; and, if it states a cause of action against anyone based on the allegations, the exception should be overruled.

Defendants state that they make no attempt to defend Mughal's alleged actions, but, instead, argue that they purchased the property in good faith, after conducting a title examination of the property, paying off the encumbrances of record and paying the purchase price of $ 175,000. They contend that they should not have to bear the brunt of Mughal's actions, or those of Plaintiffs, who originally negotiated with Mughal and released the Mughal House from the previously obtained order of seizure before performing due diligence to ensure that Mughal owned the Jones Street Property.

Defendants point out that even as alleged in the petition for revocation, NTR owned the property at issue, free and clear of any judicial mortgage in favor of Plaintiffs filed in Winn Parish at the time they purchased the property. They were third party purchasers who acted in good faith. They argue that the law concerning nullity of contracts states that nullity does not impair the rights acquired through an onerous contract by a third party in good faith. If the contract involves immovable property, the principles of recordation apply to a third person acquiring an interest in the property whether by onerous or gratuitous title.

Defendants further claim that they are protected by the Louisiana Public Records Doctrine which requires that any interest in real estate must be recorded in order to affect third persons. An instrument in writing affecting immovable property which is not recorded is null and void except between the parties. They argue that the Louisiana Public Records Doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded. People can rely on the absence from the public records of those interests that are required to be recorded.

Defendants also argue that in order to have a cause of action to annul an act of the obligor, the action alleged must have been taken after the right of the obligee arose, and the obligee must prove that the act causes or increases the obligor's insolvency. They claim that by donating his property to his company, NTR, Mughal did not increase or change his insolvency. In fact, they paid $ 175,000 for the property, which only increased Mughal's liquidity, making it easier for him to pay his debt to Plaintiffs. For that reason, Plaintiffs have no cause of action to revoke the sale from NTR to the them.

The peremptory exception of no cause of action tests the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged in the petition. Fink v. Bryant , 01-0987 (La. 11/28/01), 801 So.2d 346 ; Gipson v. Fortune , 45,021 (La. App. 2 Cir. 1/27/10), 30 So.3d 1076, writ denied , 10-0432 (La. 4/30/10), 34 So.3d 298. A "cause of action," when used in the context of the peremptory exception of no cause of action, refers to the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. White v. St. Elizabeth B.C. Bd. of Directors , 45,213 (La. App. 2 Cir. 6/2/10), 37 So.3d 1139. The purpose of the exception of no cause of action is not to determine whether the plaintiff will prevail at trial, but is to ascertain if a cause of action exists. Bogues v. Louisiana Energy Consultants, Inc. , 46,434 (La. App. 2 Cir. 8/10/11), 71 So.3d 1128. The exception is triable on the face of the petition, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink , supra . The alleged facts are not examined for their truthfulness in a vacuum, but must be examined in the context of the applicable legal theory of the case. Acurio v. Cage , 52,309 (La. App. 2 Cir. 9/26/18), 257 So.3d 824, writ denied , 18-1762 (La. 1/8/19), 260 So.3d 581.

An appellate court's review of a trial court's ruling sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Acurio , supra .

The applicable legal theory of this case is that of a revocatory action, and Plaintiffs seek to revoke two separate contracts; first, they seek to revoke the donation from Mughal to NTR and, second, the sale from NTR to Defendants.

La. C.C. art. 2036 creates the right to a revocatory action and states that an obligee has a right to annul an act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor's insolvency. In order for an obligee to annul an act of the obligor, he must show (1) an act (or failure to act) of the obligor that causes or increases the obligor's insolvency; and (2) the act must occur after the obligee's rights arose. Dortch v. Rollins , 50,170 (La. App. 2 Cir. 12/9/15), 181 So.3d 911.

No cause of action with regard to the donation

In regard to the donation, Plaintiffs are the obligees and only Mughal is the obligor. Defendants, who filed this objection of no cause of action, had no role whatsoever in the donation between Mughal and NTR; and they cannot be deemed obligors to the Plaintiffs. For this reason, Plaintiffs cannot make any allegations against them which would create a cause of action in regard to the donation because Defendants had nothing to do with it. Therefore, the law does not provide a remedy to Plaintiffs against these Defendants, and the petition fails to state a cause of action against them.

No cause of action with regard to the revocation of the sale from NTR to Defendants

The allegations concerning the donation from Mughal to NTR are the only allegations made by Plaintiffs through which they attempt to assert any kind of cause of action against Defendants. They make no allegations against Defendants individually upon which to base the claim that the sale by NTR to them should be revoked. La. C.C. art. 2035 concerns rights of third parties in good faith and states as follows:

Nullity of a contract does not impair the rights acquired through an onerous contract by a third party in good faith.
If the contract involves immovable property the principles of recordation apply to a third person acquiring an interest in the property whether by onerous or gratuitous title.

In order to assert a cause of action against these Defendants, Plaintiffs' petition had to include allegations that the sale to Defendants was either 1) not an onerous contract or 2) they were not third parties in good faith. In Paragraph 15 of the petition, Plaintiffs admit that the sale to Defendants was an onerous contract, i.e., the sale of the property for the price of $ 175,000. The petition contains no allegations that Defendants were in bad faith, as would be required to assert a cause of action against them. A de novo review of the record, particularly the petition, shows that no allegations were made against Defendants which would state a cause of action against them for nullity of the contract or revocation of the sale of the property.

This assignment of error is without merit.

CONCLUSION

The judgment of the trial court sustaining the peremptory exception of no cause of action in favor of Defendants Tony E. Saba and Tamara H. Vartainian Saba and against Plaintiffs Andy Long Duc Bui and Thang Van Bui is affirmed. Costs of this appeal are assessed against Plaintiffs Andy Long Duc Bui and Thang Van Bui.

AFFIRMED.


author: BLEICH, J. (Pro Tempore )

text:
    STATE of Louisiana, Appellee v. Lonnie Tramaine CARROLL, Appellant
    No. 52,484-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019.
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, SUZANNE M. WILLIAMS, RON C. STAMPS, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, STONE, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This criminal appeal arises from the First Judicial District Court, Parish of Caddo, the Honorable John Mosley, Jr., presiding. Defendant Lonnie Carroll was tried by a jury, found guilty of first degree rape, and sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant's appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivolous issues upon which to base the appeal. This Court held the motion to withdraw in abeyance and allowed Defendant 30 days within which to file a pro se brief. As of this date, no pro se brief has been filed. For the following reasons, appellate counsel's motion to withdraw is granted, Defendant's conviction and sentence are affirmed, and the case is remanded to the trial court with instructions.

FACTS

On April 13, 2017, Defendant was charged by bill of indictment with the first degree rape of C.M., his half-sister. At the time of this incident, C.M., a nursing student, lived with her mother, her mother's boyfriend, C.M.'s younger brother, Defendant, and Defendant's girlfriend Tara at a house on Red Bud Lane in Shreveport, Louisiana. At the time of this incident, which occurred the morning of February 25, 2017, C.M. and Defendant were the only people in the home. C.M. testified that after she had bathed and dressed in preparation to go to a Mardi Gras parade with her boyfriend, she went into the kitchen. As she was standing in the kitchen, she bent down to pick up her dog. When she turned around, Defendant was right there, with a butcher knife pointed at her abdomen. Defendant grabbed C.M.

and forced her into his bedroom, which is a room located just off the kitchen.

C.M. testified that Defendant told her he would kill her if she did not do what he said. Defendant told her to perform oral sex on him while continuing to hold the knife and asking her if she wanted to die. C.M. testified that Defendant told her to remove her clothes, which she did. Defendant then had her bend over the air mattress in his bedroom; Defendant sodomized C.M. and then vaginally raped her. C.M. testified that Defendant forced her to perform oral sex on him again. C.M. stated that Defendant was covered in fecal matter, which she could taste in her mouth.

Afterwards, C.M. got dressed, but was unable to find her shirt, which she described as black with a heart-shaped neckline laced with pearls. C.M. stated that she went back to her room, slid a table in front of her door to prevent Defendant from getting in, grabbed her car keys and got out of the house through her bedroom window, wearing only her pants, underwear, and bra. She then drove her car to a nearby bank parking lot. As she was driving, she tried to call her mother, cousin, and boyfriend but no one answered. She then called 911 to report the rape. Corporal Lonnie Haskins with the Shreveport Police Department met her in the bank parking lot and took her to the hospital.

Law enforcement officers apprehended Defendant at the house on Red Bud Lane. Evidence collected at the scene included the knife C.M. told Cpl. Haskins that Defendant had used and the black shirt she described as having put on before she was sexually assaulted, both of which were found in Defendant's bedroom. Police officers also discovered that they could not enter C.M.'s bedroom because there was something blocking the door. They also found a window to her bedroom open. Melanie Hubbard, a sexual assault nurse examiner, testified that she performed the rape kit examination on C.M., who had fecal matter in her vagina and all over her genitalia. Ms. Hubbard testified that she could not properly perform tests due to the presence of the fecal matter. Ms. Hubbard also testified that C.M. had injuries consistent with sexual assault.

A redacted audio recording of Defendant's Mirandized statement to the police was played in court. In his statement, Defendant stated that he had oral and vaginal sex with his sister and that he had a knife with him during the encounter.

On May 2, 2018, a jury found Defendant guilty of first degree rape. On May 8, 2018, the trial court held Defendant's sentencing hearing. On that date, defense counsel filed motions for a new trial and post-verdict judgment of acquittal, which were denied at the hearing. Defense counsel stated after the trial court denied the motions, "Note our objection, Your Honor, and we're ready for sentencing." The trial court stated that first degree rape carried a mandatory sentence of life imprisonment, then sentenced Defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court stated that Defendant's sentence was to run concurrently with any other sentence he was required to serve and gave Defendant credit for time served. Defendant was advised of his time limits in which to file an appeal and to seek post-conviction relief. On May 15, 2018, Defendant filed a motion to reconsider sentence, which was denied the same day. Defendant filed the instant appeal.

DISCUSSION

On September 18, 2018, Defendant's appellate counsel filed a motion to withdraw and an Anders brief asserting that, after a thorough review of the entire record, no nonfrivolous issues remained for appeal. See Anders, supra ; State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 95-0981 (La. 04/28/95), 653 So.2d 1176 ; State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). The brief outlines the procedural history of the case and a statement of the facts of the case, and contains a detailed and reviewable assessment for both Defendant and this Court regarding whether the appeal is worth pursuing. Appellate counsel verified that she mailed copies of the motion to withdraw and her brief to Defendant, who has not filed a pro se brief. The state provided a letter to this Court stating, "Inasmuch as counsel for defendant-appellant filed an Anders brief in [this] matter, the State declines to file a brief."

La. R.S. 14:42 provides in part:

(A) First degree rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
....
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
....
(D) (1) Whoever commits the crime of first degree rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The record provides sufficient evidence to support a conviction of first degree rape. Given that La. R.S. 14:42 requires a mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence, Defendant's life sentence is not illegal. Also, where there is a mandatory sentence, there is no need for the trial court to justify under La. C. Cr. P. art. 894.1 a sentence that it is legally required to impose. State v. Morning , 49,300 (La. App. 2 Cir. 10/01/14), 149 So.3d 925, writ denied , 14-2354 (La. 02/19/16), 186 So.3d 1179 ; State v. White , 45,915 (La. App. 2 Cir. 02/02/11), 58 So.3d 493, writ denied , 11-0373 (La. 06/24/11), 64 So.3d 220. We therefore grant appellate counsel's motion to withdraw and affirm Defendant's conviction and sentence.

ERROR PATENT

In accordance with La. C. Cr. P. art. 920, the record has been reviewed for errors patent. La. C. Cr. P. art. 873 provides:

If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

The record shows that the trial court failed to observe the 24-hour sentencing delay under La. C. Cr. P. art. 873, and there was no express waiver of the delays by Defendant (although his attorney did announce at the sentencing hearing, following denial of their motions, "We're ready for sentencing."). Defendant did not object to the trial court's failure to observe the delay, and there was no showing of prejudice. Thus, the trial court's failure to observe the 24-hour delay was harmless error. See State v. Burch , 52,247 (La. App. 2 Cir. 11/14/18), 259 So.3d 1190 ; State v. Lindsey , 50,324 (La. App. 2 Cir. 02/24/16), 189 So.3d 1104.

Additionally, first degree rape is a sex offense as defined by La. R.S. 15:541, and La. R.S. 15:542 provides mandatory registration requirements for sex offenders. La. R.S. 15:543(A) provides:

The court shall provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter. For purposes of this Subsection, the court shall use the form contained in R.S. 15:543.1 and shall provide a copy of the registration and notification statutes to the offender. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and an entry shall be made in the court minutes stating that the written notification was provided to such offenders.

The record does not show that the trial court provided Defendant with verbal or written notice of his obligation to register as a sex offender. Therefore, we remand this case to the trial court to provide the appropriate written notice to Defendant of the sex offender registration requirements, and to confirm the written notification on the record. State v. Barrett , 51,921 (La. App. 2 Cir. 04/11/18), 247 So.3d 164 ; State v. Williams , 49,249 (La. App. 2 Cir. 10/01/14), 149 So.3d 462, writ denied , 14-2130 (La. 05/22/15), 173 So.3d 1167 ; State v. Hough , 47,308 (La. App. 2 Cir. 08/01/12), 103 So.3d 477, writ denied , 12-1936 (La. 03/08/13), 109 So.3d 357.

CONCLUSION

Appellate counsel's motion to withdraw is granted, Defendant's conviction and sentence are affirmed, and the case is remanded for the trial court to provide Defendant with written notice of the sex offender registration requirements with confirmation of said notice on the record.

GRANTED, AFFIRMED, and REMANDED .

      The statement was redacted to exclude evidence of Defendant's other crimes under La. C.E. 404(B).


author: COX, J.

text:
    STATE of Louisiana, Appellee v. Steven Devon HARDYWAY, Appellant
    No. 52,513-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    STEVEN DEVON HARDYWAY, Pro Se
    JOHN FITZGERALD BELTON, District Attorney, LEWIS ALLEN JONES, TRACY WAYNE HOUCK, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, PITMAN, and COX, JJ.
   COX, J.

This criminal appeal arises from the Third Judicial District Court, Lincoln Parish. The defendant, Steven Hardyway, was found guilty as charged of attempted first degree murder and armed robbery. For the conviction of attempted first degree murder, Hardyway was sentenced to 50 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. For the conviction of armed robbery, Hardyway was adjudicated a second-felony habitual offender and sentenced under La. R.S. 15:529.1 to 99 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The sentences were imposed to run concurrently. Hardyway now seeks review of his convictions and sentences. For the following reasons, we vacate Hardyway's conviction and sentence for attempted first degree murder. We affirm Hardyway's conviction of armed robbery and vacate his habitual offender adjudication and sentence for armed robbery and remand for further proceedings.

FACTS

On December 30, 2015, Hardyway was charged with the attempted first degree murder of Myisha Jefferson, in violation of La. R.S. 14:30 and La. R.S. 14:27, and the armed robbery of Ms. Jefferson, in violation of La. R.S. 14:64.

On February 16, 2017, the defense filed a motion to quash the bill of information on grounds that the charges violated Hardyway's protection against double jeopardy. Hardyway argued that he could not be prosecuted for attempted first degree murder that allegedly occurred during the commission of an armed robbery, while also being prosecuted under a second charge for the same armed robbery offense. The State argued in response that there was no violation of double jeopardy because attempted first degree murder had an additional required element - specific intent to kill or inflict great bodily harm. The State also argued that attempted first degree murder does not require the commission or attempted commission of armed robbery as the only underlying basis for the charge and is not restricted to armed robbery as the only enumerated felony. The State further argued that the facts of this case suggested that Hardyway's actions constituted more than one of the felonies enumerated in La. R.S. 14:30, and since the bill of information did not specify a particular enumerated felony, there was no reason for the court to grant the motion to quash at that time. The trial court denied the motion to quash, but reserved the right to file a per curiam in due course if appropriate. The defense did not seek supervisory review of the ruling.

The evidentiary portion of the trial began on August 8, 2017, with testimony from Ms. Jefferson. She stated that she began working as a shift supervisor at the Subway restaurant on West California Avenue in Ruston, Louisiana, in late July or early August of 2015. She testified that over the next few months, she occasionally shared a shift with a coworker named Steven Hardyway. One rainy day, she gave Hardyway a ride to his girlfriend's house. She stated that Hardyway's employment was terminated in late October of 2015.

Ms. Jefferson testified that on November 4, 2015, she worked the closing shift, from 4:00 p.m. to 10:00 p.m. Once the store was closed, she and two other female employees cleaned up, and the other two employees left. She testified that she closed out the register, set the security alarm, and proceeded to leave. As she was leaving, two African-American males wearing masks entered through the back door. Ms. Jefferson recalled that one of the masks was a devil-style mask with horns, but could not remember the second mask. The men demanded that she turn off the alarm and give them the money in the safe. Ms. Jefferson stated that she immediately recognized one of the men's voices and his Converse sneakers and camouflage shorts, as belonging to her former co-worker, Hardyway. Ms. Jefferson could not clearly remember which intruder wore which mask. She did not recall any identifiable information about the other man, whose voice she did not recognize

Ms. Jefferson stated that both men struck her and repeatedly threatened to shoot her while demanding that she open the safe. Ms. Jefferson testified that the safe could only be opened by keying a code into a digital keypad. She stated that when the men demanded she open the safe, she broke the digital keypad off the safe, thinking it would cause the safe to open, but it did not.

Ms. Jefferson testified that she told the two men that the safe could not be opened because the digital keypad was broken. The men continued to hit her and threatened to shoot her if she did not open the safe. Ms. Jefferson stated that she told the two men that she had a tire tool in her vehicle that might be used to pry open the safe, but she was unable to open the safe with the tool.

Ms. Jefferson stated that the man she recognized as Hardyway called her "Myisha," and asked if she knew who he was. In hopes of protecting herself, Jefferson told him that she did not know him. She testified that the same man ordered her to lie down on the floor in the drive-through window area. Ms. Jefferson stated that while she was lying down, Hardyway took her wallet, which contained her money, personal bank card, and work credit card.

Ms. Jefferon stated that Hardyway took the money and card from her wallet, then shot at her. Ms. Jefferson attempted to run to the front door of the restaurant. She testified that as she attempted to unlock the front door, Hardyway hit her in the head with a gun and stabbed her multiple times. She stated both men left after the attack. Ms. Jefferson testified that after the attack, she went outside through the front door, but was unable to find help, so she returned to the drive-through area, where she called 9-1-1 and collapsed on the floor. She stated that she lost consciousness a couple of times while she was trying to get help.

At trial, Ms. Jefferson recalled that earlier in the day on November 4, 2015, Hardyway's girlfriend asked her if she was closing that night. Ms. Jefferson confirmed that she was closing.

Ms. Jefferson identified State's Exhibit S-2 as the same camouflage shorts worn by the man she recognized as Steven Hardyway on the night of the attack. She also identified State's Exhibits S-3 and S-4 as the same faded black Converse shoes that she recalled Hardyway wearing at work and when he attacked her. Ms. Jefferson identified Hardyway in court as her former co-worker and the man whose voice she recognized when he entered the Subway, stole money, and attacked her.

The factual basis of Ms. Jefferson's testimony about this event was corroborated by the Subway security surveillance video. The video played for the jury showed two masked men armed with guns entering through the back of the store. The video shows that the armed men hit Ms. Jefferson and threatened her life if she did not turn off the alarm and open the safe. The video shows, from multiple angles, the man in the alien mask taking bills that Ms. Jefferson was able to retrieve from the safe's top slot as she laid them on the floor. The video also shows that the armed intruders searched Ms. Jefferson's person and removed her wallet with her money and bank card. The video shows the man in the alien mask taking the coin register off the counter. The video, along with the audio, shows that the man in the alien mask continued a dialogue of threats against the victim as he hit her and watched her struggle to open the safe with the tire tool. The video shows the alien-masked man fired a gun at Jefferson six times, and then returned and chased after her as she attempted to escape. Another gunshot is heard and then the sound of Jefferson screaming before the man runs off. The video shows Jefferson collapsing to the floor in the drive through window area and calling 9-1-1.

Linda Echols, Director of Health Information Management for Northern Louisiana Medical Center in Ruston, Louisiana, testified about Ms. Jefferson's medical records after the attack. She stated that in addition to being shot with a small caliber gun, Ms. Jefferson's medical records revealed the following:

[M]ultiple stab wounds to the chest, approximately 35 to 40 total. She had bilateral pheumothoraces. She also had very deep extensive laceration to the right side of her neck. She had injuries to the left axilla as well as extensive injury to the left wrist.
...
The patient was resuscitated and emergently taken to the operating room... She had bilateral ear lacerations which were actually near amputations. She underwent closure of multiple stab wounds. She underwent exploration of the left wrist bleeding site with ligation of the radial artery from the dorsal aspect. She had complex repair of right neck laceration and chest tube placement.

Captain Eric Hanna, of the Ruston Police Department, testified that due to Ms. Jefferson's condition, she was restricted in her communications with the investigating officers immediately after the attack. He stated that through a series of questions, officers were able to discern from Ms. Jefferson's responses that one of her attackers was Hardyway, a former coworker.

Victoria Robbins, the manager of Subway on November 4, 2015, testified that while reviewing the surveillance video, she recognized the clothing and voice of one of the armed intruders as belonging to her former employee, Hardyway. Robbins testified that Hardyway worked at that Subway from late July or early August 2015 until October 2015, for approximately 20 hours per week. Robbins stated that Hardyway had worn the Converse sneakers and the camouflage shorts to work, and she was familiar with his voice because she worked with Hardyway about 10 hours each work week. She also testified that the person she recognized as Hardyway knew things that only employees or former employees would know, such as the location of the keys to the cash registers. Robbins testified that when checking the store after the robbery, she found the store was short some money.

Lieutenant Henry Wood, of the Ruston Police Department, testified that after Hardyway was identified as one of the armed intruders by both Ms. Robbins and Ms. Jefferson, the officers searched for Hardyway at known residences, including the home of Virgina Castle, Hardyway's grandmother. Detective J.D. Driskall, of the Lincoln Parish Sheriff's Department, and Lt. Wood searched Ms. Castle's home. Det. Driskall and Lt. Wood testified that in the rear bedroom closet, officers found the camouflage shorts that Hardyway was seen wearing in the security video.

Ms. Castle testified that Hardyway came to her Grambling, Louisiana, home on the morning of November 5, 2015, changed clothes in the rear bedroom, and left again. Ms. Castle identified exhibit S-2 as the shorts Hardyway wore into her home before changing.

Shequita Jones, Hardyway's mother, testified that she spoke with Hardyway the morning of November 5, 2015, and told him that law enforcement officers were looking for him in connection with the Subway robbery. Ms. Jones stated that she wanted her son to turn himself in to law enforcement. She testified that she called the police to notify them that Hardyway was at his aunt's house. When the police arrived at the aunt's house, Hardyway was no longer there. Det. Driskall testified that Hardyway was arrested on November 6, 2015, while meeting his mother on the side of the road, outside of a wooded area.

Lt. Wood testified that Hardyway told officers he had a "bunch of" dollar bills in his pocket, admitted to being in the area of the Subway that night, and admitted to changing his clothes and leaving his shorts and shoes at his grandmother's house. Lt. Wood testified that DNA testing of the shorts and shoes, against DNA profiles obtained from Steven Hardyway, Jeremy Hardyway, and Myisha Jefferson, revealed that Ms. Jefferson's DNA and Hardyway's DNA were both found on the camouflage shorts and one of the Converse shoes that Hardyway was seen wearing during the Subway incident.

Officers Trey Tull and Gerald Jenkins, of the Ruston Police Department, both testified that a trail of coins was found running through the Subway restaurant and out the back door, then through the parking lot, where the asphalt ended at a yard. Officer Tull testified that a canine tracked the path left by the suspects through the vegetation.

Lieutenant Marchale Canty, also of the Ruston Police Department, testified that he took photographs and collected evidence at the crime scene. Lt. Canty testified that neither fingerprints nor DNA evidence were recovered at Subway. Lt. Canty stated that the Subway coin dispenser was found abandoned in a nearby yard, but the dispenser had no fingerprints on it. He testified that a red devil mask, matching the one seen in the surveillance video, was found floating in a nearby creek, about one block from Subway. Lt. Canty stated that the investigation revealed that Hardyway's cousin, Jeremy Hardyway, was the other armed intruder, and that he was the perpetrator who wore the devil mask, while the defendant, Hardyway, wore the alien mask.

Jeremy, Hardyway's cousin, testified that the two of them committed the criminal offenses at Subway on November 4, 2015. Jeremy acknowledged that he pled guilty to armed robbery, and in exchange for the State's agreement for a five-year sentence, he agreed to testify about the crime. In court, Jeremy identified his cousin, Hardyway, and admitted that the two of them planned to rob the Subway. He stated that they each had a gun, but only Hardyway wore gloves, and he covered his hands with his shirt sleeves. Jeremy confirmed that he wore the red devil mask while Hardyway wore the alien mask. Jeremy confirmed that Hardyway was wearing camouflage shorts and Converse sneakers. Jeremy admitted that he and Steven entered through the back door, grabbed Ms. Jefferson, and demanded that she shut off the alarm and open the safe. He also testified that both men hit Ms. Jefferson and threatened her for 20-30 minutes while demanding that she open the safe. Jeremy testified that Hardyway shot and stabbed Ms. Jefferson.

Jeremy testified that Ms. Jefferson was able to pull bills through a slot on the safe. She placed the bills on the floor, and Hardyway took the money. Jeremy confirmed that Hardyway told Ms. Jefferson to lie down in the drive-through window area, and stood over her, then shot at Ms. Jefferson multiple times. Jeremy testified that when Hardyway asked for his gun, Ms. Jefferson attempted to run to the outside door, and Hardyway caught her and stabbed her repeatedly with his knife. Jeremy stated that he tossed his red devil mask on the trail they followed after leaving Subway. He also confirmed that Hardyway took the coin dispenser, which they dumped on the ground.

After the State rested, the defense called Audra Williams, of the North Louisiana Crime Lab, to testify. Ms. Williams was accepted as an expert in forensic DNA analysis. Ms. Williams testified about the details and results of the DNA testing that she conducted on the evidence recovered.

Levincesky Pfeiffer testified that he and Jeremy were incarcerated together, in rooms next to each other. He stated that Jeremy told him that he committed the armed robbery at Subway with a man named "Yedi or Yadi." He stated that Jeremy never mentioned the name Steven Hardyway. The defense rested.

During the trial, the defense made an oral motion for mistrial, re-urging the double jeopardy challenge raised in the previously denied motion to quash. The trial court denied the motion. The defense did not seek supervisory review of that ruling.

The jury found Hardyway guilty as charged on both counts. Jury polling established that the vote on both counts was unanimous.

On August 15, 2017, the State filed a habitual offender bill, charging Hardyway as a third-felony habitual offender as to the armed robbery conviction only. On August 17, 2017, the defense filed a motion to quash the habitual offender bill of information. Hardyway also moved for a post-verdict judgment of acquittal and a new trial. Both motions were denied on September 9, 2017. The State then arraigned Hardyway on the habitual offender bill, charging Hardyway as a third-felony habitual offender as to the armed robbery conviction. The defense entered a plea of not guilty and denial.

Hardyway appeared for sentencing on October 3, 2017. The trial court stated that the presentence investigation report had been completed and reviewed. The trial court observed the following aggravating factors: Hardyway held the victim at gunpoint for 30 minutes, threatened her life, hit her and shot at her at close range six times, then shot her again with another gun, and stabbed her multiple times in the back and neck. The victim required a ventilator and approximately $ 100,000 in medical treatment, and lives with physical and emotional scars from the trauma. Hardyway took property, things of value, that did not belong to him, but that belonged to Subway and to Ms. Jefferson. The trial court noted a prior felony conviction for simple burglary. The trial court found that Hardyway was in need of correctional treatment in a custodial environment by commitment to an institution. It observed that Hardyway's conduct manifested deliberate cruelty to Ms. Jefferson and that he used threats of violence and actual violence, along with a dangerous weapon in committing the offenses. The trial court observed that Hardyway endangered human life by discharging a firearm in the commission of the offense. It also noted that Hardyway's actions resulted in permanent and significant injury to the victim.

The trial court did not find any mitigating circumstances. For the conviction of attempted first degree murder, Hardyway was sentenced to 50 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. For the conviction of armed robbery, Hardyway was sentenced to 60 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The sentences were imposed to run concurrently with one another, with credit for time served. The trial court advised Hardyway of the time delays to seek post-conviction relief.

On October 3, 2017, the trial court also heard the motion to quash the habitual offender bill. The motion was denied. The habitual offender bill stated that Hardyway had been charged in Criminal Docket No. 64,447 with simple burglary of the Grambling Postal Facility. He was also charged in the same docket number with simple criminal damage to property over $ 500.00, regarding the post office loading dock, multiple packages, and personal mail. The felonies occurred on the same day, in one transaction. Hardyway pled guilty to both on August 15, 2013, and was sentenced on October 3, 2013. The defense argued that because the two offenses were committed on the same day, the conviction could only count as one predicate offense for habitual offender purposes, meaning Hardyway could only be adjudicated a second-felony habitual offender. The matter was taken under advisement.

On November 30, 2017, the trial court filed a written ruling, finding that the two prior convictions arose from a single course of action and therefore, only counted as one predicate conviction under the habitual offender law. The trial court found that Hardyway was a second-felony habitual offender.

Hardyway appeared before the court on December 5, 2017, for sentencing on the armed robbery conviction under the habitual offender law. The trial court adopted its written ruling adjudicating Hardyway as a second-felony habitual offender as to his armed robbery conviction. The trial court vacated the prior sentence for armed robbery. The defense argued that Hardyway had no prior violent criminal convictions, and requested that the court consider imposing a sentence that deviated below the statutory minimum. The State pointed out that Hardyway shot at his victim seven times and stabbed her over 35 times.

The trial court then recited the second-felony habitual offender law in effect at the time of sentencing, which imposed a sentencing range of 33 years to 198 years of imprisonment, as opposed to the range at the time Hardyway committed the offense, which was 49½ years to 198 years. The trial court adopted its prior reasons for sentencing on the armed robbery charge, again noting the factual basis for the jury's guilty verdict. The trial court resentenced Hardyway for his armed robbery conviction under the habitual offender law to 99 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The sentence was imposed to run concurrently with Hardyway's attempted murder sentence. The trial court again advised Hardyway of the time delay to seek post-conviction relief. Hardyway objected to the sentencing.

Hardyway moved to appeal his conviction and sentence on December 11, 2017. On December 14, 2017, Hardyway filed a motion to reconsider sentence and argued that the habitual offender sentence was disproportionate, excessive, and in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The motion was denied on January 3, 2018.

DISCUSSION

Double Jeopardy

Citing State v. Williams , 26,230 (La. App. 2 Cir. 9/21/94), 643 So.2d 284, writ denied , 96-0115 (La. 3/29/96), 670 So.2d 1236, Hardyway argues that the conviction for armed robbery and attempted first degree murder, based on the same armed robbery, violate the prohibition against double jeopardy. In its brief, the State does not argue against double jeopardy, only arguing that if the Court finds double jeopardy, the attempted first degree murder charge should be vacated.

Both the United States and Louisiana Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. U.S. Const. Amend. V ; La. Const. art. 1, § 15 ; La. C. Cr. P. art. 591. Double jeopardy provisions protect an accused not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct. State v. Vaughn , 431 So.2d 763 (La. 1983).

In Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the U.S. Supreme Court set out a precise rule of law to determine if a double jeopardy violation has transpired. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, supra . Louisiana's separate "same evidence" test is no longer used in determining whether a double jeopardy violation exists. State v. Frank , 16-1160 (La. 10/18/17), 234 So.3d 27.

La. R.S. 14:30 provides, in pertinent part, that first degree murder is the killing of a human being:

When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.

La. R.S. 14:27 defines an attempted offense as occurring when any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

Hardyway was charged with the armed robbery of Myisha Jefferson and attempted first degree murder of Myisha Jefferson. The jury convicted him of both attempted first degree murder and armed robbery. The jury instructions defined first degree murder as, "the killing of a human being when the offender acted with specific intent to kill and in addition the offender was engaged in the commission or attempted commission of armed robbery, first degree robbery, or simple robbery." The jury instructions did not list the other enumerated felonies under the first degree murder statute. Therefore, the State was limited to proving attempted first degree murder with only the robbery charge.

In this case, armed robbery against Ms. Jefferson was the only enumerated felony charged by the State. Based on the jury instructions and charges against Hardyway, armed robbery was a required element for proving attempted first degree murder. Had the State proved, and the jury found, attempted first degree murder based on another underlying felony, it is possible that double jeopardy might not exist. See State v. Thomas , 50,929 (La. App. 2 Cir. 8/10/16), 201 So.3d 263, writ denied , 2016-1642 (La. 9/6/17), 224 So.3d 980. However, under the specific facts and charges of this case, and because the armed robbery of Ms. Jefferson provided the sole basis for the attempted first degree murder conviction, we find that there is a double jeopardy violation.

The remedy for a double jeopardy violation is that the less severely punishable conviction and sentence are vacated. State v. Thomas, supra . Accordingly, Hardyway's conviction and sentence for attempted first degree murder, the less severely punishable offense, is vacated.

Habitual Offender

Hardyway argues pro se that the habitual offender bill violates the deal he made with the district attorney. On February 2, 2016, Hardyway appeared with his attorney, James Buckley, at a hearing. Assistant District Attorney Lewis Jones appeared for the State. Mr. Jones indicated that Hardyway had been on probation for a felony conviction in the Third Judicial District Court, Criminal Docket No. 64,447 at the time the offenses were committed at Subway. A petition was filed to revoke his probation and Hardyway denied the allegations that he violated his probation by committing the instant offenses of attempted first degree murder and armed robbery. At the hearing, Mr. Jones made the following statement:

I had indicated to Mr. Hardyway's counsel that if he admitted violating his probation today, we would ask that his probation be revoked; however, if he later pled guilty to the new charge, that I would not charge him as an habitual offender. On the other hand, I've informed him once we start this hearing, whether he is convicted or pleads guilty later, I am going to charge him as an habitual offender and I would ask that he state that he understands that and it would proceed at this time.

The trial court asked Hardyway if he heard and understood the offer and Hardyway answered affirmatively. Hardyway then conferred with Mr. Buckley. Mr. Buckley then informed the trial court that Hardyway had reconsidered and decided that he wanted to admit to violating his probation.

The trial court informed Hardyway that if he admitted the probation violation, the original sentence of eight years at hard labor would be imposed, with credit for time already served. Hardyway confirmed that he understood. The trial court also explained that by admitting the probation violation, Hardyway was waiving his right to a full and formal probation revocation hearing, and Hardyway confirmed that he understood and that he wished to waive his right. Hardyway then pled guilty to violating his probation, and the trial court ordered that the original sentence be imposed.

Mr. Buckley then asked, "And Your honor, if I may clarify with Mr. Jones, for the record, this - you will not seek [a] habitual offender bill against Mr. Hardyway." Mr. Jones replied, "That's right." The court replied, "So noted."

Sometime between October 24, 2016, and November 29, 2016, Hardyway's legal representation changed from Mr. Buckley to a different appointed counsel, Robert Moore. Mr. Moore represented Hardyway through the remainder of the pretrial proceedings, at trial, post-trial motions, sentencing, and the habitual offender proceeding.

On August 15, 2017, Mr. Jones filed the bill of information charging Hardyway as a third-felony habitual offender. Notably, no objection or motion to enforce, based on the February 2, 2016 deal, was raised by Mr. Moore or Hardyway in the motion to quash the habitual offender bill, at the arraignment on the habitual offender bill, at the hearing on the motion to quash the habitual offender bill, or at sentencing under the habitual offender bill.

A plea agreement is a contract between the State and a criminal defendant. State v. Nixon , 52,202 (La. App. 2 Cir. 8/15/18), 254 So.3d 1228. In State v. Young, 50,072 (La. App. 2 Cir. 8/12/15), 174 So.3d 719, this Court explained the principles governing the validity of plea agreements:

In determining the validity of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant's constitutional right to fairness may be broader than his or her rights under contract law. The party demanding performance of a contract has the burden of proving its existence. In the context of plea bargains, a defendant may demand specific performance of the state's promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right.
Contracts have the effect of law for the parties and must be performed in good faith. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. (citations omitted)

A plea is constitutionally infirm when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the agreement are not satisfied. State v. Rathore , 52,084 (La. App. 2 Cir. 6/27/18), 251 So.3d 628. When a plea agreement is breached, the defendant has the option of specific performance or to withdraw the guilty plea. State v. Patterson , 51,559 (La. App. 2 Cir. 9/27/17), 244 So.3d 733, 736.

The record shows the State made an agreement, that if Hardyway admitted his probation violation in the prior case, the State would not file a habitual offender charge in this case. By filing the habitual offender bill, the State breached the plea agreement. For this reason, we vacate the habitual offender adjudication and sentence and remand the matter to the trial court for resentencing as to the conviction for armed robbery, in accordance with the agreement.

Excessive Sentence

Hardyway argues the sentences imposed are excessive and serve no legitimate purpose. Because we vacate the attempted first degree murder conviction and vacate the armed robbery sentence under the habitual offender enhancement, we pretermit this discussion.

Right to a Preliminary Exam

In a pro se argument, Hardyway questions whether his counsel could constitutionally waive his right to a preliminary exam when he was not questioned on whether he understood the seriousness of the matter at hand.

The hearing transcript shows that the trial court asked the defendant numerous times whether he wanted to dismiss the preliminary exam that was already in progress. Hardyway confirmed his choice several times and the motion for preliminary exam and motion to suppress were both withdrawn. The motion for preliminary exam was clearly withdrawn at the defendant's request, with his approval. This assignment is without merit.

Phone Calls

Mr. Hardyway's next pro se assignment of error involves the phone calls made while he was incarcerated. He argues a motion for mistrial was made after the trial judge instructed the prosecution not to mention that phone calls made by the defendant were made while he was incarcerated, yet the prosecution asked a witness if he was aware the phone calls were made between the defendant and his co-perpetrator, Jeremy Hardaway. Hardyway asserts that a Sixth Amendment violation occurred, but provides no further argument or explanation.

During his opening statement, the prosecutor mentioned that the defendant made calls to Jeremy Hardyway, in which he said, "Stay away from here, you didn't have anything to do with this, you know nothing, you're not involved." The defense objected that the prosecutor's statements suggested that Hardyway made inculpatory statements. The defense argued that the prosecutor's comments constituted prejudicial and reversible error as a reference to a purported confession during the opening statement. The defense moved for a mistrial.

In opposition, the State argues that the alleged statements were not inculpatory and not a confession and that the statements were not made to law enforcement. The trial court cited La. R.S. 15:449 and found that the statements did not constitute a confession because they were not an acknowledgment of guilt, just an acknowledgment of facts that may tend to establish guilt. The motion for mistrial was denied. The witness, or the prosecutor, did not mention that the defendant was incarcerated. The defendant fails to show that the trial court erred in denying this motion. This assignment lacks merit.

Miranda Warning

In a pro se assignment of error, Hardyway argues that law enforcement officers enlisted his mother to assist them in locating him, thus making her a state agent. He asserts that Ms. Jones failed to properly read him his Miranda rights before communicating with him, in violation of his Fifth and Sixth Amendment rights.

Ms. Jones testified that she contacted law enforcement and made the arrangements because she wanted her son to turn himself in, and when he refused, she wanted him to be brought in safely. Jones was not a law enforcement officer and was not made one simply because she contacted police and arranged this meeting. This assignment is without merit.

Motion to Suppress

In his final pro se assignment of error, Hardyway argues the DNA swab and other evidence should have been deemed inadmissible because the search warrant was not properly filed. During trial, the defense moved that the DNA swab taken from Hardyway by Lt. Hamlin should be held inadmissible. The defense asserted that the search warrant obtained by the police for the DNA swab was rendered invalid because there was no documentation in the record showing that the return for the search warrant was filed into the record. The State objected that the motion was invalid because it was not in writing and because the motion was not timely filed before trial started. The trial court denied the motion, finding that irregularities and technicalities in filing the return did not constitute a constitutional violation, citing State v. Square , 257 La. 743, 244 So.2d 200 (1971), vacated in part on other grounds , 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), and State v. Revere , 572 So.2d 117 (La. App. 1 Cir. 1990), writ denied , 581 So.2d 703 (La. 1991).

Although an officer may fail to file a return with the court listing the details of a seizure pursuant to a search warrant, such an irregularity does not require suppression of the evidence. State v. Loyden , 597 So.2d 156, 160 (La. App. 3 Cir. 1992), writ denied , 605 So.2d 1089 (La. 1992). Failure to return and file the search warrant is a ministerial defect and does not affect the validity of the search. United States v. Wilson , 451 F.2d 209 (5th Cir. 1971).

CONCLUSION

For the foregoing reasons, Steven Hardyway's conviction and sentence for attempted first degree murder are vacated. Hardyway's conviction of armed robbery is affirmed. Hardyway's habitual offender adjudication and sentence for the conviction of armed robbery are vacated and the matter remanded to the trial court for resentencing in accordance with the plea agreement made on February 2, 2016.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED IN PART.

      In evidence presented later at trial, the second intruder's mask is identified as an alien mask.

      During Jeremy's testimony, he stated that "Yedi" was the street name of his friend, who drove him and Steven Hardyway across town. Jeremy stated that Yedi dropped them off at a house about ten minutes from Subway, and from there, they walked to Subway.

      Hardyway also argued the double jeopardy violation pro se.

      The penalty for attempted first degree murder is imprisonment at hard labor for not less than 10, nor more than 50 years, without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:30 ; La. R.S. 14:27. The penalty for a conviction of armed robbery is imprisonment at hard labor for 10 to 99 years, without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:64.