text:
    STATE of Louisiana, Appellee v. Joseph Michael KURZ, Appellant
    No. 51,781-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    THE HATCH LAW FIRM, LLC, By: Christopher Hatch, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, JASON W. WALTMAN, JOSHUA K. WILLIAMS, REBECCA A. EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, COX, and GASKINS (Ad Hoc ), JJ.
   GASKINS (Ad Hoc ), J.

Before the court is the appeal of defendant Michael Kurz. After a jury trial, he was convicted of aggravated rape and sentenced to life in prison without parole. On appeal, Kurz urges five assignments of error: (1) the evidence was insufficient to support his conviction; (2) the procedures for a capital trial were required to be, but were not, followed; (3) the trial judge committed an abuse of discretion in allowing five prosecution witnesses to testify pursuant to La. C.E. art. 412.2 (collectively, the " article 412.2 witnesses"); (4) the sentence imposed is illegal; and (5) time limitations barred the prosecution. For the reasons stated herein, we affirm the conviction but amend Kurz's sentence to 50 years of incarceration at hard labor.

FACTS AND PROCEDURAL HISTORY

Kurz was born August 25, 1952. He was indicted by grand jury for the aggravated rape of the male victim, who was born on July 7, 1965, and who testified that he was under the age of 12 at the time of the rapes. The indictment alleges that Kurz committed the rapes between July 7, 1975, and July 7, 1977, when the victim was 10 or 11 years old, and the defendant was approximately 23 or 24 years old. The original indictment was returned August 20, 2014; the amended indictment was returned that same day, but was not filed until May 9, 2016. At trial, Kurz was 64 years old and the victim was 51 years old.

In December 2016, this matter went to trial. The state presented the testimony of the victim and five other male witnesses who claimed to have been sexually victimized by Kurz. The state also presented the testimony of James Moore, the detective to whom the victim initially reported the rapes, as well as Shelly Anderson, the forensic computer expert who testified that she found child pornography on Kurz's computer.

Victim's testimony

The victim was born on July 7, 1965. Kurz is related to the victim and 12 years his senior. The victim identified Kurz at trial. He remembers seeing Kurz at family gatherings at his parents' and grandmother's houses. These are his earliest memories of Kurz. The victim was four years old when Kurz touched his genital area (over his clothes) for the first time, in a bedroom at the victim's grandmother's house. Kurz continued this type of fondling over the years, mostly at family gatherings at the victim's grandmother's or his parents' houses. At some point, Kurz began fondling the victim's genitalia under his clothing; from there, Kurz escalated to performing oral sex on him. When the victim was older, Kurz had the victim perform oral sex on him. During this time frame, Kurz initially lived with the victim's grandmother, but eventually moved to a trailer several miles away on Linda Lane.

At the Linda Lane trailer, Kurz anally penetrated the victim approximately a dozen times, beginning when the victim was 11 years old. The victim reiterated that he was 11 years old when the anal penetration began, and remembered this by two markers: he was in elementary school at the time, and it was "at least a year to a year and half... prior to Elvis's death, which was in '77."

It was not until the late 1980s that the victim initially revealed what Kurz had done to him. He first told his parents, and did not seek counseling or otherwise discuss it with anyone else. When asked how he tried to cope with Kurz raping and sexually abusing him, he testified:

I pushed it down as far as I could in the back of my mind. It was always there, but it was not a constant thought at that time like it was before when I was younger. I just tried to bury it as deep as I could.

The victim maintained his silence from the late 1980s until 2014, when he learned that Kurz had been arrested for sexual involvement with an underage male. This spurred him to "come forward because this had to stop. This couldn't go on with any other kids. This could not happen again." The victim contacted the Caddo Sheriff's Office, and eventually gave a recorded Skype interview to Detective Moore.

On cross-examination, the defense attempted to use the Skype interview to discredit the victim's testimony that he was 11 years old when Kurz began anally raping him. The victim said he did not recall telling Detective Moore in the interview that he did not remember how old he was when Kurz anally raped him. Then defense counsel played the portion of the recording of the Skype interview, starting at approximately 8'54? into the interview and ending at approximately 9'36?. Referring to the anal penetration, Detective Moore asked, "Do you remember how old you were, about?" The victim responded, "I don't." Detective Moore then asked if he remembered being "definitely under a certain age when that happened?" The victim answered, "I was under 14 for sure."

After the Skype interview, the victim, in an effort to remember more details, "relived" Kurz's rape and abuse of him "a million times." He explained that it was during the approximate 2½ years between the Skype interview and the trial that he recalled that, at the time the anal rape began, he was in elementary school. Also during that time, he remembered it beginning at least a year to a year and a half prior to the death of Elvis Presley.

On cross-examination, the victim explained that he continued to spend time with Kurz despite Kurz anally raping him because he trusted Kurz as a close family member. Additionally, Kurz took the victim fishing, let him shoot guns, and helped work on the victim's car.

The victim admitted that he did not remember ever having blood in his underwear from Kurz anally penetrating him. He also admitted that his mother washed his underwear at that time, and that he did not think she ever noticed any blood in his underwear.

The victim also admitted that, prior to disclosing the matter to his parents in the late 1980s, they had asked him whether he had sexual contact with Kurz, and he denied it at that time.

APPLICABLE LAW

During the date range alleged in the indictment, aggravated rape was defined, in relevant part:

Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
...
(3) Where the victim is under the age of 12 years. Lack of knowledge of the victim's age shall not be a defense [.]

La. R.S. 14:42 (as amended by 1975 La. Acts No. 612 § 1); State v. Carter , 2014-926 (La. App. 3 Cir. 4/1/15), 160 So.3d 647, 651-52.

During the time Kurz raped the victim, La. R.S. 14:42 provided a mandatory death penalty. See, e.g., State v. Selman, 300 So.2d 467 (La. 1974). However, on July 6, 1976, the U.S. Supreme Court abrogated the mandatory death penalty provision of La. R.S. 14:42 as cruel and unusual punishment. Selman v. Louisiana , 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed. 2d 1212 (1976). On remand, the Louisiana Supreme Court held that "the appropriate sentence to be imposed upon a valid conviction for aggravated rape is the most severe constitutional penalty established by the legislature for a lesser included offense at the time the crime was committed," i.e. , attempted aggravated rape. State v. Selman, 340 So.2d 260 (La. 1976).

At all relevant times, La. R.S. 14:27 defined the crime of "attempt" and prescribed penalties therefor. However, on September 12, 1975, the maximum penalty for attempted aggravated rape changed from 20 to 50 years of incarceration at hard labor. La. R.S. 14:27(D)(1), as amended by Acts 1975, No. 132, § 1.

DISCUSSION

Sufficiency of the evidence

When the defendant challenges the sufficiency of the evidence, "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 [proven] beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Lynch, 436 So.2d 567 (La. 1983). 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 in Interest of D.R. , 50,594 (La. App. 2 Cir. 2/24/16), 188 So.3d 1116, 1120. Furthermore, the appellate court does not assess the credibility of witnesses or reweigh evidence. Id. ; State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court must accord great deference to the fact-finder's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913.

One witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion, provided it does not bear internal contradiction or irreconcilably conflict with physical evidence. State in Interest of D.R. at 1120.

Kurz makes two arguments regarding the sufficiency of the evidence. First, in his pro se brief, he claims that the state failed to prove that he anally penetrated the victim. However, the victim unequivocally testified that Kurz did anally penetrate him; there was no internal contradiction or conflicting physical evidence on this point. The fact that the victim did not see any blood in his underwear as a result of the anal penetration constitutes neither an internal contradiction nor conflicting physical evidence. This assignment of error lacks merit.

Second, through counsel and in his pro se brief, Kurz argues that the state failed to prove that he anally penetrated the victim prior to the victim's 12th birthday. In particular, Kurz argues that the victim's initial statement to Sgt. Moore contradicted the victim's trial testimony. In the recorded interview with Sgt. Moore, the victim initially stated that he could not recall exactly how old he was at the time of the anal penetration, but he was 10, 11, 12, or something like that, and definitely under the age of 14. At trial, the victim testified that he was sure that he was 11 years old at the time of the anal penetration, because in the 2½ years since the initial interview, he had been trying to recall as many details as possible, and thus now recalled that he was still in elementary school, at least a year before Elvis Presley died. There is no internal contradiction in the victim's testimony regarding his being age 11 at the time of (at least one of) the rapes, and his testimony does not conflict with physical evidence. Accordingly, the victim's testimony was sufficient to prove that he was age 11 when Kurz raped him.

Admission of five article 412.2 witnesses

Kurz argues that the trial court abused its discretion in admitting five article 412.2 witnesses. The thrust of his argument is that five witnesses, each accusing Kurz of molesting him as a juvenile, is too great a burden for the defense, and created an undue risk of luring the jury into deciding the case on grounds other than proof of the offense charged.

In relevant part, La. C.E. art. 412.2 states:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Article 412.2, supra , was added to the Louisiana Code of Evidence in 2001, and was amended in 2004.

In turn, La. C.E. art. 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." The defendant bears the burden of proving that he was unfairly prejudiced by the admission of evidence of other crimes, wrongs, or acts, i.e. , that the evidence should be (have been) excluded pursuant to article 403. State v. Johnson, 15-528 (La. App. 5 Cir. 12/9/15), 182 So.3d 378, writ denied , 2016-0028 (La. 2/24/17), 216 So.3d 61 ; State v. Vail, 2014-436 (La. App. 3 Cir. 11/5/14), 150 So.3d 576, writ denied , 2014-2553 (La. 8/28/15), 176 So.3d 401 ;

State v. Jones, 2003-0829 (La. App. 4 Cir. 12/15/04), 891 So.2d 760, writ denied , 2005-0124 (La. 11/28/05), 916 So.2d 140.

A trial court's ruling on the admissibility of evidence of similar crimes, wrongs, or acts in a sex offense case will not be overturned absent an abuse of discretion. State v. Preston , 47, 273 (La. App. 2 Cir. 8/8/12), 103 So.3d 525. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. State v. Spratt, 2013-0158 (La. App. 4 Cir. 11/20/13), 129 So.3d 741, writ denied , 2013-2960 (La. 5/30/14), 140 So.3d 1173.

Furthermore, the "harmless error" rule applies to the erroneous admission of other crimes evidence. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94. In this context, the proper analysis for harmless error review is "to determine whether the guilty verdict actually rendered at trial was surely unattributable to the erroneous admission of La. C.E. art. 412.2 evidence." State v. Dale , 50, 195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, 537, writ denied , 2015-2291 (La. 4/4/16), 190 So.3d 1203.

In State v. Spratt , supra at 751-2, the defendant was convicted of the aggravated rape and aggravated kidnapping of three individual victims. The trial court allowed five article 412.2 witnesses to testify. Each such witness recounted being raped by the defendant, and each identified him as her rape perpetrator at trial. The Fourth Circuit found no error in admitting as witnesses five prior rape victims of the rape defendant, and noted that this article 412.2 testimony was probative because it showed a "similar modus operandi."

In State v. Jackson, 625 So.2d 146 (La. 1993), the defendant was charged with molesting his 7-year-old and 10-year-old granddaughters-by fondling their breasts and kissing them on the mouth. The court held that the testimony of the defendant's three daughters-that the defendant had kissed them and fondled their breasts when they were between ages 8 and 15-was admissible, even though those events occurred 15 to 24 years before the trial. In doing so, the court reasoned that the granddaughters and daughters were both members of the defendant's family, and were similar ages at the time of the molestations. Id. at 151-2. However, the court excluded testimony that the defendant had raped one daughter, showed his penis to another, and had fondled their vaginas. Because of their more serious nature and dissimilarity from the charged acts, the court found that the article 403 balancing test required exclusion. Id. at 152.

In this case, all of the lewd acts attested to by the article 412.2 witnesses are of lesser seriousness than the offense with which Kurz is charged. Accordingly, Jackson's rationale for excluding some of the article 412.2 testimony is inapplicable here.

We note preliminarily that all of the article 412.2 witnesses are males, and they all identified Kurz at trial.

Testimony of four article 412.2 witnesses related to the victim

Three of the four article 412.2 witnesses who are related to the victim ranged in age from 8 to 13 years old at the time their sexual encounters with Kurz began, which was as early as 1978 and through 1985. These witnesses' experiences with Kurz included reciprocal fondling of genitalia, performance of oral sex on Kurz, and the use of a sex toy on Kurz's penis. One of these witnesses could not recall his age at the time the molestations began, but remembered Kurz physically picking him up and fondling his genitalia, and remembered not knowing this was wrong at the time it happened.

These incidents occurred both in the victims' homes and at Kurz's home, and the pattern usually began at family gatherings or in the witnesses' homes, with Kurz surreptitiously touching the witness' penis and or having the witness touch his. Additionally, Kurz enticed at least two of them to his residence by offering traditional male recreational activities-e.g. , shooting guns, hunting, or fishing. There he showed at least one of the witnesses pornography, then reached over and manually stimulated the witness to ejaculation. Two of the witnesses performed oral sex on Kurz there. One also reported stimulating Kurz's penis with his hand, and with a sex toy called a "vibrator." One witness reported being around 13 or 14 years old when Kurz stopped molesting him; another stated that he could only remember that he was under 17 when Kurz stopped molesting him.

Testimony of the article 412.2 witness unrelated to the victim

This witness was 15 or 16 years old when he began spending time alone with Kurz at Kurz's residence, approximately three years before the indictment. They started by doing "normal" things together: Kurz taught him to drive and how to work on cars; they also shot guns recreationally. When the witness was 16 years old, Kurz manually stimulated him to the point of ejaculation multiple times, and once tried to insert his penis in the witness's anus, but the witness successfully resisted. However, Kurz was successful in sticking an object in the witness's anus.

When this witness was approximately 19 years old, he wanted to stop having contact with Kurz. However, Kurz continued trying to contact him by email. Eventually, the witness's aunt notified the authorities, and Kurz was arrested. The arrest was publicized in the newspaper, which prompted the victim and the other article 412.2 witnesses to notify the authorities that Kurz had also sexually abused them as children. This is when the investigation culminating in this conviction began.

We hold that the trial court did not abuse its discretion in admitting the testimony of the article 412.2 witnesses. Their testimony clearly proves Kurz's lustful disposition toward children, and demonstrates his pattern of molesting his young family members at their own houses. It shows that Kurz had a pattern of enticing boys to his house by offering them traditional male recreational activities-i.e. , letting them shoot guns, taking them hunting or fishing, letting them drive cars, and teaching them to work on cars. Kurz's aggravated rape of the victim was a part of this pattern. The testimony of the article 412.2 witnesses who are related to the victim shows that Kurz was acting on his lustful disposition toward underage males during the 1970s and into the 1980s, the time frame during which Kurz abused the victim. Their testimony also proves that Kurz had a pattern of victimizing boys in a certain age range, roughly from age 4 to age 17.

The testimony of the article 412.2 witness who is unrelated to the victim shows that Kurz has a lustful disposition toward children and used traditional male recreational activities to lure juvenile boys to his house. This unrelated witness's testimony provides corroboration of Kurz's lustful disposition toward the victim and the other article 412.2 witnesses.

In the charge to the jury, the trial court gave the jury a cautionary instruction regarding the article 412.2 evidence:

When a prior accusation of sexual assault is alluded to during trial, it is incumbent upon the jury to segregate the prior accusation from the instant charges in evidence. Evidence that the defendant was involved in the commission of an offense or act other than the offenses for which he is on trial is to be considered only for a limited purpose. The purpose[s] for which such evidence may be considered are: whether it demonstrates a disposition towards sexually assaultive behavior, or a lustful disposition toward children. You may consider such evidence for these purposes, but you may not find him guilty of the offense merely because he may have committed another offense or act.

The probative value of the article 412.2 witnesses' collective testimony outweighed any risk of unfair prejudice it imposed on Kurz, especially in light of the above cautionary instruction. Accordingly, this assignment of error lacks merit.

Capital trial procedure

Kurz argues that his trial should have been conducted under capital trial procedure because the aggravated rape statute provided a mandatory death penalty at the time of the crime. (However, as stated above, that death penalty provision was constitutionally invalid). In particular, Kurz asserts that the jury should have been sequestered and should have been instructed that, to reach a verdict, they had to be unanimous. He relies on the so-called "capital classification" jurisprudence, which held that defendants were entitled to the additional safeguards of capital trial procedure if the statute under which they were prosecuted provided for the death penalty-even if that death penalty was constitutionally unenforceable. See , e.g. , State v. Rich , 368 So.2d 1083 (La. 1979) ; State v. Lott , 325 So.2d 576 (La. 1976). These additional procedural safeguards included sequestration of the jury and the requirement of jury unanimity to reach a verdict. Id.

Jury sequestration . In State v. Schrader , 518 So.2d 1024 (La. 1988), the defendant was charged with murder pursuant to La. R.S. 14:30 as it was in effect in 1970, which provided a constitutionally unenforceable death penalty. "Nevertheless," the Supreme Court stated, "this homicide prosecution retained for procedural purposes its 'capital' classification," and "a defendant may take advantage of the 'classification theory' to insist on sequestration under these circumstances," Id. at 1036, 1037. The court, however, went on to limit the effects of this fictitious classification. Specifically, it held that "the jurisprudential presumption of prejudice for 'capital cases' does not apply to a 'capital case' where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived." Id. at 1037.

In State v. Serigne, 2016-1034 (La. 12/6/17), 232 So.3d 1227, the Supreme Court held that, where the defendant was prosecuted pursuant to a statute which provided a constitutionally unenforceable death penalty, the defendant could and did validly waive his right to a jury trial, despite a defendant's inability to do so in a "capital case." The defendants argued that Schrader "should be narrowly construed as applying only to jury sequestration (and not any other procedural protections afforded a capital defendant)." The court rejected that argument, stating, "[i]nstead, we find Schrader more broadly rejected the 'capital classification' jurisprudence." Serigne at 1231.

The purpose of the additional procedural safeguards that the legislature prescribed for capital trials is to protect defendants who are actually facing the possibility of the death penalty. The mere presence of a constitutionally unenforceable death penalty in a statute does not entitle the defendant to the heightened protections of a capital trial. Rather, we hold that a defendant must actually be exposed to the risk of the death penalty in order to be automatically entitled to jury sequestration. Because Kurz was not exposed to a potential death penalty, he was not entitled to automatic jury sequestration. Accordingly, this assignment of error lacks merit.

Furthermore, even if Kurz was entitled to automatic jury sequestration, this assignment would still be meritless. That is because Kurz: (1) never faced the possibility of the death penalty; (2) failed to request sequestration of the jury, and failed to object to the unsequestered jury; and (3) has not shown any actual prejudice. Schrader at 1037.

Unanimous verdict . The applicable legislation clearly invalidates Kurz's claim that he was entitled to a unanimous verdict despite not having been exposed to the risk of the death penalty. Specifically, La. R.S. 14:42(D)(2)(b) provides that where, as here, the district attorney does not seek a capital verdict, "[t]he provisions of C. Cr. P. art. 782 relative to cases in which punishment is necessarily confinement at hard labor" (i.e., noncapital procedure) "shall apply." In relevant part, La. C. Cr. P. art. 782 provides that "[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of 12 jurors, 10 of whom must concur to render a verdict."

The legislature made these amendments in 1997, after the instant offense, but that does not matter because the amendments are retroactive. State v. Kinsel, 00-1610 (La. App. 5 Cir. 3/28/01), 83 So.2d 532, writ denied , 2001-1230 (La. 3/28/02), 812 So.2d 641 ; see also , State v. Kaigler, 2010-1839 (La. App. 1 Cir. 6/10/11), 2011 WL 3244803. Accordingly, Kurz was not entitled to a unanimous verdict, and this assignment of error is meritless.

Additionally, the logic of Schrader and Serigne extends to Kurz's argument that he was entitled to a unanimous verdict: if he had that right, he waived it when he waived polling of the jury. Furthermore, because the jury was not polled, he cannot show prejudice resulting from the trial court's instruction that only 10 jurors' concurrence was necessary for a verdict. For these reasons as well, Kurz's argument regarding verdict unanimity lacks merit.

Legality of sentence

The trial court sentenced Kurz to life in prison without parole. Kurz argues that this sentence is illegal because it is based on a retroactive application of the 1977 amendment to La. R.S. 14:42. We agree.

The Louisiana Supreme Court "has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer." State v. Sugasti , 2001-3407 (La. 6/21/02), 820 So.2d 518, 520. The convict must be sentenced under sentencing provisions in effect at the time of the commission of the crime. Id.

The amended indictment charged Kurz with one count of aggravated rape, committed between July 7, 1975, and July 6, 1977. The jury convicted on this indictment.

Between 1970 and September 11, 1975, La. R. S. 14:27(D) provided:

D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than 20 years.

Acts 1970, No. 471 § 1. On September 12, 1975, that provision was amended by increasing the maximum period of incarceration to 50 years. Acts 1975, No. 132 § 1.

In 1977, but after July 6 of that year, the legislature amended La. R.S. 14:42 to provide a mandatory life sentence for aggravated rape. Acts 1977, No. 343 § 1. In imposing the life sentence on Kurz, the trial court retroactively applied the 1977 amendment. Because the amendment was substantive, this was error.

Pursuant to Selman, we resentence Kurz to 50 years of imprisonment at hard labor under 14:27(D) as amended September 12, 1975. The victim testified that he was 11 years old when Kurz raped him, and the jury believed this testimony. During that time period, La. R.S. 14:27(D) provided a 50-year maximum sentence for the attempt of a crime punishable by death or by life imprisonment.

Limitations upon institution of prosecution

During the date range charged in the indictment, La. C. Cr. P. art. 571 (" article 571") provided: "There is no time limitation upon the institution for any crime for which the death penalty may be imposed." We acknowledge that, after the mandatory death penalty for aggravated rape was held unconstitutional, article 571 could not strictly apply in this case. However, we reject such a reading of article 571, and hold that it continued to apply to aggravated rape despite the unconstitutionality of the mandatory death penalty prescribed for that crime.

This holding gives the effect to article 571 that our legislature intended and is in accord with jurisprudence. State v. Smith, 2001-1027 (La. App. 1 Cir. 2/15/02), 809 So.2d 556, 561-2, held that article 571 applied to aggravated rape prosecution despite the invalidity of the death penalty the legislature sought to impose on that crime, and State v. Fraise , 350 So.2d 154 (La. 1977), held that despite the unconstitutionality of the mandatory death penalty for aggravated rape, article 571 applied to the crime of aggravated rape.

The legislature clearly manifested its intention that there be no time limit on the institution of prosecution for aggravated rape, by enacting: (1) the mandatory death penalty provision of the aggravated rape statute in effect at the time of the offense; and (2) La. C. Cr. P. art. 571, which affirmatively states that there is no time limitation for instituting prosecution of a crime for which the death penalty is possible. We hold that it is the penalty prescribed by the legislature that determines the applicability or inapplicability of article 571 ; for this purpose, enforceability of that penalty is immaterial. At the time Kurz committed aggravated rape, the legislature prescribed a mandatory death penalty for that crime. Therefore, the aggravated rape statute invoked article 571.

Our holding is rooted in the fundamental principles of time limitations on instituting prosecution for crime. "In the absence of a statute of limitations, the State retains the right to prosecute for crimes indefinitely."

State v. Ferrie , 243 La. 416, 427, 144 So.2d 380, 384 (1962), rev'd on other grounds , State ex rel. Olivieri v. State , 2000-0172 (La. 2/21/01), 779 So.2d 735. The U.S. Supreme Court's invalidation of the mandatory death penalty in Selman , supra , did not affect the legislature's constitutional authority to set no time limitation on instituting prosecution for aggravated rape. Selman likewise did not constitute a manifestation of the legislature's intent to subject the prosecution of aggravated rape to time limitations. Without such manifestation, it must be held that article 571 continued to apply to crimes for which the legislature had prescribed the death penalty. Accordingly, Kurz's assignment lacks merit.

Finally, we note that article 571 is designed protect the state's interest in the safety and welfare of its citizens; it is quite the opposite of a protection for defendants accused of crimes for which the legislature has prescribed the death penalty. In contrast, capital trial procedures-such as mandatory jury sequestration and unanimity of verdicts-are designed to protect defendants when they are actually exposed to the death penalty. This distinction guides our decision.

CONCLUSION

Kurz's conviction for aggravated rape is affirmed. However, the life sentence imposed by the trial court is illegal. We amend the sentence to 50 years of incarceration at hard labor.

CONVICTION AFFIRMED; SENTENCE AMENDED.

      Pursuant to La. R.S. 46:1844(W), we do not disclose the name of the victim or the art. 412.2 witnesses, who were themselves victims.

      The victim also testified regarding his familial relationship with four of the five article 412.2 witnesses.

      The defense introduced this video recording of the interview as exhibit D-1.

      The defense played for the jury a segment of the Skype interview, which started at 8'54? (on the tape) of the interview and ended with the victim saying he was definitely under 14 at the time of the anal rape.

      Also, earlier in the interview, Detective Moore made the same inquiry, and the victim responded that he was, 10, 11, 12 or something like that.

      Initially, article 412.2 applied to the accused's commission of other "sexual offense[s]"; however, the 2004 amendment removed the phrase "sexual offense[s]," and replaced it with "crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children."

      Conversely, if the district attorney does seek the death penalty, the unanimous verdict requirement set forth in article 782 is applicable. La. R.S. 14:42(D)(2)(a).

      The intended meaning of this statement in the victim's testimony, judged through common usage, was a reference to the period starting on his 11th birthday and ending the day before his 12th birthday, i.e. , from July 7, 1976, until July 6, 1977. Therefore, Kurz must be sentenced pursuant to the law in effect during that time.

      The only amendments to article 571 have been to expand it to include a broader array of crimes among those for which there is no time limitation on prosecution, namely, crimes for which a life sentence may be imposed, forcible rape and second degree rape. Acts 1984, No. 926 § 1; Acts 2001, No. 207, § 1; Acts 2015, No. 184, § 6.

      It follows as a corollary that any crime not covered in legislation imposing time limitations on instituting prosecution, is not subject to any time limitation (except what may be implied in the Constitution). In light of this precept, La. C. Cr. P. art. 571 is perhaps redundant.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Lance Andrew JOHNSTON, Appellant
    No. 51,779-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant.
    JOHN F.K. BELTON, District Attorney, TRACY W. HOUCK, LAURIE LEE WHITTEN JAMES, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, COX, and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal arises from the Third Judicial District Court, Parish of Lincoln, State of Louisiana. The defendant, Lance Andrew Johnston, was charged with one count of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 and one count of attempted simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 and 14:27. The state dismissed the first count. After a jury trial on the second count, Johnston was found guilty as charged and sentenced to six years at hard labor. Johnston filed motions for a new trial and for a post-verdict judgment of acquittal, which were denied. On appeal, Johnston argues he was improperly tried by a six-person jury rather than a twelve-person jury and challenges the sufficiency of the evidence. For the following reasons, Johnston's conviction and sentence are vacated and the case is remanded for a new trial.

FACTS

On August 11, 2015, the Lincoln Parish Sheriff's Office ("LPSO") received a call reporting an attempted break-in to a home. The complainant took a photo of the vehicle as the suspect drove away. LPSO issued a BOLO ("be on the lookout"); the vehicle was subsequently stopped and the driver, who was later identified as the defendant, Lance Andrew Johnston, was detained. Johnston was arrested for criminal trespass and driving with a suspended license. Later that same day, LPSO received a report that jewelry and approximately $600.00 in cash was stolen from another home in the area. A search warrant for Johnston's home was executed but failed to produce any of the stolen items.

Johnston was charged by bill of information with simple burglary of an inhabited dwelling and attempted simple burglary of an inhabited dwelling. The state subsequently dismissed the first count but maintained the second count.

Johnston's trial commenced. Six jurors were selected from the jury pool along with two alternate jurors. After deliberation, Johnston was found guilty as charged. Johnston filed motions for a new trial and for a post-verdict judgment of acquittal, which were denied. A presentence investigation ("PSI") report was ordered. Johnston was subsequently sentenced to serve six years at hard labor. This appeal by Johnston ensued.

DISCUSSION

Johnston argues that as his sentence was necessarily punishable at hard labor, he was entitled to a trial by a twelve-person jury. Johnston was tried by a six-person jury, though, and contends that a verdict rendered by a jury composed of fewer than the constitutionally and statutorily mandated number of jurors is null. Accordingly, Johnston argues that his sentence and conviction should be vacated and the case should be remanded for a new trial.

Article 1, Section 17 of the Louisiana Constitution provides, in pertinent part:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

(Emphasis added.) Furthermore, La. C. Cr. P. art. 782(A) clearly requires a twelve-member jury for those cases where hard labor is mandated.

The Louisiana Supreme Court has consistently held that a verdict returned by a jury composed of fewer than the correct number of jurors is null. State v. Jenkins , 406 So.2d 1352 (La. 1981) ; State v. Bennett , 270 So.2d 840 (1972) ; State v. Crawford , 195 La. 428, 196 So. 921 (1940). In State v. Jenkins , the defendant was convicted of simple burglary of an inhabited dwelling by a jury comprised of six people. The Louisiana Supreme Court held that as the crime carried a mandatory hard labor sentence, the defendant was entitled, by constitutional and statutory mandate, to a trial before a twelve-person jury. Thus, the verdict returned by the six-person jury was null. The court stated, "unlike most procedural errors discoverable on the face of the record, La. C. Cr. P. Art. 920(2), decreased jury size necessarily affects the fundamental fairness of proceedings against a criminal accused and hence, mandates reversal of his conviction." Id. at 1353 (citation omitted). The defendant's conviction and sentence were reversed, and the matter was remanded for retrial.

Subsequent Supreme Court decisions have held, however, that being tried by more than the constitutionally and statutorily required number of juror's does not constitute a nonwaivable jurisdictional defect subject to automatic nullity. See State v. Brown , 2011-1044 (La. 3/13/12), 85 So.3d 52. and State v. Jones , 2005-0226 (La. 2/22/06), 922 So.2d 508. In State v.Jones , the court abrogated its century-old approach to numerical jury composition errors and held that where there were more jurors than required, the issue was subject to harmless error rather than automatic reversal. The court in State v. Brown formally recognized the abrogation in State v. Jones and imposed upon the defendant the additional duty of preserving the error for appeal either by making a formal objection at trial or raising the issue in an assignment of error.

Most recently, though, this Court in State v. Shoupe , 50,068 (La. App. 2 Cir. 7/20/16), 215 So.3d 345 upheld the principle set forth by State v. Jenkins that a jury comprised of too few jurors is a structural defect which entitles the defendant to a new trial.

Simple burglary of an inhabited dwelling is punishable by imprisonment at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence, nor more than twelve years. La. R.S. 14:62.2. On an attempt charge, La. R.S. 14:27(D)(3) provides that a defendant shall be imprisoned "in the same manner as for the offense attempted[.]" Thus, the penalty for a conviction of attempted simple burglary of an inhabited dwelling is imprisonment at hard labor for not more than six years. See La. R.S. 14:62.2 and La. R.S. 14:27(D)(3) ; State v. Williams , 47,245 (La. App. 2 Cir. 8/22/12), 103 So.3d 558.

The trial court record indicates that Johnston was tried by a six-person jury. Although the voir dire transcript is not included in the record and the jury was not polled, the minutes state that "[a] panel of six good and true persons [were] chosen to serve as jurors[.]" A copy of the jury selection sheet, with the names of the six jurors and two alternate jurors circled, was also included in the record. Lastly, on October 25, 2016, prior to jury selection, the following conversation occurred between the trial court and counsel:

THE COURT: Okay. So I will have-and this is-let's go ahead and do all this on the record. It's a six person jury. Does everyone agree with that?
MR. BUCKLEY: Yes.
THE COURT: And you get six peremptory challenges for the State and six for the Defense. Does everyone agree with that?
MR. BUCKLEY: Yes.
THE COURT: All right. And I'm going to go ahead and pick two alternates.

Because attempted simple burglary of an inhabited dwelling carries a mandatory hard labor sentence, Johnston was entitled to a twelve-person jury rather than a six-person jury. Accordingly, the verdict rendered by the jury is null, and Johnston is entitled to a new trial before a panel of 12 jurors. Johnston's sufficiency of the evidence claim is pretermitted.

CONCLUSION

For the aforementioned reasons, the conviction and sentence of Lance Andrew Johnston are vacated and the case is remanded for a new trial.

VACATED AND REMANDED.

      On December 1, 2016, the state also filed a habitual offender bill against Johnston, but no further multiple offender proceedings have occurred.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Tyrone WASHINGTON, Appellant
    No. 51,818-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018.
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    TYRONE WASHINGTON, Pro Se
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    EDWIN L. BLEWER, III, REBECCA A. EDWARDS, Assistant District Attorneys
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   MOORE, J.

Following a jury trial, Tyrone Washington was convicted as charged of molestation of a juvenile. The trial court sentenced him to 60 years at hard labor, with the first 25 years to be served without the benefit of probation, parole or suspension of sentence. He now appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

A few days after M.B. confided to her friend, Jazzmine Nunn, that Washington, M.B.'s former stepfather, had sexually abused her when he lived in their home, she saw his car parked outside her school. Afraid that Washington might be looking for her, M.B. called Jazzmine on her cell phone. As she told Jazzmine about the defendant's car parked at her school, she lost her connection due to a weak battery in her phone. Jazzmine panicked when the call was suddenly cut off and M.B. did not immediately call her back or answer when Jazzmine called her. Worried for M.B.'s safety, she called M.B.'s mother, S.K., and told her of the situation, including the sexual abuse.

When S.K. learned that her former husband had molested her daughter, she called the Shreveport police. Shreveport Police Cpl. Lonnie Haskins interviewed S.K. and M.B. that evening. At first, M.B. denied that Washington touched her inappropriately, just as she had done a few years earlier when S.K. became suspicious that something might be happening. M.B. then spoke on the phone with Jazzmine, who apparently persuaded M.B. to tell Cpl. Haskins about the incidents in which Washington performed sexual acts with her when he was living with the family.

On October 24, 2014, Washington was arrested. He made two statements to Shreveport Police Detective De'andre Belle. In his first statement, he denied any wrongdoing. However, in his second statement, he admitted to having sexual intercourse with M.B. four times when she was 11 years old and he was 28. Subsequently, he filed a motion to suppress the self-incriminating statement; the court denied this after a hearing.

Washington was charged by amended bill of information for molestation of a juvenile under the age of 13. A unanimous jury convicted him of the charge. He filed a motion for post-verdict judgment of acquittal arguing that the evidence adduced at trial was insufficient to convict him; this was also denied.

Following a hearing, the trial court sentenced Washington to serve 60 years at hard labor, with the first 25 years to be served without the benefit of parole, probation or suspension of sentence.

The defendant filed a motion to reconsider sentence arguing that the trial court failed to consider the applicable mitigating factors when sentencing him to 60 years imprisonment. The motion was denied, and this appeal followed.

DISCUSSION

By his first assignment of error, Washington argues that the trial court erred when it admitted his incriminating statements into evidence. Those statements, he alleges, were the product of duress, inducements or promises; specifically, he cites Det. Belle's threats of a lengthy prison sentence, and his erroneous accusation that he had previously committed a sex crime and a kidnapping. The defendant argues that he suffered from post-traumatic stress disorder ("PTSD") at the time of his confession, and he was also under the influence of marijuana.

Additionally, although not raised as a specifically assigned error, Washington maintains that there was insufficient evidence to support his conviction. He argues that M.B. delayed reporting the molestation, and he testified at trial denying any inappropriate behavior with her.

The state maintains that Washington's statement to police confessing to the molestation was freely and voluntarily given, and the evidence against him was sufficient to support the conviction.

The Motion to Suppress

Detective Belle testified at the suppression hearing that he arrested Washington and advised him of his Miranda rights, which he waived. Det. Belle said Washington did not appear to be under the influence of alcohol or narcotics, and he understood the questions asked of him. He testified that police did not make any promises to Washington; nor did they threaten him in any way to obtain his statement.

Washington's statement, which was divided into two recordings, was played during the motion to suppress hearing. At the beginning of the first recording, he was advised of his Miranda rights, which he waived, explaining that he wanted to talk about the allegations against him. He confirmed that he was previously married to S.K., and he watched (babysat) M.B. and A.B. when S.K. was at work.

Washington denied that he ever touched M.B. inappropriately. He said that there was a "lot of confusion" in the home. M.B. and A.B. competed for his affection, and would come into his room to get food or movies. When asked why M.B. would tell police that he had sex with her, Washington replied that M.B. was upset with him because he had caught her with a boy.

During the interview, Det. Belle accused Washington of having previously been investigated for a sexual offense, but he denied this, explaining that he was stationed in South Carolina at the time the alleged prior offense occurred. Detective Belle dropped the matter. Det. Belle also asked Washington if he gave S.K. and M.B. a sexually transmitted disease, which he denied. This interview occurred after the defendant repeatedly denied any wrongdoing.

In the second recorded statement, Washington once again waived his Miranda rights. He admitted that he had sex with M.B., but claimed that she "forced herself on me." He said that the sexual encounters, four in all, took place when the family lived at the South Pointe Apartments in Shreveport. M.B. would come to his room wearing only a white T-shirt and underwear when he was changing clothes. Washington denied that he threatened M.B., but he admitted that he told her that their sexual relationship was "our little secret." He claimed that M.B. first initiated the sexual relationship by stopping him as he walked down the hallway. He said she pulled down his pants and performed oral sex on him.

Detective Belle testified that there was only about a one- or-two-minute break between Washington's first and second recorded statements. He explained that after he turned off the recording equipment, Washington began making incriminating remarks so he turned the recording equipment back on.

Following Det. Belle's testimony, the trial court denied the motion to suppress.

Trial Testimony

At trial, Cpl. Haskins testified that on October 14, 2014, he spoke with M.B. She initially denied being touched inappropriately by anyone. However, after M.B. received a phone call from Jazzmine, she confided to Cpl. Haskins that she had been sexually abused by Washington when she was 11 years old.

S.K. testified that she and Washington began dating in 2006. They married on May 2, 2009, when M.B. was 11 years old, although the couple were already living together along with S.K.'s children, M.B., A.B., C.B. and J.B., at the South Pointe Apartments in Shreveport, Louisiana. Because S.K. worked two jobs, Washington watched M.B. and A.B. while S.K. was at work. S.K. testified that she noticed M.B.'s behavior change after she married the defendant: her grades fell, and she ran away from home. Suspicious that something was going on between the defendant and M.B., she questioned them both, and both denied any inappropriate behavior. The couple separated in July of 2012 and divorced on December 11, 2013.

On October 14, 2014, S.K. received a phone call from Jazzmine Nunn, M.B.'s best friend. S.K. stated that after the call, she asked M.B. if Washington had ever touched her inappropriately, but M.B. did not respond. S.K. called police the same day to file a report.

M.B. was 18 years old at the time of trial. She said that when she was 11 years old, Washington babysat her and her younger sister, A.B., at their apartment while their mother was at work. She said that even before her mother married him, and for some time afterward, Washington engaged in sexual acts with her, including touching her vagina and having vaginal intercourse with her. She did not report this to her mother because she was afraid Washington would hurt or even kill her and her family. M.B. testified that Washington said he would kill her and her family if she told anyone.

M.B. recalled one particular occasion when her sister, A.B., walked into the bedroom while Washington was touching her: he yelled at A.B. to get out of the room. A.B. and M.B.'s older sister, C.B., told their mother what A.B. had seen. However, when S.K. asked M.B. about the incident, M.B. lied and denied that anything had happened. She said she lied because she was afraid Washington would make good on his threats to harm her family.

M.B. also testified regarding the incident on October 14, 2014, when she called Jazzmine after she saw Washington's car parked outside her school. She told her friend that she was afraid he was at the school looking for her.

Jazzmine corroborated M.B.'s account of that phone conversation and also confirmed that she called S.K. and informed her that Washington sexually abused M.B. Jazzmine said that she later convinced her to tell the police what Washington had done to her.

M.B.'s younger sister, A.B., testified that when Washington was living with her and her family, she sometimes saw him and M.B. go into the bedroom together while her mother was at work. M.B. wore a big T-shirt, sometimes with nothing underneath. The door was not always locked. She told police she heard sounds coming from the room which she identified at trial as moaning. One particular incident that A.B. recalled was when she walked in the room and saw M.B. lying on the bed with Washington positioned behind her; she said it looked like they were having sex. A.B. quickly shut the door, but told her older sister, C.B., what she had seen. However, Washington denied any wrongdoing and A.B. was punished for going into the room without knocking first. A.B. stated that after the incident she felt like Washington treated M.B. better than her. A.B. testified that he never threatened her then or at any other time.

C.B. testified, as had A.B., that she saw M.B. come out of the bedroom wearing a large white T-shirt and "no bottoms." She recalled A.B. telling her about hearing noises in the room and walking in on M.B. and Washington in a sexually suggestive position. C.B. told her grandmother about the incident. C.B. denied being threatened by the defendant.

Washington's statements were played for the jury during Det. Belle's trial testimony. Detective Belle again denied making any promises or threats regarding the defendant's potential sentencing exposure during his interrogation.

Washington testified at trial, denying that he molested M.B. or threatened her or her sisters. He claimed that he was coerced by Det. Belle into saying that he had sex with M.B. In particular, he asserted that Det. Belle told him that police knew he had committed a prior sex offense and that he should "make it easy on yourself" by confessing. According to Washington, Det. Belle also threatened him by telling him that he would likely receive a 40- to 99-year sentence, but said if he (Washington) told the truth, then he (Det. Belle) would talk to the district attorney and the judge. He maintained that he was under the influence of marijuana when he gave his statements and that he suffers from PTSD.

Sufficiency of Evidence Standard of Review

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 beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). 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 factfinder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517. 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. 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. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency.

State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette , 43,032 (La. App. 2 Cir. 2/13/08), 975 So.2d 753.

The testimony of the victim alone in a sexual assault case is sufficient to convince a rational factfinder beyond a reasonable doubt of a defendant's guilt. State v. Rives , 407 So.2d 1195 (La. 1981) ; State v. Wade , 39,797 (La. App. 2 Cir. 8/9/05), 908 So.2d 1220. Furthermore, such testimony alone is sufficient, even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Wade, supra .

Louisiana R.S. 14:81.2 defines the crime of molestation of a juvenile as follows:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

Before the state may introduce a confession into evidence, it must demonstrate that the statement was free and voluntary and not the product of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451 ; La. C. Cr. P. art. 703(D) ; State v. Blank , 04-0204 (La. 4/11/07), 955 So.2d 90. If a statement is a product of custodial interrogation, the state additionally must show that the person was advised before questioning of his right to remain silent; that any statement he makes may be used against him; and, that he has a right to counsel, either retained or appointed. Miranda v. Arizona , supra . When claims of police misconduct are raised, the state must specifically rebut the allegations. State v. Vessell , 450 So.2d 938, 942-943 (La. 1984). A trial court's finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by the evidence. State v. Benoit , 440 So.2d 129, 131 (La. 1983) ; State v. Freeman , 45,127 (La. App. 2 Cir. 4/14/10), 34 So.3d 541, 546, writ denied , 10-1043 (La. 11/24/10), 50 So.3d 827. Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence. State v. Vessell , supra , at 943. When deciding whether a statement is knowing and voluntary, a court considers the totality of circumstances under which it is made, and any inducement is merely one factor in the analysis. State v. Blank , supra ; State v. Platt , 43,708 (La. App. 2 Cir. 12/3/08), 998 So.2d 864, writ denied , 09-0265 (La. 11/6/09), 21 So.3d 305.

Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Platt , supra .

Intoxication may render a confession involuntary if it negates a defendant's comprehension and renders him unconscious of the consequences of what he is saying; whether intoxication exists and to a degree sufficient to vitiate voluntariness are questions of fact. However, the mere fact of drug or alcohol intoxication is insufficient, standing alone, to render a confession involuntary. Id.

In this case, the evidence adduced at trial was sufficient to prove that Washington committed molestation of a juvenile under the age of 13. M.B. testified that when she was 11 years of age, the defendant, her stepfather at the time, had vaginal sexual intercourse with her and touched her vagina on multiple occasions. M.B. explained that she did not tell anyone about the sexual abuse because he threatened to kill or hurt her and her family. M.B.'s sisters, A.B. and C.B., corroborated M.B.'s testimony. Both explained that M.B. would wear a long white T-shirt with no pants and go into a locked bedroom with Washington when their mother was at work. A.B. also recalled hearing "moaning" noises coming from the room where he and M.B. were alone together, and once walked in and saw what she believed to be Washington having sex with M.B; he immediately yelled at A.B. to leave the room. S.K. and Washington confirmed that he was around 28 years old when he married S.K. and that he babysat M.B. and A.B. when S.K. was working. The jury's unanimous decision to accept M.B.'s testimony as truthful, and reject the defendant's self-serving testimony, is entitled to great deference.

Washington's claim that his confession was not knowing or voluntary is likewise unavailing. Detective Belle testified at the motion to suppress hearing, and at trial, that the defendant was advised of, and waived his Miranda rights prior to making both statements - a fact verified by the audio recording of both interviews. Additionally, Det. Belle testified that Washington was not threatened, coerced, or promised anything in exchange for his confession, and that he did not appear to be under the influence of any intoxicating substances. Furthermore, although Washington claims he was under the influence of marijuana at the time of his statements, the audio recording of the statements indicates that he was oriented as to the time and place, and understood the questions asked of him; he admitted wrongdoing, but attempted to minimize his culpability by blaming the victim for initiating the sexual contact.

Accordingly, this assignment of error lacks merit.

Excessive Sentence

By his second assignment of error, Washington argues that the trial court imposed an unconstitutionally harsh and excessive sentence. His 60-year sentence is excessive, he maintains, considering that he is a first offender and military veteran.

The state responds that the midrange sentence is not excessive given the victim's youthful age, and considering that Washington could have been charged with aggravated rape.

We note that the court did not order a presentence investigation ("PSI") in this very disturbing case. A PSI detailing the defendant's background would have been helpful given the seriousness of the offense and severity of the sentencing range. The court held a sentencing hearing on June 29, 2016, at which Washington argued that his status as a first-felony offender and his service in the U.S. Army militates against a lengthy prison sentence, while the state requested a midrange sentence of 62 years.

The trial court noted that it reviewed the presentencing statements submitted by Washington, as well as the arguments made by the defense and the state at the sentencing hearing. The trial court also said it had reviewed the sentencing factors provided in La. C. Cr. P. art. 894.1, and found the following factors to be particularly relevant: (1) the victim's youthful age; (2) the age of the defendant; (3) the familial relationship between the victim and defendant; (4) the fact that the defendant ultimately became the victim's stepfather; (5) the fact that the defendant had firearms in the house; and (6) a lesser sentence would deprecate the seriousness of the offense. Based on these facts, the trial court sentenced Washington to 60 years at hard labor, with the first 25 years to be served without the benefit of probation, parole or suspension of sentence, and advised him of his obligation to register as a sexual offender. As noted, Washington's motion to reconsider was denied.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the trial court complied with La. C. Cr. P. art. 894.1. The trial court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall , 94-0461 (La. 9/5/95), 660 So.2d 819. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato , 603 So.2d 739 (La. 1992). No sentencing factor is accorded greater weight by statute than any other factor. State v. Taves , 03-0518 (La. 12/3/03), 861 So.2d 144.

The second prong is constitutional excessiveness. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman , 99-1753 (La. 5/16/00), 769 So.2d 1158.

The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7. The issue is not whether some other sentence might have been more appropriate, but whether the district court abused its discretion. Id . ; State v. Presentine , 51,241 (La. App. 2 Cir. 4/5/17), 217 So.3d 590.

Molestation of a juvenile under the age of 13 is punishable by imprisonment at hard labor for not less than 25 years, nor more than 99 years; at least 25 years of the sentence imposed shall be served without the benefit of probation, parole or suspension of sentence. La. R.S. 14:81.2.

The record indicates that the trial court complied with Art. 894.1. The trial court noted its review of the statutory sentencing guidelines, and found several to be particularly relevant, including both the victim's and the defendant's age and their familial relation. Although the court did not specifically note Washington's status as a first-felony offender or a veteran when imposing his sentence, both facts were contained in Washington's presentencing statement, which the trial court explained that it considered prior to the hearing. The sentence imposed is not constitutionally excessive. As noted by the trial court, M.B.'s youthful age and the parental position of trust held by Washington at the time of the molestation are particularly disturbing; the defendant's actions will undoubtedly haunt M.B. for the remainder of her life. Despite being a first-felony conviction, the crime perpetrated was particularly heinous.

Although we would have preferred to have the benefit of a PSI detailing Washington's background, we conclude that the trial court acted within its great discretion and the midrange sentence imposed does not shock the sense of justice.

Accordingly, this assignment of error lacks merit.

Pro Se Assignment of Error

By pro se assignment of error, Washington alleges that there was insufficient evidence to convict, especially considering the erroneous jury instruction given by the trial court. He filed a pro se brief arguing that the evidence was insufficient to convict him, as M.B's testimony is not credible and he denied at trial that he touched M.B. inappropriately. Washington also argues that the trial court erred in instructing the jury regarding the elements of the offense of molestation of a juvenile.

After the trial court charged the jury, the state and the defense agreed to add a paragraph to the instructions, which the trial court read aloud to the jury:

The accused, Tyrone Washington, stands before you charged with molestation of a juvenile, to wit, M.B., date of birth January 30, 1998, by anyone over the age of 17, of any lewd or lascivious act upon the person, or in the presence of any child under the age of 17, there being an age difference of greater than two years between the person, with the intention of arousing and gratifying the sexual desires of either person by the use of force, violence, duress, menace, psychological intimidation, threat and great bodily harm, and by the use of influence by virtue of a position of control and supervision over the juvenile on or about January 1, 2009, through December 3, 2010.

As noted, La. R.S. 14:81.2 provides, in pertinent part:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.

(Emphasis added.)

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. La. C. Cr. P. art. 801(C).

As discussed above, the evidence adduced at trial was sufficient to prove that Washington committed the offense of molestation of a juvenile.

The defense did not object to the subject jury instruction, and in fact agreed that it needed to be given to the jury. Furthermore, although the subject jury instruction is a misstatement of the law, the error inured to the defendant's advantage. La. R.S. 14:81.2 requires the state to prove that a defendant committed the molestation of a juvenile by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. The subject instruction required the state to prove both that the use of force, violence, duress, menace, psychological intimidation, threat and great bodily harm, and the use of influence by virtue of a position of control and supervision over M.B.

Accordingly, this assignment of error lacks merit.

CONCLUSION

We therefore conclude for the reasons stated above that the trial court did not err by admitting Washington's confession into evidence; that the evidence at trial was sufficient to convict him for the offense of molestation of a juvenile; and, that the 60-year sentence imposed is not excessive. Accordingly, the defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      The defendant was advised of his obligation to register as a sexual offender and the time limitations for applying for post-conviction relief.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The recorded interview was admitted into evidence at the motion to suppress hearing as State's Ex. 1; the recorded interview was admitted into evidence at the defendant's trial as State's Ex. 5.

      Washington signed a written waiver of his Miranda rights which was admitted into evidence at the motion to suppress hearing as State's Ex. 2.

      The portion of the recording referencing the possible commission of a previous sex offense was redacted from the recording played at trial, as Washington's military records confirmed that he was not the same Tyrone Washington suspected of committing a prior sex offense.

      S.K. testified that Washington's date of birth is July 29, 1980.

      Formerly the Silver Pines Apartments.

      M.B. testified that her date of birth is January 30, 1998.

      The defendant's claim that the evidence was insufficient to convict him is addressed first. See State v. Hearold , 603 So.2d 731 (La. 1992) ; State v. Cortez , 48,319 (La. App. 2 Cir. 8/7/13), 122 So.3d 588.


author: LILJEBERG, J.

text:
    Kevin DUHE v. ST. JOHN THE BAPTIST PARISH SHERIFF'S DEPARTMENT and Sheriff Wayne Jones
    NO. 17-CA-599
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, KEVIN DUHE, Robert R. Faucheux, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, ST. JOHN THE BAPTIST PARISH SHERIFF'S DEPARTMENT AND SHERIFF WAYNE JONES, Fred Schroeder, II, Craig E. Frosch
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   LILJEBERG, J.

Plaintiff appeals a trial court judgment, dismissing his case without prejudice, due to lack of subject matter jurisdiction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Kevin Duhe, filed this lawsuit against the St. John the Baptist Sheriff's Department ("the Department") and Sheriff Mike Tregre for damages he allegedly sustained while in the custody of the Department. On or about February 16, 2011, Mr. Duhe was arrested on charges of domestic abuse and booked at the St. John the Baptist Parish Jail. Mr. Duhe claims that while he was an inmate at the jail, he requested that he be administered his anti-seizure medication, but the "jailer" refused to provide him with his medication and yelled obscenities at him. According to Mr. Duhe, he was brought to the hospital later that evening after he had a seizure and fell to the floor, striking his head. He asserts that he sustained severe personal injuries as a result of the seizure, which he claims was caused by the Department's negligence in failing to provide the necessary medical treatment and medications.

Defendants answered the lawsuit, generally denying the allegations of the petition and asserting several defenses, including that plaintiff failed to exhaust the available administrative remedies before filing suit.

A bench trial was held on January 4, 2017. At trial, the trial court heard testimony from Mr. Duhe and Lieutenant Gloria Tassin of the St. John Sheriff's Office. Several exhibits, including depositions and medical records, were also admitted into evidence. At the conclusion of the trial, the parties were granted additional time to submit post-trial memoranda. Thereafter, the trial court took the matter under advisement.

On March 24, 2017, the trial court issued a judgment, along with reasons, dismissing Mr. Duhe's lawsuit without prejudice on the grounds that it lacked subject matter jurisdiction to hear the case or review any claim or grievance. Mr. Duhe filed a Motion for New Trial, which was denied by the trial court on April 20, 2017. Mr. Duhe now appeals.

LAW AND DISCUSSION

On appeal, Mr. Duhe asserts that the trial court erred in determining that the Louisiana Corrections Administrative Remedy Procedure ("CARP"), La. R.S. 15:1171, et seq. , divested it of original jurisdiction over his tort suit. He argues that in Pope v. State , 99-2559 (La. 6/29/01), 792 So.2d 713, CARP was deemed unconstitutional insofar as it divested district courts of original jurisdiction over tort claims. Mr. Duhe further contends that in rendering a final judgment in favor of defendants, the trial court ignored the trial testimony and evidence clearly establishing his right to relief.

Defendants respond that the limited issue with CARP that was identified as problematic in Pope , supra , has been cured since that ruling, and that the provisions of CARP require dismissal of this case for failure to exhaust administrative remedies. They further note that in addition to citing the provisions of CARP in support of its ruling, the trial court also cited the provisions of the Prison Litigation Reform Act ("PLRA"), which lead to the same result.

Jurisdiction is the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled. La. C.C.P. art. 1. Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The issue of subject matter jurisdiction may be raised at any time or at any stage of the proceedings. Dickens v. La. Corr. Inst. For Women , 11-176 (La. App. 1 Cir. 9/14/11), 77 So.3d 70, 73. Moreover, it is the duty of a court to examine subject matter jurisdiction sua sponte , even when the issue is not raised by the litigants. Boudreaux v. Dept. of Transp. and Dev. , 01-1329 (La. 2/26/02), 815 So.2d 7, 13.

Pursuant to the provisions of CARP, the Department of Public Safety and Corrections ("DPSC") and each sheriff may adopt and implement an administrative remedy procedure for receiving, hearing, and disposing of any and all complaints and grievances by offenders against the state, the Department or its employees, or a sheriff or employees, arising while the offender is in custody. La. R.S. 15:1171 ; Collins v. Vanny , 14-675 (La. App. 1 Cir. 1/15/15), 169 So.3d 405, 406. La. R.S. 15:1174(2) defines "offender" as "an adult or juvenile offender who is in the physical or legal custody of the Department of Public Safety and Corrections, a contractor operating a private prison facility, or a sheriff when the basis for the complaint or grievance arises." La. R.S. 15:1174(2) further provides that any subsequent event, including release from custody, shall not affect a person's status as an "offender."

The procedures adopted by the DPSC or sheriff are the exclusive remedies for handling the complaints and grievances to which they apply. La. R.S. 15:1171 ; Collins , supra . If an inmate fails to exhaust available administrative remedies, the district court lacks subject matter jurisdiction to review the claim. Dickens , 77 So.3d at 75 ; Swanson v. Dept. of Public Safety and Corrections , 01-1066 (La. App. 1 Cir. 6/21/02), 837 So.2d 634, 637.

La. R.S. 15:1184(A)(2) of the PLRA provides that "[n]o prisoner shall assert a claim under state law until such administrative remedies as are available are exhausted." It further provides that the court shall dismiss a prisoner lawsuit without prejudice if it is filed before such administrative remedies are exhausted. La. R.S. 15:1184(A)(1)(a) of the PLRA defines "administrative remedies" as:

[W]ritten policies adopted by governmental entities responsible for the operation of prisons which establish an internal procedure for receiving, addressing, and resolving claims by prisoners with respect to the conditions of confinement or the effects of actions by governmental officials on the lives of persons confined in prison.

A "prisoner" is defined in La. R.S. 15:1181(6) of the PLRA as:

[A]ny person subject to incarceration, detention, or admission to any prison who is accused of, convicted of, sentenced for, or adjudicated delinquent for a violation of criminal law or the terms or conditions of parole, probation, pretrial release, or a diversionary program.

Status as a "prisoner" is determined at the time the cause of action arises and is not affected by subsequent release from custody. La. R.S. 15:1181(6).

In the present case, the record reveals that Mr. Duhe was an inmate at the St. John Parish Jail at the time that his claims arose, and that he meets the definitions of both "offender" under CARP and "prisoner" under the PLRA. He contends that he suffered severe injuries as a result of the Department's negligence in failing to provide necessary medical care and medications to him during the time of his confinement. Thus, his claims pertain to conditions of confinement and/or the effects of actions by government officials during his confinement, which are subject to administrative remedies as set forth in La. R.S. 15:1184(A)(1)(a). Pursuant to La. R.S. 15:1184(A)(1)(a) and La. R.S. 15:1184(A)(2), Mr. Duhe was required to exhaust the administrative remedies available to him before filing this lawsuit.

Mr. Duhe argues that CARP was deemed unconstitutional in Pope , supra , and thus, its provisions requiring exhaustion of administrative remedies prior to filing suit cannot be applied herein. We disagree.

In Pope , supra , the Louisiana Supreme Court held that the provisions of CARP that then allowed the DPSC to exercise original jurisdiction in tort actions violated Article V, § 16(A) of the Louisiana Constitution, which vests original jurisdiction over all civil and criminal matters with Louisiana's district courts. However, after the Pope decision was rendered, the Louisiana Legislature amended several provisions of CARP. As explained by the Second Circuit in Wood v. Martin , 37,856 (La. App. 2 Cir. 12/10/03), 862 So.2d 1057, 1060 :

In response to Pope , the Louisiana Legislature amended the provisions of CARP relating to judicial review of administrative acts and excluded "decisions relative to delictual actions for injury or damages." As a result, such traditional tort actions are not subject to the more limited judicial review available in district court for administrative decisions. Instead, such delictual actions are governed by the pertinent provisions of La. R.S. 15:1177(C) :
This Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions.
Under the post- Pope statutory scheme, all complaints and grievances, including traditional tort claims seeking monetary relief, are subject to administrative procedures. This is clearly shown by La. R.S. 15:1172(B)(1) stating that an offender shall initiate his administrative remedies for a delictual action for injury or damages within 90 days from the day the injury or damage is sustained. However, regardless of the outcome of the administrative remedy proceedings for such claims, once such administrative review is complete, delictual actions for injury or damages then shall be filed separately as original civil actions not subject to the limited judicial review afforded other adverse administrative decisions. In other words, an administrative remedy decision on a true tort action, such as that involved in Pope , supra, does not limit a district court's constitutional grant of original jurisdiction in any way. Such an administrative review nevertheless is required, apparently in hopes that an appropriate remedy, including the possible award of monetary damages, may be agreed upon without the necessity of litigation.

See also Ngo v. Estes , 04-186 (La. App. 3 Cir. 9/29/04), 882 So.2d 1262, 1264.

In the present case, the record is devoid of any evidence that Mr. Duhe pursued administrative remedies prior to filing this lawsuit in the trial court. Because Mr. Duhe failed to exhaust his administrative remedies prior to filing suit, the trial court lacked subject matter jurisdiction to consider his claims. Accordingly, we find that the trial court correctly dismissed Mr. Duhe's lawsuit on the grounds of lack of subject matter jurisdiction, and we affirm the trial court's judgment.

See also, Rochon v. Admin. Remedy Procedure , 05-452 (La. App. 1 Cir. 3/24/06), 934 So.2d 67, 68, writ denied , 06-1383 (La. 1/26/07), 948 So.2d 162, wherein the appellate court affirmed the trial court's judgment dismissing the plaintiff's suit due to lack of subject matter jurisdiction, where the plaintiff failed to provide proof that he exhausted his administrative remedies before filing suit.

DECREE

For the foregoing reasons, we affirm the trial court's judgment, dismissing Mr. Duhe's case without prejudice.

AFFIRMED

JOHNSON, J., DISSENTS WITH REASONS

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion for the following reasons:

At the trial court level, Defendants/Appellees, St. John the Baptist Parish Sheriff's Department and Sheriff Wayne Jones (hereinafter collectively referred to as "the Sheriff's Office"), filed an Answer to the petition filed by Plaintiff/Appellant, Kevin Duhe. In that answer, the Sheriff's Office alleged, "Plaintiff's claim is improper in that plaintiff has failed to exhaust available administrative remedies, as required by law" as its last defense out of 13 defenses against Mr. Duhe's action. The Sheriff's Office did not specify the law to which it was referencing in the affirmative defense anywhere in its answer. In its judgment, the trial court cited to the Corrections Administrative Remedy Procedure and the Prison Litigation Reform Act and found that it lacked subject matter jurisdiction because the record failed to contain any verification that Mr. Duhe first exhausted his claims through the administrative remedy procedure.

Under the Corrections Administrative Remedy Procedure (hereinafter referred to as "CARP"), La. R.S. 15:1171 provides, in pertinent part:

A. The Department of Public Safety and Corrections and each sheriff may adopt an administrative remedy procedure at each of their adult and juvenile institutions, including private prison facilities.
B. The department or sheriff may also adopt, in accordance with the Administrative Procedure Act, administrative remedy procedures for receiving, hearing, and disposing of any and all complaints and grievances by adult or juvenile offenders against...a sheriff, his deputies, or employees, which arise while an offender is within the custody or under the supervision of the...sheriff. (Emphasis added).

When referencing lawsuits by prisoners and administrative remedies under the Prison Litigation Reform Act (hereinafter referred to as "PLRA"), La. R.S. 15:1184(A) states:

(1) For purposes of this Section, the following words have the following meanings:
(a) "Administrative remedies" means written policies adopted by governmental entities responsible for the operation of prisons which establish an internal procedure for receiving, addressing, and resolving claims by prisoners with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison. Such "administrative remedies" need not be adopted or published in compliance with R.S. 15:1171.
(b) "Available" means all administrative remedies adopted by governmental entities, which address claims of the kind asserted by the prisoner even if the administrative remedies do not allow the prisoner the particular kind of relief sought.
(2) No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice.
(3) A court shall take judicial notice of administrative remedies adopted by a governmental entity that have been filed with the clerk of the district court in the parish where the governmental entity is domiciled.

In the instant matter, the Sheriff's Office alleged Mr. Duhe's failure to exhaust all administrative remedies as an affirmative defense. Although the plaintiff bears the burden of proving liability, the Parish has the burden of proving entitlement to its affirmative defenses. Banks v. Parish of Jefferson , 08-27 (La. App. 5 Cir. 6/19/08), 990 So.2d 26, 30, writ denied , 08-1625 (La. 10/24/08), 992 So.2d 1043. Thus, it was the Sheriff's Office burden to prove exactly what the administrative remedies were that Mr. Duhe failed to exhaust prior to filing his action.

While the crux of the majority opinion is based upon the fact that "the record is devoid of any evidence that Mr. Duhe pursued administrative remedies prior to filing this lawsuit in the trial court," I am of the opinion that the trial court and the majority opinion erroneously shifted the burden to Mr. Duhe to prove he complied with administrative remedies that were never proven by the Sheriff's Office. In fact, the record is devoid of any evidence that the Sheriff's Office adopted any administrative procedures pursuant to CARP or PLRA that could be enforced by the trial court. Additionally, the record is devoid of any judicial notice taken by the trial court of the Sheriff's Office administrative remedies. Consequently, without the presentation of the administrative remedies into evidence, the Sheriff's Office failed to prove that it was entitled to its affirmative defense and dismissal of Mr. Duhe's lawsuit.

"If a sheriff does not adopt and implement procedures pursuant to the CARP, an inmate's access to the courts is procedurally unaffected." Stokes v. Strain , 99-1150 (La. App. 1 Cir. 6/23/00), 768 So.2d 619, 621, citing Barr v. Hathaway , 32,192 (La. App. 2 Cir. 8/18/99), 747 So.2d 99. Thus, when the Sheriff's Office failed to prove that it adopted and implemented administrative procedures, Mr. Duhe's right to access the courts for relief for the underlying tort alleged was procedurally unaffected. In this instance, the trial court properly had the subject matter jurisdiction to decide the matter.

Accordingly, based upon the foregoing reasons, I would vacate the trial court's judgment that dismissed Mr. Duhe's action against the Sheriff's Office without prejudice. Because the matter proceeded through a full trial prior to the trial court's dismissal of the action, I would remand the matter to the trial court with the instruction that it render a decision on the merits of the case.

      Plaintiff initially filed suit against Sheriff Wayne Jones, as he was the Sheriff of St. John Parish at the time of the incident. However, at trial, plaintiff moved to amend his petition to substitute the current Sheriff of St. John Parish, Michael Tregre, as the proper party defendant. Defendants did not object to the amendment and substitution, and the trial court granted the motion.

      Current sheriff, Sheriff Mike Tregre, has been substituted in the matter.


text:
    STATE of Louisiana v. Dennis D. JACKSON
    NO. 17-KA-612
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr. Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis
    COUNSEL FOR DEFENDANT/APPELLANT, DENNIS D. JACKSON, Prentice L. White
    DEFENDANT/APPELLANT, DENNIS D. JACKSON, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Dennis Jackson, pleaded guilty to the amended charge of aggravated battery. The trial court sentenced defendant to ten years at hard labor. For the reasons that follow, we vacate the guilty plea, set aside defendant's conviction and sentence, and remand for further proceedings. Appellate counsel's motion to withdraw as attorney of record is granted.

FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with attempted second degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1. On August 17, 2015, defendant pleaded not guilty at his arraignment. On November 30, 2015, defendant filed a pro se motion for substitution of counsel complaining his court-appointed counsel was withholding evidence which could be used to "free" him. The trial court heard and denied this motion on April 28, 2016.

On June 16, 2016, the State amended the attempted second degree murder charge to aggravated battery in violation of La. R.S. 14:34. On that same day, defendant withdrew his plea of not guilty and pleaded guilty under North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the aggravated battery charge. The State agreed not to file a multiple offender bill of information with respect to this charge. After accepting defendant's guilty plea under Alford , the trial court sentenced defendant in accordance with the plea agreement to ten years at hard labor.

On July 5, 2017, defendant filed a Uniform Application for Post-Conviction Relief alleging ineffective assistance of counsel and violations of due process. In support of his application, defendant attached excerpts of alleged statements from the victim and the victim's brother which he claimed as proof he did not commit the alleged crime. On July 13, 2017, the trial court dismissed the application for post-conviction relief without prejudice on the basis that it was premature. On August 10, 2017, defendant filed a pro se motion for an out-of-time appeal, which was granted on August 22, 2017. This appeal follows.

DISCUSSION

Defendant's appointed appellate counsel filed an Anders brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. Counsel also filed a motion to withdraw as attorney of record. Defendant filed a pro se supplemental appellate brief alleging his guilty plea was coerced. Defendant also references alleged favorable statements from the victim and other witnesses, and complains he did not have the opportunity to present this information in the lower court proceedings.

The "best interest" or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. In Alford , the United States Supreme Court ruled that a defendant may plead guilty, without foregoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." Alford , 400 U.S. at 31, 91 S.Ct. at 164.

An Alford plea accompanied by a claim of innocence puts the trial court on notice that it must ascertain a factual basis to support the plea. State v. Orman , 97-2089 (La. 1/9/98), 704 So.2d 245 (per curium ); State v. Villarreal , 99-827 (La. App. 5 Cir. 2/16/00), 759 So.2d 126, 129-30, writ denied , 00-1175 (La. 3/16/01), 786 So.2d 745. In a case involving a bona fide Alford plea, the record must contain "strong evidence of actual guilt."

Alford, 400 U.S. at 38, 91 S.Ct. at 167. This Court has recognized that when a defendant enters an Alford plea, "constitutional due process requires that the record contain strong evidence of actual guilt." State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60.

On review of the record for errors patent, we find the defendant maintained his innocence and entered a guilty plea under Alford. However, the State did not provide a factual basis for the plea during the guilty plea colloquy and the record does not otherwise establish that strong evidence of actual guilt exists sufficient to convict defendant of aggravated battery. In the absence of a showing in the record that strong evidence of actual guilt exists, we find that defendant's guilty plea to aggravated battery under Alford should not have been accepted and must be declared invalid. See State v. Ables , 15-720 (La. App. 5 Cir. 2/24/16), 186 So.3d 1274, 1276.

DECREE

For the reasons stated above, we vacate the guilty plea, set aside defendant's conviction and sentence, and remand for further proceedings. We also grant the motion to withdraw as counsel of record filed by defendant's appellate counsel.

GUILTY PLEA VACATED; CONVICTION AND SENTENCE SET ASIDE AND CASE REMANDED; MOTION TO WITHDRAW GRANTED

WICKER J., CONCURS WITH REASONS

WICKER J., CONCURS WITH REASONS

I agree with both the analysis and outcome in this matter. I am loath, however, to grant appellate counsel's motion to withdraw, given that counsel missed a glaring error in the guilty plea.

      On that same day, defendant also pleaded guilty under Alford in Case No. 15-1608 to possession of cocaine, and stipulated to a habitual offender bill on that charge. The trial court found defendant to be a second felony offender and sentenced him to 30 months at hard labor without the benefit of probation or suspension of sentence. The trial court ran the sentence concurrent with the sentence imposed in the instant matter. The conviction and sentence in Case No. 15-1608 are not before this Court on appeal.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).