author: CONERY, Judge.

text:
    STATE of Louisiana v. Adrian A. DORSEY a/k/a Adrian Anton Dorsey
    18-250
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018 Rehearing Denied January 30, 2019
    Edward Kelly Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: Adrian A. Dorsey
    Adrian A. Dorsey In Proper Person D. C. I. E. Dorm Post Office Box 788, Highway 68 Jackson, Louisiana 70616 PRO SE DEFENDANT/APPELLANT: Adrian A. Dorsey
    James R. Lestage District Attorney 36th Judicial District Court Post Office Box 99 DeRidder, Louisiana 70634 (337) 463-5578 COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   CONERY, Judge.

Defendant, Adrian Anton Dorsey, was charged with possession of marijuana, fourth offense, in violation of La.R.S. 40:966, and resisting an officer with force or violence, in violation of La.R.S. 14:108.2. The jury convicted Defendant of the two charged offenses. Defendant was not sentenced on those two convictions. Instead, Defendant was later adjudicated as a fourth felony habitual offender and sentenced on the multiple offender adjudication pursuant to La.R.S. 15:529.1 to thirty-two years at hard labor, without benefit of parole, probation, or suspension of sentence on each count to run concurrently.

Defendant now appeals his convictions and sentences, raising three assignments of error. The State also appeals the sentences imposed. For the following reasons, we affirm the Defendant's convictions. We note as an error patent that Defendant had not been sentenced on the original convictions prior to the imposition of the "Enhanced Sentence" under the Habitual Offender Law. We further find that Defendant had not waived the mandatory twenty-four hour sentencing delay required by La.Code Crim.P. art. 873 before being adjudicated as a habitual offender subject to enhanced sentencing. We vacate Defendant's habitual offender adjudication and sentences and remand the case for further proceedings consistent with this decision and the law.

FACTS

According to testimony presented at trial, at about 3:30 a.m. on June 6, 2016, Sgt. Joshua Stanford, a patrol sargent, was in uniform and on duty with the Deridder Police Department when he heard a car alarm in the HUD housing area about one block from his location. He then headed toward the sounding car alarm in his properly marked patrol unit. Officer Stanford testified that he immediately saw the lights of a vehicle flashing and, as the car alarm continued to go off, he observed a person, later identified as Defendant, standing next to the driver's door of the vehicle with a paper bag and miscellaneous items in his hand, including what was identified as a twenty (20) ounce beer can. As the officer approached the car and Defendant, he turned on his headlights and parked his unit facing the vehicle. Defendant walked away from the vehicle, attempting to hurriedly walk past the police unit. Officer Stanford testified that as he exited his police unit, he asked Defendant to stop, identify himself by name, produce an I.D., and state his reasons for being there, but Defendant avoided the officer, would not respond, and tried to walk away.

Officer Stanford again tried to question Defendant to determine his identity, where he was coming from, what he was doing, and who owned the vehicle. Defendant became very agitated and stated to Officer Stanford that he knew he was "barred from the HUD housing property" and needed to get out of the area. He continually backed away from Officer Stanford and questioned the officer's reasons for stopping him, expressing his belief that Officer Stanford was trying to force him back on the HUD property to arrest him. Officer Stanford testified that he attempted to calm Defendant, but sensing the subject was becoming more agitated and was not going to cooperate, he called for assistance from Officer Chauncey Rupf, who was also on duty that night.

Once Officer Rupf arrived, Officer Stanford again attempted to lawfully detain Defendant until he could be identified and questioned further as to why he was standing next to a parked car at 3:30 a.m. with the car alarm blaring and a beer and other objects in his hand at the HUD housing project, where he admittedly had been barred. Defendant continued to refuse to produce identification, insisted that he needed to "leave the property," and continued to resist all attempts to detain him. When the officers attempted to escort Defendant to the front of the police unit and temporarily detain him for further questioning, Defendant shoved both officers. Officer Stanford testified that he then distanced himself from the Defendant, who took a fighting stance. When Defendant took an aggressive step forward toward the officers, Officer Stanford tasered him. Defendant ripped the taser probes off and fled towards the HUD housing property.

Officer Stanford gave chase and attempted to detain Defendant for questioning yet again, giving consistent verbal commands to stop. Defendant then continued resisting and pushed the officers as they tried to detain him. Defendant broke from Officer Stanford's grip and again ran from the officers. Upon encountering Officer Rupf, Defendant continued to disobey verbal commands and flee. Officer Rupf then struck Defendant with her taser. Again, Defendant tore the probes off and ran from the officers. When Defendant reached the middle of the street, he fell. The officers attempted to handcuff him, but he continued to resist, hitting the officers with his elbows. Finally, they were able to successfully handcuff him and arrest him for resisting an officer with force or violence in violation of La. R.S. 14:108.2. Defendant was searched by Officer Rupf incident to his arrest, and three packages of synthetic cannabis were found in one of his pockets. When he was subsequently strip searched at the jail, a plastic bag of marijuana was also recovered from Defendant's person.

Following the Defendant's arrest, Officer Stanford testified that he spoke to the owner of the vehicle, Savannah Pickett, who identified Defendant by name and explained that Defendant had her permission to be inside her vehicle. Further, she explained that Defendant was not supposed to be on the HUD housing property, so he was leaving. Officer Stanford testified he reviewed a list of those barred from the HUD housing property and the list included Defendant's name. Defendant was also charged with remaining where forbidden in relation to his being on HUD housing property, but was not prosecuted on that charge.

Defendant was formally charged by bill of information with possession of marijuana, fourth offense, in violation of La.R.S. 40:966, and resisting an officer with force or violence, in violation of La.R.S. 14:108.2. Defendant pled not guilty to the charges and was eventually found guilty on both counts at a jury trial held on June 21, 2017.

Defendant filed several post-trial motions prior to sentencing, including a motion for a new trial, a motion in arrest of judgment and a motion for post-verdict judgment of acquittal. All of Defendants' motions were heard on October 5, 2017, and denied by the trial court, with extensive and well-articulated written reasons filed in the record. Prior to the hearing on the post-trial motions, on August 14, 2017, the State filed a habitual offender bill of information charging Defendant as a fourth-felony offender pursuant to La.R.S. 15:529.1, to which Defendant pled not guilty. The habitual offender adjudication and sentencing were also set for October 5, 2017. After denying Defendant's post-trial motions on October 5, 2017, the trial judge asked whether Defendant wished to waive the mandatory twenty-four hour sentencing delay required by La.Code Crim.P. art. 873 following denial of his post-trial motions. Defendant specifically did not waive the mandatory delay. Instead of re-scheduling sentencing on the original convictions, the trial court heard the State's evidence on its motion to conduct the habitual offender adjudication hearing.

The trial court then adjudicated Defendant as a habitual offender pursuant to La.R.S. 15.529.1, but deferred judgment on whether the charge of resisting an officer with force or violence in violation of La.R.S. 14:108.2 was a crime of violence for sentencing enhancement purposes under La.R.S. 15:529.1, and scheduled sentencing on the habitual offender adjudication for October 26, 2017. The trial judge eventually found that the conviction of resisting an officer with force or violence in violation of La.R.S. 15:529.1 was a crime of violence, and for oral and written reasons assigned, sentenced Defendant as a fourth felony habitual offender pursuant to La.R.S. 15:529.1 to thirty-two years at hard labor on each count, without benefit of parole, probation, or suspension of sentence, to run concurrently. Defendant has not been sentenced on the original convictions.

Defendant now appeals his convictions as well as his habitual offender adjudication and sentences, asserting three assignments of error by the trial court. The State now also appeals, assigning a single error by the trial court.

ASSIGNMENTS OF ERROR

The Defendant assigns the following assignments of error on appeal:

1. The evidence adduced at trial was insufficient to support convictions for resisting an officer by force or violence or possession of marijuana, fourth offense.
2. The sentence of thirty-two years for resisting an officer by force or violence is illegal.
3. The sentences of thirty-two years for possession of marijuana, fourth offense, and resisting an officer with force or violence, are constitutionally excessive.

The State of Louisiana assigns the following single assignment of error on appeal:

1. The trial court erred in applying the recently amended version of the Habitual Offender Law [La.]R.S. 15:529.1 , as amended by the 2017 Legislature, particularly 2017 Acts § 282 , to a case involving crimes committed on June 6, 2016, for which he was convicted at a jury trial on June 21, 2017, adjudicated a fourth-felony habitual offender on October 5, 2017, and sentenced on October 26, 2017. (emphasis in original).

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is an error patent in that the trial court failed to sentence the Defendant on the original convictions and then vacate those sentences before adjudicating and sentencing the Defendant as a habitual offender under La.R.S. 15:529.1. In doing so, the trial court violated the provisions of La.Code Crim.P. art. 873 requiring a mandatory twenty-four hour delay between the denial of Defendant's post-trial motions and his sentencing enhancement adjudication under La.R.S. 15:529.1.

More specifically, for sentencing enhancement purposes, the trial court adjudicated Defendant a habitual offender pursuant to La.R.S. 15:529.1 on the same day the trial court denied his post-trial motions.

Louisiana Code of Criminal Procedure Article 873 provides:

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

On October 5, 2017, the trial court held a hearing on Defendant's post-trial motions for arrest of judgment, motion for new trial, motion for post-verdict judgment of acquittal, and all post-trial motions. These motions were orally denied in open court on October 5, 2017, with extensive written reasons filed on October 22, 2017.

After the presentation of evidence on the post-trial motions, but prior to the court's adjudication of Defendant as a fourth felony offender pursuant to La.R.S. 15:519.1, the court inquired as to whether Defendant wished to waive the twenty-four hour sentencing delay mandated by La.Code Crim.P. art. 873, thus allowing him to be adjudicated as a habitual offender and sentenced that day. Defendant expressly indicated that he did not wish to waive the sentencing delay.

The trial court then immediately conducted the sentencing enhancement adjudication hearing and, for sentencing enhancement purposes, the trial court adjudicated Defendant as a habitual offender pursuant to La.R.S. 15:529.1 for written reasons assigned. The trial court then set sentencing on the habitual offender adjudication for October 23, 2017, but did not schedule sentencing on the original convictions. The habitual offender sentencing hearing was later refixed for October 26, 2017.

No sentencing hearing was ever set on the original convictions. Instead, on October 26, 2017, the trial court conducted a sentencing hearing on the fourth offense multiple offender adjudication. The trial court issued written reasons and found that the crime of resisting an officer with force or violence, in violation of La.R.S. 14:108.2, was a crime of violence, and sentenced Defendant as a fourth felony habitual offender to thirty-two years at hard labor without benefit of parole, probation, or suspension of sentence for each offense pursuant to La.R.S. 15:529.1, with the enhanced sentences to run concurrently. Defendant timely appealed his convictions and sentences.

The habitual offender law, La.R.S. 15:529.1, as the name implies, is a legislative punishment scheme designed to increase or enhance punishment based on recidivism. As such, it is a special statute designed specifically to increase Defendant's punishment for a crime based on specifically enumerated prior felonies, with the number and type of prior felony convictions dictating the severity of the enhancement . See State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317 (emphasis added).

The Louisiana Supreme Court, in State v. Shaw , 06-2467, p.17 (La. 11/27/07), 969 So.2d 1233, 1243, quoting State v. George , 218 La. 18, 48 So.2d 265, 267 (1950), discussed the purpose for the enactment of the habitual offender law "as a deterrent and a warning to first offenders and as a protection to society by removing the habitual offender from its midst." The Shaw court, quoting State v. Johnson , 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 677, further provided, "[U]nder this statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a long sentence because he continues to break the law." Shaw , 969 So.2d at 1243-44.

It follows logically that a sentence for a particular crime should not be "enhanced" under the habitual offender law until the defendant has first been sentenced for the original crime. The trial judge then must, in most circumstances, vacate the original sentence before imposing the enhanced sentence under the habitual offender law. A fortiori , a sentence cannot be vacated if it has never been imposed. See State v. Lyles , 17-405 (La.App. 5 Cir. 2/21/18), 239 So.3d 1055 ; State v. Wise , 13-247 (La.App. 5 Cir. 11/19/13), 128 So.3d 1220, writ denied , 14-253 (La. 9/12/14), 147 So.3d 703 ; State v. Netter , 11-202, 11-203 (La.App. 5 Cir. 11/29/11), 79 So.3d 478, writ denied , 12-32 (La. 8/22/12), 97 So.3d 357.

In this case the district attorney filed the habitual offender bill of information and sought an adjudication hearing on that issue before Defendant had been sentenced on the original convictions. In fact, Defendant was never sentenced on the original convictions and did not waive his mandatory sentencing delays under La.Code Crim.P. art. 873. We find that the trial court violated the mandatory sentencing delays of La.Code Crim.P. art. 873 by failing to sentence Defendant on the original convictions, and then vacate Defendant's sentence before adjudicating and sentencing him under the habitual offender law.

Several Louisiana courts have discussed the issue of whether sentencing on the original convictions must be imposed and vacated before adjudication and sentencing on the habitual offender case. In State v. Hills , 98-507, pp. 7-8 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1218, a panel of the fourth circuit noted that La.R.S. 15:529.1(D)(3) provided in pertinent part: "The court shall sentence him to the punishment provided in this section and shall vacate the previous sentence if already imposed ..." (emphasis added). However, the court found that "Section 529.1 does not mandate that a sentence be imposed before the sentence on the multiple bill. The trial judge did not err by sentencing the defendant only once as a habitual offender." Id. A ccord , State v. Dee , 12-334 (La.App. 5 Cir. 10/30/12), 103 So.3d 1153, writ denied , 12-2521 (La. 4/19/13), 111 So.3d 1031 ; State v. Turner , 09-1079 (La.App. 5 Cir. 7/27/10), 47 So.3d 455.

However, in this case the habitual offender adjudication and sentencing were scheduled for the same day as the hearing on Defendant's post-trial motions, and, as noted, Defendant did not waive the mandatory twenty-four hour delay required by La.Code Crim.P. art. 893 between the denial of those motions and the imposition of sentencing. While it is true in this case that the trial court did not actually sentence Defendant on the habitual offender adjudication on the same day as the denial of the post-trial motions, but sentenced him later on October 26, 2017, the trial court did receive evidence and adjudicated Defendant on October 5, 2017, for sentencing enhancement purposes . We find that such a procedure amounts to a violation of the mandatory language of La.Code Crim.P. art. 873. See State v. Kisack , 16-797, (La. 10/18/17), 236 So.3d 1201, cert. denied , --- U.S. ----, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018) ; State v. Steines , 51,698 (La.App. 2 Cir. 11/15/17), 245 So.3d 224.

The fourth circuit in its opinion in Kisack , had held that counsel's participation at the habitual offender sentencing hearing acted as an implicit waiver of the twenty-four hour sentencing delay required by La.Code Crim.P. art. 873. The Louisiana Supreme Court disagreed and reversed stating:

In addition, the Fourth Circuit found that the district court did not observe the sentencing delay required by La.C.Cr.P. art. 873before sentencing defendant to the maximum term of life imprisonment as a fourth-felony offender for possession of a contraband cell phone while in a penal institution. See La.R.S. 14:420(E)(7); La.R.S. 15:529.1(A)(4)(a). Sentencing occurred almost immediately after the denial of defendant's motion for new trial. Article 873 provides (emphasis added):
If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately. (emphasis in original).
....
Nonetheless, an error in failing to observe the statutory sentencing delay may still be found harmless. Under the circumstances presented here, in which a defendant who faced a sentencing range of 20 years to life and received the maximum sentence authorized for a fourth-felony offender for possession of a contraband cell phone, it is difficult to conclude the error is harmless. [footnote omitted]
Accordingly, we reverse the court of appeal in part to vacate the habitual offender adjudication that immediately followed the failure to observe the statutory sentencing delay and remand this matter to the district court for further proceedings consistent with the views expressed here.

Kisack, 236 So.3d at 1205-06.

Here, the habitual offender adjudication was held on the same day as the denial of Defendant's post-trial motions; however, the sentencing was not held until three weeks later. In Kisack , the supreme court did not simply vacate the defendant's habitual offender sentence and maintain his habitual offender adjudication, but it vacated his habitual offender adjudication as well as a result of the Art. 873 violation. Thus, the supreme court in that case found that the mandated delay, La.Code Crim.P. art. 873 applied between the denial of the motions and the habitual offender adjudication hearing itself.

We find that the habitual offender adjudication and sentence must be reversed, and the case remanded. See Kisack, 236 So.3d 1201 ; Steines , 245 So.3d 224. On remand, for sake of clarity and to avoid confusion, the trial judge should pronounce the original sentences in open court pursuant to La.Code Crim.P. art. 871. The trial court should then articulate reasons for sentencing pursuant to the sentencing guidelines provided in La.Code Crim.P. art. 894.1. After the sentences for the original convictions have been imposed, if at that juncture the district attorney still wishes to have Defendant adjudicated as a habitual offender, a habitual offender adjudication hearing can be scheduled. Defendant would then have the right to file a motion to quash the habitual offender bill of information, urging specific objections. In this case, since the habitual offender bill has already been filed and Defendant has previously entered a not guilty plea on the habitual offender charge, no new arraignment on the existing habitual offender bill of information is necessary unless the state wishes to amend the bill. If the habitual offender adjudication hearing is conducted, and the trial judge finds at the adjudication hearing that Defendant is a habitual offender and adjudicates him as such in accordance with the specific provisions of La.R.S. 15:529.1, then a habitual offender sentencing hearing can be conducted after observing the mandatory sentencing delays of La.Code Crim.P. art. 873, unless delays are waived.

Defendant's third assignment of error, that the sentences imposed were unconstitutionally excessive, and the State's assignment of error, that the trial court erred in applying the 2017 amendment to the habitual offender sentencing rather than applying the provisions of La.R.S. 15:529.1 in effect at the time of the commission of the instant offenses requiring a mandatory life sentence without probation or parole, are pretermitted based on our reversal and remand order.

We express no opinion at this juncture as to whether resisting an officer with force or violence pursuant to La.R.S. 14:108.2 can or should be classified as a "crime of violence" pursuant to La.R.S. 15:529.1 under the facts and circumstances of this case. However, we find nothing in the record to reflect that either of the officers participating in Defendant's arrest were injured. This is not to say that the officers were not placed in a position of extreme danger. Fortunately for the officers (and perhaps for defendant), Defendant was not armed. It will be up to the State to decide on remand whether it still wishes to use Defendant's conviction under La.R.S. 14:108.2 as a sentence enhancing conviction.

We also note that the amount of synthetic marijuana and marijuana seized and tested in this case are relatively minimal. According to the crime lab reports in evidence, the synthetic marijuana weighed a total of approximately 46.13 grams, and the marijuana seized weighed 0.93 grams.

As Justice Crichton, joined by Justice Genovese, noted in his concurring opinion in State v. Guidry , 16-1412 (La. 3/15/17), 221 So.3d 815, 831 :

Thus, if a defendant believes that the state has abused its professional discretion in filing a habitual offender bill such that it seeks to impose an unconstitutionally excessive sentence, the defendant should move the court at the sentencing hearing to depart downward from the mandatory minimum as permitted by State v. Dorthey , 623 So.2d 1276 (La. 1993), and, if justice requires, the court ought to grant it. See, e.g. , State v. Mosby , 14-2704 (La. 11/20/15), 180 So.3d 1274 (Citing Dorthey , this Court determined that the imposition of a 30-year term of imprisonment on a non-violent offender who was 72 years old and infirm was "grossly out of proportion to the severity of the offense" and amounted to nothing more than the "purposeful imposition of pain and suffering.")

See also Justice Crichton's concurring opinion in State v. Hagans , 16-103 (La. 10/17/16), 202 So.3d 475.

Hence, resolution of these issues is reserved for the trial court's decision on remand.

DEFENDANT'S ASSIGNMENT OF ERROR ONE

Having recognized an error patent and legal error, and having vacated Defendant's habitual offender adjudication and sentences, we will now address Defendant's assignment of error number one, that the evidence presented at trial was insufficient to support his original convictions for possession of marijuana fourth offense and resisting an officer by force or violence.

Defendant contends his resistance was legal and his conviction for resisting an officer by force or violence should be vacated. Therefore, the synthetic marijuana and marijuana found on his person should also be suppressed.

The standard when reviewing a sufficiency of evidence claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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. It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. [ Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).] In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371 (citations omitted); See State v. Trahan , 17-1060, p. 5 (La.App. 3 Cir. 5/2/18), 246 So.3d 585, 588.

Defendant challenges his conviction of resisting a police officer with force or violence in violation of La.R.S. 14:108.2 based on his contention that there was no reasonable suspicion to believe that he was committing or about to commit a crime, and therefore his resistance was legal. Defendant claims that the evidence presented at trial was insufficient to support his convictions, and therefore, the trial court erred in denying his motion for post-verdict judgment of acquittal and/or motion for new trial.

Louisiana Revised Statutes 14:108.2 provides, in pertinent part:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threatening force or violence toward a police officer performing any official duty.

The Louisiana Supreme Court has recognized resistance of an illegal arrest as a "time-honored" right.

State v. Ceaser , 02-3021, p. 4 (La. 10/21/03), 859 So.2d 639, 643 (emphasis added). "However, that right is only available where the arrest is illegal and is tempered by the requirement that in preventing such illegal restraint of his liberty, he may use only 'such force as may be necessary.' " Id. (citations omitted).

Defendant contends that he was simply resisting an illegal arrest because no reasonable suspicion existed for Officer Stanford to stop him. To the contrary, La.Code Crim.P. art. 215.1 provides, in pertinent part, "A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions." The Louisiana Supreme Court discussed the difference between reasonable suspicion to stop and probable cause to arrest in State v. Lampton , 12-1547, pp. 4-5 (La. 4/5/13), 110 So.3d 557, 560-61, cert. denied , 571 U.S. 975, 134 S.Ct. 471, 187 L.Ed.2d 320 (2013) (citations omitted):

While an arrest requires probable cause, an investigatory stop requires only the lesser standard of reasonable suspicion enunciated in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In making a brief investigatory stop the police still " 'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.' " The police must therefore "articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only " 'some minimal level of objective justification ....' " Police officers may nevertheless approach an individual, engage him in conversation about his presence in the area, and ask for his identification, without implicating either the Fourth Amendment or La. Const. art. I, § 5.
Moreover, as a general matter, "the determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer's subjective beliefs or attitudes but turns on a completely objective evaluation of all of [the] circumstances known to the officer at the time of his challenged action."

In the trial court's written reasons for denying Defendant's post-trial motions, the trial court found that a reasonable jury could find that Officer Stanford had reasonable suspicion to detain Defendant. We agree. The trial court noted that although flight alone cannot supply an officer with reasonable suspicion to conduct an investigatory stop, the amount of additional information needed to provide officers with reasonable suspicion that a person is engaged in criminal activity is greatly lessened. See State v. Morgan, 09-2352 (La. 3/15/11), 59 So.3d 403.

We agree with the trial court's excellent and comprehensive analysis provided in its written reasons. In our independent review of the record, we find that it was reasonable to suspect Defendant was committing a vehicle burglary, considering it was 3:30 a.m., the vehicle alarm was sounding, its lights flashing, and Defendant was standing next to the vehicle's door with various items in his hands, including a 20 ounce can of beer in violation of the open container law. He was on the curb of the HUD housing project, where he admittedly was not authorized to be. Defendant continued to refuse to identify himself or answer any of the officer's lawful questions posed pursuant to La.Code Crim.P. art. 215.1. Once Defendant began to physically resist his lawful detention for questioning, and then confronted the officers, pushing them and running from the officer's, probable cause to arrest him for resisting an officer with force existed. He then fought with and continued to resist the officers by fighting with and elbowing them. We reject Defendant's claim that he resisted an unlawful detention and arrest and find the record fully supports the jury's verdict. The officer's acted correctly and reasonably based on all the circumstances as articulated by the trial court in its written reasons.

As to Defendant's claim that the marijuana found subsequent to his arrest should have been suppressed, our review of the record indicates that Defendant and his counsel withdrew his motion to suppress before trial. The trial court correctly noted that this issue was improperly raised for the first time in a post-trial motion. In State v. Montejo, 06-1807, p. 22 (La. 5/11/10), 40 So.3d 952, 967, cert. denied, 562 U.S. 1082, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010) (citations omitted), the supreme court held, "Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress." See Uniform Rules-Courts of Appeal, Rule 1-3 ("The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise."). Accordingly, we find this issue was not appropriately raised before the trial court; therefore, it will not be considered for the first time on appeal. Defendant's convictions of possession of marijuana, fourth offense and resisting an officer by force or violence are affirmed.

Defendant's third assignment of error, that the sentence imposed was unconstitutionally excessive, and the State's assignment of error, that the trial court erred in applying the 2017 amendment to the habitual offender sentencing are pretermitted based on our recognition of the error patent, legal error and remand order.

CONCLUSION

Defendant's convictions of possession of marijuana, fourth offense, in violation of La.R.S. 40:966, and resisting an officer by force or violence, in violation of La.R.S. 14:108.2, are affirmed. Defendant's habitual offender adjudication and sentences are vacated, and we remand this case to the trial court for further proceedings consistent with this opinion and the law.

CONVICTIONS OF POSSESSION OF MARIJUANA, FOURTH OFFENSE, AND RESISTING AN OFFICER WITH FORCE OR VIOLENCE AFFIRMED. HABITUAL OFFENDER ADJUDICATION AND SENTENCE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE LAW AND THIS OPINION.

      See State v. Kisack , 15-0083 (La. App. 4 Cir. 3/30/16), 190 So.3d 806, rev'd in part, 236 So.3d 1201 (La. 2017).

      "Threatening force or violence" is not otherwise defined in the statute.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jeffery Dwayne DUCOTE, Sr. a/k/a Jeffery Dwayne Ducote
    18-60
    Court of Appeal of Louisiana, Third Circuit.
    November 14, 2018
    Holli Herrie-Castillo, Louisiana Appellate Project, P.O. Box 2333, Marrero, LA 70073, (504) 345-2801, Attorney for Appellant/Defendant, Jefferey Dwayne Ducote, Sr. a/k/a Jeffery Dwayne Ducote
    J. Phillip Terrell, Jr., District Attorney, Rapides Parish, Catherine L. Davidson, Assistant District Attorney, Ninth Judicial District, P.O. Drawer 1472, Alexandria, LA 71309, (318) 473-6650, Attorneys for Appellee, State of Louisiana
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On a lazy Sunday afternoon, while AK and her pet cat were enjoying the Christmas holiday weekend relaxing at home, preparing to visit her parents just down the road from her small rent house, there was a knock at the front door. AK had just gotten out of the shower, so she quickly dressed to answer the door. As is the habit of most people like AK in this small rural community she opened the door thinking the visitor was either family or a friend come to call during the holiday season. But as soon as AK realized the man at the door was a stranger to her (later identified as Jeffery Dwayne Ducote, Sr. a/k/a Jeffery Dwayne Ducote (Defendant) ) she "closed it back a little bit" and spoke to him. He asked her if a man named Heath lived there and she responded "no." He asked her the same question again and she informed him she now lived in the house. He continued to converse with AK asking if she knew whether the owners of the house also owned the lot next door. She responded that she did not know anything about that property. Defendant turned away as though he were leaving; but, as AK was closing the door, Defendant pushed the door open and "put a gun in [her] face." AK fell to her knees and put her hands up in the air. Defendant forced AK to sit on the couch and asked if she had any money or anything of value in the house. She responded that she did not keep cash on her and the only things of value she had was her credit cards and bank card in her purse which she offered to give her assailant. Defendant then took AK throughout the house inspecting each room to determine if they were alone in the house. He warned her if he found anyone in the house he would kill them and kill her for lying to him.

After searching every room in the house, the two returned to the living room. While holding AK at gunpoint Defendant pulled down his pants, "put his hand on the back of [her] head," and physically forced AK to perform oral sex on him. Defendant next demanded AK take off her clothing as she pleaded with him not to hurt her. He then turned AK around and attempted to have intercourse with her from behind, but he was unable to achieve penetration because he could not sustain an erection. With his gun in hand he then forced AK into her bedroom, made her lay down on her bed, and then got on top of her. Defendant again pulled down his pants and forced AK to insert his penis vaginally. As Defendant kissed, fondled and raped AK he saw her eyeing his gun and told her not to even think about trying to get his gun. Following this second rape Defendant asked AK if she had anything in the house to drink. He took her into the kitchen to see what she could find for him to drink. She did not have any beer as he requested, but she had an open bottle of wine in the refrigerator and an open container of milk. Defendant drank the wine and insisted AK also drink some of the wine with him after which he again forced AK to perform oral sex on him. He continued to hold onto his gun at this point. After forcing this episode of oral sex, Defendant next made AK stand up, bend over, hold onto the refrigerator and, once again, unsuccessfully tried to penetrate her vaginally. When this effort failed to achieve an erection, Defendant made AK turn around facing him, squat down and again perform oral sex on him. During this episode Defendant finally laid his gun down on the kitchen island. AK managed to stand up and seized the opportunity to grab the gun and head for the door. Defendant had his pants down around his ankles and AK was totally nude. He reached out to grab AK as she ran toward the door and tackled her to the floor. Defendant wrestled with AK trying to get his gun from her, but she would not relinquish the weapon. She succeeded in escaping his grasp and as she ran from the house she tried to pull back on the hammer of the gun but could not get it to fire. AK tried to get in her car, but it was locked. Her keys were inside the house hanging on the wall. She headed for the neighboring house to get help, but no one was home. She recalled observing an SUV in her driveway which she was able to identify in court, along with other witnesses who observed the same SUV and identified it in court as belonging to Defendant. She turned to see Defendant fleeing from the house. AK jumped into a "big ditch" on the side of the road to hide from view fearing Defendant would try to run over her if he spotted her. She could see Defendant's SUV heading in the opposite direction. She crossed the street to a neighboring house, but no one was home. AK hid on the screened porch at the front of the house watching the traffic go by waiting for a vehicle to approach from the opposite direction. She did not have her contact lenses in so AK could not see well enough from the porch and feared Defendant would return looking for her. After a few minutes she left the porch and ran behind a tree hoping to flag down a passing motorist. When she saw a van approaching from the right direction she "ran out in the middle of the road," naked, still holding the gun. The vehicle stopped, the passenger put down her window but was afraid of AK. Realizing she was holding a gun AK placed it on the ground and told the couple she was raped. They would not allow her to get in their vehicle but instructed her to wait on the porch while they went for help. Just down the street the couple came upon a man outside his home. They told him about AK and asked him to get a blanket to cover her with. They called 911 and returned to help AK. The man instructed AK to place the gun on the steps and cover herself with the blanket he provided. AK gave him her dad's phone number and he called him to come at once. Shortly thereafter Sheriff's deputies arrived along with AK's mom, dad and aunt. She sat on the porch for a short time with her parents while deputies searched her residence and the immediate area. Deputies observed obvious signs of a struggle inside AK's house. AK was placed in the patrol unit until an ambulance arrived and took her to the local hospital where she was photographed by a deputy and examined by a Sexual Assault Nurse. The photographs depicted various scratches, abrasions and dried blood on her body indicating she had been in a struggle as well as ant bites on her feet which occurred while she hid in the ditch.

Sheriff's detectives traced ownership of the gun used in the attack which led to the original owner who had traded the gun to another person. The day following the attack AK was shown a photo lineup of possible suspects and she identified a man she thought was the perpetrator. He was the individual identified as the man to whom the owner had traded the gun. The authorities took him into custody but quickly learned he might not be the man who attacked AK. He told detectives he too, had traded the gun for a shotgun to a man named Jeff. He did not know Jeff's last name but still had his cellular telephone number. Detective's traced the number to Defendant and learned he and his wife owned a Ford Expedition that matched the description of the vehicle at the scene of the crime. On the next day authorities set up a second photo lineup that included Defendant. AK made a definite ID of Defendant as the perpetrator. She again identified Defendant in court as the perpetrator without any doubt. Defendant's DNA, contained in fluid secreted from his prostate, was found on swabs taken from AK's body. DNA voluntarily obtained from the first man identified by AK did not match any found on AK's body.

Defendant was convicted by a unanimous jury verdict of four counts of first-degree rape, violations of La.R.S. 14:42, one count of second-degree kidnapping, a violation of La.R.S. 14:44.1, one count of false imprisonment with a weapon, a violation of La.R.S. 14:46.1, one count of aggravated assault with a firearm, a violation of La.R.S. 14:37.4, and one count of home invasion, a violation of La.R.S. 14:62.8. His motion for post-verdict judgment of acquittal and his motion for new trial were denied. Defendant waived delay for sentencing. The trial court sentenced Defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on all four counts of first-degree rape; forty years at hard labor with at least two years to be served without benefit of parole, probation or suspension of sentence for second-degree kidnapping; ten years at hard labor for false imprisonment with a weapon; and thirty years at hard labor for home invasion; all sentences to run concurrently.

Defendant appeals his convictions and sentences alleging two assignments of error: (1) the trial court erred in denying Defendant's motion in limine to exclude certain jailhouse phone calls to his wife containing incriminating statements; and (2) the trial court erred in imposing an indeterminate sentence on the charge of second-degree kidnapping.

LEGAL ANALYSIS

We review all criminal appeals for errors patent on the face of the record. There are two such errors in this case which must be corrected, one of which is covered in Defendant's assignments of error. The court minutes incorrectly state the trial court imposed the sentence for second-degree kidnapping with two years to be served without benefit of probation, parole or suspension of sentence. The transcript indicates the court imposed the sentence with "at least" two years to be served without benefit of parole, probation or suspension of sentence. This court has repeatedly ruled that "when the minutes and the transcript conflict, the transcript prevails." State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62. It is therefore necessary that the trial court correct the sentencing minutes to accurately reflect the four sentences imposed.

Defendant correctly asserts the sentence imposed on the charge of second-degree kidnapping constitutes an indeterminate sentence. Louisiana Code of Criminal Procedure Article 879 requires the imposition of a determinate sentence. The transcript, which we have said is controlling, reflects the trial court imposed the sentence stipulating that "at least two years" of the second-degree kidnapping sentence be served without benefits. This constitutes an indeterminate sentence which must be vacated, and the case must be remanded for resentencing on the conviction for second-degree kidnapping.

Defendant asserts the trial court erred in admitting jailhouse telephone calls between Defendant and his wife because they enjoy a spousal privilege making their conversations confidential. He maintains under La.Code Evid. art. 504(A) the communications between Defendant and his wife should remain confidential. He also asserts the trial court erroneously relied on State v. Dupuy , 319 So.2d 294 (La.1975) and State v. Lilly , 12-08 (La.App. 1 Cir. 9/21/12), 111 So.3d 45, writ denied , 12-2277 (La. 5/31/13), 118 So.3d 386, in finding that spousal privilege does not apply here.

Louisiana Code of Evidence Article 504 states in pertinent part:

A. Definition. A communication is "confidential" if it is made privately and is not intended for further disclosure unless such disclosure is itself privileged.
B. Confidential communications privilege. Each spouse has a privilege during and after the marriage to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse while they were husband and wife.

Defendant's wife testified they were fully informed and understood their telephone conversations were not made privately and could be further disclosed as they could be monitored and/or recorded for future reference.

In Dupuy the supreme court found no error occurred where the trial court admitted statements made by the defendant's wife into evidence when the wife testified, out of the jury's presence, that there were third parties present during the communications at issue, and the defendant did not call the third parties to the stand to refute these claims despite the third parties being listed as defense witnesses.

In Lilly , the first circuit found spousal privilege did not apply to jailhouse calls because the couple was put on notice that the phone calls were monitored and possibly recorded. The court stated, "Even if the defendant and his wife never intended for the conversations to be disclosed, the fact that they were aware that a third party could monitor or record their conversation destroyed the confidential nature of the communication." Lilly , 111 So.3d at 45.

According to Defendant, this court should not follow the finding of the first circuit in Lilly because: (1) as evidenced by the frequency with which it occurs, inmates still believe they have a reasonable expectation of privacy despite the warnings that their calls might be monitored or recorded; (2) a non-human machine recording a conversation between two people is not the same as having a conversation in the presence of a third party; and (3) to deem all monitored jailhouse calls as unprivileged communication between spouses would effectively eliminate marital privilege for accused individuals who cannot afford to make bond because he or she can never have a privileged conversation with his or her spouse once he is incarcerated. We find these assertions meritless.

Inmates and their spouses are warned prior to making a phone call that the call may be recorded or monitored. Defendant's wife admitted in her testimony she was informed and understood her telephone conversations with Defendant were subject to recording. There could be no expectation of privacy under such circumstance. The fact that many prisoners continue to make such calls to spouses and disclose incriminating information does not negate the fact that they are aware that such calls are not confidential when they are forewarned about possible monitoring or recording of the calls.

Defendant attempts to draw a distinction between two people having a conversation in the presence of a third party and two people having a conversation where a non-human machine records their conversation. This is a distinction without a difference. This attempt fails because the recording captures the communication for later review by a third party. While a conversation in the presence of a third party may or may not be overheard by the outside party, as evidenced by Dupuy , the presence of the third party creates a prima facie showing that the communications were not privileged, and it is up to the defendant to rebut this. Here, where the jailhouse call was recorded and captured for monitoring by a third party, and the spouses were put on notice that the communications could be recorded, confidentiality and privilege are lost.

In Hudson v. Palmer , 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the United States Supreme Court addressed the question of a prisoner's right to privacy. In Hudson the right to privacy did not apply to searches of prisoners' cells. In reaching its decision that society's interest in the security of prisons outweighs a prisoner's expectation of privacy the court explained:

Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. " Lanza v. New York , 370 U.S. 139, 143-144, 82 S.Ct. 1218, 1220-1221, 8 L.Ed.2d 384 (1962). We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals ," Pell v. Procunier , 417 U.S. [817] at 823, 94 S.Ct. [2800] at 2804 [41 L.Ed.2d 495 (1974) ]. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." Bell v. Wolfish , 441 U.S. [520] at 537, 99 S.Ct. [1861], at 1873[, 60 L.Ed.2d 447 (1979) ].
Hudson , 468 U.S. at 527-28, 104 S.Ct. 3194 (emphasis added).

Likewise, in the context of a prisoner's expectation of privacy in spousal communications made via telephone calls from the jailhouse, subject to being monitored and/or recorded, the prisoner's interest in confidential communication with his/her spouse must yield to the paramount interest of institutional security. In both instances, the search of a jail cell or monitoring of a phone call, the prisoner is forewarned that he does not enjoy the ordinary protections guaranteed in the non-custodial world. His cell may be randomly searched without probable cause and his phone conversation may be monitored and recorded to assure the safety and security of the penal institution in which he/she is confined. Defendant and his wife were both informed that their phone conversations were subject to monitoring/recording before any call was made. There is no rational basis to suggest that either spouse could have any expectation of privacy during these calls.

We also find no merit in, nor any jurisprudential support for, Defendant's third argument that this court's holding monitored jailhouse calls are unprivileged communications would eliminate the marital privilege for those accused individuals who cannot afford bond because they will no longer be able to have unmonitored communications with their spouse. Any private conversations between a defendant and a spouse that occurred prior to the defendant being jailed would still be protected by marital privilege. Moreover, the fact that these calls are monitored does not preclude discussions concerning bond.

For the reasons stated, we affirm Defendant's convictions. We hereby order this case remanded to the trial court for the express purpose of correcting the court minutes to reflect the same language used in the transcript regarding Defendant's sentence for his conviction of second-degree kidnapping. We further order this case remanded to the trial court for resentencing on the conviction for second-degree kidnapping and direct the trial court to impose a determinate sentence for this conviction as provided by law. In all other respects Defendant's convictions and sentences are affirmed.

AFFIRMED IN PART, REMANDED WITH INSTRUCTIONS.

      Under the provisions of LA.R.S. 46:1844(W) the victim of a sex crime shall be entitled to confidential treatment in the courts and we therefore will refer to the victim in this case as AK. We have also avoided the use of other family members names in this opinion in an effort to safeguard the confidentiality accorded AK by law. A notation has been made on the record of these proceedings indicating the record is "CONFIDENTIAL and is NOT OPEN FOR GENERAL INSPECTION."