author: Judge Regina Bartholomew-Woods

text:
    STATE of Louisiana v. Cristian DEGREGORY
    NO. 2018-KA-0779
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2019
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, Irena Zajickova, Assistant District Attorney, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR APPELLANT/DEFENDANT
    (Court composed of Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Paula A. Brown )
   Judge Regina Bartholomew-Woods

Defendant-Appellant, Cristian DeGregory ("Defendant"), appeals his conviction, by jury trial, of second degree cruelty to a juvenile, a violation of La. R.S. 14:93.2.3. In this appeal, Defendant raises several assignments of error, which we find lack merit. For the reasons that follow, we affirm Defendant's conviction and amend Defendant's sentence to remove the restriction of his parole eligibility. In all other respects, Defendant's sentence is affirmed.

STATEMENT OF THE CASE

On June 25, 2015, the State filed an indictment charging Defendant with second degree cruelty to a juvenile, a violation of La. R.S. 14:93.2.3. On July 22, 2015, Defendant appeared for arraignment and entered a plea of not guilty. Defendant filed motions to suppress evidence and statement. On March 31, 2016, the district court heard these motions, and on April 25, 2016, denied both of them.

Trial by jury began on June 13, 2017, and concluded on June 15, 2017; the jury returned a verdict of guilty as charged. On June 23, 2017, the district court sentenced Defendant to forty (40) years imprisonment at hard labor. On that same date, the State filed a bill of information charging Defendant as a multiple offender; Defendant pled not guilty. On July 7, 2017, Defendant filed a motion to reconsider sentence. On November 21, 2017, the district court, in consideration of the pending multiple bill hearing, denied as moot Defendant's motion to reconsider.

On January 12, 2018, Defendant filed a motion for a new trial, which the district court denied. On that same date, the district court held the multiple offender hearing. On January 26, 2018, the district court ruled Defendant a second offender, and vacated Defendant's sentence and resentenced Defendant to fifty (50) years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. It is from his conviction and sentence that Defendant now appeals.

STATEMENT OF THE FACTS

At the beginning of the jury trial, the State called Sergeant Merrell Merricks, the Custodian of Records for the New Orleans Police Department ("NOPD"). Simultaneously, the State published to the jury Defendant's call to dispatch Emergency Medical Services ("EMS"). During the call, Defendant requested emergency assistance for a six-year-old male child who was experiencing a seizure.

Next, the State called New Orleans Emergency Medical Technician Theodore Andressen ("EMT Andressen"), who testified that on May 25, 2015, he was dispatched to a home located in New Orleans, and upon entry into the residence, he noticed Defendant standing near a young boy who was "sprawled out on the floor," unconscious and not moving. Defendant reported to EMT Andressen that the young boy's three-year-old sister had hit him in the head with a metal lunchbox. EMT Andressen observed that the young boy had a black eye and bruises, which prompted him to call law enforcement. After placing the young boy in the ambulance and cutting off his clothes, EMT Andressen observed that the child was emaciated with a distended stomach, had cigarette burns, and his teeth had been recently knocked out or were broken. The young boy was in critical condition and transported to Children's Hospital.

Additionally, the State called Richard Fredrick ("EMT Fredrick"), a paramedic in Baton Rouge. EMT Fredrick explained that when he arrived, he observed a "young child, male, unresponsive" in critical condition with "irregular and rapid" breathing with periods of apnea - symptoms of a "traumatic event" as opposed to a seizure. After completing a physical examination of the young boy, EMT Fredrick noted a "left nystagmus gaze, abdominal distention, and irregular respirations." EMT Fredrick also noted "multiple various stage bruising to [his] head and face" associated with blunt force and a "clubbed boxer life appearance" to both ears, and superficial abrasions to both his hands and face. Ultimately, EMT Fredrick testified that he had "no doubt that [the] child would have died that day" without medical intervention.

The State next called NOPD Officer Matthew White ("Officer White"), a child abuse detective to testify. Officer White stated that on May 25, 2015, he was dispatched to Children's Hospital in response to an unconscious victim, L.S., where he first spoke to the head nurse, and then to the EMTs who treated and transported him. Officer White also requested that the Crime Lab come to the hospital to photograph L.S.'s injuries. Thereafter, Officer White interviewed L.S.'s mother and relocated to L.S.'s residence where he encountered Defendant and L.S.'s younger sister; Officer White then relocated all three individuals to the NOPD Child Abuse Office. At the office, Officer White and NOPD Detective Tania Pruitt interviewed Defendant. During the interview, Defendant attributed L.S.'s injuries to his younger sister hitting L.S. with toys and slamming the lid of a toy box on L.S.'s hands. A search warrant was executed on the residence to "obtain any evidence pertaining to the injuries that were discussed" by Defendant during the interview; a trash bag, containing blood-stained gauze, paper towels, Q-tips and a sheet, was recovered.

NOPD Detective Eddie Williams ("Detective Williams"), who, at the time of the trial, was assigned to the digital forensics unit, testified next. In connection with the child abuse investigation, Detective Williams processed and generated a data report on five (5) mobile phones that contained photos and videos of L.S.

Next, the state called Dr. Jamie Jackson, an expert in pediatric medicine, who testified that since 2010, she has worked at the Audrey Hepburn Care Center at Children's Hospital and consulted on forensic interview administered to children who are suspected of being abused; she participated as a consultant in L.S.'s forensic interview. According to Dr. Jackson, L.S. was brought to the emergency room, intubated to stabilize his breathing, and received a craniotomy and X-rays; Dr. Jackson explained that L.S.'s injuries signaled child abuse because such injuries require external force inconsistent with an accidental fall. Despite the fact that Defendant reported that L.S. experienced previous seizures, Dr. Jackson testified that L.S.'s medical records provided no indication that L.S. had a history of seizures. While testifying, the State showed Dr. Jackson photographs of L.S.'s injuries. Dr. Jackson identified the following injuries: healing injuries (abrasion, laceration, or possibly a burn) to his lips, missing teeth, lacerations across his nose, bruising and swelling on both the left and right eyes, a gash on the left side of his face, a healing bite mark on his back, head lice, thin and malnourished appearance, repeating pattern of burn marks, cuts and abrasions to some toes, hyperpigmentation or healing bruises ("different marks all over"), avulsed or torn off fingernails, injuries to his hands and forearms, swelling and a curvature to the arm indicating an underlying injury to the arm (an acutely fractured humerus that required resetting), scraped skin, and a boxer's or wrestler's cauliflowered right ear, as well as bruises and abrasions on the left ear, and symmetrical burns on both wrists and hands.

Next, Kimberly Gambel, an occupational therapist at Children's Hospital, testified that on June 2, 2015, after L.S. had been medically stabilized, she began working with him. According to Ms. Gambel, L.S. was "tearful ... hesitant of being moved or touched," required "total assistance to sit up, total assistance to hold up his head," and could only move the left side of his body. During therapy, L.S. had to learn to dress himself and use the toilet. Ms. Gambel further testified that when L.S. was discharged from therapy on September 2, 2015, he still required assistance with self-care tasks such as dressing, grooming, bathing, using the toilet, feeding himself, and walking (L.S. could "ambulate only short distances of about 50 feet").

The State then called NOPD Detective Tyra Pruitt, who, at the time of the underlying incident, was assigned to Child Abuse as part of the Special Victims' Unit. Detective Pruitt interviewed Defendant on the day of the incident. Defendant told Detective Pruitt that L.S.'s injuries were caused by a radiator, a Nerf gun, and hot water; Detective Pruitt did not believe Defendant because the injuries were too severe. On cross-examination, Detective Pruitt affirmed that she was "firmly convinced that those injuries were not caused by the three-year-old," L.S.'s younger sister.

Thereafter, the State called Matteo Avocato, a paramedic with the City of New Orleans, who testified that he was dispatched to L.S.'s home on May 10, 2015, in response to a breathing problem, but upon his arrival at the residence, Defendant cancelled the call. Consequently, Paramedic Avocato did not have contact with the patient.

Finally, the State called Linda Amos, L.S.'s adoptive mother. According to Ms. Amos, prior to his injuries, L.S was a healthy, active child. Ms. Amos recounted that L.S. was in a coma, hospitalized for three (3) months, paralyzed on his right side, and had to complete physical, occupational and speech therapy. Until his release from the hospital, L.S. was in a wheelchair, had to be carried everywhere, and had to wear diapers. Ms. Amos explained that now L.S. can walk, but wears a brace on his right leg and sometimes drags his right foot; wears a helmet to protect his head in case he falls; has a learning disability caused by his traumatic brain injury, which causes him to forget; does not have use of his right arm and had to learn to write with his left hand instead of his right hand; and is receiving physical and speech therapy.

At the conclusion of Ms. Amos' testimony, the State rested, and the jury exited the courtroom. Defense counsel then moved for a mistrial, and the district court denied that motion. Defense counsel called Defendant to testify as the sole witness. Defendant conceded that in 2007, he had been convicted of possession of stolen property, a felony. Defendant also conceded that he pled guilty to a misdemeanor, torturing animals.

Defendant testified that on one occasion, he and L.S.'s mother discovered that L.S. was bleeding from his nose and mouth after L.S.'s younger sister had hit him with a Nerf gun. As a result, L.S. suffered loose teeth, inner-mouth abrasions, and a swollen nose, which they treated with a mixture of mouthwash and hydrogen peroxide. Defendant stated that in February 2015, L.S. suffered a 101° fever, and a few weeks later was ill again. According to Defendant, L.S. was treated with a hot compress that burned and blistered his neck. Defendant also recounted an incident in which L.S.'s younger sister struck L.S. in the face with a metal lunchbox causing a gash under his left eye; according to Defendant, L.S.'s mother treated that wound with hydrogen peroxide and medical, adhesive strips.

According to Defendant, L.S., while exiting the bathtub, slipped, fell, and hit his head on the radiator. A few days later, L.S. experienced his first seizure, and Defendant requested emergency assistance; it was on this occasion that Defendant cancelled the ambulance call before the paramedic could treat L.S. On the following day, L.S.'s ear was red and swollen. Defendant testified that he was unaware of the severity of L.S.'s various injuries. According to Defendant, on May 25, 2015, L.S. suffered a seizure as Defendant was putting him to bed.

On cross-examination, Defendant explained that although he is not L.S.'s biological father, he felt responsible for his care. Defendant was unable to take L.S. for medical treatment because he did not have a car and did not know L.S.'s medical insurance information, but he encouraged L.S.'s mother to bring L.S. for medical treatment. The Defense rested after Defendant's testimony.

DISCUSSION

Errors Patent

In accordance with La. C. Cr. P. art. 920, we have reviewed this appeal for errors patent. A review of the record revealed one error patent. Upon sentencing Defendant as a habitual offender, the district court restricted the benefit of parole when imposing a sentence of fifty (50) years. During the sentencing, the district court stated, "Any sentence of [sic] the court hands down under the habitual offender statute is to be served at hard labor without the benefit of parole, probation or suspension of sentence." However, La. R.S. 15:529.1(G), which is applicable to sentences imposed on second and subsequent offenders, provides that the sentence imposed "shall be at hard labor without benefit of probation or suspension of sentence." Here, the district court erred in restricting Defendant's parole eligibility. See State v. Falkins , 2012-1654, p. 29 (La. App. 4 Cir. 7/23/14), 146 So.3d 838, 856-57. Accordingly, we amend Defendant's sentence to remove the restriction of his parole eligibility.

Assignments of Error

In his appellate brief, Defendant assigns the following errors:

1. Whether the district court erred in failing to grant Defendant's cause challenges as to four (4) jurors;
2. Whether the district court erred in failing to grant Defendant's motion for a mistrial; and
3. Whether the district court erred in imposing an excessive sentence.

Assignment of Error Number 1 :

Defendant argues that the district court erred in denying his cause challenges as to four (4) jurors: Juror 2, Juror 6, Juror 12, and Juror 18. Defendant asserts that these jurors revealed that they could not be impartial and/or follow the law as instructed. Defendant asserts that he was forced to expend four (4) of his twelve (12) peremptory challenges on jurors who should have been stricken for cause.

In criminal matters, defendants are afforded the right of full voir dire of prospective jurors and peremptory challenges of prospective jurors pursuant to La. Const. art. I § 17 (A). Further, La. C. Cr. P. art. 797, in pertinent part, allows both the State and defendant to challenge a juror for cause on the ground that the juror is not impartial or the juror will not accept the law as instructed by the court. This Court has explained that "prejudice is presumed when a challenge for cause has been erroneously denied by a trial court, and the defendant exhausts all peremptory challenges statutorily afforded to the defendant." State v. Harrison , 2017-0054, p. 17 (La. App. 4 Cir. 3/21/18), 239 So.3d 406, 417, (citing State v. Juniors , 2003-2425, p. 8 (La. 6/29/05), 915 So.2d 291, 305 ). In order "[t]o obtain a reversal, the defendant must show: (1) the erroneous denial of his challenge for cause; and (2) the exhaustion of his peremptory challenges." State v. Rhodes , 1997-1993 (La. App. 4 Cir. 11/18/98), 722 So.2d 1078, 1079. Moreover,

[a] district court is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the court abused its discretion. State v. Dotson, [20]16-0473, p. 5 (La. 10/18/17), 234 So.3d 34, 39. This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Id., [20]16-0473,p. 17, 234 So.3d at 45. "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id.

State v. Lewis , 2018-0662, p. 4 (La. App. 4 Cir. 12/19/18), 262 So.3d 302, 304.

Initially, when asked whether he could be fair and impartial, Juror 2 affirmed that he could. When later asked more specifically if he could be fair in a case involving a child victim, Juror 2 responded, "I will try to be, but I'm not really sure." Further, Juror 2 asserted that he could be a "good juror" in this case.

Ultimately, the State, not Defendant, exercised a peremptory challenge on Juror 2. Therefore, as to Juror 2, Defendant's argument lacks merit.

While Jurors 6, 12, and 18 expressed concerns regarding a child victim, all affirmed that they would remain fair and impartial. The Louisiana Supreme Court reasoned that a "prospective juror's responses during voir dire cannot be considered in isolation." State v. Dotson , 2016-0473, p. 5 (La. 10/18/17), 234 So.3d 34, 39 ; See State v. Frost , 1997-1771, p. 8 (La. 12/1/98), 727 So.2d 417, 426. In State v. Robinson, a prospective juror "only stated that she did not know if she could be impartial and did not affirmatively state she could not be;" this Court reasoned that the prospective juror's responses, taken as a whole, did not indicate "bias, prejudice, or an inability to render judgment according to law." 2008-0652, p. 13 (La. App. 4 Cir. 5/13/09), 11 So.3d 613, 621. Further, the Louisiana Supreme Court has reasoned that a prospective juror's equivocal answer "did not amount to a refusal to accept the law as charged." State v. Frazier , 283 So.2d 261, 264 (La.1973). Here, the answers provided by Jurors 6, 12, and 18, when taken as a whole, did not indicate that they would not be fair and impartial. Accordingly, the trial court did not err in denying Defendant's challenges for cause.

Assignment of Error Number 2:

In his second assignment of error, Defendant argues that the trial court erred in denying his motion for a mistrial. Defendant moved for a mistrial because, during opening statements, the State mentioned that Defendant's co-defendant, L.S.'s mother, pled guilty to second degree cruelty to a juvenile, and the co-defendant did not testify during Defendant's trial. Defendant further argues that the State's statement was prejudicial because the jury could reason that because the co-defendant pled guilty then Defendant must also be guilty of the charged offense.

Defendant first moved for mistrial after the State's opening statement and before the first witness was sworn. The district court declined to rule on Defendant's motion for mistrial as premature because it was not yet known whether the State would call Defendant's co-defendant to testify. At the close of the State's case-in-chief, without having called Defendant's co-defendant to testify, the State attempted to introduce into evidence the co-defendant's guilty plea form. Defendant objected, and the district court sustained Defendant's objection. Defendant again moved for a mistrial; the district court expressed that a mistrial is a drastic remedy, and instead instructed the jury that "opening statements and comments of attorneys are not evidence," and that the jury may only consider evidence properly introduced through witness testimony or exhibits.

The State argues that counsel for Defendant, during voir dire , first introduced his co-defendant's involvement in the underlying matter. The State further argues that counsel for Defendant, in its opening statement, attributed L.S.'s injuries to Defendant's co-defendant. Through his testimony at trial, Defendant addressed his co-defendant's role in L.S.'s injuries and her failure to seek medical treatment for L.S.'s injuries. Additionally, the testimony of numerous witnesses addressed Defendant's co-defendant. For those reasons, the State urges that the jury was entitled to know that Defendant's co-defendant pled guilty to second degree cruelty to a juvenile.

Pursuant to La. C. Cr. P. art. 775, "a mistrial shall be ordered when prejudicial remarks in the courtroom makes it impossible for the defendant to obtain a fair trial." State v. Burton , 2009-0826, p.10 (La. App. 4 Cir. 7/14/10), 43 So.3d 1073, 1080. This Court explained "the law is well-settled that '[m]istrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant', and '[t]he determination of whether prejudice has resulted lies within the sound discretion of the trial court.' " State v. Trung Le , 2017-0164, pp. 37-38 (La. App. 4 Cir. 4/11/18), 243 So.3d 637, 668, writ denied , 2018-0741 (La. 1/18/19), 262 So.3d 285, and writ denied , 2018-0755 (La. 1/18/19), 262 So.3d 286 (internal citations omitted). This Court has "emphasized that cautionary instructions by the trial court are both essential and effective in avoiding prejudice where the fact of a co-conspirator's guilty plea is brought out at a trial before a jury." State v. Isaac , 487 So.2d 565, 570 (La. App. 4th Cir. 1986). Here, although the State mentioned Defendant's co-defendant's guilty plea, other witnesses made reference to Defendant's co-defendant as it related to L.S.'s injuries. Further, Defendant's co-defendant's guilty plea form was not admitted into evidence, and the district court instructed the jury to disregard the State's comments regarding the co-defendant's guilty plea. Considering the overwhelming weight of evidence presented against Defendant through exhibits and witnesses' testimony and the discretion afforded the district court in determining whether prejudiced resulted, we find no abuse of discretion in the district court's denial of Defendant's motion for mistrial. For those reasons, Defendant's assignment of error lacks merit.

Assignment of Error Number 3:

In Defendant's third assignment of error, Defendant alleges that he received an excessive sentence. Following his conviction the district court sentenced Defendant to forty (40) years at hard labor, the statutory maximum sentence. After adjudicating Defendant a second offender, the district court resentenced him to fifty (50) years at hard labor. Although Defendant concedes that the district court did not impose the statutory maximum sentence of a second habitual offender and the sentence comports with the parameters of La. R.S. 15:529.1, Defendant nevertheless argues that his sentence is excessive. Defendant contrasts his sentence to the twenty (20) year sentence that his co-defendant, L.S.'s mother, received and argues that she bore more responsibility for L.S.'s injuries.

A review of the record reveals that Defendant failed to properly preserve this assignment of error for review on appeal. Defendant filed a motion to reconsider his initial sentence, but failed to both object to and file a motion to reconsider his sentence as a second offender. This Court has explained that pursuant to La. C.Cr.P. art. 881.1, "[a]bsent the filing of a timely written motion for reconsideration of sentence or making of an oral objection at the sentencing hearing, a defendant is precluded from urging on appeal any ground of objection to the sentence." State v. Kirkling , 2004-1906, p. 5 (La. App. 4 Cir. 5/18/05), 904 So.2d 786, 790. This Court further explained that "[t]he jurisprudence has construed Article 881.1 as requiring a defendant who is multiple billed to file separate motions to reconsider his initial sentence and his new sentence imposed after his multiple bill adjudication." Kirkling , 2004-1906, p. 6, 904 So.2d at 790. Because Defendant failed to object to and file a motion to reconsider his sentence as a second offender, appellate review of Defendant's sentence is "limited to a bare review for constitutional excessiveness." State v. Zeitoun , 2017-0366 (La. App. 4 Cir. 11/8/17), 231 So.3d 934, 945, writ denied , 2017-2034 (La. 6/1/18), 244 So.3d 435.

Excessive sentences are prohibited by La. Const. Art. I, § 20. This Court has reasoned that "[a]lthough a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment." State v. Lambert , 15-0629, p. 22 (La. App. 4 Cir. 3/16/16), 191 So.3d 630, 644. Further, "[a] sentence is unconstitutionally excessive when it imposes punishment grossly out of proportion to the severity of the crime, makes no measurable contribution to acceptable goals of punishment, or constitutes nothing more than needless infliction of pain and suffering." State v. Turner , 2018-0326, p. 6 (La. App. 4 Cir. 11/28/18), 259 So.3d 1089, 1093-94. When reviewing whether a sentence is excessive,

an appellate court must determine first whether the trial court adequately complied with the statutory guidelines in La. C.Cr.P. art. 894.1. State v. Martin , [20]13-0628, p. 17 (La. App. 4 Cir. 5/28/14), 141 So.3d 933, 944. If the appellate court finds adequate compliance with La. C.Cr.P. art. 894.1, then it must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, "keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged." State v. Batiste , [20]06-0875, p. 18 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, 820 (quoting State v. Landry , [20]03-1671, p. 8 (La. App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239 ). "The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La. C.Cr.P. art. 881.4. Moreover, "[a] trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion." State v. Hackett , [20]13-0178, p. 14 (La. App. 4 Cir. 8/21/13), 122 So.3d 1164, 1174 (quoting State v. Smith , [20]01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4.). "On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion." Id.

Id. , 2018-0326, pp. 6-7, 259 So.3d at 1094.

The Habitual Offender Law, La. R.S. 15:1529.1, establishes the sentencing range for a second felony offender, such as Defendant, as half of the maximum to twice the maximum sentence for the underlying offense, with no benefit of probation or suspension of sentence. Here, the maximum sentence for second degree cruelty to a juvenile is forty (40) years imprisonment at hard labor. Accordingly, the sentencing range for a second felony offender is twenty (20) to eighty (80) years imprisonment at hard labor without the benefit of probation of suspension of sentence. The district court sentenced Defendant, as a second felony offender, to fifty (50) years, far below the maximum sentence of eighty (80) years imprisonment at hard labor. In sentencing Defendant, the district court considered the severity of L.S.'s injuries, which included an abrasion or laceration to his lips, broken or missing teeth, lacerations across his nose, bruising and swelling on both his left and right eyes, a gash on the left side of his face, a healing bite mark on his back, head lice, thin and malnourished appearance, burn marks, cuts and abrasions to some toes, hyperpigmentation or healing bruises, avulsed or torn off fingernails, injuries to his hands and forearms, swelling and an acutely fractured humerus that required resetting, scraped skin, and boxer's or wrestler's cauliflowered right ear, bruises and abrasions on the left ear, and symmetrical burns on both wrists and hands, the lasting impacts of these injuries that include wearing a brace on his right leg that causes him to sometimes drag his right foot, wearing a helmet, a learning disability caused by his traumatic brain injury, the loss of use of his right arm and a continued need for both, physical and speech therapy. For these reasons, we find that Defendant's sentence is not excessive, and this assignment of error lacks merit.

CONCLUSION

For the aforementioned reasons, we affirm Defendant's conviction and amend Defendant's sentence to remove the restriction of his parole eligibility. In all other respects, Defendant's sentence is affirmed.

AFFIRMED AS AMENDED

      La. R.S. 14:93.2.3 provides:
      A. (1) Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.
      (2) For purposes of this Section, "serious bodily injury" means bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.
      B. The providing of treatment by a parent or tutor in accordance with the tenets of a well-recognized religious method of healing, in lieu of medical treatment, shall not for that reason alone be considered to be intentional or criminally negligent mistreatment or neglect and shall be an affirmative defense to a prosecution under this Section.
      C. Whoever commits the crime of second degree cruelty to juveniles shall be imprisoned at hard labor for not more than forty years.

      Pursuant to its notice of La. C.E. art. 404(B) evidence of prior crimes, the State called Joshua Mueller ("Mr. Mueller"), an SPCA Law Enforcement Investigator for the Humane Society in Rochester, New York, to testify. At trial, Mr. Mueller testified that he had arrested Defendant for aggravated cruelty to animals after Defendant admitted that he punched his girlfriend's ten (10) week old pit bull puppy and broke its jaw. Ultimately, Defendant pled guilty to torturing animals, a misdemeanor in Monroe County, New York. The district court administered a limiting instruction regarding the purpose of prior crimes evidence.

      The State filed a multiple bill of information charging Defendant as a triple habitual offender. The district court found that the State failed to prove, pursuant to State v. Shelton , 621 So. 2d 769 (La. 1993), that Defendant was advised of his constitutional rights and knowingly waived those rights in his plea of guilty to unauthorized use of a moveable. Accordingly, the district court adjudged Defendant a second habitual offender.

      EMT Andressen identified Defendant in open court.

      On May 25, 2015, EMT Fredrick was employed as an EMT in New Orleans and was dispatched to the residence with his partner, EMT Andressen.

      EMT Fredrick identified Defendant in open court.

      EMT Fredrick testified that the child did not appear to be actively experiencing a seizure or recovering from a recent seizure.

      EMT Fredrick explained that "boxer ears" are "a clubbing and cauliflower effect that is predominately seen in boxers that have sustained multiple injuries to the head while they're fighting, and it's a clinical sign of over time blunt force trauma to the ears and the head or the face."

      Officer White explained that, as a child abuse detective, he "conduct[s] investigations with juveniles that consist of cruelty, neglect, sexual abuse [,] and sometimes homicides."

      In this opinion, the initials, rather than the full name of, the minor child are used to protect and maintain the privacy of the minor child involved in this proceeding. See Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2.

      The interview was audio and video recorded.

      According to Detective White, the NOPD digital forensics unit "[p]rocess[es] all phones, videos computer devices, ... that may contain evidence."

      On the craniotomy procedure, a portion of L.S.'s skull was removed to accommodate the swelling of his brain and several subdural hematomas.

      The X-rays revealed a broken posterior rib, which was in the process of healing and suggested that the rib had been broken at least seven (7) to ten (10) days earlier.

      Dr. Jackson testified that a sudden onset seizure could be caused by trauma, a tumor, an electrolyte imbalance, or epilepsy, but L.S. should have been medically evaluated and treated.

      Dr. Jackson testified that the damage to L.S.'s ears signaled non-accidental trauma or abuse.

      Ms. Gambel explained that an occupational therapist is "an allied health professional who focuses on restoring function to individuals so that they can participate in everyday activities."

      Detective Pruitt assisted Detective White, who was the lead investigator assigned to this case.

      The interview was recorded and played in open court at trial. Detective Pruitt explained that in a case where an injured child is unable to speak for himself, the police will interview anyone who had contact with the child on the date that the injuries were sustained.

      Ms. Amos explained that her son, Avery, had a relationship with L.S.'s mother and fathered L.S.'s younger sister. Ms. Amos has known L.S. since his birth.

      Ms. Amos did not know L.S. to ever have seizures.

      Due to issues with insurance coverage, L.S.'s occupational therapy had recently been discontinued.

      The basis for Defendant's motion for mistrial is addressed in the Discussion section of this opinion under the Assignment of Error Number 2 heading.

      According to Defendant, he was sentenced to one (1) year in County D.O.C.

      Defendant denied that L.S.'s burns had been caused by cigarettes.

      Defendant explained that he had suggested that L.S.'s mother bring L.S. to the hospital after some injuries, but she ultimately declined.

      Notwithstanding his lack of transportation, Defendant testified that they lived within walking distance from both Touro and Ochsner Hospitals.

      La. C. Cr. P. art. 920 provides:
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      The Louisiana Supreme Court explained that "[v ]oir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. The questions propounded are designed to determine any potential adverse influence on the prospective juror's ability to render an impartial verdict." State v. Dotson , 2016-0473, p. 5 (La. 10/18/17), 234 So.3d 34, 39 (citing State v. Drew , 360 So.2d 500, 513 (La. 1978) ).

      Juror 6 expressed that the age, and corresponding degree of helplessness, of the child victim "would be a factor," but affirmed that he would be able to be fair, impartial, and apply the law "so charged."

      Juror 12 expressed that "it would be very hard if the child testifies," and she might "believe the child more than an adult." However, Juror 12 affirmed that she could remain fair and impartial.

      When asked if she would be a "good juror in this case," and whether she "would be fair and impartial," Juror 18 affirmed that she would try.

      La. C. Cr. P. art. 881.1 provides, in pertinent part:
      A.(1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
      ...
      B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
      ...
      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      This Court further explained that "[s]tated otherwise, 'the failure to object to the sentence as excessive at the time of sentencing or to file a written motion to reconsider sentence precludes appellate review of the claim of excessiveness.' " Id. (citing State v. Robinson, 1998-1606, p. 9 (La. App. 4 Cir. 8/11/99), 744 So.2d 119, 125 ).


source: Caselaw Access Project

license: Public Domain

text:
    Rhett CHARLES v. NEW ORLEANS POLICE DEPARTMENT
    NO. 2019-CA-0115
    Court of Appeal of Louisiana, Fourth Circuit.
    June 19, 2019
   Kevin Vincent Boshea, ATTORNEY AT LAW, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT

Elizabeth Robins, DEPUTY CITY ATTORNEY, Renee Goudeau, ASSISTANT CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )

Plaintiff-Appellant, Rhett Charles, appeals the judgment of the Civil Service Commission (Commission) which sustained his demotion and one-day suspension by the New Orleans Police Department (NOPD). For the following reasons, we affirm the Commission's decision.

FACTS AND PROCEDURAL HISTORY

Appellant, a twenty-eight year veteran, worked as a sergeant for the NOPD. In 2016, he supervised at least fourteen officers in the Alternative Police Response (APR Unit). During that time, he engaged in a series of sexually inappropriate conversations with two of his subordinate female employees: Officer Shannon Reeves and Officer Nicole Alcala.

After receiving a complaint regarding Appellant's behavior, the NOPD initiated a Public Integrity Bureau investigation. The investigation was assigned to Sergeant Christopher Johnson. At the conclusion of the investigation, Sergeant Johnson found that Appellant violated the NOPD's Rules 3 and 4 concerning professional conduct and neglect of duty. In accordance with these findings, discipline was recommended.

After the disciplinary hearing, the NOPD issued a one-day suspension and demotion for the violations. As a result, Appellant filed an appeal with the Commission. After a hearing, the Commission sustained the NOPD's disciplinary decision and denied the appeal. This appeal followed.

STANDARD OF REVIEW

An appellate court is to apply the clearly wrong or manifestly erroneous standard of review when reviewing the Commission's factual findings. Bannister v. Dep't of Streets , 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647 (citing Walters v. Dep't of Police of the City of New Orleans , 454 So.2d 106 (La. 1984) ). When "evaluating the Commission's determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion." Id. A decision by the Commission is "arbitrary or capricious" when there is no rational basis for the action taken. Id.

DISCUSSION

Appellant asserts three assignments of error, concerning two issues: the sufficiency of the evidence and the disciplinary action. The first issue is whether the NOPD established the violations by a preponderance of the evidence. The second issue is whether the Commission erred in upholding the demotion and suspension of Appellant.

First, Appellant argues that the evidence was insufficient to establish that he committed the alleged violations. More specifically, Appellant challenges the credibility of the NOPD's witnesses.

At the hearing, several witnesses gave graphic testimony concerning Appellant's inappropriate behavior. Officer Reeves testified that Appellant asked her to pretend he was not her supervisor, commented on her genitals, spoke about sexual exploits, and inquired about preferred sexual positions. Further, Appellant invited her to visit his home, explaining that he "walk[s] around the house naked" and described lewd acts. On a separate occasion, Appellant put his arm around her and shook her, commenting that he was checking on his "friends" while looking down Officer Reeves' shirt.

After the APR Unit moved from the New Orleans Emergency Communications Center to NOPD headquarters in 2016, Appellant called Officer Reeves into his office and told her that all he saw was "t***ies" when she entered. She recorded this conversation on her cell phone. Appellant asked her about her nipples and described the techniques he would use if they were to have sexual intercourse.

Officer Reeves further testified that Appellant asked her to enter his office and after she complied, he remarked that he "just wanted to see y'all walk in." She interpreted this comment to be a reference to her breasts. She missed work on several occasions, and explained that she would not go into work because she had anxiety about encountering him. She did not report the incidents initially in early 2016 because she did not know who she could trust in the office.

Officer Nicole Alcala also testified that while reporting directly to Appellant in the APR Unit, he occasionally made sexually-themed comments directed at her, making her uncomfortable. These comments included inquiries into Officer Alcala's favorite sexual positions.

Sergeant Johnson conducted the investigation into allegations that Appellant made inappropriate sexual comments to employees. He testified that during the course of the investigation, he interviewed over fifteen people and recovered a tape recording that Officer Reeves recorded. He testified that he could hear Appellant's voice in the recording saying "if I was ever to have sex with you I would go straight for the t***ies." However, when Sergeant Johnson confronted Appellant, he admitted that his voice could be heard but could not confirm that he specifically made the comment. Nevertheless, Appellant admitted to participating in sexually explicit conversations with employees. Therefore, Sergeant Johnson sustained the violations against the Appellant. Moreover, Deputy Superintendent Paul Noel testified that these violations had a detrimental impact on the efficient operation of the department.

Converse to his investigatory statement and the other officers' testimonies, Appellant denied making any comments of a sexual nature during his testimony.

After the hearing, the Commission sustained the violations and found that Appellant's misconduct impaired the efficient operations of the department. In particular, the Commission made credibility determinations in favor of Officers Reeves and Alcala and against Appellant. As a result, it concluded that Appellant had participated in sexually inappropriate conversations with his subordinates.

The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. Patin v. Dep't of Police , 12-1693, p. 2 (La. App. 4 Cir. 6/26/13), 159 So.3d 476, 477-78 (citations omitted). When there were two permissible views of the evidence, the Commission's credibility choice cannot be manifestly erroneous. See Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989) (citations omitted). Given the foregoing, we cannot say that the Commission was manifestly erroneous in sustaining the violations.

Second, Appellant argues that the Commission erred in upholding the demotion and suspension of Appellant because the ruling was arbitrary and capricious. In support of this argument, Appellant asserts there is no evidence that the alleged infractions constituted a third offense, and therefore, the discipline was not commensurate with a first offense according to the NOPD Disciplinary Penalty Matrix.

Despite Appellant's argument, Deputy Superintendent Noel testified that he would have recommended deviating from the penalty matrix even if this was Appellant's first offense because the nature of the violations were severe and vulgar, and Appellant compromised the NOPD's ability to enforce its own rules and policies. Deputy Superintendent Noel also testified that Appellant lost his ability to supervise employees, and the inability to conduct his duties limited the job performance of the NOPD.

The Commission has the "exclusive power and authority to hear and decide all removal and disciplinary cases." La. Const. Art. X, § 12 (B). This Court has held that "[t] he discipline must have a rational basis to be commensurate with the dereliction or else it is arbitrary and capricious." Patin , 12-1693, p. 3, 159 So.3d at 478 (citation omitted). In addition, this Court has upheld the Commission's decision to deviate from the penalty matrix in circumstances where the "violation was such that it affected the rights and liberties of another, job performance of the NOPD, and involved a criminal violation." Meisch v. Dep't of Police , 12-0702, P. 12 (La. App. 4 Cir. 2/20/13), 110 So.3d 207, 215. Sexual harassment in the workplace certainly violates the rights and liberties of the victim, as well as the job performance of the NOPD, when officers avoid going to work due to anxiety of encountering the person harassing them.

In upholding the NOPD's decision to demote and suspend Appellant, the Commission considered the severity of the infraction as well as the testimony of Deputy Superintendent Noel. Under these circumstances, the disciplinary action was reasonable and commensurate with the severity of the offense. Accordingly, the Commission's decision to demote and suspend Appellant was not arbitrary or capricious.

CONCLUSION

For the foregoing reasons, the judgment of the Civil Service Commission is affirmed.

AFFIRMED

      The one-day suspension stemmed from a violation of Rule 3: Professional Conduct, Paragraph
      1: Professionalism, which states:
      Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee or the New Orleans Police Department.

      The demotion stemmed from two violations of Rule 4: Performance of Duty, Paragraph 4(c)6 and 4(B) Neglect of Duty, Failing to Comply with Instructions, Oral or written, from any authoritative source to wit NOPD, Policy 328 Workplace Discriminatory Harassment/Retaliation Procedure. Rule 4(B) states:
      An employee with supervisory responsibility shall be in neglect of duty whenever he fails to properly supervise subordinates, or when his actions in matters relating to discipline fail to conform with the dictates of Departmental Rules, Policies and Procedures.
      Rule 4(c)6 states, in relevant part:
      The following acts or omissions to act, although not exhaustive, are considered neglect of duty:
      6. Failing to comply with instructions, oral or written, from any authoritative Source[.]


author: Kyzar, Judge.

text:
    STATE of Louisiana v. Jermaine D. GUIDRY
    19-200
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2019
    JoVonna R. Charles-Young, 204 Charity Street, Abbeville, LA 70510, 337-898-2090, COUNSEL FOR APPELLANT/DEFENDANT Jermaine D. Guidry
    Keith Stutes, District Attorney, Craig Bordolon, II, Assistant District Attorney, Fifteenth Judicial District, P.O. Box 175, Abbeville, LA 70510, 337-232-5170, COUNSEL FOR APPELLEE State of Louisiana
    Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.
   Kyzar, Judge.

The defendant, Jermaine D. Guidry, has filed the instant application for supervisory writs from the trial court's January 30, 2019 ruling denying his motion to suppress evidence. For the following reasons, we deny the writ.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by bill of information that on April 9, 2018, he committed four felony counts in violation of the Uniform Controlled Dangerous Substance Law, as follows: possession with intent to distribute Methamphetamine, a Schedule II controlled dangerous substance, in violation of La.R.S. 40:967 ; possession of Oxycodone, a Schedule II controlled dangerous substance, in violation of La.R.S. 40:967 ; possession of Hydrocodone, a Schedule II controlled dangerous substance, in violation of La.R.S. 40:967, and that he willfully, knowingly, unlawfully and intentionally received or acquired proceeds derived from a violation of the Controlled Dangerous Substance Law, in violation of La.R.S. 40:1041(D). Defendant was also charged with one misdemeanor count of possession of marijuana, a Schedule I controlled dangerous substance, in violation of La.R.S. 40:966. He was arraigned and pled not guilty on May 31, 2018.

On July 25, 2018, Defendant filed a motion to suppress evidence of the drugs seized from his vehicle without a warrant on April 9, 2018, asserting that the search of the vehicle was unconstitutional. The State opposed the motion, specifically alleging that the inventory search, search incident to arrest, and inevitable discovery exceptions, as well as abandonment, were applicable. Following a hearing on January 30, 2019, the trial court denied Defendant's motion to suppress.

According to the State, Defendant was wanted via a fugitive warrant posted on the National Crime Information Center (NCIC) when he was spotted in Vermilion Parish and pursued by law enforcement officers. A high-speed vehicle chase ensued, resulting in the deployment of spike strips. After losing control of his vehicle, Defendant drove into a sugarcane field and then fled on foot. He was apprehended and then placed under arrest.

Sergeant James Martin, of the Vermilion Parish Sheriff's Department, testified at the hearing on the motion to suppress that Defendant lost control of his vehicle after driving nearly half a mile in a sugarcane field while fleeing from officers, who were pursuing him in multiple police units. He stated that the front end of Defendant's vehicle hit a cane row after traveling over a headland in the field and that Defendant then "got out of the vehicle and took off running." When asked if there were any passengers in the vehicle, Sergeant Martin stated, "No, the vehicle was abandoned." During direct examination of Sergeant Martin, the following colloquy occurred as to the events:

Q. So at that point, you have this abandoned vehicle. What do you do?
A. Well, the vehicle was stuck in the field. There was no way for us to get it out. So a tow truck had to be called. And then including the fact that he led us on a pursuit and he had active felony warrants and then decided to get out the car and run and abandon vehicle, we towed it. We were going to tow it so it was searched. A vehicle inventory was completed and turned in.
Q. Okay. And among the things that were inventoried, were there any things that led to additional charges being filed?
A. The only things that are placed on inventory are things that are being left with the vehicle when the tow company takes them. But while we were searching the car, we did locate methamphetamine, hydrocodone, marijuana and I think that's it.

Sergeant Martin then stated specifically that "a vehicle inventory was completed and turned in" before the vehicle was towed. While it was unclear as to when the call for the tow truck was made, there was no choice but to call the tow truck as the vehicle was stuck in the sugarcane field some half mile from the road. The vehicle was searched without a warrant where it came to a stop, and drugs were found inside the vehicle in a duffle bag.

Defendant seeks review of the trial court's denial of his motion to suppress the drug evidence. He asserts that the trial court erred in denying his motion to suppress when it ruled that the police conducted a valid inventory search of his vehicle. We find no error in the trial court's decision for multiple reasons.

Article 1, Section 5 of the Louisiana Constitution of 1974 and the Fourth Amendment to the United States Constitution protect individuals from unreasonable searches and seizures. Although a search warrant is required as a general rule in order for a search to be constitutionally permissible, several exceptions to the warrant requirement have developed over time. State v. LaRue , 368 So.2d 1048 (La. 1979). A defendant adversely affected may move to suppress any evidence from use at the trial on a merits on the ground that it was unconstitutionally obtained, and the state has the burden of proving the admissibility of any evidence seized without a warrant. La.Code Crim.P. art. 703(A) and (D). In State v. Wells, 08-2262, pp. 4-5 (La. 7/6/10), 45 So.3d 577, 580-81 (alteration in original), the supreme court reiterated the appellate standard of review applicable to rulings on motions to suppress:

This court has recently restated the general rule that appellate courts review trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. State v. Hunt , 09-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751, citing State v. Hampton , 98-0331, p. 18 (La. 4/23/99), 750 So.2d 867, 884. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id. A "trial judge's ruling [on a fact question], based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling." State v. Bourque , 622 So.2d 198, 222 (La. 1993).

Abandonment Theory

While the trial court did not specifically rely on abandonment as grounds for denying Defendant's motion to suppress, the State urged such in its opposition to the motion and in oral argument after the close of testimony at the hearing. Additionally, the evidence produced by the State at the hearing supports its assertion that no warrant was necessary to search the vehicle as Defendant had, indeed, abandoned his vehicle in the sugarcane field after he fled on foot. An abandoned automobile may be legally searched without a warrant. State v. Kelly, 576 So.2d 111 (La.App. 2 Cir.), writ denied , 580 So.2d 666 (La. 1991) ; see also State v. Parker , 421 So.2d 834 (La. 1982), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983).

In Kelly , the second circuit upheld the denial of a defendant's motion to suppress where his vehicle was searched after it was abandoned in a ditch following a high-speed chase. The court found that in addition to the automobile exception to the warrant requirement, the abandonment of the vehicle also provided justification for the search.

Furthermore, the police were entitled to search the Lincoln as an abandoned vehicle. When property has been abandoned, a person's property interest in it lapses, and there is no further reasonable expectation of privacy. As a consequence, the property may be searched and seized without the normally required warrant. State v. Kyles , 513 So.2d 265 (La. 1987), cert. denied, 118 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236, rehearing denied, 487 U.S. 1246, 109 S.Ct. 4, 101 L.Ed.2d 955 (1988).
If, prior to the abandonment of the evidence, there is an unlawful intrusion into the defendant's constitutional right to be left alone, then the evidence is unlawfully seized. An unlawful intrusion occurs when there is an actual stop without reasonable cause or when a stop without reasonable cause is imminent. State v. Littleberry , 511 So.2d 1229 (La.App. 2d Cir. 1987). However, when a stop is reasonable, the officers may search and seize property that is abandoned in response to the stop. State v. Washington , 513 So.2d 358 (La.App. 4th Cir. 1987).

Id. at 117-18.

In State v. Nieves , 525 So.2d 1203 (La.App. 5 Cir. 1988), the court reviewed an appeal of the defendant's motion to suppress evidence of stolen jewelry found in a warrantless search of the vehicle he had been operating. The facts established that on May 24, 1987, two officers were responding to a police dispatch when they observed defendant stop his vehicle at the exit of a parking lot and start running away. Believing his actions to be suspicious, one of the officers gave chase on foot, and when he finally caught up with defendant, the defendant hit him. After the defendant was arrested, an investigation determined that the vehicle that he was driving was stolen. The police searched the vehicle, without first obtaining a warrant, and discovered stolen jewelry within. The defendant was charged with battery of a police officer, burglary, and possession of stolen goods. In affirming the trial court's denial of the motion to suppress, the court stated as follows:

Defendant properly cites the cases of Carroll v. United States , 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) [,] and Chambers v. Maroney , 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) [,] for explanation of the automobile exception to warrantless searches. However, the present situation presents a different rationale to support the search. The defendant exited his vehicle and fled. The vehicle was left running parked in the exitway of a parking lot. Thus, the search was conducted upon abandoned property.
Courts have frequently admitted into evidence objects found by the police during the examination of an abandoned vehicle. Sometimes this is done on the ground that the defendant, by abandoning the vehicle, had no standing to object, and sometimes on the more general ground that such an examination is not a search under the justified expectation of privacy test of Katz v. United States , [389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ].
LaFavre, Search and Seizure)2d ed , Section 2.5a (West Publishing Co. 1987). "The courts have found cars to be abandoned when it appears the operator of the vehicle left the car behind in an effort to avoid apprehension by the police." [I]d.
The Louisiana Supreme Court has held that police may lawfully seize abandoned property when there has been no prior unlawful intrusion into a citizen's right to be left alone. State v. Spears , 395 So.2d 762 (La. 1981). "An unprovoked abandonment presents independent legal basis for seizure of evidence, without the question of probable cause. Stated another way, when property is truly abandoned, its seizure is beyond the protection of the Fourth Amendment because the individuals right of privacy in the thing has come to an end." State v. Gains , 423 So.2d 111, 112 (La.App.4th Cir.1982).
The defendant was unprovoked when he exited his vehicle and began to run away. The vehicle was clearly abandoned and thus the seizure of evidence from within was outside the boundaries of constitutional protections.

Id. at 1205.

The defendant here abandoned the vehicle in a sugarcane field when he exited the vehicle and fled on foot. In addition to the crimes committed by virtue of his vehicular high-speed flight from the officers, the defendant was wanted via a fugitive warrant.

In the instant case circumstances surrounding the entire incident suggest an exigency to search without a warrant. The car was left with at least one door open; the keys were in the ignition; two former occupants of the car were still at large and a crowd had begun to congregate at the scene. Furthermore, the occupants having run from the car in the ditch with the door open, coupled with the officer's having probable cause to believe those running had recently robbed a bank, would strongly suggest to the officers that the automobile's former occupants had no expectation of privacy in the vehicle but rather that they had abandoned the vehicle and disassociated themselves from it. The officers were justified in conducting an on-the-scene search of the vehicle and seizing the evidence taken from the robberies. See State v. Edsall, 385 So.2d 207 (La. 1980).

Parker , 421 So.2d at 842.

In State v. Freeman , 50,282 (La.App. 2 Cir. 4/13/16), 194 So.3d 1, writ denied, 16-927 (La. 5/1/17), 220 So.3d 743, the defendant, who had been under investigation for narcotics trafficking, was pursued by officers during a high-speed vehicle chase. The defendant ultimately crashed the vehicle into a tree and fled on foot. The court on appeal upheld the warrantless search of the vehicle on multiple grounds, including the abandonment of the vehicle, as follows:

Under the automobile emergency exception to the search warrant requirement, a constitutional search of a vehicle may be made without a warrant (1) if there is probable cause to believe that the vehicle contains contraband or evidence of a crime, and (2) exigent circumstances require an immediate search. An abandoned automobile may be legally searched without a warrant. State v. Kelly , 576 So.2d 111 (La.App. 2d Cir.1991), writ denied , 580 So.2d 666 (La. 1991). When property has been abandoned, a person's property interest in it lapses, and there is no further reasonable expectation of privacy. As a consequence, the property may be searched and seized without the normally required warrant. State v. Kelly , supra.
The trial court did not abuse its discretion in denying Defendant's motion to suppress. The evidence and testimony presented at the suppression hearing and at trial establish that the initial stop, arrest, search and seizure were all proper. Regarding the initial stop, Trp. Lowery testified that he observed Defendant traveling 60 mph in a 55 mph zone. This observation provided him with the necessary reasonable suspicion to believe that a traffic violation had been committed, and he was justified in attempting to stop the vehicle for a traffic violation, even if the purpose of the stop was to investigate for CDS violations. However, rather than cooperating with Trp. Lowery's signals to stop, Defendant refused to stop, leading Trp. Lowery on a chase and ultimately crashing into a tree. This provided Trp. Lowery with probable cause to arrest Defendant for flight from an officer. See La. R.S. 14:108.1.

Id. at 22.

In the instant case, the stop of Defendant was patently reasonable as he was wanted on a felony warrant. Thereafter, he committed additional crimes by fleeing from the officers in his vehicle and then on foot. Having abandoned his vehicle, he had no expectation of privacy. The "Fourth Amendment protects people, not places" and "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). By abandoning his vehicle in a sugarcane field at the conclusion of the high-speed chase and then fleeing from the officers on foot, Defendant exposed his vehicle to the public; thus, the vehicle was not subject to protection under either the Fourth Amendment or the Louisiana Constitution.

Inevitable Discovery

The inevitable discovery rule applies as well. Nix v. Williams , 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ; State v. Lee , 05-2098 (La. 1/16/08), 976 So.2d 109, cert. denied , 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Whether the inventory search was conducted in the sugarcane field or at the police station is of no consequence here given the circumstances. The vehicle was, of necessity, going to be searched either prior to or immediately after being towed because the only option was to have it towed since it was stuck and abandoned in a privately owned sugarcane field approximately one-half mile from the road.

DISPOSITION

Accordingly, we find no error in the trial court's denial of the motion to suppress. Thus, Defendant's writ application is denied.

WRIT DENIED.


author: GRIFFIS, JUSTICE, FOR THE COURT:

text:
    Charles L. KUEBLER v. Hinds County Sheriff, Victor MASON
    NO. 2018-CA-00397-SCT
    Supreme Court of Mississippi.
    June 27, 2019
    ATTORNEYS FOR APPELLANT: RONNIE MUSGROVE, MICHAEL S. SMITH, II, JACKSON
    ATTORNEY FOR APPELLEE: CLAIRE BARKER
    BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
   GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Charles L. Kuebler appeals the denial of his petition for writ of habeas corpus. In his petition, Kuebler alleged that the employees of the Jackson Detention Center ("JDC") confiscated and photocopied his legal work, refused to let him meet with his attorneys, and eavesdropped on confidential attorney-client conversations. The circuit court found that Kuebler had not presented sufficient proof to support claims of violations of his constitutional rights and found no merit to the claims. After reviewing Kuebler's petition and the evidence presented, we find that the circuit court did not err in denying the petition. We affirm.

FACTS

¶2. In 2011, Kuebler was convicted of murder. His conviction was reversed and remanded for a new trial. See Kuebler v. State , 204 So. 3d 1220 (Miss. 2016).

¶3. Kuebler was then transferred to the JDC, where he has been held without bond awaiting retrial. He has actively participated in the preparation of his defense. His trial preparation included regular meetings with his attorneys and the creation of documents, which he contends contained confidential information and work-product information.

¶4. Kuebler's problems with the JDC staff allegedly began on December 20, 2017, when JDC officers Lieutenant Gloria Petty and Sergeant Angela Robinson conducted a search of Kuebler's cell. As a result of the search, Lieutenant Petty and Sergeant Robinson found white-out, a spiral notebook, and an ink pen. Each of these items was considered contraband. They also found voluminous papers stored under the bed in three unauthorized laundry bags. The JDC Inmate Handbook allows inmates to keep legal papers in their cell, but it also states that the floor of an inmate's cell must be kept clear at all times, except for authorized items. Lieutenant Petty testified that the amount of papers in the cell created a fire hazard. Additionally, many of the documents had been stapled together, and staples were prohibited.

¶5. Kuebler was not present for the search. When Kuebler returned to his cell, he claims that Lieutenant Petty and Sergeant Robinson removed or confiscated his legal papers, including documents such as motions, hearing and trial transcripts, attorney-client correspondence, strategy documents, private investigator notes, and more. Lieutenant Petty instructed Kuebler to pack the majority of the papers into boxes, which would be stored in the property room, available for him to access on an item-by-item basis. The papers also were made available for Kuebler's attorneys to pick up at his request. Kuebler testified the conversation with Lieutenant Petty took place in a JDC office several hours after the papers were initially removed from his cell.

¶6. Five boxes of legal papers were packed up by Kuebler and were placed in the property room. The boxes remained there for approximately twenty-four hours until they were picked up by Michael Smith, one of Kuebler's attorneys, on December 21, 2017. Smith inventoried the boxes and observed that staples had been removed from some, but not all, documents. There was testimony that the JDC staff did not read the documents, photocopy the documents, or discuss the contents of the boxes with anyone.

¶7. Between December 2016 and January 2018, Kuebler's attorneys visited him approximately seventy-five times, according to Kuebler's attorney Thomas Fortner. On Sunday, December 24, 2017, Smith arrived at the JDC for a visit but was told that visits were not allowed that day and would resume on Wednesday, December 27, 2017. Smith returned on December 27, 2017, to visit Kuebler.

¶8. Kuebler claims that his right to effective assistance of counsel was impeded. During regular business hours, the JDC allows attorney visits to be conducted on the second floor of the JDC in private rooms. The rooms are monitored and secured from a central control room, referred to as the tower. After business hours, the second floor of the JDC is closed. and a room on the first floor of the JDC is available for attorneys to conduct inmate visits. The room on the first floor does not have a door; however, it is located down an empty hallway where staff traffic is light after hours. A guard is posted in the hallway to ensure security.

¶9. During the December 27 inmate visit, Smith and Kuebler were allowed to meet in the first-floor room. Smith stated that the presence of a guard outside the room caused the meeting to be cut short due to their concern of a lack of privacy. According to Smith and Fortner, this had occurred before. On December 18, 2017, Kuebler met with Smith and Ronnie Musgrove.

Also, on January 5, 2018, Kuebler met with Fortner.

¶10. On January 4, 2018, Smith and Musgrove met with Kuebler in a second-floor private room, but they claim privacy concerns arose again when Deputy Rodrick Dillard positioned himself near the room's glass door. Kuebler testified that he had been to many attorney visits in this room and that this was the only time his deputy escort had remained by the visitation door. Normally, the visitation was monitored by the guard in the tower. Musgrove asked that they be given some privacy. However, Deputy Dillard, who was escorting an inmate to visitation for the first time that day, testified that he "was trained to stay right there in that immediate area" during visits and that he did not leave.

¶11. Kuebler often brought papers to his attorney meetings. The JDC procedures allow inmates to bring legal documents, but the inmate is searched before and after the attorney visit, and the documents are scanned to determine if they are legal in nature. Deputy Louis Fleming testified that "sometimes we're told that he can't take the legal work; sometimes he can." Deputy Jimmy Barnes testified that, on at least one occasion, Kuebler chose to leave his paperwork in his cell rather than allow Deputy Barnes to look at the documents.

¶12. Kuebler offered extensive testimony about harassment he alleged that he received from the JDC staff whenever he brought papers to his meetings. The parties agree that Kuebler was prevented from bringing his papers with him on two occasions. On January 5, 2018, a deputy conducted a routine patdown of Kuebler and discovered that he had folded-up papers in his possession. The papers were taken. Lieutenant Petty testified that inmates fold up papers in a similar fashion in order to pass letters. However, once the folded-up papers were determined to be legal papers, the papers were returned to Kuebler during his meeting. On February 5, 2018, another patdown was conducted, and the deputy discovered a yellow sticky note. Kuebler wanted the paper for his meeting, but sticky paper is contraband and was confiscated. Kuebler was not allowed to take the contraband paper to the meeting.

¶13. Neither Kuebler nor his attorneys ever filed a contemporaneous grievance or complaint to the circuit court or with counsel for the sheriff's office, who was responsible for the JDC. Kuebler said he was unable to access the JDC grievance procedure due to malfunctions with the computer system. Kuebler's attorneys offered no description of any failed efforts to make their concerns known in a contemporaneous manner.

¶14. On January 12, 2018, Kuebler filed a petition for writ of habeas corpus. Kuebler alleged that his constitutional rights had been violated. The circuit judge held a hearing on February 9 and 16, 2018. Testimony was presented by eleven witnesses, including Kuebler. The circuit court found that Kuebler was allowed to meet with his attorneys at every request, that he never had access to his attorneys limited by the detention officers, that he did not present sufficient evidence of any violation of his constitutional rights, and that no evidence had been offered to prove he was being treated in a different manner than other inmates. The circuit court denied Kuebler's petition, and Kuebler now appeals.

DISCUSSION

¶15. This Court has held that "[t]he rule is that the judgment of the trial court which heard the habeas corpus proceeding is presumptively correct, and, where the evidence is conflicting, the judge's finding of fact, if supported by the evidence, will not be disturbed on appeal." Lee v. Hudson , 165 Miss. 756, 144 So. 240, 240 (Miss. 1932). "[T]he judgment of a habeas corpus court will not be disturbed, unless it is manifest to us that the trial court either tried the cause upon an erroneous conception of the law, or that the judgment is erroneous upon the facts." Parker v. Tullos , 150 Miss. 680, 116 So. 531, 532 (Miss. 1928). We find that the circuit court neither "tried the cause upon an erroneous conception of the law" nor was the judgment erroneous upon the facts. Id.

¶16. Kuebler argues that the JDC staff violated his Sixth Amendment and Fourteenth Amendment rights by denying him effective assistance of counsel and access to the courts. He alleges that, on several occasions, the JDC staff eavesdropped on confidential conversations with his attorneys, provided attorney visitation rooms that did not have adequate privacy, refused his attorneys access to him, refused to allow him to bring legal paperwork to attorney visits, viewed his legal paperwork, confiscated his legal paperwork outside his presence, and withheld his mail. He presented no evidence that the allegations occurred but argues that the potential for wrongdoing was enough to create a violation.

¶17. The Sixth Amendment to the United States Constitution protects the right to effective assistance of counsel, a guarantee "that an accused shall enjoy the right 'to have the Assistance of Counsel for his defense.' " United States v. Morrison , 449 U.S. 361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981). The United States Court of Appeals for the Fifth Circuit has held that this right is implicated when there are concerns regarding interference with the attorney-client privilege. Taylor v. Sterrett , 532 F.2d 462, 472 (5th Cir. 1976). But when there is no "realistic possibility of injury to [the criminal defendant] or benefit to the State," the Supreme Court has held, "there can be no Sixth Amendment violation." Weatherford v. Bursey , 429 U.S. 545, 558, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). The Fifth Circuit applied a similar principle to the seizure of documents protected by the attorney-client privilege; when those documents were not introduced at trial and no showing of prejudice was made, it found no violation of the Sixth Amendment. United States v. Davis , 226 F.3d 346, 353 (5th Cir. 2000). The federal courts have established that "[a]bsent some showing of prejudice, there could be no Sixth Amendment violation to be remedied." Morrison , 449 U.S. at 364, 101 S.Ct. 665.

¶18. To allege a showing of prejudice, Kuebler asks that we assume, with no evidence, that the JDC staff members possess information obtained from listening to his conversations with his attorneys and reading his legal notes and that the JDC staff came into physical possession of his legal notes during the shakedown. He then argues that, because the JDC staff members are employees of the state, any possession by the JDC staff members equates to possession by the prosecutorial team. Kuebler mistakenly relies on Blakeney v. State , 236 So. 3d 11, 23 (Miss. 2017) ("Different agencies under the same government are considered the 'prosecution team.' " (quoting Manning v. State , 158 So. 3d 302, 306 (Miss. 2015) )).

¶19. In Blakeney , the prosecution failed to timely disclose to the defendant evidence that was in the possession of the sheriff's department. Id. The prosecution intended to introduce this evidence at trial and with due diligence could have disclosed it to the defendant earlier, since the evidence was in the possession of a government agency that was acting as part of the prosecution team. Id. The holding referred to the possession of evidence, not mere knowledge, in the context of the rules surrounding the disclosure of evidence. Id. at 22-23. To apply it to Kuebler's case overextends the definition of "prosecution team." There is no indication that the JDC staff served an investigative role or otherwise provided information to the prosecution.

¶20. To the contrary, any knowledge that any JDC staff member gathered from observing Kuebler's meetings with his attorneys would not violate Kuebler's Sixth Amendment rights, unless that knowledge was communicated. Weatherford , 429 U.S. at 556, 97 S.Ct. 837. There was no evidence that any JDC staff member provided any information to those involved in investigating or prosecuting this case. Kuebler's argument lacks merit.

¶21. Kuebler next argues that he was denied actual and constructive access to his attorney. The record clearly established that Kuebler had approximately seventy-five face-to-face visits with his attorneys. Kuebler claims that the substance of those visits was limited by the actions of the JDC staff, whose presence within alleged earshot forced Kuebler and his attorneys to cut short their meetings when they worried their meetings were not confidential. The presence of guards was necessary for security and did not interrupt Kuebler's right to contact visits with his attorneys. Instead, the record indicates, and the circuit court correctly found, that Kuebler had ample meaningful visitation with his attorneys.

¶22. Like the right to effective assistance of counsel, it is well established that detainees are guaranteed access to the courts via the Fourteenth Amendment. See Bounds v. Smith , 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), abrogated on other grounds by Lewis v. Casey , 518 U.S. 343, 351, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). Claims of denial of access to courts fall into two categories: "claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time" or "specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future." Christopher v. Harbury , 536 U.S. 403, 413, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002) (footnote omitted). However, the Fifth Circuit has noted that the right of access for detainees is not unlimited. Johnson v. Rodriguez , 110 F.3d 299, 310 (5th Cir. 1997). Rather, it encompasses only a reasonably adequate opportunity to file non-frivolous legal claims challenging their convictions or conditions of confinement. Lewis , 518 U.S. at 351, 116 S.Ct. 2174. A successful denial-of-access-to-the-courts claim in the Fifth Circuit must show actual injury in connection with an identifiable legal proceeding. Id. at 349-53, 116 S. Ct. 2174.

¶23. Kuebler contends that the JDC staff kept him from bringing his legal papers to meetings with his attorneys, denied him his rights to counsel, and denied him access to the courts. While the testimony on this issue is contradictory, it evidences the competing interests of ensuring prison security and protecting the rights of prison inmates. It was in the interest of prison security that Kuebler's papers were removed when they were discovered folded up on his person, which gave his JDC staff escort reason to believe he was actively concealing papers. Indeed, Kuebler testified that he intended to hide the papers from the JDC staff, because he did not trust them not to read his legal notes. The JDC staff's duties included the responsibility to monitor inmate activities. Once JDC staff determined the papers were legal documents, they were immediately returned to Kuebler while he met with his attorney. It was also in the interest of prison security that Kuebler's notes on sticky paper were confiscated, not because of the subject material but because sticky paper was unauthorized.

¶24. Similarly, the JDC's interest in ensuring prison security must be balanced with Kuebler's right to confidential communications. Confidentiality regarding attorney-client communications cannot be taken away, but that privacy must be balanced with proper security measures. It was a necessary function of the JDC staff to scan papers to determine they were of a legal nature. Kuebler was found with papers in suspicious or unauthorized forms, like the folded notes, the sticky paper, and the papers that were held together with contraband staples. The unfolding of the papers or the removal of the staples does not establish that his legal papers were read or photocopied, as Kuebler contends. Certainly, no evidence was presented that this information was provided to the prosecution team.

¶25. Kuebler relies on the Fifth Circuit's holding in Sterrett that exposing confidential information to any third party creates a fear that the information has been compromised. Sterrett , 532 F.2d at 476. However, such fear does not create a presumption that an inmate's constitutional rights have been violated.

¶26. No evidence was presented to show that eavesdropping did in fact take place or that the staff photocopied or removed Kuebler's documents. No showing has been made that the prosecution has come into possession of any illegally obtained information or that an actual injury to his defense has occurred. The circuit court correctly found that no evidence supported the theory that the JDC staff took improper action with the contents of Kuebler's legal files or any other information that might have been gathered in the course of employment.

¶27. The circuit court determined that the evidence presented did not support a finding that JDC staff communicated to the prosecutors any information regarding Kuebler they may have obtained in the course of their employment. We agree and find no error in the circuit court's finding that Kuebler failed to establish a violation of his constitutional rights.

¶28. Finally, Kuebler alleges that pieces of his mail were withheld from him. The identified letters were written in Italian, and the JDC staff considered that suspicious. There was limited testimony regarding this issue, and neither Kuebler's petition nor the circuit court's finding specifically addressed it, but we address it now.

¶29. The censorship or withholding of an inmate's mail "must be accompanied by minimum procedural safeguards." Procunier v. Martinez , 416 U.S. 396, 417, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott , 490 U.S. 401, 413-14, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989). Such safeguards could include that the "inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence." Id. at 418-19, 94 S. Ct. 1800. The Fifth Circuit has concluded that such censorship of mail "must pursue a substantial government interest to conform to constitutional standards." Sterrett , 532 F.2d at 469.

¶30. Kuebler argues that there was no substantial interest to justify the withholding of his mail, but Lieutenant Petty testified about their concern of suspicious and secretive behavior. The letter was in Italian, unusual for Kuebler's mail, and raised the suspicion that Kuebler was trying to conceal something. Lieutenant Petty indicated that she confiscates such suspicious letters to deter communication about illegal misconduct. With no evidence that Lieutenant Petty improperly handled Kuebler's mail, we must assume that prison security satisfied a substantial government interest.

¶31. In addition, we find that each of these issues would have been best addressed by the circuit judge in a contemporaneous manner. Kuebler's concerns very well may have had some merit, but they do not rise to the level of constitutional violations that would require the relief requested.

CONCLUSION

¶32. We find that the circuit court correctly found that Kuebler's constitutional rights have not been violated. As a result, neither bond nor dismissal is appropriate. We affirm the denial of Kuebler's petition for writ of habeas corpus.

¶33. AFFIRMED.

RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶34. I agree with the majority that the trial judge did not err in denying Kuebler's petition for a writ of habeas corpus . But I observe, with respect, that both the trial court and the majority stray beyond the boundaries of habeas corpus . Ultimately, Kuebler's petition boiled down to an application for bail, and habeas corpus is not the best vehicle for that. Kuebler did not petition to challenge the validity of his detention, which would have placed him solidly within habeas corpus territory. Accordingly, I concur in result only.

¶35. Kuebler's petition for a writ of habeas corpus cited Uniform Civil Rule of Circuit and County Court Practice 2.07A, alleging that Jackson Detention Center officers had violated his constitutional rights. In the end, the trial judge concluded that Kuebler had filed his habeas petition as a means by which the court could reconsider admitting him to bail:

THE COURT: ... What are you asking this court to do for the 50th time? What ruling do you want from this court, so I can go ahead and move on?
[KUEBLER'S ATTORNEY]: I want you to order that he will be entitled to bail under [Rule 2.07A]9(a) because everything has been so compromised and the ability to prepare for trial -
THE COURT: Bail fixes what has been compromised is that what you are telling this court?
....
[KUEBLER'S ATTORNEY]: [I]f we have to continue to fight these fights either internally or back before the court, then we're not spending our time preparing for trial, which is what we have the right to do, but more importantly, what Mr. Kuebler has the right to expect us to do, and what we were hoping is that we at least would put us in the best position possible to get ready for the trial and be able to not have any more violations of Mr. Kuebler's constitutional rights. And it appears to me that that is the best possibility of the options that are there. If I honestly thought that there were other things that this court could do that would rectify I would ask for it, but I don't believe it is.
....
THE COURT: All right. It's a little far fetched and I think I have enough information. We're getting a little far off of what we're here for. Before the court is a petition for a writ of habeas corpus. Certain allegations have been made by the defendant.... the defendant is making a request for bail alleging that bail is possibly a remedy for some of the issues herein. The Court has previously considered bail in this case, and the court has denied bail in the past ....

(Emphasis added.)

¶36. The judge denied Kuebler's petition for a writ of habeas corpus and did not revisit the question of bail. The trial court was correct. Kuebler had made no claim that he was being unlawfully detained, and his pleadings did not request a reconsideration of the court's denial of bail.

¶37. In his petition for a writ of habeas corpus , Kuebler made only passing reference to the subject of bail: "While Mr. Kuebler's attorneys have made several previous requests that a bond be set in this case in order for him to be released and thereby facilitate his ability to participate in the preparation of his defense, the Court has not agreed to do so." He made no mention of bail in his request for relief.

¶38. The right of habeas corpus , also known as "the great writ," is a constitutional privilege. Miss. Const. art. 3, § 21 ; see also Boumediene v. Bush , 553 U.S. 723, 739, 128 S. Ct. 2229, 2244, 171 L. Ed. 2d 41 (2008) ("The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom."). A petition for "writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in [ ] cases expressly excepted." Miss. Code. Ann. § 11-43-1 (Rev. 2014). "The function of the habeas corpus court in Mississippi ... is to release a prisoner who is being unlawfully held or to grant him a bail bond which he can make." Keller v. Romero , 303 So. 2d 481, 482 (Miss. 1974) ; Nelson v. Tullos , 323 So. 2d 539, 542 (Miss. 1975) ("[H]abeas corpus has the principal function of testing the legality of a petitioner's detention prior to his conviction."). The court "shall inquire into the cause of imprisonment or detention, and shall either discharge, commit, admit to bail, or remand the prisoner, or award the custody to the party entitled thereto, as the law and the evidence shall require." Miss. Code Ann. § 11-43-33 (Rev. 2014). But a judge is not required to consider a habeas petition when it is misused. See , e.g. , Keller , 303 So. 2d at 483 ; see also Johnson v. State , 159 So. 3d 601, 604 (Miss. Ct. App. 2014) (footnote omitted) ("[T]he court may refuse to grant the writ if it is manifest from the showing made in the petition that the person is not entitled to any relief."). Since no allegation of wrongful detention appears in Kuebler's petition, the trial judge was under no obligation to issue the writ.

¶39. Because Kuebler did not challenge the validity of his confinement in the first place, that failure was enough to warrant denial of Kuebler's requested habeas relief. See Smith v. Banks , 134 So. 3d 715, 720 (Miss. 2014) ("Smith's petition for habeas corpus failed to challenge the validity of his detention ...."); Keller , 303 So. 2d at 482 ("A habeas corpus writ cannot be used as a collateral method ...."). Although Kuebler did claim, and adduced evidence of, egregious misconduct on the part of his jailers, habeas corpus does not provide an appropriate mechanism for addressing such matters. Accordingly, I respectfully suggest that the analysis provided by the majority, while superfluous in this instance, nevertheless led to the right result, and in that result I concur.

KING, P.J., JOINS THIS OPINION.


text:
    Dante O. TAYLOR v. STATE of Mississippi
    2017-CT-01596-SCT
    Supreme Court of Mississippi.
    Filed: April 15, 2019 Closed: July 18, 2019
    Motion Desc: Petition for Writ of Certiorari
    Certiorari - Granted.


text:
    Linda ROBINSON v. ROBINSON PROPERTY GROUP CORPORATION
    2013-CT-01838-COA
    Supreme Court of Mississippi.
    Filed: May 21, 2019 Closed: July 18, 2019
    Motion Desc: Petition for Writ of Certiorari
    Certiorari - Dismissed.