source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Brandon L. PIKE
    NO. 18-KA-538
    Court of Appeal of Louisiana, Fifth Circuit.
    May 08, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Andrea F. Long, Lynn Schiffman
    COUNSEL FOR DEFENDANT/APPELLANT, BRANDON L. PIKE, Brandon L. Pike, Cynthia K. Meyer
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   WICKER, J.

Defendant, Brandon Pike, appeals his convictions and sentences for aggravated burglary in violation of La. R.S. 14:60 and second degree battery in violation of La. R.S. 14:31.1. For the following reasons, we affirm defendant's convictions and sentences.

STATEMENT OF THE CASE

On February 17, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Brandon L. Pike, with aggravated burglary of a residence belonging to Shirley Fazande, in violation of La. R.S. 14:60 (count one), and second degree battery of Ms. Fazande, in violation of La. R.S. 14:34.1 (count two). Defendant pled not guilty at his arraignment on February 22, 2017. On February 24, 2018, defendant filed a "Motion to Declare La. C.Cr.P. art. 782(A) and La. Const. Art. I, § 17 Unconstitutional because they Allow for a Nonunanimous Verdict in this Second-Class Case," which the trial court denied on the morning of trial. A one-day trial commenced before a twelve-person jury on February 27, 2018.

The jury found defendant guilty as charged.

On March 15, 2018, defendant filed a motion for new trial and for post-verdict judgment of acquittal. The following day, March 16, 2018, the trial court denied defendant's post-verdict motions and, after a waiver of delays, sentenced defendant to thirty years imprisonment at hard labor on count one and eight years imprisonment at hard labor on count two. The trial judge ordered the sentences to be served consecutively. Defendant's motion to reconsider sentence was denied by the trial court following sentencing. This timely appeal followed.

FACTS

The victim, eighty-four-year-old Shirley Fazande, testified at trial that defendant, Brandon Pike, broke into her home on December 31, 2016, and confronted her in her hallway. She recalled that defendant broke through the front door of her home and was approximately three to four feet away from her when he demanded her money. When she informed defendant that she did not have any money, he pushed her into her bedroom and started "beating [her] in the head," rendering her unconscious. Once she regained consciousness, she was able to call her daughter-in-law for help. When her son and daughter-in-law arrived at her home, she told them that defendant, who lived around the corner, attacked her. The victim explained that she knew defendant from the neighborhood commodity store and testified that she would see him three to four times a week when he would pass in front of her house. The victim further testified that the only item missing from her home was her television. On cross-examination the victim stated that she did not know how long she was "out" but that she recalled the attack happened at night.

Detective Carl Koppeis of the Jefferson Parish Sheriff's Office testified that on December 31, 2016, he reported to 6605 16th Street in Marrero, Louisiana, to investigate an aggravated burglary. Upon his arrival, it appeared that the front door had been kicked open. Based on conversations with the victim, her son (Ronald Fazande), and other individuals at the scene, defendant was developed as a suspect. Detective Koppeis testified that he went to the hospital to speak with the victim, and observed substantial swelling to her face, including her left eye which was swollen shut, and dried blood behind her left ear. He further explained that the victim identified defendant from a photographic lineup. Ms. Fazande also told Detective Koppeis that she knew defendant from the neighborhood commodity store and the neighborhood. A warrant was prepared for defendant's arrest, and upon his arrest, scratches were observed on his hands.

Deborah Fazande, the victim's daughter-in-law, testified that she and her husband, Ronald, were shopping when they received a phone call from the victim asking for help. Because she and Ronald were not home at the time, a neighbor, Russell Goff, was sent to check on the victim until they could get there. Deborah identified several photographs depicting the condition of the victim's home upon their arrival, including damage sustained to the front door frame, kitchen door, and several rooms of the house which had been ransacked. Deborah also noted that the victim's television was missing.

Deborah testified that prior to the incident, the victim was very active, exercising at the fitness center three days a week, volunteering at Ochsner Westbank two days a week, traveling with a ladies social group, and participating in various social activities in the community. However, since the incident, she explained that the victim has been unable to do any of these activities. Deborah also testified that she now helps the victim with her cooking and drives her to therapy as she is no longer able to do so herself.

Russell Goff testified that at around noon on December 31, 2016, he received a phone call to go check on his neighbor, the victim. Upon his arrival, he saw that the front door had been kicked in, the house was in disarray, the television was missing from the bedroom, and the victim was lying on the floor in the den. Russell testified that he gave the victim some juice because she was a diabetic and that once she started drinking the juice, she started to remember what had happened. Russell recalled that at first the victim thought she might have fallen but then when she began to "come through," she told him that she had been attacked and that her assailant was a guy from the neighborhood-a heavy-set, light-skinned African-American man, who worked at the neighborhood commodity store and whom Russell's mother knew.

Russell's mother, Sabrina Knapper, testified that she was on the phone with her son when he went to the victim's house to check on her. Through FaceTime, Sabrina observed that the victim's face was swollen and testified that she was able to hear the victim's description of the perpetrator. Based on the description the victim provided, Sabrina testified that she knew the victim's assailant was defendant, a neighbor "from around the corner," whom she had known for years.

Ronald Fazande, the victim's son, testified that he accompanied his wife Deborah to his mother's house shortly after they received her phone call. He recalled that she was seated in a chair in the den and that her eye was swollen shut with cuts on the back of her neck and ear. He observed that the front door of the house had been kicked in, his mother's room had been torn apart, and her television was missing. Ronald also testified that he heard his mother's description of the perpetrator but did not initially know who she was talking about until Sabrina informed him that it was defendant, whom he recalled seeing in the neighborhood.

DISCUSSION

On appeal, defendant assigns the following errors: (1) the evidence presented at trial was insufficient to support his convictions; (2) the trial court erred in sentencing defendant for aggravated battery rather than aggravated burglary; (3) the consecutive sentences imposed are constitutionally excessive; (4) the convictions for both aggravated burglary and second degree battery constitute double jeopardy; (5) trial counsel was ineffective for failing to raise a double jeopardy claim; and (6) the non-unanimous jury verdict violates the Equal Protection Clause and is unconstitutional. We address each assignment of error in turn:

In his first assignment of error, defendant contends that the evidence presented at trial was insufficient to support his convictions for aggravated burglary and second degree battery, on the sole basis that the State failed to prove his identity as the perpetrator of the crimes.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. State v. Baham , 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied , 15-0740 (La. 3/24/16), 190 So.3d 1189.

Here, defendant was convicted of aggravated burglary, in violation of La. R.S. 14:60, which required the State to prove the following elements in this case: 1) the unauthorized entering of any inhabited dwelling where a person is present, 2) with the intent to commit a felony or any theft therein, if the offender, 3) commits a battery upon any person while in such place, or in entering or leaving such place; and of second degree battery, in violation of La. R.S. 14:34.1, which is a battery, defined in pertinent part as "the intentional use of force or violence upon the person of another" when the offender intentionally inflicts serious bodily injury. Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Nelson , 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 500, writ denied , 15-0685 (La. 2/26/16), 187 So.3d 468. Nonetheless, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Marshall , 04-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied , 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007) ; State v. Harrell , 18-63 (La. App. 5 Cir. 10/17/18), 258 So. 3d 1007, 1011-12 ; State v. Watkins , 13-1248 (La. App. 4 Cir. 8/6/14), 146 So.3d 294, 303 (citing State v. Wells , 10-1338 (La. App. 4 Cir. 3/30/11), 64 So.3d 303, 306 ). The fact-finder's decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. Watkins , supra .

In challenging the sufficiency of the evidence used to convict him of these two offenses, defendant does not contest the sufficiency of the essential statutory elements of the charged crimes; rather, he challenges only the State's evidence presented to prove his identity as the perpetrator. Defendant claims that the victim's identification of him as the perpetrator is not reliable because of: (1) the lack of the victim's ability to view her assailant at the time of the crimes given the fact that the time the crimes occurred and how long the victim was unconscious were both undetermined; (2) the victim's history of diabetes and recent cataract surgery might have affected her ability to accurately view her assailant; (3) the victim's lack of attention based on the testimony that the victim does not "think clearly" when her blood sugar is "off"; (4) the vague and inaccurate description of the assailant provided by the victim; (5) the lack of certainty demonstrated by the victim; and (6) the length of time between the crime and the confrontation after having been repeatedly told by her neighbor, Sabrina, that defendant was the perpetrator. He further contends the photographic lineup was unduly suggestive because it focused solely on defendant, and was presented to the victim at a time when she was injured and not wearing her glasses.

In assessing the reliability of eyewitness identifications when reviewing the sufficiency of the evidence, Louisiana courts apply the five factors set forth by the United States Supreme Court in Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which are as follows: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the perpetrator; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the identification. State v. Cooper , 12-0174 (La. App. 4 Cir. 7/10/13), 120 So.3d 844, 852, writ denied , 13-1931 (La. 2/28/14), 134 So.3d 1174 (citing State v. Stewart , 04-2219 (La. App. 4 Cir. 6/29/05), 909 So.2d 636, 639, writ denied , 06-0029 (La. 6/2/06), 929 So.2d 1250 ). These five factors are generally applied to determine whether an identification made under suggestive circumstances arranged by the police created a "substantial likelihood of misidentification." Perry v. New Hampshire , 565 U.S. 228, 132 S.Ct. 716, 724-26, 181 L.Ed.2d 694 (2012).

In the present case, the testimony at trial established that the victim was wearing her glasses at the time she observed her assailant standing only three to four feet in front of her in her hallway. The testimony further showed that the first person to enter the victim's home after the incident was her next-door neighbor, Russell. The victim informed Russell that although she could not recall her assailant's name, she recognized him and described him as a heavy-set, light-skinned, African-American man who worked at the neighborhood commodity store and whom his mother (Sabrina) also knew. The victim testified that she not only knew her assailant from the commodity store, but would also see him in the neighborhood three to four times a week when he would pass in front of her house.

Further, there is no evidence to support any allegation of police misconduct related to the photographic lineup. Detective Koppeis recalled that the victim had "no problems" immediately identifying defendant as her assailant from a photographic lineup presented to her. Thus, although Sabrina may have supplied defendant's first name based on the information obtained from the victim, it was the victim herself who provided the detailed description of defendant whom she independently knew from the neighborhood and positively, "immediately" identified from a photographic lineup and at trial. As previously set forth, positive identification by only one witness is sufficient to support a conviction. State v. Williams , 08-272 (La. App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied , 09-0143 (La. 10/16/09), 19 So.3d 470.

Finally, defendant asserts that his identification by the victim should be deemed unreliable based upon her diabetic condition which caused her to be "unbalanced" and unable to "think clearly," requiring the administration of juice to normalize her blood sugar. However, the victim testified that she did not need the juice she was given because her blood sugar was not low, and thus, her faculties were not affected in any way. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey , 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 203, writ denied , 09-1305 (La. 2/5/10), 27 So.3d 297.

Based on the foregoing, we find that a rational trier of fact could have found that the victim's identification of defendant as the perpetrator was sufficient under the Jackson standard to support defendant's convictions. This assignment of error lacks merit.

In his second assignment of error, Defendant argues the trial court erred in sentencing him for an offense for which he was not convicted. Specifically, defendant maintains that he was charged with and found guilty of aggravated burglary and second degree battery; however, in imposing the sentences for these convictions, the trial judge sentenced defendant on count one for "aggravated battery" to thirty years imprisonment at hard labor. Accordingly, defendant asserts that the thirty-year sentence imposed must be vacated and this matter remanded for resentencing.

The record reflects that when the trial judge sentenced defendant, he stated, "the sentence of this Court is, for aggravated battery , the Court is going to sentence you to thirty years at hard labor, Department of Corrections. For Count 2, for second degree battery, I sentence you to eight years at hard labor."

A review of the sentencing transcript clearly indicates that this was an inadvertent error and not an actual mistaken belief by the trial court. Specifically, immediately prior to sentencing defendant, in considering defendant's post-verdict judgment of acquittal and motion for new trial, the trial judge-who presided over the trial-discussed, at length, the facts of the case and reasons as to why the evidence supported defendant's convictions for aggravated burglary and second degree battery.

In State v. Session , 04-1325 (La. App. 5 Cir. 4/26/05), 902 So.2d 506, cited by defendant in his brief for the proposition that his sentence must be vacated, the defendant was convicted of attempted simple robbery. On appeal, the defendant pointed out that the trial judge referred to the wrong offense when he sentenced him, stating that the defendant had been convicted of attempted armed robbery rather than attempted simple robbery. This Court found nothing in the remainder of the sentencing transcript to indicate whether this was an inadvertent error in reference or an actual mistaken belief by the trial court. We further determined that the imposed sentence fell within the sentencing range for both offenses. This Court stated that, because it was impossible to determine that the sentence was not imposed in error for the wrong offense, it had to be vacated. Id. , 902 So.2d at 507-08.

In State v. Williams , 10-265 (La. App. 5 Cir. 11/9/10), 54 So.3d 98, 101-02, the defendant was convicted of aggravated rape, and on appeal the defendant argued that his sentence must be vacated because at sentencing, the trial court stated it was imposing a life sentence for his aggravated battery conviction. However, in Williams , this Court found that although the sentencing transcript did not indicate whether the trial court's reference to the wrong offense was an inadvertent error or an actual mistaken belief, unlike Session , the imposed sentence of life imprisonment did not fall within the sentencing range for both offenses. Thus, this Court found the trial judge had made an inadvertent error when she referred to count one as aggravated battery rather than aggravated rape. Accordingly, this Court found defendant's sentence was not illegal, and the case did not require remand for resentencing.

In this case, the record reflects that the trial judge referred to the wrong offense when sentencing defendant on count one. The trial court stated that it was sentencing defendant on count one, aggravated battery , rather than the crime defendant was actually convicted of, aggravated burglary . However, unlike Session and Williams , the sentencing transcript in this case supports a finding that this was an inadvertent error in reference and not an actual mistaken belief by the trial court. Additionally, similar to Williams , the imposed sentence on count one of thirty years imprisonment at hard labor does not fall within the sentencing range for both offenses. Thus, upon review of the record, we find the trial court made an inadvertent error when it referred to count one as aggravated battery rather than aggravated burglary, which does not require resentencing.

In his third assignment of error, defendant contends that the consecutive nature of his maximum sentences for his convictions renders his sentences constitutionally excessive. On March 16, 2018, defendant filed a motion to reconsider sentence, asserting generally that "[t]he sentence is excessive under both the state and federal constitutions." Defense counsel failed to object, in his written motion to reconsider sentence or orally following sentencing, to the consecutive nature of the sentences.

This Court has consistently held that a defendant's failure to state a specific ground upon which a motion to reconsider sentence is based, limits a defendant to a review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1(E) ; See also State v. Escobar-Rivera , 11-496 (La. App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied , 12-0409 (La. 5/25/12), 90 So.3d 411 ; State v. Williams , 10-265 (La. App. 5 Cir. 11/9/10), 54 So.3d 98, 103 ; State v. Dupre , 03-256 (La. App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied , 03-1978 (La. 5/14/04), 872 So.2d 509. Defendant failed to explicitly state an objection to the consecutive nature of his sentences in his motion to reconsider. Consequently, defendant is not entitled to review of the consecutive nature of his sentences in this appeal and is limited to a bare review of his sentences for constitutional excessiveness. State v. McGee , 04-963 (La. App. 5 Cir. 1/11/05), 894 So.2d 398, 412, writ denied , 05-0593 (La. 5/20/05), 902 So.2d 1050.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Horne , 11-204 (La. App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied , 12-0556 (La. 6/1/12), 90 So.3d 437 ; State v. Wickem , 99-1261 (La. App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied , 00-31 (La. 2/16/01), 785 So.2d 839. The trial judge is afforded broad discretion in sentencing, and a reviewing court may not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D) ; State v. Berry , 08-151 (La. App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied , 08-1660 (La. 4/3/09), 6 So.3d 767 ; State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

In reviewing a sentence for excessiveness, an appellate court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato , 603 So.2d 739, 751 (La. 1992). On review, an appellate court does not determine whether another sentence might have been more appropriate but whether the trial court abused its discretion. Pearson , 975 So.2d at 656 ; Horne , 88 So.3d at 569. In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by other courts. Horne , 88 So.3d at 569.

Defendant was sentenced to the maximum sentence of thirty years imprisonment at hard labor for his aggravated burglary conviction and the maximum sentence of eight years at hard labor for his second degree battery conviction. See La. R.S. 14:60(B) and La. R.S. 14:34.1. The imposition of a sentence, although within the statutory limits, may still violate a defendant's constitutional right against excessive punishment. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4.

At sentencing, the trial court considered the evidence presented at trial and stated the following:

Alright. Mr. Pike, I remember this trial; I remember the evidence which was presented, as you can tell by the argument we just had for the Motion for New Trial and Post-Verdict Judgment of Acquittal. It's the sentence of this Court, after consideration under the sentencing guidelines of 894.1, that I can't fathom anybody that would do that to an elderly lady; I can't. I don't even understand what would possess you to do that. People are taught to respect each other, and they're taught to respect their elders; at least that's the way it was-- as you can tell, I have the gray hair, that's the way I was raised. Alright? I was taught to, in any way if I lived in a neighborhood, to help someone who was in need of help, if it be cutting her grass, if it means cleaning her house, if it means taking in her groceries, anything that I could do to help someone in time of need. I can't even understand why someone who lived in a neighborhood could do this; I can't even fathom it.
Therefore, based on the evidence presented to me for what you did to Ms. Fazande, the physical damage and trauma that you caused to her, the fact that she was eighty-four, going on eighty-five years old at that time, that lady shouldn't have to worry about someone that lives in her neighborhood do this to her. She should be concentrating on every day she has left in her life to live it to the fullest that she wants.
Therefore, I considered the sentencing guidelines under 894.1 of the Code of Criminal Procedure Article; and I believe that when you've been convicted of a felony, the Court should impose the sentence of imprisonment if any of the following circumstances exists: I believe there's an undue risk, that during the period of a suspended sentence or probation, you would commit another crime, under A l; A 2, the Defendant is in need of a correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution; and, three, any lesser sentence would deprecate the seriousness of the Defendant's crime.
Other than certain other crimes that I consider in this Code, I can't imagine any crime being worse than beating an eighty-four year old person in their home to the point where they're unconscious and their face is swollen, and they wake up on the floor.

Considering the nature of the crime, the record reflects-as also reiterated by the trial court at sentencing-defendant kicked in the front door to a house of an elderly eighty-four-year-old victim, who was home alone at the time and familiar with defendant from the neighborhood. He beat her to the point of unconsciousness, causing her to wake up bloodied on the floor hours later with a swollen-shut eye and requiring transportation to the hospital for treatment of her injuries. These injuries caused lasting effects on the daily activities she once enjoyed.

Considering the nature of the crime and background of defendant and his criminal history , the trial court was of the belief that defendant was at risk for recidivism and in need of correctional treatment in a custodial environment given the egregiousness of the crimes committed.

Lastly, similar sentences have been upheld for similar crimes by this Court and other courts for both aggravated burglary and second degree battery. See State v. Richard , 12-310 c/w 12-311 (La. App. 5 Cir. 4/24/13), 115 So.3d 86, writ denied , 13-1220 (La. 12/2/13), 126 So.3d 497 (where this Court found the defendant's thirty-year sentence for his aggravated burglary conviction imposed consecutive to a fifty-year sentence for his attempted second degree murder conviction was not excessive considering the record reflected the defendant committed a premeditated act, broke into the victim's home, armed himself, and violently attacked the victim. This Court further noted that the defendant had a criminal history which included crimes of violence); State v. Sharpley , 42,309 (La. App. 2 Cir. 6/20/07), 960 So.2d 1230 (where the defendant's thirty-year sentence for aggravated burglary under La. R.S. 14:60 was not excessive considering his conduct in breaking the elderly victim's facial bones and leaving her in critical condition); State v. Williams , 01-0998 (La. App. 3 Cir. 2/6/02), 815 So.2d 908, 915-16, writ denied , 02-0578 (La. 1/31/03), 836 So.2d 59 (affirming thirty-year sentence at hard labor for aggravated burglary conviction); See also State v. Chatman , 49,970 (La. App. 2 Cir. 6/24/15), 167 So.3d 1136, writ denied , 15-1422 (La. 9/6/16), 205 So.3d 916 ; State v. Lewis , 49,138 (La. App. 2 Cir. 6/25/14), 144 So.3d 1174 ; State v. Hall , 35,151 (La. App. 2 Cir. 9/26/01), 796 So.2d 164 ; State v. Thomas , 08-1280 (La. App. 3 Cir. 4/1/09), 7 So.3d 802, 806 ; State v. Smith , 452 So.2d 251, 252 (La. Ct. App. 1984) (where maximum sentence for second degree battery upheld when defendant kicked in an officer's patrol car window and the officer sustained injuries from the struggle). Accordingly, this assignment of error lacks merit.

In his fourth and fifth assignments of error, defendant argues his convictions for both aggravated burglary and second degree battery constitute double jeopardy. He maintains the evidence presented by the State showed that an intruder entered the victim's home with the intent to commit a felony and committed a battery resulting in serious bodily injury upon the victim while in her home. Thus, defendant contends that because the commission of the battery committed while inside the victim's home was used as an element of the offense for aggravated burglary and as the offense for second degree battery, he has been punished twice for one criminal act. Accordingly, he maintains his conviction and sentence for second degree battery, the less severely punished crime, must be vacated. Defendant further asserts that in the event this Court declines to reverse his conviction and sentence for second degree battery, he urges this Court to find that his trial counsel was ineffective in failing to preserve this error for review.

First, defendant's contention that his counsel was ineffective for failing to preserve any alleged double jeopardy issue for review lacks merit. While double jeopardy is most properly raised in a motion to quash, and defendant did not file a motion to quash, the issue is still properly before this Court as double jeopardy may be raised at any time. State v. Austin , 04-993 (La. App. 5 Cir. 3/1/05), 900 So.2d 867, 884, writ denied , 05-0830 (La. 11/28/05), 916 So.2d 143 ; State v. Gordon , 00-1013 (La. App. 5 Cir. 11/27/01), 803 So.2d 131, 150, writs denied , 02-0362 (La. 12/19/02), 833 So.2d 336, and 02-0209 (La. 2/14/03), 836 So.2d 134. Further, even if defendant's appellate counsel had not raised a double jeopardy argument on appeal, a violation of double jeopardy apparent on the face of the record is reviewable as an error patent. State v. Thomas , 50,929 (La. App. 2 Cir. 8/10/16), 201 So.3d 263, 278, writs denied , 16-1642 (La. 9/6/17), 224 So.3d 980 and 16-1862 (La. 9/22/17), 226 So.3d 441.

Next, as to defendant's double jeopardy argument, the Fifth Amendment to the United States Constitution, as well as Article I, § 15 of the Louisiana Constitution, prohibit placing a person twice in jeopardy of life or limb for the same offense. See also La. C.Cr.P. art. 591. Double jeopardy provisions are intended to protect an accused not only from a second prosecution for the same criminal act but also multiple punishments for the same act. State v. Lefeure , 00-1142 (La. App. 5 Cir. 1/30/01), 778 So.2d 744, 750, writ denied , 01-1440 (La. 9/21/01), 797 So.2d 669. However, it is well-settled that an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Stevens , 18-344 (La. App. 5 Cir. 12/5/18), 260 So.3d 776, 783.

The protections against double jeopardy mandated by the federal constitution, as re-stated in this State's constitution, fall within the analytical framework set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; See State v. Frank , 16-1160 (La. 10/18/17), 234 So.3d 27. Under Blockburger , the question is whether the same act or transaction constitutes a violation of two distinct statutory provisions. To determine whether there are two offenses or only one, the pertinent question is whether each provision requires proof of an additional fact which the other does not. State v. Knowles , 392 So.2d 651, 654 (La. 1980) ; State v. Bridgewater , 98-658 (La. App. 5 Cir. 12/16/98), 726 So.2d 987, 991. "[A] defendant can be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other." State v. Hampton , 17-383 (La. App. 3 Cir. 11/15/17), 259 So.3d 1125, 1132 (quoting State v. Frank , 234 So.3d at 30 ).

Notably, Louisiana courts previously utilized two tests to analyze double jeopardy claims: (1) the "distinct fact" or Blockburger test, set forth supra ; and (2) the "same evidence" test. State v. Fairman , 15-67 (La. App. 5 Cir. 9/23/15), 173 So.3d 1278, 1289. The same evidence test is broader in concept than the Blockburger test. State v. Lefeure , 778 So.2d at 751. However, the same evidence test previously utilized by Louisiana courts to determine whether two crimes constituted the "same offense" for purposes of double jeopardy was recently rejected by the Louisiana Supreme Court in Frank , supra , which proclaimed that "the protections against double jeopardy mandated by the federal constitution, as restated in this State's constitution, fall within the analytical framework set forth in Blockburger and Louisiana courts need only apply that framework in analyzing questions of double jeopardy." See Frank , 234 So.3d at 33-34. Thus, the Louisiana Supreme Court has instructed Louisiana courts to dispense with the Louisiana's separate "same evidence" test. See State v. Stevens , 18-344 (La. App. 5 Cir. 12/5/18), 260 So.3d 776.

Under Blockburger , courts are required to compare the two criminal statutes at issue and ask "whether each provision requires proof of an additional fact which the other does not." United States v. Singleton , 16 F.3d 1419, 1422 (5th Cir. 1994). If either statute contains no element not also found in the other statute, the statutes "fail" the Blockburger test and the defendant may not be punished under both of them "in the absence of a clear indication of contrary legislative intent." Id. The two statutory offenses need not be identical to constitute the same offense for double jeopardy purposes. The Blockburger inquiry focuses on the statutory elements of the offenses, not on their application to the facts of the specific case before the court or on the actual evidence presented at trial. Illinois v. Vitale , 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed. 2d 228 (1980).

Thus, the question under Blockburger is not whether this violation of a certain criminal statute also constituted a violation of a second criminal statute in this case, but whether all violations of the former constitute violations of the latter. United States v. Singleton , 16 F.3d at 1422 ; see also United States v. Corona , 108 F.3d 565, 572 (5th Cir. 1997) (determining whether statutory offenses are separate for double jeopardy purposes involves parsing the statutes apart from the facts of any particular case).

Here, defendant was charged and convicted of aggravated burglary, in violation of La. R.S. 14:60, and second degree battery, in violation of La. R.S. 14:34.1.

Aggravated burglary is defined in La. R.S. 14:60 as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Therefore, in order to prove the crime of aggravated burglary, the State must prove beyond a reasonable doubt that the defendant made an unauthorized entry of a structure with the intent to commit a theft or a felony. Additionally, the State must prove beyond a reasonable doubt one of the three aggravating circumstances listed in La. R.S. 14:60. Based on the record, it is apparent that the State sought to prove the third aggravating circumstance under La. R.S. 14:60(3) by proving that defendant committed a battery upon the victim, Ms. Fazande, while in her home, after having unlawfully entered it with the intent to commit a felony or theft therein. To prove a "battery" to satisfy the third aggravating circumstance under the aggravated burglary statute, the State must prove "intentional use of force or violence upon the person of another." La. R.S. 14:34.

However, to support a conviction for second degree battery under La. R.S. 14:34.1, the State must additionally prove that said battery resulted in "serious bodily injury," which is statutorily defined as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La. R.S. 14:34.1(B)(3). Therefore, a conviction for second degree battery requires proof of an "additional fact" or element, i.e. , "serious bodily injury" as statutorily defined, not required to prove the "battery" as contemplated under the aggravated burglary statute, La. R.S. 14:60. Therefore, we find that, applying the Blockburger test, convictions for aggravated burglary and second degree battery arising out of the same transaction or act do not constitute double jeopardy. See also State v. Helou , 02-2302 (La. 10/23/03), 857 So.2d 1024, 1030 (wherein the Louisiana Supreme Court found the evidence against the defendant insufficient to prove "serious physical injury" as contemplated under the second degree battery statute but entered a conviction for simple battery, which it found to be a responsive verdict to second degree battery); Compare also State v. Carter , 09-2345 (La. 10/28/09), 21 So.3d 264, 265 (wherein the Louisiana Supreme Court distinguished between aggravated battery and second degree battery finding that, a conviction for aggravated battery "requires neither the infliction of serious bodily harm nor the intent to inflict serious injury," as is required to support a conviction for second degree battery, citing State v. Howard , 94-0023 (La. 6/3/94), 638 So.2d 216, 217 ). This assignment of error lacks merit.

In his sole pro se assignment of error, defendant argues the trial court erred in denying his motion to declare La. C.Cr.P. art. 782(A) unconstitutional for allowing non-unanimous verdicts in his felony case. Defendant points out that Article 782(A) provides that ten of twelve jurors must concur to render a verdict in cases where punishment is necessarily confinement at hard labor. Defendant argues that a non-unanimous verdict violates due process and the U.S. Sixth and Fourteenth Amendments and has a discriminatory impact on African-American defendants.

The record reflects that defendant filed his Motion to Declare Article 782(A) Unconstitutional in the trial court on February 24, 2018. The trial judge denied the motion prior to the start of trial on February 27, 2018, and defendant objected to the ruling. After the verdicts were announced, however, the jury was not polled. When the trial court asked defense counsel if he had any motions, defense counsel responded, "[a]t this time, no, Your Honor." The court then adopted the verdicts of the jury as the judgment of the court. Because polling was not requested, the record does not reflect whether defendant was convicted based on a unanimous or non-unanimous verdict.

In State v. Wade , 10-997 (La. App. 5 Cir. 8/30/11), 77 So.3d 275, 281-82, this Court explained that "[i]t stands to reason that defendant cannot complain of a non-unanimous conviction if he was convicted by a unanimous jury." In Wade , there was no evidence in the record to show whether a non-unanimous jury convicted the defendant because the defense counsel did not request the jury be polled, and there were no juror slips in the record or in evidence. Id. Also, in Escobar-Rivera , 90 So.3d at 7, there was no evidence in the record to indicate whether a non-unanimous jury convicted the defendant because the defense counsel did not request that the jury be polled nor were there any juror slips in the record. Thus, this Court found the defendant could not complain of a non-unanimous jury conviction.

Accordingly, as in Wade and Escobar-Rivera , supra , we find defendant is precluded from raising this issue on appeal because it is unknown whether he was in fact convicted by a unanimous jury.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case.

DECREE

For the foregoing reasons, defendant's convictions and sentences are affirmed.

AFFIRMED

      On September 14, 2017, a hearing on defendant's motions to suppress identification and statement were heard and denied.

      Tammy Anderson testified that she is a friend of the victim and was with the victim at the hospital when Detective Koppeis presented the victim with the photographic lineup. She confirmed that she observed the victim pick a photograph from the lineup and that she signed the lineup as a witness.

      The testimony reflects that Deborah Fazande called the neighbor Sabrina Knapper, who was not home but called her son and asked him to check on the victim.

      The victim testified that she did not need the juice she was given because her blood sugar was not low, and thus, her faculties were not affected in any way.

      Further, the victim's testimony that she recognized defendant from seeing him around the neighborhood is also a substantial factor favoring the reliability of the identification. See State ex rel. W.H. , 10-1418 (La. App. 4 Cir. 4/6/11), 62 So.3d 839, 846 ("[T]hese inconsistencies fail to demonstrate sufficient indicia of unreliability to outweigh the fact that [the witness] and [the defendant] were familiar with one another."); State v. Peters , 10-0326 (La. App. 4 Cir. 2/16/11), 60 So.3d 672, 679, writ denied , 11-0494 (La. 9/30/11), 71 So.3d 279 ("Here, the likelihood of misidentification is not present. There is no question that [the victim] knew her assailant as the appellant lived for many years two houses down from her.").

      An aggravated burglary conviction carries a penalty of one to thirty years imprisonment at hard labor, whereas an aggravated battery conviction carries a penalty of imprisonment, with or without hard labor, for not more than ten years. See La. R.S. 14:60 ; La. R.S. 14:34.1.

      The record also contains a multiple bill of information, alleging defendant to be a second-felony offender for having previously violated La. R.S. 14:68.4 relative to unauthorized use of a motor vehicle. On October 10, 2018, the trial court adjudicated defendant a multiple offender, vacated his sentence for the aggravated burglary conviction on count one, and resentenced defendant as a second-felony offender under La. R.S. 15:529.1, to sixty years imprisonment at hard labor. The official record reflects that defendant has not filed an appeal from his multiple offender adjudication or sentence, which he may seek upon the filing of an application for post-conviction relief requesting an out-of-time appeal.

      Nevertheless, even if we were to consider this assignment of error, the Louisiana Supreme Court has previously addressed this issue and found no constitutional violation. See State v. Jones , 381 So.2d 416, 418 (La. 1980) ; State v. Simmons , 414 So.2d 705, 707 (La. 1982) ; State v. Bertrand , 08-2215 (La. 3/17/09), 6 So.3d 738, 741.


author: WINDHORST, J.

text:
    STATE of Louisiana v. Daniel BECKLEY
    NO. 18-KA-386
    Court of Appeal of Louisiana, Fifth Circuit.
    May 08, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Joel T. Chaisson, II, Baton Rouge, Louis G. Authement, Hahnville
    COUNSEL FOR DEFENDANT/APPELLANT, DANIEL BECKLEY, Daniel Beckley Gwendolyn K. Brown, Baton Rouge
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
   WINDHORST, J.

Defendant, Daniel Beckley, appeals his convictions and sentences for second degree murder and obstruction of justice, asserting that the evidence was insufficient to support his convictions and that the appellate record is incomplete. For the following reasons, we affirm defendant's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

Defendant was indicted by a grand jury on September 29, 2017 and charged with the second degree murder of Jorion White ("Miss White" or the "victim") in violation of La. R.S. 14:30.1 and obstruction of justice in violation of La. R.S. 14:130.1(A)(1)(a). Defendant pled not guilty, waived his right to a jury trial and proceeded to trial before the trial judge on October 10-13, 2017. After trial, the trial judge found defendant guilty as charged. On November 7, 2017, defendant filed a Motion for New Trial and a Motion for Post-Verdict Judgment of Acquittal, both of which were denied.

On December 12, 2017, the trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the second degree murder conviction and imprisonment at hard labor for thirty years without benefit of parole, probation, or suspension of sentence for the obstruction of justice conviction, with the sentence imposed for obstruction of justice to be served consecutively to the sentence imposed for second degree murder. Defendant filed a Motion for Reconsideration of Sentence, which was denied.

Defendant's convictions are based on the following facts. On April 22, 2016, Michelle Price and defendant, Ms. Price's live-in boyfriend of nine years, went to the Kenner Police Department (KPD) and reported that Miss White, Ms. Price's sixteen-year-old daughter, was missing from their home in Kenner. They advised Deputy Gabriel Castro that defendant had last seen Miss White at home that morning at approximately 2:45 A.M., and that she was not at home when he returned at 3:15 P.M. Deputy Castro testified that defendant pulled him off to the side and told him that Miss White was known to associate herself with alleged drug dealers. The deputy subsequently advised Ms. Price and defendant that Miss White would be entered into the National Crime Information Center database as a runaway juvenile. Deputy Castro noted that Ms. Price appeared to be calm, but that defendant looked nervous and uneasy.

Miss White's body was found on April 24, 2016 by a family that spotted a nude body in the ditch on St. Rose Avenue in St. Charles Parish. They pulled over and called 9-1-1. After confirming that there was a body in the water, Deputy Randolph McClendon of the St. Charles Parish Sheriff's Office (SCPSO) informed dispatch that there was a body. Deputy Scott Harrell responded, shut down the road, contacted detectives, and started a "crime scene log." Detectives posted information on their Facebook page in an attempt to identify the body, specifically, that the body was a black female with green and pink curlers in her hair. Ms. Price contacted SCPSO and informed detectives that she believed the body was her daughter. Dental records later confirmed that the body was that of Miss White, Ms. Price's minor daughter.

Dr. Marianna Eserman, the Deputy Coroner for Jefferson Parish, performed an autopsy on the victim and found that her body was in an advanced state of decomposition with extensive breakdown of her tissues. At trial, Dr. Eserman testified that the victim's body was so decomposed that they were unable to tell what specific injury caused her death, but concluded that the cause of death was homicidal violence of unknown means and the manner of death was homicide. She stated that strangulation or suffocation could not be ruled out. Elizabeth Hamilton, a DNA analyst at the Louisiana State Police Crime Lab, was accepted as an expert in the field of forensic DNA. Ms. Hamilton testified that she examined several items, including a sexual assault kit from the victim, a sheet from her bed, a pair of blue jeans found in defendant's car and oral swabs from defendant. Based on her analysis, there was a very high probability that the seminal fluid found in the victim's cervical, perineal, and anal areas belonged to defendant.

Detective Aaron Savoie testified that he obtained a search warrant for Ms. Price's residence, where defendant resided. He testified that when they arrived at Ms. Price's residence, the street was filled with people who were saying, "He did it, he killed the girl," and that those people were referring to defendant. Detective Dewhirst testified that those people were trying to get to defendant and kill him, and that when they arrived, the door of the residence had been kicked in.

On April 24, 2016, Jason Troxler, a SCPSO crime scene technician, took photographs and collected evidence at the St. Rose Avenue crime scene, where the victim's body was found, and at her residence. Mr. Troxler testified that he took photographs of the tire impressions located in the grassy area between St. Rose Avenue and the drainage ditch, and that he recovered a green bungee cord from near the ditch in close proximity to the body. He noted that the black cap was missing from one of the hooks on that bungee cord. Mr. Troxler also identified photographs he took of defendant's wrists, which had marks on them. Dr. Eserman, the coroner, testified that the marks on defendant's wrists could be consistent with fingernail scratches.

At the victim's residence, Mr. Troxler took photographs of defendant's 2002 Cadillac and the residence. He found a bag of curlers or rollers inside a dresser and a package of bungee cords inside a kitchen drawer. Mr. Troxler identified a photograph of a black cap that was found inside defendant's trunk, the black cap itself, and a photograph of water bottles defendant kept in his vehicle. Mr. Troxler measured the tires on defendant's vehicle and identified photographs of his measurements.

Detective Joseph Dewhirst, the lead detective investigating this homicide, testified that he compared the tire marks on the road where the body was found to the tires on defendant's vehicle, and found the tires marks and defendant's tires were very similar. Detective Dewhirst also testified that he took a videotaped statement from defendant, which was played at trial. In the statement, defendant asserted that Miss White was having sex with three or four boys and that she "slipped back into doing some of the things she had been doing," specifically some "stupid" things, such as setting up boys to get beaten up. Defendant suggested that something possibly happened to her out of retaliation. Defendant also said during his statement, "What are you not getting from me?" and that he hoped that she "changed her mind," "tried to fight him off," and "went down swinging." Defendant further told Detective Dewhirst that he did not engage in sexual activity with the victim and that he did not know what happened to her. He said that he told Miss White goodbye before he left for work at approximately 2:00 to 2:30 A.M. on April 22, 2016.

According to Detective Dewhirst, defendant said the scratches on his wrists were made by people trying to get into the house. Detective Dewhirst testified that he found out from Ms. Price that she and defendant had recently purchased the bungee cords from a U-Haul store. Although the box of bungee cords was supposed to contain several different colors and sizes, the box found in the kitchen drawer was missing all of the green bungee cords. Detective Dewhirst stated that the bag of curlers retrieved by Mr. Troxler contained all green rollers and the pink ones were missing from the bag. He explained that the pink rollers were in the victim's hair and that one green roller was found at the crime scene on St. Rose Avenue.

Detective Dewhirst testified that they found a pair of blue jeans and a black rubber cap in defendant's trunk, and that they suspected the rubber cap was the missing cap for the green bungee cord that they found at the St. Rose crime scene. When he called Ms. Price, she told him that she had not had contact with defendant since the night they came to headquarters, and that she would not allow defendant to come back to the house. Detective Dewhirst maintained that once he obtained the DNA results, he knew defendant was lying when he said there had been no sexual contact between him and the victim.

Based on surveillance footage, the police found that defendant's actions and whereabouts on the night and following morning of Miss White's disappearance were as follows. Because defendant's vehicle had a very distinctive tail strip on the trunk which could be seen on the video, police were able to follow its route. Between 11:15 P.M. and 12:15 A.M., defendant's vehicle was pulled in with its "nose" to the house in the yard of his residence and defendant was backing the car out, turning it around, and then reversing it into the driveway by the side door. After defendant turned his vehicle around at 12:13 A.M., the lights then went out. At 12:25 A.M., the headlights came on, and defendant's vehicle traveled down Phoenix Street toward 27th Street. At 12:35 A.M., defendant's vehicle turned around and headed back toward the area where the victim's body was found.

At 12:57 A.M., defendant stopped at a Discount Zone to get gas and air; and while there, opened his trunk, manipulated something white, and readjusted things. The detective noticed from the video that defendant's vehicle did not turn very well due to the extra wide tires. At 1:05 A.M., defendant's vehicle returned home, pulling in straight. Defendant left again at 2:30 A.M. for work.

Detective Dewhirst further testified that he showed Ms. Price a video of the neighborhood children walking to the bus stop on the morning of April 22, 2016, and that Ms. Price stated Miss White was not in that video. This was confirmed by Ms. Price during her testimony.

Several fact witnesses testified at trial: Ms. Price, Tara Collins, Debbie Bordelon, Nicole Celestine, Patricia Carter, and Katrice Reid.

Ms. Price, the victim's mother, testified to the following at trial. Defendant, who she continually referred to as "the monster," had been her boyfriend for nine years and had been living with her since January of 2007. Ms. Price last saw her daughter on the night of Thursday, April 21, 2016, before she left for work. After her night shift, Ms. Price returned home between 8:00 and 8:30 A.M. on April 22, 2016. When she entered the house, she noticed that there was a lot of dirt and mud on the floor by the side door, which she thought was "weird." Ms. Price realized her daughter was missing when "Travina" called her at approximately 6:45 P.M., and asked if Miss White was with Ms. Price. Ms. Price answered, "no," and said she thought her daughter was with her.

After Ms. Price realized her daughter was missing, she told defendant, who got up quickly and suggested they go to the police station. Ms. Price thought it was odd that defendant did not first suggest they call some friends, as Miss White had never run away and was not the type to run away. After going to the police, Ms. Price put up fliers, put a post on Facebook, and sent text messages to family and friends in an effort to find Miss White. She also looked for things that were out of place in the house. During her search, she noticed that Miss White's school uniform was missing. Ms. Price later found one of Miss White's Bonnabel High School uniform shirts in a tote full of defendant's clothing. She explained that it looked out of place like it had been shoved down between defendant's clothes. Ms. Price also found Miss White's key in defendant's watch box, which had been in Ms. Price's top drawer. Defendant was the only person other than Ms. Price who knew where the key was. Ms. Price also discovered that some large white towels were missing from her bathroom. Finally, Ms. Price testified that although Miss White was found with pink curlers in her hair, she normally would never have left the house voluntarily with curlers in her hair.

One of Ms. Price's cousins, Tara Collins, testified at trial. She testified that she knew Miss White all of her life. When she found out Miss White was missing, Ms. Collins went to Ms. Price's house to try and help. While she was there, defendant called her aside, which she thought was unusual as she did not know him well. During their conversation, defendant told her that they were not going to find Miss White. Ms. Collins wanted to walk around to see if there were any cameras, but defendant did not want to do that. She recalled that every time she saw Miss White, her hair was beautiful and that she always took care of herself. Ms. Collins described Miss White as very quiet and very shy like her mother.

Two neighbors on Ms. Price's street, Debbie Bordelon and Patricia Carter, also testified. Ms. Bordelon stated that she knew Miss White from seeing her walk back and forth to school, and that she did not see Miss White go to school or come home on April 22, 2016. Ms. Bordelon also testified that while she did not know defendant, when he came to her house looking for Miss White, she recalled that defendant seemed nervous. Ms. Bordelon testified that on the night in question, she went outside at 2:00 A.M. and noticed defendant was cleaning his trunk with a white cloth, which he threw in the garbage can when he was finished and went inside. Ms. Carter testified that at approximately 2:20 or 2:30 A.M. on April 22, 2018, she heard the slamming of doors or car trunk. She also recalled that Ms. Bordelon came to her door and told her that between 2:00 and 2:30 a.m., her neighbor was wiping something out of the trunk and that "he" threw "it" in the garbage can. Ms. Carter noted that there was mud on defendant's Cadillac.

Miss White's best friend, Nicole Celestine, testified that they rode the bus and went to school together, but that Miss White was not on the bus the day she went missing. Ms. Celestine also testified that Miss White was very careful with her appearance, would never leave the house with rollers in her hair, and would never run away from home.

A neighbor and good friend of Ms. Price's, Katrice Reid, testified that she went to Ms. Price residence when she found out Miss White was missing. Ms. Reid noted that defendant was "nonchalant" and made it seem that it was not a "big deal" that Miss White was missing. She recalled that defendant let her know that there was a possibility that Miss White would never be found and that Miss White was "well hidden" by now. She also recalled that when they were in the front room with other individuals around, defendant grabbed her by the arm, took her to the bedroom and asked, "If this goes bad, will you be there to take care of her?" Ms. Reid responded that of course she would, as Ms. Price was her best friend. Ms. Reid stated that a "red flag" went up when he asked her that. She asserted that defendant seemed like he was trying to deflect people from looking for Miss White, and that he made sure to point out that she was conversing with more than one boy.

Ms. Reid further testified that defendant said three different times that they would not find Miss White. She asked him why he kept saying that, and defendant replied, "because she bit off more than she could chew." When she asked what that meant, he said, "Whatever happened to her happened because she thought she was big and bad." Ms. Reid thought that defendant was confessing to her. Ms. Reid testified that later on, she saw the door being kicked in and that defendant was not trying to block it. She did not see defendant's wrists get injured trying to stop the crowd from coming in.

LAW AND ANALYSIS

In counseled assignments of error one through three, defendant argues that the evidence is insufficient to support his convictions, the district court erred in denying his motion for post-verdict judgment of acquittal, and the district court erred in denying his motion for new trial. In his pro se brief, defendant contends that missing transcripts from two previous cases of court proceedings which contained witness testimony, court rulings, orders, objections by his counsel, and a court proceeding which he did not attend, make it impossible for this Court to properly review any and all assignments of error that "will be made by Appellant."

Assignments of Error One Through Three

Defendant argues that the evidence was insufficient to prove who killed the victim or that the killing was an intentional act as no cause of death was proven at trial. He asserts that any number of people could have had bungee cords like the ones found at the crime scene, that the presence of hair curlers established nothing in terms of proving that he was the perpetrator. He also maintains that the police did not definitively match the tire marks found on the crime scene to defendant's vehicle.

Defendant asserts that it is difficult to believe that if he killed the victim at her home, put her body in the car, and dumped it on St. Rose Street, that he did so without leaving any trace of her blood anywhere or any evidence of what the murder weapon might have been. He also contends that even though the evidence suggested he had sexual contact with the victim before her death, it did not prove that if he did kill her, he did so deliberately. With respect to the obstruction of justice charge, defendant argues that there was no DNA that was connected to the victim found in his vehicle. For the foregoing reasons, defendant argues that because the evidence was insufficient to support the convictions, the trial court erred by denying the motions for post-verdict judgment of acquittal and for a new trial.

The State responds that the evidence was sufficient to support the convictions and that no testimony or other evidence supported the guilt of anyone other than defendant. It further responds that there was absolutely no reasonable hypothesis of innocence based on defendant's odd behavior, unrefuted statements, DNA results, tire tracks, and the video surveillance footage of his car being driven down St. Rose Avenue on the night of the murder. Therefore, the State argues that the trial judge acted reasonably in finding that there was no valid explanation for defendant's actions and statements that would support his innocence. The State also asserts that all of the evidence points to the killing being intentional, and that no evidence supported a conclusion that the killing was accidental or unintentional.

The constitutional standard for testing the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the reviewing court is required to consider the whole record and determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

La R.S. 14:30.1 defines second degree murder, in pertinent part, as the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Specific criminal intent, as a state of mind, need not be proven as fact but may be inferred from the circumstances and the actions of the accused. State v. Martinez, 09-740 (La. App. 5 Cir. 3/23/10), 38 So.3d 926, 932.

Defendant was also convicted of obstruction of justice. La. R.S. 14:130.1 provides that the crime of obstruction of justice, when committed with the knowledge that such act may affect a criminal proceeding, includes "[t]ampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding." This provision further states that "[t]ampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance" at the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any law enforcement investigation.

Although the evidence was primarily circumstantial, based on the following, we find the evidence was sufficient under the Jackson standard to support the convictions of second degree murder and obstruction of justice. The evidence showed that the victim was last seen by defendant at home on April 22, 2016, at approximately 2:45 A.M. Dr. Eserman testified that the cause of death was homicidal violence of unknown means and that the manner of death was homicide. The DNA results indicated that defendant had engaged in sexual activity with the victim, although defendant denied that he did so. There was evidence that defendant had marks on his wrists, and Dr. Eserman testified that these marks could be consistent with fingernail scratches.

In addition, the State presented evidence that tire marks went off the road where the body was found and then back onto the road, that the tire marks were wide and not made by a typical vehicle, that defendant had wide tires on his vehicle, and that the measurements of defendant's tires were very similar to the tire impressions at the St. Rose crime scene. Mr. Troxler, the crime scene technician, recovered a green bungee cord with a missing black cap, which he located near the ditch in close proximity to the body. Mr. Troxler located a black cap inside of defendant's trunk which Detective Dewhirst suspected was the missing cap for the bungee cord found at the St. Rose crime scene. In addition, the box of bungee cords found in the kitchen drawer of defendant's residence was supposed to contain several different colors, including green, but that the box was missing all of the green bungee cords.

Furthermore, Detective Dewhirst testified regarding the surveillance footage from several locations around Kenner and St. Rose on April 22, 2016. This surveillance showed defendant's vehicle turning around at 12:13 A.M. and parking by the side door of his residence. Approximately twelve minutes later, defendant's vehicle traveled a route towards the crime scene on St. Rose Avenue, specifically, down Phoenix Street, took a left onto 27th Street, took a right onto Bessemer Street, passed in front of Hollywood Laundry, crossed over Veterans Boulevard, took the Loyola Drive exit to I-310, passed in front of 720 St. Rose Avenue, turned around, came back to where the "dump site" was, and returned to his home from those same locations. The video also showed defendant stopping at the Discount Zone, opening the trunk, and manipulating something white. On April 29, 2016, Detective Dewhirst conducted a test run using defendant's vehicle, noting that the still photographs of the surveillance footage on April 22 and April 29 showed that they were the same vehicle.

Ms. Price testified that she last saw the victim alive on the night of April 21, 2016, before she went to work. When she got home from work on April 22, 2016, between 8:00 and 8:30 a.m., she noticed that there was a lot of dirt and mud on the floor by the side door. The victim was not at home then, which was routine since she would have gone to school by then. Ms. Price later found the victim's missing school uniform hidden in defendant's tote bag, and the victim's house key hidden in defendant's watch box. Ms. Price noticed that some large white towels were missing from her bathroom.

Several witnesses testified regarding defendant's odd behavior. Ms. Collins testified that defendant took her aside and told her they were not going to find the victim. Ms. Bordelon testified that she went outside at 2:00 A.M. on April 22, 2016, and saw defendant cleaning his trunk with a white cloth, after which he threw the cloth into the garbage can and went inside. Ms. Carter asserted that at approximately 2:20 or 2:30 A.M. on April 22, 2016, she heard the slamming of doors or car trunks. She recalled Ms. Bordelon coming to her door and telling her that defendant was wiping the trunk of his vehicle, after which he threw the cloth into the garbage can. Ms. Reid testified that defendant was "nonchalant" about finding the victim and told her that there was a possibility that she would never be found, and that she was "well hidden" by now. She thought it odd when defendant took her to the bedroom and asked if she would be there for Ms. Price "if this goes bad." Ms. Reid also recalled that defendant kept saying they would not find the victim "because she bit off more than she could chew" and "whatever happened to her happened because she thought she was big and bad," which Ms. Reid interpreted as a confession. Further, Ms. Reid did not see defendant's wrists get injured when people were trying to get into the house. This testimony, along with Dr. Eserman's, undermines defendant's claim that the scratches on his wrists were inflicted by the people trying to get into his house, and not by the victim.

Viewing the evidence in a light most favorable to the State, we find that a rational trier of fact could have concluded that defendant committed the second degree murder of the victim, and that every reasonable hypothesis of innocence was excluded. The evidence showed that defendant had the specific intent to kill the victim or to inflict great bodily harm upon her and that he tampered with the evidence with the specific intent of distorting the results of a criminal investigation. Accordingly, we also find that a rational trier of fact could have concluded that defendant committed the crime of obstruction of justice. Considering the foregoing, we further find that the trial court did not err by denying the motion for new trial and the motion for post-verdict judgment of acquittal. These assignments of error lack merit.

Defendant's Pro Se Brief

In his pro se brief, defendant contends that his United States Fourteenth Amendment due process rights, his Sixth Amendment effective assistance of counsel rights, and his right to judicial review of a felony conviction under Louisiana Constitution, Article 1, Section 19, have been denied because the Twenty-Ninth Judicial District Court has not provided to him all of the transcripts of court proceedings for case numbers 16-0263 and 16-0468. Defendant claims that several transcripts have been purposefully omitted from the appellate record by the Twenty-Ninth Judicial District Court. Defendant asserts the lack of these transcripts makes it impossible for this Court to properly review any and all assignments of error that he will make and for this Court to review any errors patent that may exist. Defendant argues that his appellate counsel, who was not his trial counsel, could not and did not have the opportunity to perform his/her mandated duty to represent him because of the missing transcripts. Based on the foregoing, defendant argues that this Court should reverse his convictions, vacate his sentences, and remand the matter for a new trial.

La. C.Cr.P. art. 914.1 states as follows:

A. The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged. Not later than five days after the motion, the opposing party may designate in writing the transcript of that portion or portions of the proceedings necessary to oppose the appeal.
B. A transcript of any portion of the proceedings which does not relate to anticipated assignment of errors shall not be furnished to a party for purposes of appeal and shall not result in delay of preparation of the appeal record.
C. (1) An attorney who requests a transcript in accordance with this Article must certify there are good grounds for such request in light of the assignment of errors to be urged.
* * *
D. The trial court or the appellate court may designate additional portions of the transcript of the proceedings which it feels are necessary for full and fair review of the assignment of errors.

The party making the motion for appeal bears the burden of furnishing the appellate court with a record of the trial proceedings needed for review; and therefore, any inadequacy of the record is imputable to the appellant. State v. Ronquille, 09-81 (La. App. 5 Cir. 5/26/09), 16 So.3d 411, 416, writ denied, 09-1397 (La. 2/5/10), 27 So.3d 298 ; State v. Shaw, 00-1051 (La. App. 5 Cir. 2/14/01), 785 So.2d 34, 42, writ denied, 01-0969 (La. 2/8/02), 807 So.2d 861. An appellate court renders its judgment based upon the record filed on appeal; thus, if transcripts, exhibits, or other documentation are missing and the appellant fails to act, there is no basis for the appellate court to determine that the trial court erred. Id.

Neither defendant nor the State have requested or designated any additional transcripts in compliance with La. C.Cr.P. art. 914.1A. Moreover, the record does not indicate that defendant requested any transcript at the conclusion of any hearings which he claims are missing, or that the hearings from which he claims the transcripts were purposefully omitted were ever transcribed for any reason. Although the record contains minimal hearing transcripts from district court case nos. 16-0263 and 16-0468, there is nothing to show defense counsel or the State requested that other hearings from these case proceedings be transcribed and filed into these records.

In State v. Sharp, 35,714 (La. App. 2 Cir. 2/27/02), 810 So.2d 1179, 1194, writ denied, 02-1736 (La. 6/6/03), 845 So.2d 1081, defendant claimed that the record was incomplete because the voir dire transcript and the reading of the indictment were not furnished. Defendant claimed he could not prepare his assignments of error without the transcript and requested that the appellate court order a complete copy of the transcript including the voir dire. The appellate court declined, noting that the defendant is not entitled to supplement the record on appeal unless he showed that the requested record was related to specific assigned errors. The appellate court found that neither the defendant nor his attorney assigned as error any issues involving the jury voir dire. The appellate court noted that the defendant's generic allegations and his assertion that he needed the transcript to prepare his assignments of error amounted to a "fishing expedition" and was insufficient to require a supplementation of the record. State v. Sharp, 810 So.2d at 1194.

Defendant has not indicated why the requested transcripts are relevant or set forth what errors the trial court allegedly made during those proceedings or hearings. Neither defendant nor his attorney has alleged that these transcripts are relevant to any assignments of error, as required by La. C.Cr.P. art. 914.1. As in Sharp, defendant's generic assertions that the lack of these transcripts makes a proper review of his appeal and "any and all assignment of error claims that will be made by Appellant" impossible amounts to a "fishing expedition," and such a generic claim is insufficient to support supplementation of the record.

Considering the foregoing, we find this assignment of error lacks merit.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).

Based on the record, defendant was not advised of the time period for seeking post-conviction relief, as required by La. C.Cr.P. art. 930.8. Accordingly, we hereby advise defendant that he has two years from the date his convictions and sentences become final to file for post-conviction relief under the provisions of La. C.Cr.P. arts. 914 or 922, or to seek an out-of-time appeal. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.

CONCLUSION

For the reasons set forth herein, we affirm defendant's convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED

      Detective Dewhirst testified that they obtained surveillance footage from several locations around Kenner and St. Rose. Based on the surveillance videos, the police determined a route that defendant's vehicle traveled on the morning of April 22, 2016. The surveillance suggested that defendant drove down Phoenix Street, took a left onto 27th Street, took a right onto Bessemer Street, passed in front of Hollywood Laundry, crossed over Veterans, took the Loyola Drive exit to I-310, made his way down I-310, passed in front of 720 St. Rose Avenue, turned around, came back to where the "dump site" was, and returned to his home from the same locations. Detective Dewhirst noted that the time stamps were not all correct as to the actual time and that they determined how far off each camera was.

      The records to which defendant refers are from district court case numbers 16-468 and 16-283, which are pre-trial proceedings and are joint exhibits to the appellate record.

      Assignments of error one through three are addressed together because they are related, and defendant discusses them together in his appellate brief.

      The decision on a motion for a new trial rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Mouton, 16-673 (La. App. 5 Cir. 4/26/17), 219 So.3d 1244, 1254, writ denied, 17-1149 (La. 5/18/18), 242 So.3d 572. The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal under La. C.Cr.P. art. 821. Mouton, Id. ; State v. Bazley, 09-358 (La. App. 5 Cir. 1/11/11), 60 So.3d 7, 18, writ denied, 11-282 (La. 6/17/11), 63 So.3d 1039.

      These are the district court case numbers for pre-trial proceedings related to this matter. The second degree murder charge and the obstruction of justice charge initially had separate case numbers.


author: CHAISSON, J.

text:
    Irma HONOR v. HUFF MANAGEMENT CO., INC. and Associated Industries Insurance Company
    NO. 18-CA-628
    Court of Appeal of Louisiana, Fifth Circuit.
    May 08, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, IRMA HONOR, Joseph F. Lahatte, III, Michael S. Brandner, Jr., New Orleans, Scot P. Koloski
    COUNSEL FOR DEFENDANT/APPELLEE, HUFF MANAGEMENT CO., INC. AND ASSOCIATED INDUSTRIES, INSURANCE COMPANY, Sidney W. Degan, III, Foster P. Nash, III, Travis L. Bourgeois, New Orleans, Richard W. Schwerdtfeger
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   CHAISSON, J.

In this case arising from a trip-and-fall accident, Irma Honor appeals a May 8, 2018 judgment of the trial court sustaining an exception of prescription filed by Huff Management Co., Inc., and dismissing Ms. Honor's case with prejudice. For the following reasons, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

On September 5, 2017, Ms. Honor filed a petition for damages against the initial defendant, Livingston Management, Inc. ("Livingston"), alleging that she was injured on September 7, 2016, when she tripped and fell at the Normandy Village Apartments in LaPlace, Louisiana. One month later, Livingston filed an answer to Ms. Honor's original petition in which it asserted that, at the time of the alleged fall, it was neither the owner nor manager of Normandy Village Apartments, and that it had not managed the apartments since May 1, 2012. On December 14, 2018, Ms. Honor filed a First Supplemental and Amending Petition for Damages naming as a defendant for the first time the current owner and manager of the property, Huff Management Co., Inc. ("Huff").

Huff filed a peremptory exception of prescription. After the hearing of the exception, the matter was submitted on the arguments and memoranda alone, with neither party introducing any evidence. Thereafter, the trial court rendered judgment sustaining Huff's exception of prescription and dismissed Ms. Honor's case with prejudice. After the denial of her motion for new trial, Ms. Honor filed this appeal.

DISCUSSION

On appeal, Ms. Honor acknowledges that her Supplemental and Amending Petition naming Huff as a defendant was filed outside the one year liberative prescriptive period allowed for delictual actions under La. C.C. art. 3492. However, she maintains that the trial court erred in sustaining Huff's exception of prescription because the running of the prescriptive period was suspended pursuant to contra non valentum . In particular, Ms. Honor argues that she was unable to ascertain the identity of the property owner and proper party defendant despite reasonable diligence, and therefore, under the fourth category of contra non valentum , also known as the "discovery rule," prescription was suspended and her Supplemental and Amending Petition was timely filed. In opposition, Huff argues that Ms. Honor could have ascertained the owner of Normandy Village Apartments through a simple public records search and that her failure to identify Huff as the proper defendant may only be attributed to her own neglect, thereby depriving her of the benefit of contra non valentum . See Renfroe v. State ex rel. Dep't of Transp. & Dev. , 01-1646 (La. 2/26/02), 809 So.2d 947, 953.

A party pleading prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face; when the face of the petition reveals that plaintiff's claim has prescribed, the burden shifts to the plaintiff to demonstrate that the prescription was suspended or interrupted. Monson v. Travelers Prop. & Cas. Ins. Co. , 09-267 (La. App. 5 Cir. 12/8/09), 30 So.3d 66, 69, writ denied , 10-0043 (La. 3/12/10), 28 So.3d 1030.

On the trial of the peremptory exception, evidence may be introduced to support or controvert any objection pleaded. La. C.C.P. art. 931. In the absence of evidence, an exception of prescription must be decided upon facts alleged in the petition, with all allegations accepted as true. Monson , 30 So.3d at 71. Documents attached to memoranda do not constitute evidence and cannot be considered on appeal. Caro v. Bradford White Corp. , 96-120 (La. App. 5 Cir. 7/30/96), 678 So.2d 615, 618.

Because no evidence was introduced at the trial of the exception, we must examine the Supplemental and Amending Petition, and, accepting the facts alleged therein as true, determine whether Ms. Honor's claim has prescribed. According to the petition, the trip-and-fall accident occurred on September 7, 2016. There are no allegations of facts in the petition indicating what Ms. Honor knew or did not know about the identity of the property owner, or any other facts concerning any efforts, reasonable or otherwise, that she undertook to ascertain its identity. There are no facts alleged in the petition supporting Ms. Honor's contra non valentum argument.

Delictual actions are subject to a liberative prescription of one year, which commences to run from the day the injury or damage is sustained. La. C.C. art. 3492. Ms. Honor filed the Supplemental and Amended Petition naming Huff as a defendant on December 14, 2017, more than one year after the date of her alleged injury; thus, on the face of the petition, her claim is prescribed. Ms. Honor has failed to meet her evidentiary burden to show that the prescriptive period was interrupted or suspended by contra non valentum . Therefore, we affirm the judgment of the trial court sustaining Huff's exception of prescription.

AFFIRMED

      Ms. Honor also argued before the trial court that the filing of her Supplemental and Amending Petition related back to the date of filing of the original petition; however, Ms. Honor does not assign as error or brief this argument before this Court, and therefore it is abandoned on appeal.