author: KYZAR, Judge.

text:
    Beth DUFOUR and Drew Dufour v. The SCHUMACHER GROUP OF LOUISIANA, INC., et al
    18-20
    Court of Appeal of Louisiana, Third Circuit.
    August 1, 2018
    Christopher J. Roy, Jr., P. O. Box 1592, Alexandria, LA 71309-1592, (318) 487-9537, COUNSEL FOR PLAINTIFFS/APPELLANTS: Beth Dufour, Drew Dufour
    Brandon A. Sues, Sarah Spruill Couvillon, Gold, Weems, Bruser, Sues & Rundell, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLEE: Rapides Healthcare System, L.L.C. D/B/A, Rapides Regional Medical Center
    Gary J. Delahoussaye, Gachassin Law Firm, P. O. Box 80369, Lafayette, LA 70598-0369, (337) 235-4576, COUNSEL FOR DEFENDANTS/APPELLEES: The Schumacher Group of Louisiana, Inc., Ross J. Fremin, M.D.
    Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   KYZAR, Judge.

Plaintiffs, Beth and Drew Dufour, wife and husband, filed a petition for damages for alleged medical malpractice against defendants: Rapides Regional Medical Center (RMC) ; Dr. Ross Fremin, an emergency room physician working at RMC on the day of the alleged incident giving rise to the claim; and Schumacher Group of Louisiana, LLC, the alleged direct employer of Dr. Fremin. The Dufours appeal the trial court's granting of summary judgment in favor of defendant, RMC, dismissing plaintiffs' claims against the hospital with prejudice, as well as the trial court's denial of plaintiffs' motion for a new trial thereafter. For the reasons assigned, we reverse; vacate; and remand.

FACTS AND PROCEDURAL HISTORY

On October 5, 2012, Beth Dufour was approximately six weeks pregnant when she presented herself to the emergency room at RMC suffering from sharp pains on her right side and heavy vaginal bleeding. The Dufours state that the ER was very busy that day and that they were required to wait for a significant period of time in the waiting area of the ER. After four hours, Beth was discharged from the ER, having never been examined directly by the ER on-call physician, Dr. Fremin, although blood was drawn by a Nurse Practitioner for testing and an ultrasound was performed. The Dufours were eventually told by Dr. Fremin that Beth had suffered a miscarriage and were given discharge instructions for such. No other potential diagnosis was offered.

During the events leading to her diagnosis and ultimate discharge from the hospital, Beth requested to see an obstetrician/gynecologist (OB/GYN) but was purportedly told by Dr. Fremin that such a consultation was not necessary. However, after being discharged from the hospital, Beth began to experience increased pain and bleeding, fever, and further complications. Beth scheduled an appointment with her personal OB/GYN, who diagnosed her as having an ectopic pregnancy. The complications that arose from her ectopic pregnancy required immediate surgery and the removal of Beth's right fallopian tube.

On October 20, 2015, the Dufours filed a Petition for Damages, naming RMC, Dr. Fremin, and Dr. Fremin's employer as defendants. The Dufours' petition alleged that RMC breached the required medical standard of care, which resulted in Beth's damages including the loss of her fallopian tube. The claim had been previously submitted to a medical review panel on August 16, 2013, as required by the Louisiana Medical Malpractice Act (MMA) pursuant to La.R.S. 40:1231.1 - La.R.S. 40:1240. The medical review panel rendered a decision that neither RMC nor Dr. Fremin violated the applicable standard of care. It is noted that the Dufours oppose the decision of the panel, contending that it was based solely on disputed facts and hospital medical records that are inconsistent, incomplete, and inaccurate.

Eight months after filing answers to the lawsuit, RMC filed a motion for summary judgment based primarily on the conclusion of the medical review panel that RMC did not violate the applicable standard of care in the diagnosis and treatment of Beth Dufour. On May 26, 2017, the Dufours filed an opposition to RMC's motion for summary judgment, attaching the affidavits of Dr. Thomas Arnold, a board-certified emergency room physician, and Beth Dufour. After two previous continuances, the motion for summary judgment was set for hearing on June 12, 2017, along with a motion to continue filed by the Dufours. The trial court granted the Dufours' motion to continue the hearing and permitted them to engage in additional discovery for the purpose of adequately defending against RMC's summary judgment motion. On June 27, 2017, the Dufours filed discovery requests, including requests for records and the setting of depositions of corporate representatives of the defendants. After issuing no objection at the hearing granting the Dufours additional discovery, RMC filed a motion to quash the additional discovery requests and a motion for a protective order on June 29, 2017. Despite having previously granted the Dufours the right to continue discovery efforts at the June 12, 2017 hearing, the trial court granted RMC's motion to quash the discovery requests and granted the motion for a protective order on August 1, 2017.

In preparation for the original summary judgment hearing, the Dufours initially filed an opposition to the motion for summary judgment, which included an affidavit by Beth and an affidavit of Dr. Arnold, limited to the issue of informed consent. After being granted a continuance for the purposes of conducting additional discovery, the Dufours filed a supplemental opposition to the motion for summary judgment on August 4, 2017, in preparation for the rescheduled hearing on August 21, 2017. The supplemental opposition included a supplemental affidavit of Dr. Arnold as well as the affidavit of Dr. Christina Lord, a board-certified OB/GYN physician. RMC moved to strike the supplemental response, including the expert witness affidavits. At the hearing, the trial court orally denied the motion to strike the supplemental opposition and the attached affidavits. However, in written reasons signed on August 30, 2017, the trial court recanted its oral judgment and granted RMC's motion to strike. It also granted RMC's motion for summary judgment and later signed a formal judgment to that effect, stating that it specifically found that "based on the evidence presented that Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center was not at fault[.]" The trial court then dismissed the Dufours' claims against RMC, with prejudice.

On September 26, 2017, the Dufours filed a motion for a new trial, which was denied by the trial court, and this appeal followed. On appeal, the Dufours raise three assignments of error.

1. The trial court erred as a matter of law, and misinterpreted this Court's decision in Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish , in striking the Dufours' opposition to the Hospital's motion for summary judgment, and in granting summary judgment.
2. The trial court abused its discretion in granting the Hospital's motion to quash relevant and necessary discovery and in granting a protective order, both of which deprived the Dufours of an opportunity for adequate discovery before summary judgment.
3. The trial court abused its discretion, erred as a matter of law, and misinterpreted this Court's decision in Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish , in denying the Dufours' motion for new trial.

Motion to Strike

The Dufours' first assignment of error asserts that the trial court erred in granting RMC's motion to strike the Dufours' supplemental opposition to the summary judgment motion, including the affidavits of the two experts filed on August 4, 2017, and in granting RMC's motion for summary judgment. Louisiana Code of Civil Procedure Article 966(A)(2) provides that summary judgment procedure is favored and that it "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." It further provides that summary judgment "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Code Civ.P. art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

In the case at hand, we must first review the decision of the trial court granting RMC's motion to strike the Dufours' supplemental memorandum and affidavits filed in opposition to RMC's motion for summary judgment. The resolution of this issue directly affects our review of whether summary judgment was properly or improperly granted by the trial court. "A trial court's exclusion of an opposition to a motion for summary judgment will be reviewed by the appellate court for an abuse of discretion." Finch v. HRI Lodging, Inc. , 49,497, pp. 5-6 (La.App. 2 Cir. 11/19/14), 152 So.3d 1039, 1043.

The hearing on the motion for summary judgment was initially scheduled for June 12, 2017, but it was continued by the trial court on motion of the Dufours and reset to be heard on August 21, 2017. Specifically, the trial court granted the Dufours' request for a continuance on June 12, 2017, for the express purpose of granting them time to conduct additional discovery required ostensibly to reply fully to RMC's motion for summary judgment. Louisiana Code of Civil Procedure Article 966(B) provides the time limits for the filing of an opposition to a motion for summary judgment, as follows:

B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.

RMC argues that the Dufours "did not request time to file additional expert affidavits nor did the Court order that plaintiffs be allowed to file additional expert affidavits" in their motion to continue, as is required to file pleadings not in compliance with the provisions of La.Code Civ.P. art. 966(B). However, as shown above, the only time limitation imposed upon the filing of an opposition to a motion for summary judgment is that any and all opposition and accompanying documents must be filed "not less than fifteen days prior to the hearing on the motion." La.Code Civ.P. art. 966(B)(2). Further, "[t]he purpose of requiring that the opposition memorandum be served on the mover at least eight days before the hearing is to allow both the court and parties sufficient time to narrow the issues in dispute and prepare for argument at the hearing." Finch , 152 So.3d at 1043. Therefore, based upon the plain wording and intent of the above article, the Dufours had at least until August 6, 2017, to file and serve any timely opposition documents regarding the August 21, 2017 summary judgment hearing without court approval.

RMC, however, urges that the Dufours' supplemental opposition and attached affidavits filed on August 4, 2017, seventeen days before the hearing, were untimely. RMC emphasizes that the two expert affidavits attached to the Dufours' August 4, 2017 supplemental opposition were not obtained "until after the original hearing date of June 12, 2017, and after the plaintiffs had already obtained and filed an affidavit by Dr. Arnold." We do not find this argument persuasive.

It is clearly established that it is not an abuse of discretion to exclude materials that are not timely filed, especially given the mandatory language of La.Code Civ.P. art. 966(B). Buggage v. Volks Constructors , 06-175 (La. 5/5/06), 928 So.2d 536. Other courts of this state have also held that district courts, in applying the deadline imposed by the article, even have the discretion to consider late-filed opposition materials, absent prejudice to the mover. Smith v. Rapides Healthcare Sys., L.L.C. , 13-1172 (La.App. 3 Cir. 3/5/14), 134 So.3d 122. Neither of these rules are implicated in the instant case though, where the original and supplemental opposition were both filed within the deadline set by La.Code Civ.P. art. 966(B).

The rescheduling of the hearing reset the time for the filing of opposition documents. Mahoney v. East Carroll Parish Police Jury , 47,494 (La.App. 2 Cir. 9/26/12), 105 So.3d 144, writ denied , 12-2684 (La. 2/8/13), 108 So.3d 88. The supplemental opposition documents, including the affidavits of the medical experts, were filed on August 4, 2017. The hearing on the motion for summary judgment was scheduled for August 21, 2017. While RMC notes that the Dufours did not request time to file additional expert affidavits nor did the trial court order that they be allowed to file additional expert affidavits, we note that neither did the trial court deny the right to file any supplemental response affidavits. The trial court simply continued the hearing on the motion for summary judgment and agreed to reschedule the hearing, "thereby allowing the [non-mover] additional time to file its opposition." Id. at 151. The trial court, when the motion to strike was initially considered at the hearing on August 21, 2017, noted this and even ruled to deny RMC's objections and permit the filing and attached affidavits. However, the trial court then reversed itself in its later written ruling, as follows:

The Court finds this ruling was error and reverses its previous oral findings on August 21, 2017, pursuant to Baez v. Hospital Service District No. 3 of Allen Parish, et al , [2016-951 (La.App. 3 Cir. 4/5/17), 216 So.3d 98] and Nix El v. Williams , 174 F.Supp.3d 87, 92 (D.D.C. 2016).
La. C.C.P. Art. 966(B) does not provide for the filing of a surreply memorandum. It only allows for the filing of a motion for summary judgment, opposition and a reply. Furthermore, even if the Court considered Dufours' [sic] motion to file a surreply as a reply memorandum, she would not be allowed to file the affidavits of Dr. Thomas Arnold and Dr. Christina Lord with the surreply because La. C.C.P. Art. 966(B)(3) does not allow for the filing of additional documents with the reply.
Therefore, for the above reasons, the defendants' "Objection to Plaintiffs' Supplemental Oppositions and Opposing Exhibits" is granted and the plaintiffs' surreply memorandum and attached affidavits will not be considered by the Court.

After review, we find that RMC misinterprets, and the trial court misapplied, the holding in Baez concerning the filing of surreply memorandum and documents. Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish , 16-951 (La.App. 3 Cir. 4/5/17), 216 So.3d 98. Baez does not stand for the proposition that a party is only permitted to file a single opposition without the ability to supplement that opposition even when the supplemental opposition is filed within the delays provided for in La.Code Civ.P. art. 966(B). The Baez court dealt with the admissibility of a surreply filed one day before the hearing on a motion for summary judgment. As noted by this court in Baez , "[t]he purpose of a surreply is to enable the non-movant to contest matters presented for the first time in the opposing party's reply." Baez , 216 So.3d at 105 (quoting Nix El v. Williams , 174 F.Supp.3d 87, 92 (D.D.C. 2016) ).

The filings on behalf of the Dufours were not filed as a surreply. The documents were filed as part of the Dufours' response to the original motion for summary judgment. Because the hearing on the motion for summary judgment was reset, the deadline for filing opposition documents to the motion was reset as well in the absence of any limiting orders from the trial court, of which there were none in this case. See Mahoney , 105 So.3d 144. Accordingly, the deadline for the filing of opposition documents, including the attached affidavits, became August 6, 2017. The Dufours filed the stricken opposition and expert affidavits on August 4, 2017. Thus, the trial court had no authority to disallow the supplemental affidavits and, therefore, abused its great discretion in striking the affidavits of the Dufours' experts.

Motion for Summary Judgment

Having concluded that the trial court erred in striking the Dufours' opposition affidavits to the motion for summary judgment, we now conduct our own de novo review of the motion for summary judgment, considering the subsequently filed opposition evidence in addition to the other evidence submitted in support and in opposition thereto.

Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp. , 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ; Schroeder v. Bd. of Supervisors of La. State Univ. , 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 ;
Duncan v. USAA Ins. Co. , 06-0363, p. 4 (La. 11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett , 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam )(citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines , 876 So.2d at 765-66.

Smitko v. Gulf S. Shrimp, Inc. , 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750, 755.

We first note that counsel for RMC conceded at the oral argument hereon that if the supplemental opposition evidence were to be considered, material issues of fact which are sufficient to defeat its motion for summary judgment do exist. We agree. Where "[t]he record fully supports this concession[,]" we need "not discuss it further." Kozlowski v. Fowler , 71 So.2d 246, 249 (La.App. 4 Cir. 1954). The record in the current case indeed supports this concession. Further, though the summary judgment procedure is favored, it is not a substitute for a trial on the merits. Brock v. Marathon Ashland Oil Refinery , 07-471 (La.App. 5 Cir. 5/13/08), 986 So.2d 694.

RMC relies solely on the decision and opinion of the medical review panel in support of its motion for summary judgment. However, the Dufours contend that the hospital medical records, which were the only thing relied upon by the medical review panel, contain discrepancies that require clarification. The affidavits attached to the Dufours' opposition clearly evidence a genuine issue of material fact. "In deciding a motion for summary judgment, the court must assume that all of the affiants are credible." Joliboix v. Cajun Comfort, Inc. , 16-414, p. 4 (La.App. 5 Cir. 12/7/16), 207 So.3d 655, 658.

Beth's affidavit, which was filed with the original opposition to the motion for summary judgment, stated multiple, direct contradictions to certain information found in the hospital records relied upon by the medical review panel and set out fact questions concerning the purported inaccuracy of the records. She notes the charting of her pain level by nurses to have been written as either a 0, 2, or 4, to which she states, "I never told the nurses that my pain was at that level." Beth argues that the inaccurately charted pain levels in the record likely had a profound effect both on the medical panel's decision and the treatment by Dr. Fremin, the emergency department physician. She also points out that the records state she was taken to receive an ultrasound by stretcher, when she in fact walked herself to the ultrasound room. The record reflects she received two separate ultrasounds, while Beth asserts she only had one. Further, of the ultrasound she did have, the record billing sheet shows she was billed and coded for an ultrasound after the first trimester, despite being only six weeks pregnant at the time. Beth contends that the "information within the chart is fraudulent" and that the accompanying audit information "contains inconsistent information relative to the persons [she] saw within the ER and the care provided at certain times."

The Dufours also submitted two affidavits prior to the hearing on August 21, 2017: one of Dr. Arnold, a board-certified emergency medicine expert, and one of Dr. Lord, a licensed, practicing OB/GYN. Both expert witnesses state that RMC breached the applicable standard of care in its treatment of Beth, giving detailed reasons for the conclusions, directly in opposition to the opinion of the medical review panel on which the trial court relied to grant the motion for summary judgment. A genuine issue of material fact is one as to which reasonable persons could disagree. Edwards v. Larose Scrap & Salvage, Inc. , 11-1412 (La.App. 3 Cir. 4/4/12), 89 So.3d 1227, writ denied , 12-1510 (La. 10/12/12), 98 So.3d 870. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Tepper v. Red River Academy, L.L.C. , 14-1028 (La.App. 3 Cir. 2/4/15), 157 So.3d 1142. Thus, based on the admissible evidence presented in support of and against the motion for summary judgment, we conclude that there exists material issues of fact that preclude the granting of the motion.

Motion to Quash and Protective Order/Motion for New Trial

The Dufours next assert that the trial court abused its discretion in granting RMC's motion to quash relevant and necessary discovery and in granting a protective order, both of which deprived them of an opportunity for adequate discovery prior to summary judgment. Our finding that the trial court erred in granting summary judgment in favor of RMC requires us to vacate the decision of the trial court granting the motion to quash and the protective order in favor of RMC, as our remand for further proceedings renders this issue moot and new scheduling orders in the trial court will be necessary for the progression of the case, at the trial court's discretion. Likewise, our reversal of the summary judgment renders moot the Dufours' allegation of error in the denial of their motion for a new trial.

DECREE

For the reasons set forth herein, we reverse the decision of the trial court granting the motion to strike the supplemental opposition and accompanying affidavits filed on behalf of Plaintiffs, Beth and Drew Dufour, and granting summary judgment in favor of Rapides Regional Medical Center. We further vacate the trial court's judgment quashing the Dufours' request for relevant and necessary discovery and the granting of a protective order in favor of Rapides Regional Medical Center. Accordingly, this matter is remanded for further proceedings consistent with our opinion. Costs of this appeal are assessed to Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center.

REVERSED; VACATED; AND REMANDED.

      RMC responded to plaintiffs' petition, citing its correct legal name as Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical Center.

      Louisiana Code of Civil Procedure Article 966 was amended by 2015 La. Acts No. 422, § 1. The effective date of the Act was January 1, 2016. The previous version allowed opposition documents to be filed not less than eight days prior to the hearing as set by Rule 9.9 of the District Court Rules.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Chris Tanner DANLEY, Appellant
    No. 52,217-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JOHN M. LANCASTER, District Attorney, AMANDA M. WILKINS, JOHN CLAY HAMILTON, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and COX, JJ.
   PITMAN, J.

Defendant Chris Tanner Danley appeals as excessive the aggregate 22-year sentence imposed after he pled guilty to two counts of theft of $750 or more; one count of theft of $5,000 or more; one count of theft of a motor vehicle of $1,500 or more; and one count of simple burglary. A timely motion to reconsider the sentences was denied. For the following reasons, the conviction and sentences of Defendant are affirmed.

FACTS

On September 9, 2016, Chief Deputy Kenneth Green of the West Carroll Parish Sheriff's Office received a phone call from the owner of a stolen vehicle who had seen his vehicle parked at an Arkansas residence, just over the Louisiana state line. Dep. Green made contact with the Chicot County Sheriff's Office and joined a deputy at the residence. Defendant was found asleep behind the wheel of the stolen truck. He had two knives and a marijuana pipe in his lap. Additionally, speakers matching the description of those reported stolen from another vehicle were observed within the vehicle. An ATV key was found in his pocket.

After Defendant's extradition to West Carroll Parish, he admitted to stealing the truck on September 8, 2016, the day before he was found. He also admitted that on September 8, 2016, he stole two ATVs belonging to two different individuals, one of which he parked behind a residence before stealing the truck in question. He further admitted to stealing a third ATV from another individual on August 25, 2016. He claimed he stole the items to obtain money for his drug habit.

As a result of these events, Defendant was charged by bill of information on October 17, 2016, with two counts of theft of $750 or more, but less than $5,000, for the thefts of a 300 Honda ATV on August 25, 2016, belonging to Ted Ross, and a Honda Rancher 420 ATV on September 8, 2016; and one count of theft of $5,000 or more, but less than $25,000, for the theft of a 2006 Honda Rancher 350 ATV belonging to Stephen W. Grubbs on September 8, 2016; in violation of La. R.S. 14:67. Additionally, he was charged with one count of theft of a motor vehicle valued at $1,500 or more for the theft of a 2003 Chevrolet pickup truck on September 8, 2016, in violation of La. R.S. 14:67.26 ; and one count of simple burglary of a vehicle belonging to Todd Smith, on September 9, 2016, in violation of La. R.S. 14:62.

On May 31, 2017, Defendant appeared in open court with appointed counsel and after being advised of and waiving his constitutional rights in accordance with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969), pled guilty as charged to the five felony counts. The terms of the plea agreement included the state's dismissal of a criminal trespass charge, Defendant's agreement to revocation on a pending felony probation violation, restitution of $1,592.79, and the state's agreement to forego the filing of a habitual offender bill of information. The state agreed that he would receive credit for time served; but, otherwise, there was no agreement as to the sentence which would occur after the trial court's receipt and review of a presentence investigation ("PSI") report. On May 31, 2017, Defendant signed a written felony plea agreement memorializing the terms of the plea agreement.

He appeared for sentencing on August 2, 2017. Prior to sentencing, the trial court noted its consideration of the PSI report and thoroughly reviewed the facts of the case on the record.

Dep. Green testified that during his interview with Defendant on September 12, 2016, he showed remorse and acknowledged his "bad drug problem," for which he needed help and rehabilitation. Thereafter, on the record, the trial court reviewed several letters and a poem written by Defendant who asserted that he committed crimes due to his addictions, asked for mercy and rehabilitation and was remorseful. It also regarded a letter from Defendant's grandmother who requested rehabilitation for her grandson's long-term drug problems, as well as positive letters from his mother, sister, two pastors and numerous friends who believed that he would respond to long-term drug treatment. It also considered the victims' statements setting forth the amount of restitution each was owed, if any, and the fact that three of those victims expressed sentiments that Defendant should be punished for his actions. A letter from Sheriff Jerry Philley indicated that Defendant had committed multiple crimes in West Carroll Parish over the past years and should receive a sentence.

The trial court further reviewed Defendant's criminal record, noting two juvenile offenses, including driving while intoxicated when he was 17 and possession of marijuana and Lortab. He successfully completed probation for both offenses. His criminal adult record included two 2010 guilty pleas to one count of possession of marijuana and a second DWI-first offense, for which he paid fines. Defendant was arrested for domestic violence in Ohio in February 2011, but those charges were dismissed. It noted his first felonies occurred in April 2011, including charges for simple battery, jumping bail, unauthorized use of a movable, theft and resisting an officer. He was allowed to plead guilty to unauthorized use of a motor vehicle and theft and received a suspended four-year hard labor sentence with three years' probation, which was revoked on March 8, 2012. It observed that on January 25, 2012, Defendant pled guilty to domestic abuse battery with child endangerment and strangulation and received a three-year hard labor sentence with two years suspended and three years' supervised probation, which was revoked on March 28, 2012. He pled guilty to simple escape on October 15, 2013, and was sentenced to 18 months' hard labor. On April 7, 2015, he pled guilty to unauthorized use of a movable and was sentenced to ten years' hard labor with eight years suspended and five years' probation.

With the current offenses, the trial court noted that Defendant had been convicted of ten different felonies and qualified as a fifth-felony offender. It considered that he had committed several crimes against a person, including domestic abuse battery with strangulation and child endangerment, which involved his battery of a woman while he appeared to be "on something." Regarding probation, it noted that Defendant's juvenile offenses had ended satisfactorily, but that his adult record presented another story because he had twice had his probation revoked and was remanded to serve all original sentences. It remarked that Defendant was on probation when he committed the present offenses and agreed to revocation of that probation as part of the plea agreement.

Defendant's social history was reviewed by the trial court, including his personal and educational history. Notably, it considered that he began drinking alcohol at age 13, started using marijuana and pills at 15 and turned to methamphetamine at 17. He last used methamphetamine the day he was arrested for the instant offenses.

Both the aggravating and mitigating factors of La. C. Cr. P. art. 894.1 were reviewed. In mitigation, the trial court considered that substance abuse played a large part in Defendant's crimes, which were directly or indirectly related to drugs. He had some work history, was young and his incarceration would cause a hardship to his grandparents, who had done everything possible to raise him right.

As aggravating factors, the trial court considered Defendant's extensive criminal record and the benefit of the plea bargain agreement which precluded his adjudication as a habitual offender. It observed his failure to benefit from prior probationary treatment and that he had absconded from his chance at rehabilitation. It also considered his long record of stealing from others to pay for his drug habit causing economic damage to his victims.

The trial court ultimately determined that Defendant was in need of correctional treatment in a custodial environment and must be punished for what he had done and sentenced him as follows:

Count One: Theft greater than $750, but less than $5,000, a concurrent sentence of 5 years at hard labor.
Count Two: Theft greater than $5,000, but less than $25,000, a concurrent sentence of 10 years at hard labor.
Count Three: Theft of a motor vehicle greater than $1,500, a consecutive sentence of 10 years at hard labor.
Count Four: Simple burglary, a concurrent sentence of 12 years at hard labor.
Count Five: Theft greater than $750, but less than $5,000, a concurrent sentence of 5 years.

The trial court also ordered Defendant to pay total restitution of $2,792.79 to the victims and to enroll in and complete the Fifth Judicial District Drug Court program upon being paroled.

On August 16, 2017, Defendant filed a motion to reconsider sentence, arguing that the aggregate 22-year sentence was excessive on the grounds that the trial court did not assign sufficient weight to his cooperation with authorities, the testimony of his grandmother, letters of support, offers of employment or his expressions of remorse for his actions.

The hearing on the motion to reconsider sentence occurred on November 29, 2017. The trial court reiterated its thorough consideration of the PSI report, including Defendant's history and substance abuse, as well as the fact that he was a five-time felony offender who could be facing a life sentence as a habitual offender. Ultimately, it stated that it had studied this case in great detail and noted that because these are not crimes of violence, Defendant could obtain early release if he took advantage of new laws. It found the sentences to be fair based upon Defendant's prior convictions, his record and all of the factors in the PSI. It informed Defendant of the applicable delays for filing post-conviction relief. This appeal followed.

DISCUSSION

Defendant appeals the aggregate 22-year sentence on the grounds of constitutional excessiveness. He argues that he is not the worst of offenders and that the cause of his crimes was related to his substance abuse issues. He also argues that the trial court failed to give sufficient weight to the numerous and important mitigating factors which justified much less severe sentences, certainly considering his young age and the hardship his incarceration will cause his family.

The state argues that the record clearly reflects the trial court's consideration of the relevant factors involved in this case and that Defendant received two significant benefits, namely the state's agreement to forgo the filing of an habitual offender bill of information and the imposition of only one of the sentences as consecutive. It points out that Defendant could have received a total of 42 years at hard labor had the trial court imposed each of the sentences consecutive in accordance with La. C. Cr. P. art. 883. Further, it asserts that the trial court clearly considered each letter submitted on Defendant's behalf and that the imposed sentences will not result in a life sentence as he will get an opportunity at credit for good time.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Modisette , 50,846 (La. App. 2 Cir. 9/28/16), 207 So.3d 1108. The trial court should consider the defendant's personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant's potential for rehabilitation. State v. Modisette , supra . The trial court is not required to assign any particular weight to any specific matters at sentencing. Id. When the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. Modisette , supra .

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. art. I, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno , 384 So.2d 355 (La. 1980) ; State v. Lindsey , 50,324 (La. App. 2 Cir. 2/24/16), 189 So.3d 1104. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lindsey , supra . A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Shaikh , 16-0750 (La. 10/18/17), 236 So.3d 1206. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Davis , 51,194 (La. App. 2 Cir. 2/15/17), 215 So.3d 434.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Modisette , supra . However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence for the pled offense. Id.

The law in effect at the time of the commission of the offense is determinative of the penalty that the convicted accused must suffer. State v. Sugasti , 01-3407 (La. 6/21/02), 820 So.2d 518 ; State v. Modisette , supra .In 2016, La. R.S. 14:67 set forth the penalty for theft of $750 or more, but less than $5,000, as imprisonment, with or without hard labor, for not more than 5 years, or a fine of not more than $3,000 or both. Under La. R.S. 14:67, the penalty for theft of $5,000 or more, but less than $25,000, was imprisonment, with or without hard labor, for not more than 10 years, or a fine of not more than $10,000 or both.

The crime of theft of a motor vehicle of $1,500 or more carried a penalty of imprisonment, with or without hard labor, for not more than 10 years or a fine of not more than $3,000 or both. La. R.S. 14:67.26. The crime of simple burglary carried a penalty of a fine of not more than $2,000 or imprisonment with or without hard labor for not more than 12 years or both. La. R.S. 14:62.

A review of the record reveals that the trial court did not abuse its wide discretion in imposing the aggregate 22-year sentence upon this defendant. It fully complied with La. C. Cr. P. art. 894.1 in considering the appropriate sentencing factors and more than adequately articulated its reasons for sentencing. Despite Defendant's contrary arguments, the trial court considered his young age and the hardship incarceration would cause his family, as well as the numerous letters of support submitted on his behalf. It also noted his expressions of remorse. While each of the five imposed sentences is the maximum allowed under the law, the sentences fall within the statutory limits. Between the final week of August and the first week of September 2016, Defendant participated in a crime spree that demonstrated complete disregard for the property of others and caused significant economic damage to the victims. His need for substance abuse rehabilitation is undeniable. However, no abuse of discretion is found in the trial court's observation that Defendant was in need of correctional treatment in a custodial environment.

As noted by the trial court, Defendant's criminal record is substantial and includes a conviction for domestic battery, and he qualifies as a fifth-felony offender, for which he would have faced a maximum sentencing exposure of life imprisonment. Thus, he received a substantial benefit from the plea agreement. Further, the record belies Defendant's claims that he was not afforded rehabilitation services or any chance at recovery. He has clearly failed to benefit from prior probationary treatment and attempts to help him through addiction rehabilitation. His continued attempts to blame his drug addiction for his criminal actions are inadequate to override the seriousness of his criminal behavior in this situation. Under the facts of this case, the chosen penalty is adequately tailored to Defendant and does not shock the sense of justice or demonstrate the needless and purposeless imposition of pain and suffering.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant Chris Tanner Danley are affirmed.

AFFIRMED.

      Defendant's probation was revoked on a prior 2015 conviction for unauthorized use of a motor vehicle for which he received a sentence of ten years at hard labor, with eight years suspended and five years' probation and credit for time served in Docket No. 2014F114.

      At sentencing, the trial court erroneously refers to the sentence as an aggregate 20-year term. The motion to reconsider the sentence also contains this error, although appellate counsel, in brief, acknowledges that the correct aggregate term is 22 years. We also note that although the Felony Plea Agreement contains a notation that says, "Restitution of $1,592.79," that is the restitution owed to only one of three victims, Todd Smith. The restitution ordered at sentencing to the other two victims and Smith totals $2,792.79. Stephen Grubbs is to receive $200 and Phillip Elliott is to receive $1,000.

      Defendant takes no issue with the trial court's consecutive imposition of the ten-year sentence for theft of a motor vehicle, which may arguably arise from a single course of conduct on September 8, 2016. Nevertheless, the failure to articulate specific reasons for consecutive sentences under La. C. Cr. P. art. 883 does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 17-0966 (La. 4/27/18), 239 So.3d 836. Defendant's action in taking the stolen truck out of state provides a sufficient factual basis for the trial court's consecutive imposition of this sentence.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Michael Anthony LITTLE, Jr., Appellant
    No. 52,131-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Counsel for Appellant
    STEPHEN TEW, District Attorney, FRED R. McGAHA, Assistant District Attorney, Counsel for Appellee
    Before MOORE, PITMAN, and COX, JJ.
   MOORE, J.

The defendant, Michael Anthony Little, Jr., was charged with second degree murder for a homicide he committed when he was 17 years old. On the day of trial, he accepted the state's offer of a guilty plea to the responsive offense of manslaughter. After the court accepted his guilty plea, it sentenced Little to the maximum sentence of 40 years at hard labor with parole eligibility. Little now appeals his sentence as excessive. We affirm.

FACTS

On June 26, 2016, at 3:47 a.m., officers from the Monroe Police Department were dispatched to investigate a "suspicious vehicle" and "shots fired" at the "T" intersection of Short Washington and North 23rd Streets. Arriving at the intersection, they saw broken glass strewn in the middle of the street even with the stop sign. A light-colored, 2007 Chevrolet Equinox sat on the vacant lot adjacent to the intersection, apparently having rolled through the stop sign, and crossing the street into the lot before coming to a stop. Inside the vehicle, police found the body of a black male in the driver's seat with a gunshot wound to his head. There were large amounts of blood in the vehicle and on the victim's clothes. Bloody fingerprints were on the rear passenger door handle, and the front driver's side window was shattered. They found no identification on the victim or state identification in the vehicle.

Subsequently, police obtained fingerprints from the victim, and identified him as Rafael Henry. The autopsy report described two bullet wounds to Henry's head: one bullet entered the right side of his head and exited through his face just under his left eye, but did not immediately kill him; the second, "fatal" bullet entered the left ear and lodged in Henry's spine. Blood loss from both shots would have been lethal. Police found a .45 caliber shell casing on the front passenger seat.

After interviewing several witnesses, investigators developed 17-year-old Michael Little as a suspect in the shooting. They interviewed Little's current girlfriend, Jakeria Hollins, who also happened to be the victim's prior girlfriend. Ms. Hollins admitted that she had met with Henry earlier the night of his murder.

Police obtained Henry's cell phone texts on the night of the murder. Ms. Hollins and Henry had messaged each other on Facebook Messenger. They subsequently met on Spurgeon Drive in Monroe, and smoked marijuana together. Little was working at Sonic when this rendezvous occurred. Ms. Hollins said that Little got home around 1:00 a.m.

Shortly after 3:00 a.m., Ms. Hollins texted Henry asking if he would pick up Little on Spurgeon Drive and take him to North 23rd Street; Henry agreed. He and Ms. Hollins continued to text one another even after Henry picked up Little at the University Manor Apartments on Spurgeon at about 3:25 a.m. When Henry picked up Little, he had a passenger sitting in the front passenger seat, Mark Seaberry. Little got into the back seat of the vehicle. He admitted to police later that he had a .45 caliber handgun on him when he got in the vehicle. Little told police that Henry dropped Seaberry off around North 18th and Washington Streets near the Lamyville area (a point confirmed by Seaberry). Then he drove back into the Lamyville area and stopped at the stop sign at the intersection of North 23rd and Short Washington. There, Little said, he showed Henry the .45 caliber handgun. Henry took it from him and a struggle ensued over the gun. Little said the gun accidentally went off, striking Henry in the head. The vehicle rolled forward into the vacant lot and stopped. After the gunshot, Little said that Henry was making noises. He became afraid Henry would get him into trouble, so he got out of the vehicle, went to the driver's side window, which had been shattered from the first shot, and shot Henry a second time in the head. Little said that he later disposed of the weapon in a bayou.

The state charged Little with second degree murder. On August 1, 2017, Little appeared for trial. Defense counsel and the state informed the court that a plea agreement had been reached whereby Little would plead guilty to manslaughter, a responsive verdict to second degree murder, with no agreement as to sentencing. The court informed Little that it could impose up to a 40-year sentence for manslaughter with credit for time served. Little said he understood, the court advised him of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969), and Little waived his rights and pled guilty to manslaughter in violation of La. R.S. 14:31. The court accepted Little's guilty plea and ordered a presentence investigation ("PSI") report.

Before imposing sentence, on October 16, 2017, the court stated that it had considered the PSI and letters submitted on Little's behalf. The court then heard victim impact statements by the victim's mother and brother. Henry's mother, Sherry Thompson, expressed the pain and difficulty she suffered over the loss of her son, and asked the court to impose the maximum sentence for this "senseless murder of my son." The victim's brother, FBI special agent Mario Martin, stated that while he and his brother did not always get along, his murder was completely unnecessary and had significantly impacted his family emotionally and financially. He requested the court to impose the "most severe sentence."

The court reviewed a sentencing memorandum submitted by the state, which recounted the facts, noted the "uncanny mercy" exhibited by the family, and recommended that the court impose the maximum manslaughter sentence.

Lastly, Little spoke on his own behalf, offering his apologies to the family, specifically the victim's mother, and his remorse for "the grief that I caused and the life that was taken." Little's counsel stated that at no time did the defendant "seek to sidestep responsibility in this matter."

After reviewing the facts of the crime and the penalty for manslaughter, the court stated that it had reviewed "both legislative and decisional law" setting special provisions regarding parole consideration for youthful offenders convicted of murder. However, there were no special provisions regarding consideration for parole eligibility for juveniles receiving long-term sentences of manslaughter. The court observed the violent nature of this crime and stated that the autopsy report and photographs were "hard to look at." Further, the evidence showed Little, a back seat passenger in Henry's vehicle, shot him in the upper right side of his head, the bullet traveled through Henry's brain and out the left side of his face breaking the passenger window, and then Little got out of the car, went around to the driver's side window, and shot Henry again through the left side of his head. The court considered that the autopsy report suggested that the victim was still breathing after the first gunshot, although the court would not comment on whether Henry would have survived the first gunshot. The court characterized the events as looking "very much like an execution which is murder," and opined that on these facts, a jury may likely have convicted Little of murder. For these reasons, the court concluded that Little received "a very substantial reduction" in sentencing exposure, from life term to a maximum of 40 years.

The court considered the sentencing guidelines of La. C. Cr. P. art. 894.1. Due to his age, the court could not conclude that Little was likely to commit another crime, and concluded that a "sentence lighter than the one I'm going to impose would be inconsistent" with the gravity of the offense. The court added that the grade of the criminal violence was "paramount" for this crime committed with a gun possessed by a 17-year-old.

In mitigation, the court considered Little's capacity for caring, noting that he was "dutiful toward" his young son and that in letters others spoke of Little's "humbleness" and "good character traits." The court further stated that Little had no prior felony record, worked and went to school, showing industriousness.

Again noting that the crime bore "the mark of an execution which makes it murder," the court imposed a sentence of 40 years at hard labor. The court stated that it "cannot find peace in imposing any lesser sentence for this offense." The court noted that Little would be eligible for benefits, but because this was a crime of violence, he would have to serve a portion of his sentence before being eligible. Little was given credit for time served.

Little's counsel made an oral motion for reconsideration of sentence, which the trial court denied, commenting that it had "worried over this sentence and spent a lot of time thinking about it."

This appeal followed.

DISCUSSION

On appeal, Little's sole complaint is the excessiveness of the sentence imposed by the trial court. Little asserts that his young age justifies the imposition of a sentence that is mindfully fashioned to avoid cruel and unusual punishment. He further contends that he will possibly spend more time in jail than if he had received life for second degree murder, which allows for the possibility of parole after 25 years, whereas his earliest possible parole release for manslaughter would not come until he serves 28 years. In light of the uncertainty as to his parole eligibility, Little argues that it was incumbent on the court not to punish him more harshly than if he had been convicted of the charged offense. He asks this court to consider that he did not request leniency, but expressed remorse to the family when he spoke on his own behalf and argues that the record shows that he took responsibility for his actions.

Little disputes the district court's view that this was an execution-style murder, and argues that the facts adequately describe manslaughter. Even the second shot, Little claims, was fired out of fear, and the court erroneously superimposed an unsupported theory in sentencing him. Little also argues that his claim that the two argued over the gun, before he shot Henry, "could well be within the legal definition of manslaughter."

Ultimately, Little argues that the district court should have given greater weight to his youth in individualizing his sentence, and that even with good time and parole eligibility, the penalty imposed is not adequately particularized to him or an appropriately measured response to the offense committed.

The state responds that Little chose to reduce his potential sentencing exposure by accepting a manslaughter plea and received a substantial advantage by means of the plea bargain which afforded him the possibility of parole. The state contends that manslaughter does not adequately describe Little's conduct, as the autopsy report showed that the victim may have had a chance of recovery after the first shot. Considering all the evidence, the state concludes that no abuse of discretion has been shown in the chosen punishment.

La. Const. art. 1, § 20, prohibits cruel, excessive, and unusual punishment. This proscription not only prohibits barbaric punishment but also sentences that are disproportionate to the offense committed. An excessive sentence is one that is grossly disproportionate to the offense committed. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980) ; State v. White , 48,788 (La. App. 2 Cir. 2/26/14), 136 So.3d 280, writ denied , 14-0603 (La. 10/24/14), 151 So.3d 599. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. White , supra . In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate. State v. White, supra . A court's proportionality analysis should be guided by the gravity of the offense and culpability of the offender. State v. Ross , 50,231 (La. App. 2 Cir. 11/18/15), 182 So.3d 1035 ; State v. White, supra .

A comparison of the punishment imposed with sentences imposed for similar crimes is useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime. State v. Fruge , 14-1172 (La. 10/14/15), 179 So.3d 579. Even so, sentences must be individualized to the particular offender and to the particular offense committed. State v. Williams , 51,667 (La. App. 2 Cir. 9/27/17), 245 So.3d 131, writ not cons. , 18-0017 (La. 3/9/18), 237 So.3d 1190. Review of sentences imposed in other cases serves only to set the stage for later inquiry into the nature of the offender and the offense. State v. Lewis , 09-1404 (La. 10/22/10), 48 So.3d 1073.

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 07-2031 (La. 2/15/08), 974 So.2d 665 ; State v. Hogan , 47,993 (La. App. 2 Cir. 4/10/13), 113 So.3d 1195, writ denied , 13-0977 (La. 11/8/13), 125 So.3d 445. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence for the pled offense. State v. Lewis, supra ;

State v. Modisette , 50,846 (La. App. 2 Cir. 9/28/16), 207 So.3d 1108. The fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration in a case where the defendant has been convicted of the lesser offense of manslaughter. State v. White, supra .

In State v. Ross , 50,231 (La. App. 2 Cir. 11/18/15), 182 So.3d 1035, 1038, the defendant was indicted for second degree murder for a killing he committed when he was 17 years old, after he and a group of boys left a party, went to the victim's neighborhood, and the defendant shot multiple times through a gate into a crowd of people. The defendant pled guilty to manslaughter and the trial court imposed the maximum 40-year sentence. This court affirmed that sentence, noting that the defendant's young age and lack of a criminal record were factors to be considered in sentencing, but were outweighed by the severe danger created by his actions and the substantial leniency he received by pleading guilty to manslaughter.

In State v. White , supra , a 19-year-old first offender was charged with second degree murder but convicted of manslaughter and sentenced to the maximum of 40 years at hard labor. The victim fought with the defendant and two others twice, and walked away, but then the defendant reappeared with a gun and shot the unarmed victim at close range. This court concluded that the evidence supported a verdict of second degree murder, the defendant benefited greatly from the lesser verdict of manslaughter, and the sentence was neither disproportionate to the severity of the young man's offense nor shocking to the sense of justice.

In State v. Harris , 11-626 (La. App. 5 Cir. 11/27/12), 105 So.3d 914, an 18-year-old first offender, who accepted responsibility for his actions, was charged with two counts of second degree murder but convicted of manslaughter and negligent homicide and received the maximum sentences of 40 years at hard labor for manslaughter and five years at hard labor for negligent homicide, to run consecutively. In State v. Lanieu , 98-1260 (La. App. 1 Cir. 4/1/99), 734 So.2d 89, writ denied , 99-1259 (La. 10/8/99), 750 So.2d 962, a 19-year-old first offender charged with second degree murder and convicted of manslaughter received the maximum 40-year sentence. Both sentences were upheld.

In light of the facts of this offense, the district court properly concluded that a jury would have likely found that Little's conduct constituted second degree murder. Little claims that the second shot he fired into Henry's head, at point-blank range, constituted manslaughter because he fired it out of fear, specifically, fear that Henry might tell on him or get him in trouble. However, this still fits the crime of second degree murder. Simply put, Little intended to silence Henry forever. Manslaughter requires a showing of "sudden passion or heat of blood caused by provocation sufficient to deprive an average person of self-control" to negate the specific intent requirement for murder. La. R.S. 14:31. Since Little claims the first shot was accidental, it is hard to argue that the second shot arose out of heat of blood. Alternatively, fear that constitutes a justified killing must be fear that arises from a physical threat of death or great bodily harm. La. R.S. 14:18(6). Aiming and firing the .45 into Henry's head at point-blank range demonstrates a specific intent to kill the unarmed and already severely wounded Henry in order to ensure his silence. Hence we find no error in the trial court's characterization of this offense as an execution-style murder.

Finally, we find no merit in the argument that Little received a sentence more severe than a sentence for second degree murder. The guilty plea to manslaughter gave Little two very significant advantages over a conviction for second degree murder: instead of a life sentence, he received a less-than-life sentence of 40 years; and instead of the mere possibility of being parole eligible after serving 25 years of a life sentence for a second degree murder conviction, La. R.S. 15:574.4 G, under the manslaughter conviction, he will be eligible for parole at age 45 after having served 28 years, according to the defense calculation. La. R.S. 15:574.4 A(2). The state maintains Little will be parole eligible after 24 years with good time. Most importantly, however, is that in the case of second degree murder, eligibility for parole consideration is only a possibility for which one must wait 25 years to determine. By contrast, in the second case, consideration for parole is a certainty.

Considering the nature of the shooting, which could appropriately be characterized as "execution-style," and the benefit Little received as the result of his plea agreement, the manslaughter maximum sentence does not shock the sense of justice and is not grossly disproportionate to the severity of this offense, even for this young offender. We find no abuse of discretion by the sentencing court.

We have also reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920 (2).

CONCLUSION

For the foregoing reasons, Little's conviction and sentence are affirmed.

AFFIRMED.

      According to the state's account of Little's statement made while his parents were present, Little said that he shot Henry as he pulled the gun away from him.

      The autopsy listed the cause of death as "two gunshot wounds," although the pathologist concluded that Henry was still alive after the first shot because his heart was still beating and he was still breathing. The state maintained that even if the first shot was accidental, the second shot showed a specific intent to kill.


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. John H. CARTWRIGHT, Appellant
    No. 52,056-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    KEVIN H. JOHNSON, JOHN H. CARTWRIGHT, Counsel for Appellant
    JEFFREY M. LANDRY, Attorney General, PAMELA S. MORAN, WINSTON ERIC WHITE, Assistant Attorneys General, Counsel for Appellee
    Before MOORE, STEPHENS, and McCALLUM, JJ.
   McCALLUM, J.

The defendant, John Cartwright ("Cartwright"), was convicted by a jury of stalking, third offense, in violation of La. R.S. 14:40.2 and was sentenced to serve 20 years at hard labor. A motion to reconsider sentence was denied. Cartwright now appeals and challenges the sufficiency of the evidence and the state's disclosure to the jury of his prior stalking convictions. For the reasons stated hereinafter, we affirm.

FACTS

Cartwright has been twice previously convicted of stalking. The victim in this case, Sammie Byrd ("Byrd"), has worked in law enforcement in Madison Parish for decades. Byrd was not the victim in either of Cartwright's prior stalking convictions. The bill of information, as amended, alleges that Cartwright stalked Byrd between January 1, 2015 and April 5, 2015.

The victim and defendant each reside in Tallulah, Louisiana. Cartwright's stalking of Byrd began with Cartwright disseminating throughout the town statements that Byrd was out to kill him, and that he intended to arm himself with a shotgun to protect himself against Byrd. The evidence established that Cartwright made such statements to then Attorney General Buddy Caldwell, Robert Miracle, Gerald Odom, and numerous other people in Tallulah. Out of concern for Byrd and his family, Robert Miracle and Buddy Caldwell took measures to warn Byrd that Cartwright had been making these statements. Robert Miracle's testimony indicated that he reported Cartwright's statement to Byrd prior to April 5, 2015.

Additionally, between January 1, 2015 and April 5, 2015, Cartwright wrote several letters to the captain of Louisiana State Police Troop F in Monroe, Louisiana. In these letters, Cartwright accused Byrd of putting the barrel of a pistol in Byrd's ex-wife's mouth while he was "crazed on cocaine," and of bringing Chad Ezell to First Baptist Church to antagonize Cartwright. During that same time period, in a letter to the Tallulah Police Department, Cartwright accused Byrd of threatening him at a Kentucky Fried Chicken by saying, "I'm going to get you. Get ready Cartwright because we're coming for you. We're going to get you Cartwright." In his trial testimony, Byrd unequivocally denied ever threatening Cartwright.

The culminating event occurred on April 5, 2015, during a church service at the First Baptist Church in Tallulah. Byrd was serving as an usher, and when he reached the pew on which Cartwright was sitting, Cartwright threatened him, saying to Byrd, "I'm coming for you. I'm gonna get you." Madison Parish Sheriff Larry Cox witnessed this event. He heard Cartwright speaking but not well enough to understand what he was saying. Sheriff Cox did, however, testify that upon hearing Cartwright's words, Sammy Byrd turned "as red as an apple."

The only issues briefed on this appeal are: (1) the state's presentation to the jury of evidence of Cartwright's two previous stalking convictions; and (2) the sufficiency of the evidence.

DISCUSSION

Sufficiency of the evidence

When a criminal defendant appeals the sufficiency of the evidence and other alleged errors, the reviewing court should first determine the sufficiency of the evidence. The accused is entitled to an acquittal if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Cooley , 51,895 (La. App. 2 Cir. 5/23/18), 247 So. 3d 1159 ; State v. Dennis , 46,471 (La. App. 2 Cir. 9/21/11), 72 So.3d 968, writ denied , 11-2365 (La. 5/18/12), 89 So.3d 1189.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Jackson v. Virginia , supra ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is so viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299.

La. R.S. 14:40.2, as it was written at the time of the offense, provides in relevant part:

(A) Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal or behaviorally implied threats of death, bodily injury, sexual assault, kidnaping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
(B)(5) Upon a third or subsequent conviction, the offender shall be imprisoned with or without hard labor for not less that [sic] ten years and not more than forty years and may be fined not more than five thousand dollars, or both.
C. For the purposes of this Section, the following words shall have the following meanings:
(C)(1) "Harassing" means the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.
(2) "Pattern of conduct" means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person. Constitutionally protected activity is not included within the meaning of pattern of conduct.

We find the evidence sufficient to support Cartwright's third offense stalking conviction under La. R.S. 14:40.2. Cartwright's dissemination throughout the town of his intention to arm himself with a shotgun against Sammy Byrd and false statements to the effect that that Sammy Byrd had been threatening him constituted harassment of Sammy Byrd. Upon hearing these statements from Cartwright, Attorney General Buddy Caldwell was so alarmed and concerned for Byrd's well-being that he relayed a warning to Byrd. Immediately after leaving the barbershop where Cartwright made the statements to him, Buddy Caldwell located Sheriff Larry Cox and asked that he caution Byrd. Additionally, Robert Miracle, a friend of Cartwright, testified that he felt a duty to warn Byrd after hearing Cartwright's statements. Cartwright's direct threat to Byrd in church made Byrd turn "as red as an apple," and Byrd testified that he was concerned by these threats. As mentioned, Sheriff Cox was an eyewitness to Byrd's physical reaction. Cartwright's harassment of Byrd was intentional, repeated, and would cause a reasonable person to feel alarmed or suffer emotional distress. Accordingly, we hold that the evidence was sufficient to support Cartwright's conviction of third offense stalking.

Other crimes evidence

The State provided the defendant with Prieur notice regarding the prior convictions evidence in advance of trial. Defense counsel stipulated to the fact of the prior stalking convictions without reserving an objection to the use of the prior convictions for La. C.E. art. 404(B) (" article 404(B)") purposes. Thereupon, defense counsel indicated that the only remaining Prieur matter was a different instance of Cartwright's prior conduct, which the trial judge ruled inadmissible.

Cartwright's two prior stalking convictions were mentioned in the direct examination of all or nearly all of the state's nine witnesses. However, the details of those offenses (other than the dates) were not disclosed to the jury through this testimony. Defense counsel did make an objection to the mention of the prior convictions on the grounds of "improper character evidence." However, this was done only after failing to object to the first nine (or more) times that the prior convictions were mentioned throughout the trial. Similarly, defense counsel did not request special limiting instructions at any point when the prior convictions were mentioned, and the trial judge gave no such instructions. The final jury charge did include a limiting instruction regarding the prior convictions.

Prior stalking convictions are essential elements of third offense stalking. Defense counsel cites State v. Montgomery , 250 La. 326, 195 So.2d 285 (La. 1967), as support for the proposition that Cartwright's prior stalking convictions were not essential elements of the instant charge of third offense stalking, but instead, became elements to be proved at sentencing. Montgomery does not support that proposition. Rather, Montgomery requires that prior offenses must be alleged with some particularity in the charging instrument when the penal statute under which a defendant is charged enhances punishment based on those prior offenses.

Contrary to his argument, Cartwright's prior stalking convictions were essential elements of the charge of stalking, third offense, under La. R. S. 14:40.2. In State v. Ball , 99-0428 (La. 11/30/99), 756 So.2d 275, 279, the defendant was charged with possession of a firearm by a convicted felon, and the Louisiana Supreme Court stated that "telling the jury [that] the defendant is a prior felon ... is absolutely essential ... and must be covered either by the State's proof or by defendant's stipulation." Ball controls in this case. Cartwright's prior stalking convictions were essential elements of the charge of third offense stalking and had to be established at the guilt phase of the trial. This argument is without merit.

Stipulation to prior convictions. Cartwright further argues that because he stipulated to the two prior stalking convictions, the State was precluded from introducing evidence on that point. This assertion is directly contrary to the Louisiana Supreme Court's jurisprudence. Ball , supra, held that, in a prosecution for possession of a firearm by convicted felon, the State could introduce evidence of the name and nature of the defendant's prior conviction even though the defendant had offered to stipulate that he had been convicted of a prior felony. That holding controls in this case.

Admissibility of prior convictions vis-à-vis article 404(B). Defense counsel argues, in effect, that the State used the prior stalking convictions to show Cartwright's "pattern of conduct" under article 404(B), and the prior convictions were not admissible for that purpose. We note that defense counsel reserved no objection in stipulating to the prior convictions at the Prieur hearing. In fact, after making the unqualified stipulation, he indicated to the trial judge that no Prieur proceedings needed to be had in regard to the prior convictions. Most importantly, he allowed the state to mention the prior convictions at least nine times throughout the trial before he finally objected. It is well settled that the failure to timely urge an objection to the introduction of inadmissible prior crimes evidence waives that objection.

In State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 102, the Louisiana Supreme Court held that the "introduction of inadmissible other crimes evidence results in a trial error." We further note that "review of criminal trial errors on appeal has long been governed by the contemporaneous objection rule found in La. C. Cr. P. art. 841." State v. Cummings, 46,038 (La. App. 2 Cir. 1/26/11), 57 So.3d 499, 507, writ denied , 2011-0341 (La. 6/17/11), 63 So.3d 1037, citing State v. Thomas , 27,507 (La. App. 2 Cir. 12/6/95), 665 So.2d 629, writ denied , 96-0119 (La. 4/8/96), 671 So.2d 333. In relevant part, La. C. Cr. P. art. 841(A) states: "an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence." His repeated failure to timely object to the State's first nine (or more) references, in its case in chief, to Cartwright's prior convictions, resulted in the defendant's waiving of any objection he had to the admissibility of the fact of those convictions as relates to any La. C. Cr. P. art. 404(B) considerations.

Additionally, we find that, even assuming there was an error in allowing the state to reference the prior convictions at least nine times, such was a harmless error. Because Cartwright stipulated to the prior convictions, the jury was inevitably going to be instructed that they were to regard the prior stalking convictions as conclusively proven. With these facts in mind, we find that the verdict was surely not attributable to the state's multiple references to the prior convictions during direct examination of its witnesses.

Limiting instructions. We initially note that the trial court gave a limiting instruction regarding Cartwright's prior convictions in the final jury charge, but gave no such (special) limiting instructions during the presentation of evidence. The defense suggests this was reversible error. We disagree.

Relying on State v. Green, 493 So.2d 588 (La. 1986), the defendant argues that the mention of his prior stalking convictions to the jury, without contemporaneous limiting instructions, violated his due process rights. In Green, the defendant was convicted by a jury of third offense theft. The two previous theft convictions were alleged in the indictment. Id. The defendant objected "to the reading of the allegations of previous crimes in the indictment to the jury," but the trial court overruled that objection. Thereupon, the defendant in Green stipulated that he was convicted of the previous thefts as alleged in the indictment, but reserved his right to maintain the objection on appeal. Afterward, the stipulation was read to the jury. However, the defendant did not request a limiting instruction or object to the trial court's failure to give one. Nonetheless, the Louisiana Supreme Court held that the trial court's failure to give a limiting instruction regarding the previous convictions was a violation of due process and therefore a reversible error. Id.

Green's holding that failure to give a limiting instruction in connection with evidence of prior convictions per se requires reversal has been overruled. In Johnson, supra, the Louisiana Supreme Court held that the "introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis. Insofar as State v. Brown, supra , and other cases have held that the admission of inadmissible other crimes evidence is per se prejudicial and not subject to harmless error review, they are overruled." Johnson explained the distinction between "trial errors" and "structural errors":

Trial error occurs during the presentation of the case to the trier of fact and may be quantitatively assessed in the context of the other evidence to determine whether its admission at trial is harmless beyond a reasonable doubt. A structural error is one which affects the framework within which the trial proceeds. Structural defects include the complete denial of counsel, adjudication by a biased judge; exclusion of members of defendant's race from a grand jury; the right to self-representation at trial; the right to a public trial; and the right to a jury verdict of guilt beyond a reasonable doubt.

Id. at 100-101. (Internal citations omitted).

Because the admission of inadmissible prior crimes evidence is a trial error rather than a structural error, the failure to give a limiting instruction regarding prior crimes evidence is also a trial error and thus subject to harmless error review. It does not result in automatic reversal. Furthermore, "[a] party may not assign as error the...failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error."

La. C. Cr. P. Art. 801(C). Failure to make a timely objection to a trial error constitutes a waiver of that objection, and "a defendant is limited to the grounds for objection articulated at trial." State v. Colby, 51, 907 (La. App. 2 Cir. 5/30/18), 2018 WL 2423079, 244 So. 3d 1260.

Cartwright's counsel failed to request any special limiting instruction regarding the prior crimes evidence. Accordingly, Cartwright's entitlement to a limiting instruction was thereby waived, and this assignment of error is without merit.

Pro se assignments of error

Cartwright makes numerous claims of ineffective assistance of counsel, which primarily involve counsel's not subpoenaing witnesses and not allowing Cartwright to testify. Cartwright also alleges misconduct or bias by the trial judge, tampering with the transcript of the preliminary hearing, and "jury stacking" by the clerk of court. The defense did not file a motion to recuse the trial judge, nor any motions related to alleged tampering with the transcript of the preliminary hearing or the alleged "jury stacking" by the clerk of court.

A claim for ineffective assistance of counsel is more properly raised in an application for post-conviction relief. This forum enables the judge to conduct, if necessary, a full evidentiary hearing on the matter. State v. Carter , 2010-0614 (La. 1/24/12), 84 So.3d 499.

We decline to address Cartwright's ineffective assistance of counsel claims. The record does not contain sufficient evidence to allow us to adjudicate them. He may raise them via an application for post-conviction relief ("PCR") in the District Court in accordance with law. The record is inadequate to for us to address Cartwright's other contentions as well, and we accordingly decline to do so. Cartwright may pursue these claims via PCR application to the extent allowed by law.

CONCLUSION

John Cartwright's conviction and sentence for third offense stalking are AFFIRMED.

      In the letters, Cartwright also made numerous allegations of major crimes, conspiracies, and corruption committed by state and local law enforcement as well as other government officials. These included a Sheriff in Louisiana being a "dope pusher"; multiple child molestations being covered up on orders of a former Louisiana governor; a prostitute in Tallulah spreading AIDS to many prominent figures of that town, and the whole matter being covered up; certain members of local law enforcement bartering pain pills "in return for sex"; another law enforcement officer being caught breaking into houses and stealing gas from school buses; that Cartwright was illegally jailed so his brother and a person referred to as "Cootie" could knock down walls in Cartwright's house and steal things hidden there; and that the Sheriff's Department stole over $9000 from behind the board in Cartwright's closet.
      Additionally, Cartwright alleged massive child pornography conspiracies in Europe, and that the governments of those countries were profiting from these activities. Cartwright suggested "the Sheriff in Arizona to send deputies to Denmark and other European countries involved and talk to the police departments there and plead with them to do something."

      In finding Cartwright guilty, the jury implicitly credited Byrd's testimony that he had not threatened Cartwright, and implicitly rejected Cartwright's accusations against Byrd.

      Exhibit S-1 includes the court minutes from Cartwright's September 9, 2010, stalking conviction; those minutes additionally disclose the name of the victim, and the conditions of Cartwright's related supervised probation. Exhibit S-1 was admitted without objection.

      Johnson further indicated that the introduction of inadmissible other crimes evidence is subject to harmless error analysis.

      Specifically, the trial judge stated: "[r]emember, the accused is only on trial for the offense charged. You may not find him guilty of this offense which is Stalking, Third Offense solely because he was convicted of two previous charges of stalking."