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Date: 05-21-2016
Case Style: State of Louisiana v. Lorenzo Carthal Hampton
Case Number: 50,561-KA
Judge: D. Milton Moore III
Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: JERRY L. JONES, District Attorney; MICHELLE A. THOMPSON, MICHAEL J. FONTENOT; Assistant District Attorneys
Defendant's Attorney: Peggy J. Sullivan
Description: The charges against Hampton arose from a high-speed automobile
chase on the streets of West Monroe, Louisiana, on the evening of January
22, 2014. Responding to a “BOLO” issued by the Ouachita Parish 1
Sheriff’s Office minutes earlier for a white, Ford Escape, Sergeant Todd
Cummings testified that the vehicle was a Honda Town and Country; however, the photographs in evidence of the vehicle indicate it was a Hyundai Tuscan.
The record refers to the passenger in the vehicle as both “Daniel O’Neil” and “Daniel3 Owens.” Our review of the record suggests that “O’Neil” and “Owens” refer to the same person.
3
Cummings, a Louisiana State Trooper, sighted a compact, white SUV
traveling eastbound on Highway 34 that he believed could be the BOLO
vehicle. He began following the vehicle, which immediately turned right 2
onto Wheelis Street. Cummings followed the SUV on Wheelis Street, and
the suspect vehicle rapidly accelerated. Cummings believed this was an
attempt to evade him, so he engaged his lights and siren, which
automatically activated the unit’s dashboard camera. The suspect vehicle
did not stop.
In the chase that ensued, Sgt. Cummings testified that he reached
speeds of 70 mph on Wheelis Street, which had a speed limit of 25 mph.
These facts were verified by the dashboard camera, which also confirmed
Cummings’ testimony that the driver ran several stop signs. Wheelis Street
merges into Montgomery Avenue. After the driver turned onto
Montgomery Avenue, he pulled his vehicle into the driveway at 305
Montgomery. He jumped out of the vehicle and fled on foot. Sgt.
Cummings stopped his police unit and chased the driver on foot. He twice
fired his “Taser” at the suspect, but missed. The suspect jumped over a
chain link fence and fled away, escaping capture.
Sgt. Cummings returned to the suspect’s vehicle where he discovered
a passenger in the front passenger seat. The passenger identified himself as
Daniel Owens or Daniel O’Neil (“Daniel”), and he told Sgt. Cummings that 3
4
the car belonged to his mother’s friend. Daniel did not identify the driver.
Sgt. Cummings released Daniel after issuing him a summons for possession
of a marijuana cigarette.
Later in the evening, Amber Robinson, age 22, was watching TV at
her mother’s house located at 100 Prune Street in West Monroe when she
received a phone call from a friend who wanted to go out. Amber left the
house and went to her car which was parked at the corner of Prune Street
and Phillips Street. When she opened her car door, she discovered a man in
the back seat of the car. She screamed and claimed that she saw a “silver
flash” that she believed to be a handgun. The man whom she later
identified as Hampton told her to stop screaming. Amber said she did not
run from her car because she thought Hampton was armed, and she feared
for her two-year-old daughter, who was in the front room of her mother’s
unlocked house.
Amber testified that Hampton told her that he needed to get away
because he was running from the police. He told her to drive him to
Robinson Place, a residential area in Monroe. Amber testified that Hampton
instructed her to take a certain route; however, she took a different route,
purposely driving at an excessive speed in order to pass a police station near
E.A. Conway Hospital. After passing the hospital and police station
without incident, she stopped near an open field on Conrad Street and let
Hampton out of her car. Hampton ran away, and she went to a friend’s
house near Robinson Place and contacted her mother.
After speaking with her mother, Amber returned to her mother’s
5
house and called the police. Shortly thereafter, West Monroe police,
including Det. Ray Spoon, arrived at 100 Prune Street to interview Amber.
After interviewing Amber, the West Monroe Police Department got in
contact with Sgt. Cummings, and together they determined that the driver
who ran from Sgt. Cummings after a vehicle pursuit was likely the same
person who hid in Robinson’s car and forced her to drive him to Robinson
Place in Monroe.
Sgt. Cummings interviewed Daniel again, at which time Daniel
identified Lorenzo Hampton as the driver of the white SUV. He also told
Cummings that Hampton was likely at the home of his girlfriend, who lived
at 1106 Milliken Street in Robinson Place in Monroe.
Sgt. Cummings, Det. Spoon and West Monroe Police Sergeant
Tommy Jones went to 1106 Milliken Street in the early morning hours of
January 23, 2014. They found Hampton there and arrested him. They
obtained permission to search 1106 Milliken Street, and found a pair of
ripped blue jeans in the trash can. No handgun or weapon was found.
While en route to the West Monroe Police Department, Hampton told
Sgt. Cummings that, earlier in the evening, he was driving the white SUV,
and he jumped out of the vehicle and ran. In a subsequent interview, he said
he fled from Sgt. Cummings because he was driving without a license and
had a record in Mississippi. Hampton said that he ripped his jeans when he
ran away from Sgt. Cummings and jumped over the fence. Hampton also
admitted that, after running from Sgt. Cummings, he hid in an unlocked car
on Phillips Street. Hampton said that Amber Robinson did scream when she
6
saw him in the back seat of her car, but agreed to take him to Robinson
Place when he told her that he was running from the police and would pay
her $20 to take him there. He denied having a silver handgun or any
weapon, and denied threatening Robinson in any way. He said that he and
Amber stopped at the A-1 Convenience Store, where Hampton purchased a
Sprite while Amber waited for him in the car. Hampton stated that Amber
drove him directly to 1106 Milliken Street, and he paid her the $20.
On March 14, 2014, Hampton was charged by grand jury indictment
with one count of aggravated kidnapping, pursuant to La. R.S. 14:44. The
indictment bill was subsequently amended charging Hampton with one
count of second-degree kidnapping, pursuant to La. R.S. 14:44.1, and one
count of aggravated flight from an officer, pursuant to La. R.S. 14:108.1(C).
Hampton was tried by a 12-person jury on August 19 and 20, 2014.
During jury selection, Hampton’s counsel raised a challenge for cause to
juror number 96, David Law. After questioning Mr. Law, the court was
satisfied that Mr. Law could render a fair and impartial verdict based on the
evidence. The court denied the challenge for cause, and defense counsel
used one of Hampton’s peremptory challenges to dismiss Mr. Law.
Ultimately, defense counsel used all of Hampton’s peremptory challenges.
The jury unanimously acquitted Hampton of second degree
kidnapping, but unanimously found Hampton guilty of aggravated flight
from an officer. The court ordered a presentence investigation (“PSI”) and
set the sentencing date. Subsequently, Hampton was sentenced to two
years’ imprisonment at hard labor without the benefit of parole, probation or
The offenses included the following:4
· 3/11/1996, Mississippi: possession of Schedule II CDS · 5/30/1996, Tennessee: larceny of under $500 · 12/6/1998, Mississippi: driving with expired license · 1/31/2001, Mississippi: various traffic violations, breach of the peace · 5/31/2001, Mississippi: possession of Schedule II CDS* · 9/2/2001, Mississippi: various traffic violations, including driving while under the influence · 9/16/2001, Mississippi: various traffic violations, including reckless driving · 5/15/2002, Mississippi: various traffic offenses, including driving while under the influence · 7/14/2003, Mississippi: burglary, escape from jail* · 6/22/2004, Mississippi: manufacture/sale of Schedule II CDS, possession of marijuana, and evading arrest · 3/15/2005, Mississippi: contempt of court, manufacture/sale of schedule II substance* · 3/6/2007, Mississippi: possession of Schedule I CDS while incarcerated* · 1/23/2014, Louisiana: second degree kidnapping, aggravated flight from officer · 8/20/2014, Louisiana: public bribery, criminal conspiracy 7
suspension of sentence and was ordered to pay a fine of $2,000 or—if in
default of payment—to serve 200 days in prison, concurrently with his
two-year sentence. In support of the sentence, Judge Leehy discussed the
findings of the PSI, including Hampton’s criminal and social histories.
Hampton’s PSI revealed a fairly lengthy criminal history. 4
The court considered the factors outlined in La. C. Cr. P. art. 894.1,
and focused particularly on La. C. Cr. P. art. 894.1(B)(5), explaining that
Hampton drove recklessly through residential areas during his flight from
Sgt. Cummings, which put Cummings, Hampton’s passenger and other
motorists on the road at risk of death or great bodily harm. The court said it
could “find no mitigating factors that would weigh in favor of Mr.
Hampton.”
Relevant to this appeal, at the conclusion of sentencing, the state
requested leave to consider filing a habitual offender bill of information.
The trial court set a hearing date of November 6, 2014. The court then
informed Hampton regarding his appointed counsel that “if the state decides
8
to file a habitual offender proceeding, Mr. Sanson is still on the hook for
that. He represents you in that matter . . . .
At the November 6, 2014, hearing, the state informed Hampton that it
intended to file a habitual bill of information. Hampton requested that the
trial court appoint an attorney to represent him through the habitual offender
adjudication.
On January 27, 2015, attorney Jay Nolen was appointed to serve as
Hampton’s counsel for the habitual offender hearing and subsequent
adjudication.
On February 10, 2015, the state filed a habitual offender bill of
information, alleging that Hampton was a fifth-felony offender. Hampton
waived arraignment, and the trial court set the date of the habitual offender
hearing for March 17, 2015, which was subsequently continued to May 12,
2015.
On May 12, 2015, immediately prior to the commencement of the
hearing on the habitual offender bill, Hampton and attorney Nolen made an
oral motion for continuance. According to Nolen, Hampton informed him
about a week prior to May 12, 2015, that he wished to retain private counsel
and that Hampton’s mother and sister would provide the funds for the
retainer. Attorney Nolen stated that he had reason to believe that
Hampton’s mother and sister did, in fact, have the funds available, based on
the fact that they paid for private counsel for Hampton’s trial. The state
objected to Hampton’s motion.
9
The trial court denied the motion, stating that Hampton had been
aware of the habitual offender bill of information for more than three
months, and this was the first time that the trial court had heard anything
about Hampton’s desire to retain private counsel. In response, attorney
Nolen noted his objection to the trial court’s ruling, and argued that denying
Hampton his right to retain private counsel was reversible error and urged
the trial court to reconsider.
The habitual offender hearing was held as scheduled, and Hampton
was adjudicated a fifth-felony offender. The court sentenced Hampton to 30
years’ imprisonment at hard labor without benefit of parole, probation or
suspension of sentence.
This appeal followed.
DISCUSSION
By his first assignment of error, Hampton alleges that the trial court
improperly denied his challenge for cause against selection of prospective
juror David Law. Hampton alleges that the denial of this for-cause
challenge is reversible error under Louisiana law because he was forced to
use one of his twelve peremptory challenges to excuse Law, and he used all
twelve peremptory challenges during jury selection.
Our review of the voir dire transcript reveals that the prosecutor
asked a group of prospective jurors if there were any questions that he failed
to ask and which either he or the defendant might want to know the answer
to or which might render the prospective juror not “the best juror to be
selected on the case.” Mr. Law spoke up that he had previous police
10
experience, namely, that he was employed for five years as a deputy for the
Ouachita Parish Sheriff’s Office. He said he did not know if this fact made
him unfair or “un-impartial.”
Subsequently, Hampton’s counsel, Mr. Sanson, asked Mr. Law if the
prosecutor failed to prove one of the elements of the crimes, “could [he] . . .
find him not guilty without any problem at all?” Mr. Law said he agreed
with all that. Mr. Sanson then posed the following hypothetical to Mr. Law:
“If you had to render a verdict right now, what would it be?”
Mr. Law responded: “Right now? . . . I would say he’s guilty.” He
explained that the reason for his answer was likely due to his past
experience in law enforcement.
Mr. Law acknowledged that, as yet, there had been no witnesses
against Hampton. However, given this fact, when Mr. Sanson again asked
what his verdict would be, he responded, “I don’t know.”
After the jurors were removed from the courtroom, Mr. Sanson made
a for-cause challenge against seating Mr. Law on the jury on grounds that he
would not follow the presumption of innocence. However, the court was
not convinced that Mr. Law would not follow the law if properly instructed.
Before ruling on the challenge, Mr. Law was brought into the courtroom for
further questioning:
COURT: Mr. Law, you can have a seat right here. Mr. Law, earlier when the lawyers were discussing or questioning you, you indicated to the Court or to Mr. Sanson, I believe he was questioning you that if you had to vote right now you’d vote guilty. Is that correct?
LAW: I said that, yes.
11
COURT: Alright. Now, if I explain to you and you may have already picked this up, but the Defendant is presumed to be innocent. The State bears the burden of proof. Could you follow that law? Do you agree with that law first off?
LAW: I do agree with that law.
COURT: It’s actually two. The presumption of innocence.
LAW: That’s correct.
COURT: And the State’s burden.
LAW: That’s correct.
COURT: These are constitutional concepts.
LAW: Yes, I agree with that.
COURT: It’s more than just-this is the very foundation of the law.
LAW: That’s correct.
COURT: Now, if I instructed you that the State does bear the burden of proof and the Defendant is presumed to be innocent, does that change your answer to that question? Right now if you had to vote, guilty or not guilty? Would your answer be?
LAW: It would be not guilty.
COURT: Would have to be not guilty.
LAW: Yes.
COURT: And that’s because you haven’t heard any evidence?
LAW: That’s correct.
COURT: Um, now, when you were questioned earlier that was not your response. Is it maybe because now you’ve thought about it and maybe you understand the question more precisely?
LAW: That’s correct.
COURT: Okay. You don’t know anything about this case?
12
LAW: No, I do not.
COURT: You have not formed an opinion about the Defendant’s guilt or innocence have you?
LAW: That’s correct.
COURT: Could you be fair and impartial to both the Defendant and the State in this case?
LAW: I would hope so. Yes Sir.
COURT: Alright. Questions Mr. Fontenot?
PROSECUTOR: Mr. Law, could you return a not guilty verdict if the case isn’t proven?
LAW: Yes.
COURT: Mr. Sanson, any questions?
DEFENSE COUNSEL: No questions.
COURT: Alright. You may step down. Thank you, Mr. Law.
REPORTER’S NOTE: Mr. Law returned to the jury room.
DEFENSE COUNSEL: He was still hesitant, your Honor.
COURT: He did answer the question appropriately. The questions appropriately. So I’m going to deny the motion, challenge for cause as it relates to Mr. Law.
Although defense counsel did not lodge an objection to the ruling and
articulate the grounds for the objection, Hampton now argues on appeal that
the trial court’s questions and instructions about the state’s burden of proof
in the above exchange allowed Law to state “what the court wanted to
hear.” Presumably, Hampton is arguing that the court’s questions or manner
of questioning “coached” or implicitly guided Law’s responses. He
maintains that the court’s denial of the for-cause challenge was reversible
error because he had to use one of his twelve peremptory challenges to
13
excuse Law, and he used all of his peremptory challenges during jury
selection.
The Louisiana Constitution, Art. I, § 17(A) guarantees a defendant
the “right to full voir dire examination of prospective jurors and to
challenge jurors peremptorily.” Both the defendant and the state are given
twelve peremptory challenges in trials of offenses punishable by death or
necessarily by imprisonment at hard labor. La. C. Cr. P. art. 799.
In addition to his constitutionally guaranteed peremptory challenges,
a defendant may challenge a juror for cause on several grounds, including
that “the juror is not impartial, whatever the cause of partiality,” or “the
juror will not accept the law as given to him by the court.” La. C. Cr. P. art.
797. On the other hand, the statute further states:
An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.
La. C. Cr. P. art. 797(2).
A trial court is vested with broad discretion in ruling on challenges
for cause and its rulings will be reversed only when a review of the voir dire
record as a whole reveals an abuse of discretion. State v. Tucker,
2013-1631 (La. 9/1/15), 181 So. 3d 590; State v. Cross, 93–1189 (La.
6/30/95), 658 So. 2d 683. A court’s evaluation of the attributes required to
qualify a prospective juror is entitled to great weight. Accordingly, his
exercise of the wide discretion that determination requires will not be set
aside unless it is arbitrary and unreasonable. State v. Webb, 364 So. 2d 984
14
(La. 1978).
A defendant may not assign as error a court’s refusal to sustain a
challenge for cause made by him, unless he makes an objection at the time
of the ruling that states the nature of the objection and grounds therefor. La.
C. Cr. P. art. 800 (A). Accordingly, in a challenge for cause, the
challenging party has the burden of showing that a prospective juror should
be excluded based on one or more of the grounds in La. C. Cr. P. art. 797.
State v. White, 535 So. 2d 929 (La. App. 2 Cir. 1988), writ denied, 537 So.
2d 1161 (La. 1989).
When a defendant must utilize a peremptory challenge to correct an
error in denying a challenge for cause and thereafter exercises all available
peremptory challenges on other prospective jurors, a substantial right of the
defendant, guaranteed by the Louisiana Constitution, is affected. See State
v. Monroe, 366 So. 2d 1345 (La. 1978). In such instances, prejudice is
presumed and automatic reversal of the conviction results. State v.
Campbell, 06–0286 (La. 5/21/08), 983 So. 2d 810, citing State v. Robertson,
92–2660 (La. 1/14/94), 630 So. 2d 1278, and State v. Ross, 623 So. 2d 643
(La. 1993). To warrant a reversal of a conviction and sentence, the
defendant need only show: (1) the district court erred in refusing to sustain a
challenge for cause; and, (2) the defendant exhausted all of his peremptory
challenges. State v. Mickelson, 2012-2539 (La. 9/3/14), 149 So. 3d 178; see
also La. C. Cr. P. art. 800.
On the other hand, a trial court’s refusal to disqualify a prospective
juror is not an abuse of discretion or a reversible error if the perceived bias
15
or impartiality of the prospective juror is properly remedied through
rehabilitation. State v. Mickelson, supra; State v. Howard, 98–0064 (La.
4/23/99), 751 So. 2d 783. A prospective juror can be rehabilitated if the
court is satisfied that the juror can render an impartial verdict according to
the evidence and instructions given by the court. State v. Broadway, 440
So. 2d 828 (La. App. 2 Cir. 1983). Thus, even if a potential juror initially
expressed doubt as to the accused’s innocence, he can serve as a competent
juror if upon further questioning he demonstrates an ability to set aside such
doubt and follow the law. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.
2d 382 (citing State v. David, 425 So. 2d 1241, 1246 (La. 1983)).
However, “even when a prospective juror declares his ability to remain
impartial, if the juror’s responses as a whole reveal facts from which bias,
prejudice or inability to render judgment according to law may be
reasonably [inferred],” the juror must be disqualified. State v. Tucker, supra
at 617 (quoting State v. Jones, 474 So. 2d 919, 929 (La. 1985)).
A potential juror who is associated with law enforcement duties must
be closely scrutinized and may justify a challenge for cause; however, such
association is not an automatic disqualification. State v. McIntyre, 365 So.
2d 1348 (La. 1978). A prospective juror’s association with law enforcement
is grounds for disqualification only if one might reasonably conclude that it
would influence him in arriving at a verdict. State v. Rhodes, 97-1993 (La.
App. 4 Cir. 11/18/98), 722 So. 2d 1078. The court in Rhodes noted that
Louisiana courts have generally disqualified persons who are currently
actively associated with law enforcement. Id. at 1080. Conversely,
16
Louisiana courts have generally held that there is no abuse of discretion in
denying a challenge for cause where “a juror’s association with law
enforcement has ended by the time of trial, he has no personal knowledge of
the case at hand, and he states that he can be impartial despite the prior law
enforcement background.” State v. White, 535 So. 2d 929 (La. App. 2 Cir.
1988), writ denied, 537 So. 2d 1161 (La. 1989).
Counsel for Hampton did not specifically object to the court’s denial
of his challenge of Mr. Law, although it is clear from the transcript he did
not agree with the court’s ruling. However, even if we assume that
Hampton’s counsel properly raised an objection to the ruling, we conclude,
for the following reasons, that the trial court did not abuse its discretion in
denying the for-cause challenge as to Mr. Law.
Mr. Law initially stated that he agreed with defense counsel’s
question that if the prosecutor failed to prove one of the elements of the
crime, he could find him not guilty without any problem. After this
question, defense posed a hypothetical requiring Mr. Law to decide now,
before any evidence was adduced, on a verdict. Defense counsel asked, “If
you had to render a verdict now, what would it be?” Mr. Law responded
that “Right now, I would say he’s guilty.” He explained that his opinion
was probably due to his past law enforcement experience.
The second question by defense counsel can be construed without
strain as posing a hypothetical which demands a commitment or
prejudgment from a prospective juror. It is settled law regarding voir dire
that “a party interviewing a prospective juror may not ask a question or pose
17
a hypothetical which would demand a commitment or prejudgment from the
juror or which would pry into the juror’s opinions about issues to be
resolved in the case. State v. White, 39,745 (La. App. 2 Cir. 6/29/05), 907
So. 2d 228, 231 (citing State v. Thibodeaux, 98–1673 (La. 9/8/99), 750 So.
2d 916). However, voir dire examination which goes to the determination
of the qualifications of prospective jurors by testing their competency and
impartiality is proper. State v. Stacy, 96-0221 (La. 10/15/96), 680 So. 2d
1175. In this instance, the first question clearly tested Mr. Law’s
impartiality; however, the second question called for a prejudgment as to the
defendant’s guilt. We disagree with defense counsel’s contention that the
question merely tested Mr. Law’s acceptance of the “presumption of
innocence.” Mr. Law’s answer to the first question resolved this issue.
Assuming, arguendo, that the question was not inappropriate, we also
determine that the trial court rehabilitated Mr. Law and did not abuse its
discretion by denying counsel’s challenge for cause. Specifically, the court
explained to Mr. Law the presumption of innocence and the burden of
proof. Mr. Law indicated that he understood and agreed with the law.
When the court asked him if he would be able to find a defendant not guilty
if the state failed to meet its burden of proof, Mr. Law answered
affirmatively. Although he was previously involved in law enforcement, his
responses to the court’s questions indicated his ability to be impartial as
required by State v. McIntyre, supra.
Accordingly, we find no abuse of discretion in the judgment of the
trial court. This assignment is without merit.
18
By his second assignment of error, Hampton contends that the trial
court erred when it denied his request for a continuance on the day of the
habitual offender hearing in order to permit Hampton to retain private
counsel. According to Hampton, the trial court incorrectly stated that
Hampton had been on “notice” of the habitual offender charge against him
since November 2014. In contrast, Hampton argues that, although the state
told Hampton it intended to file a habitual offender bill in November of
2014, Hampton did not learn of the contents of that charge until February of
2015. Hampton alleges that the time period from February to May of 2015
is not so significant of a time lapse as to deny Hampton’s assertion of his
right to the counsel of his choosing. Furthermore, Hampton suggests that
the credibility of Hampton’s request to retain private counsel was bolstered
by Hampton’s mother and sister’s funding of private counsel during
Hampton’s jury trial. Hampton argues that a continuance would not have
prejudiced the state, and that the trial court should have allowed for the
continuance.
The motion for continuance was made orally on the day of the
habitual offender hearing. No written motion for continuance was filed as
required by La. C. Cr. P. art. 707 except in “extenuating circumstances”
sufficient to overcome the requirement. State v. Bullard, 29,662 (La. App. 2
Cir. 9/24/97), 700 So. 2d 1051. The timing of Hampton’s motion on the day
that the habitual offender adjudication was to commence is analogous to
requesting new or different counsel on the day of trial.
19
An accused has the right to counsel of his own choosing to defend
him on a criminal charge. U.S. Const. Amend. 6; La. Const. art. 1 § 13. A
defendant has the constitutional right to the assistance of counsel at a
habitual offender proceeding. Chewning v. Cunningham, 368 U.S. 443, 82
S. Ct. 498, 7 L. Ed. 2d 442 (1962). The right to choose one’s own attorney
is a right that must be exercised at a reasonable time at the appropriate stage
in the proceedings within the framework of the criminal justice system.
State v. Leggett, 363 So. 2d 434 (La. 1978). A request for new or privately
retained counsel during criminal proceedings may be done via a motion for
continuance. La. C. Cr. P. art. 707; State v. Leggett, supra.
A motion for a continuance shall be in writing and shall allege
specifically the grounds upon which it is based and, when made by a
defendant, must be verified by his affidavit or that of his counsel. It shall be
filed at least seven days prior to the commencement of trial. La. C. Cr. P.
art. 707. Upon written motion at any time and after contradictory hearing,
the court may grant a continuance, but only upon a showing that such
motion is in the interest of justice. However, under extenuating
circumstances, an oral motion for continuance may be sufficient. State v.
Bullard, supra.
La. C. Cr. P. art. 712 “commits a motion for continuance to the sound
discretion of the trial judge, and his ruling will not be disturbed on appeal
absent a showing of abuse [of discretion] and specific prejudice.” State v.
Burns, 32,904 (La. App. 2 Cir. 2/1/00), 750 So. 2d 505; State v. Gipson,
28,113 (La. App. 2 Cir. 6/26/96), 677 So. 2d 544, writ denied, 96-2303 (La.
20
1/31/97), 687 So. 2d 402).
There is no constitutional right to make a new choice of counsel on
the very day the trial is to begin, with the attendant necessity of a
continuance and its disrupting implications to the orderly trial of cases.
State v. Leggett, supra (citing State v. Cousin, 307 So. 2d 326 (La. 1975);
and State v. St. Amand, 274 So. 2d 179 (La. 1973).
In this case, our review indicates that Hampton knew that he was
going to be charged with a habitual offender bill of information in
November 2014. Also in November 2014, Hampton expressly asserted his
preference for appointed counsel. On February 10, 2015, he was informed
of the precise allegations contained in the habitual offender bill of
information. Thus, Hampton had six months from the time he learned that
the state was going to file a habitual offender bill, and nearly three months
from the time the state filed the habitual offender bill of information, to
request or retain private counsel before the scheduled May 12, 2015
hearing. Even though the trial court denied Hampton’s motion for a
continuance of the habitual offender adjudication, the judge told Hampton
he had the opportunity to retain private counsel to represent him during
Hampton’s habitual offender sentencing. Hampton’s explanation of the
delay in requesting private counsel—his eleventh-hour decision to take the
habitual offender proceeding “seriously”—is not part of the trial court’s
calculus in ruling on a motion for continuance to allow defendant to retain
private counsel, especially on the day of the habitual offender adjudication.
The court initially considered these factors in detail while sentencing Hampton for the5 offense of aggravated flight from an officer and referred to those considerations while sentencing Hampton pursuant to the habitual offender sentencing proceeding. 21
We find no abuse of discretion by the trial court denying the motion
for a continuance. This assignment is without merit.
By his third assignment of error, Hampton argues that the trial court
erred by imposing a constitutionally excessive sentence of 30 years at hard
labor. Notwithstanding the sentencing court’s consideration of a PSI and
the aggravating and mitigating circumstances as required by La. C. Cr. P.
art. 894.1, he argues that the court impermissibly substituted its own
judgment for that of the jury and punished Hampton for the second degree
kidnapping offense of which he was acquitted. According to Hampton, the
trial court used the habitual offender proceeding to “effectively impose a
punishment for an offense that resulted in an acquittal.” Hampton also
argues that the trial court’s imposition of a 30-year sentence was not tailored
to the facts of the crime of conviction because the trial court relied on facts
of the second degree kidnapping charge of which Hampton was acquitted.
Our review of the sentencing transcript reveals that the trial court
adequately considered the factors outlined in La. C. Cr. P. art. 894.1. The 5
court also noted that the defendant was acquitted of the crime of second
degree kidnapping. Referring to that offense, the court stated:
[A]lthough the court is not punishing him for that but is considering that in sentencing, in that the court believes that, at the very least, the burden was met as to the civil standard of preponderance of the evidence; probably higher than that. The jury didn’t find the defendant guilty but the court has considered that there was strong evidence to believe that he did, in fact, commit second degree kidnapping.
22
The court then stated that after considering the totality of the record,
including the defendant’s criminal record, including now five felony
convictions, the appropriate sentence for Hampton was 30 years at hard
labor without parole, probation or suspension of sentence.
We consider first Hampton’s complaint that the sentencing court
punished Hampton for the offense for which he was acquitted by the jury,
namely, second degree kidnapping.
For purposes of sentencing, a trial judge is not limited to considering
only a defendant’s prior convictions. State v. Bright, 39,003 (La. App. 2
Cir. 10/27/04), 886 So. 2d 1183. The sources of information relied upon are
varied and may include information not normally admissible at trial, such as
hearsay, prior arrests without disposition and suspicions of criminal activity
without actual proof the defendant committed other offenses. State v. Platt,
43,708 (La. App. 2 Cir. 12/3/08), 998 So. 2d 864, writ denied, 2009-0265
(La. 11/6/09), 21 So. 3d 305; State v. Harris, 39,975 (La. App. 2 Cir.
9/21/05), 911 So. 2d 361. “A trial judge may properly consider evidence of
other offenses in determination of sentence where there is a showing that
the defendant did in fact perpetrate the other offense.” State v. Pierson, 296
So. 2d 324 (La. 1974), abrogated on other grounds by State v. Sepulvado,
367 So. 2d 762 (La. 1979).
In United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d
554 (1997), the Supreme Court held that “a jury’s verdict of acquittal does
not prevent the sentencing court from considering conduct underlying the
acquitted charge, so long as that conduct has been proved by a
23
preponderance of the evidence.” Id. at 156-57. The Federal Fifth Circuit
confirmed that the rule in Watts remains valid law after United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
In this instance, the court expressly stated that the evidence at trial of
Hampton’s conduct related to the charge of second degree kidnaping met
the preponderance of evidence standard. The court made no secret that this
was a factor considered in its determination of an appropriate sentence, and,
as stated above, it is permissible under our law. We find no error by the
trial court in this regard.
We turn now to the question of whether the 30-year sentence is
constitutionally excessive. Appellate courts apply a two-pronged test when
reviewing a sentence for excessiveness: (1) whether the trial court
adequately considered the guidelines established in La. C. Cr. P. art. 894.1;
and (2) whether the sentence is constitutionally excessive. State v. Gardner,
46,688 (La. App. 2 Cir. 11/2/11), 77 So. 3d 1052.
A sentence can be constitutionally excessive, even when it falls
within statutory guidelines if (1) the punishment is so grossly
disproportionate to the severity of the crime that, when viewed in light of
the harm done to society, it shocks the sense of justice; or, (2) it serves no
purpose other than to needlessly inflict pain and suffering. State v. Lobato,
603 So. 2d 739 (La. 1992). See also, State v. Dorthey, 623 So. 2d 1276 (La.
1993).
Hampton was found guilty of aggravated flight from an officer, a
violation of La. R.S. 14:108. This offense carries a maximum sentence of
24
two years at hard labor and a fine up to two thousand dollars. La. R.S.
14:108(E)(1).
Subsequently, Hampton was adjudicated an habitual offender under
La. R.S. 15:529.1. Under subsection (A)(4) of this statute, a fourth felony
offender must be punished as follows:
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term of not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.
Hence, the sentencing range that the court could have sentenced
Hampton was 20 years to life imprisonment, without the benefit of
probation or suspension of sentence.
After review, we conclude that the record presents an adequate
factual basis for Hampton’s 30-year hard labor sentence: (a) Hampton fled
from police at a high rate of speed and ignoring stop signs and endangering
others; (b) Hampton jumped out of the vehicle and continued to evade
police on foot; (c) although he was acquitted of kidnapping, by his own
admission, Hampton hid in Amber Robinson’s car, told her he was running
from the police, and directed her to drive him away from West Monroe; and
(d) Hampton’s criminal history suggests a pattern of criminal activity dating
back to 1996, and spanning at least three states. Considering Hampton’s
long criminal history, the 30-year sentence neither shocks our sense of
justice, nor is the punishment disproportionate considering the number of
past offenses committed. Although several of the offenses were minor
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motorist violations, Hampton has demonstrated a continuing, flagrant
disregard for law his entire adult life.
In his final assignment, Hampton argues that the trial court erred in
imposing a sentence without benefit of parole, probation or suspension of
sentence. Hampton requests that this court strike the portion of Hampton’s
sentence that prevents him from the potential benefit of parole.
We note that the state, in response, concedes that Hampton would be
entitled to parole eligibility as part of his habitual offender status. We also
note that the issue raised by this assignment of error also constitutes error
patent.
La. R.S. 15:529.1 does not contain a prohibition against parole, but
provides that the sentences imposed in conformity with that article be given
without benefit of probation or suspension of sentence.
Accordingly, Hampton correctly argues on appeal that the trial court
erred when, after adjudicating Hampton a fifth-felony offender, it imposed
Hampton’s enhanced sentence to be served without the benefit of parole.
La. R.S. 15:529.1(G) does not require that a sentence under the habitual
offender statute be served without the benefit of parole.
Although La. R.S. 15:574.4(A)(1) states that “[a] person convicted of
a third or subsequent felony offense shall not be eligible for parole,” the
Louisiana Supreme Court has consistently held that, when a defendant is
sentenced under a statute that contains no prohibition of parole, the district
court must sentence the defendant to a term that does not include such a
prohibition because parole eligibility under La. R.S. 15:574.4 is to be
26
determined by the Department of Corrections. St. Amant v.19th Judicial
District Court, 94-0567 (La. 9/3/96), 678 So. 2d 536. Defendant’s parole
eligibility as a third or subsequent habitual offender under La. R.S. 15:574.4
is a determination for the Department of Corrections to make. Defendant’s
sentence, therefore, should be amended to delete the denial of parole
eligibility.
Other Errors Patent
Our review of the record indicates that the trial court originally
sentenced Hampton to two years at hard labor and ordered him to pay a fine
of $2,000. After adjudicating Hampton a fifth felony offender, the trial
court sentenced Hampton to 30 years’ imprisonment without the benefit of
parole, probation or suspension of sentence; however, the trial court did not
vacate Hampton’s original sentence.
An appellate court may correct an illegal sentence at any time. La.
C. Cr. P. art. 882. See also, State v. Hampton, 39,158 (La. App. 2 Cir.
1/26/05), 892 So. 2d 714; and State v. Hunt, 573 So. 2d 585 (La. App. 2 Cir.
1991), where this court corrected an error concerning a trial court’s failure
to vacate a prior sentence before imposing an enhanced habitual offender
sentence. Here, correction of this error does not involve the exercise of the
trial court’s sentencing discretion.
For this reason, we hereby recognize that the 30-year sentence under
the habitual offender conviction replaced the prior sentence imposed for
aggravated flight from an officer.
Outcome: For the foregoing reasons, we affirm the defendant’s conviction. We
amend the defendant’s 30-year hard labor sentence to delete the restriction
on parole. As amended, the sentence is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: