Date: 05-25-2016

Case Style: State of Louisiana v. Joseph Butler

Case Number: 50,582-KA

Judge: Harmon Drew, Jr.

Court: COURT OF APPEAL, SECOND CIRCUIT, STATE OF LOUISIANA

Plaintiff's Attorney: JAMES E. STEWART, SR., District Attorney; WILLIAM J. EDWARDS, TOMMY J. JOHNSON Assistant District Attorneys

Defendant's Attorney: George D. Ross

Description: In the late afternoon hours of December 21, 2012, Shreveport police
were dispatched to the Shreveport home of Carolyn Butler. When police
entered the home, they found the lifeless body of Butler’s boyfriend, Larry
Patterson, in the bedroom of Butler’s 36-year-old son, Joseph. Patterson
had been shot twice, including a fatal shot to the head. Carolyn Butler had
witnessed Patterson and Joseph exchange angry words and saw them both
head to Joseph’s bedroom. She heard gunshots and left the home. As she
was trying to get into her car, she saw Joseph trying to open a package of
noodle sauce.
Carolyn drove down the street to a school where she called her other
son, who was a Shreveport police officer. Within a short time after the
discovery of Patterson’s body, Joseph Butler turned himself in to police.
Butler had what lab tests later confirmed to be Patterson’s blood on his
clothing. Police located a handgun on the roof of the garage at Carolyn
Butler’s home and six cartridge casings in Joseph Butler’s room.
On February 20, 2013, Butler was charged by bill of indictment with
the second degree murder of Patterson. On August 28, 2013, Butler filed a
Butler also filed a “Defendant’s Statement on Sentencing” requesting the trial court to1 impose a lenient sentence in his case given his mental illness and the absence of a criminal history for violent offenses.
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motion requesting the appointment of a sanity commission to determine
both his competency to stand trial and his sanity at the time of the alleged
offense. The trial court granted the motion and appointed Drs. Marc Colon
and George Seiden to evaluate Butler. On November 5, 2013, a sanity
hearing was held. The physicians’ reports were provided to the trial court
without argument. Based on the reports, the trial court found Butler
competent to stand trial.
On February 13, 2014, Butler amended his initial plea of not guilty to
not guilty by reason of insanity. He waived his right to a jury trial and a
bench trial commenced on July 1, 2014. On July 8, 2014, following the
presentation of evidence and closing arguments, the trial court found Butler
guilty of manslaughter and ordered the preparation of a presentence
investigation report (PSI).
On July 23, 2014, Butler requested a judgment of acquittal by reason
of insanity alleging that the evidence adduced at trial proved that he was
unable to determine right from wrong at the time of the shooting as
evidenced by his irrational behavior at the time of the offense. Although 1
Butler admitted to throwing the gun on the roof of his mother’s garage after
the shooting, he noted that he did not wipe it clean or remove any of the
shell casings from the scene of the crime. Butler walked around with blood
on his clothing after killing Patterson and was due for an injection of
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Risperdal five days after the shooting. After argument, the trial court denied
the motion on August 12, 2014.
On September 24, 2014, the state filed an habitual offender bill of
information charging Butler as a second felony offender. In particular, the
bill alleged that the defendant had been convicted of theft of goods, second
or subsequent offense, on May 31, 2011. On May 27, 2015, the trial court
adjudicated Butler a second felony offender and ultimately sentenced him to
28 years at hard labor without benefit of probation or suspension of
sentence. The trial court further ordered that Butler be offered all mental
health treatment available while incarcerated.
On June 23, 2015, Butler filed a motion to reconsider his sentence
asserting that it should not have been imposed without the benefit of
probation or suspension of sentence due to the age of the victim. On July
13, 2015, the trial court granted Butler’s motion and amended his sentence
to remove the probation and suspension of sentence restrictions. Butler then
appealed his conviction and sentence.
Discussion
On appeal, Butler raises four assignments of error. In his first two
arguments he urges that the trial court erred in finding him guilty of
manslaughter because he was insane at the time of the offense. Butler
concedes that he shot Patterson, but claims that the evidence adduced at trial
proves that he did not know right from wrong at the time. In support of his
position, Butler points out that the argument that led to Patterson’s death
was trivial. He argues that both Drs. Seiden and Colon agreed that Butler
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suffers from schizophrenia and that Dr. Seiden noted Butler’s history of
psychotic disorder. Further, Butler argues that the fact he gave Dr. Seiden a
different version of facts from what the evidence showed at trial, indicated
he had very little memory of the events leading to Patterson’s death.
Finally, Butler points to the testimony of his family members as anecdotal
evidence of his mental illness. Butler also urges error in his second felony
offender adjudication and the excessiveness of his sentence.
Sufficiency of the Evidence/Sanity
Louisiana law presumes a defendant is sane and responsible for his or
her actions. La. R.S. 15:432. A defendant who wishes to rebut the
presumption must prove the affirmative defense of insanity by a
preponderance of the evidence that, because of a mental disease or mental
defect, he was incapable of distinguishing between right and wrong with
reference to the conduct in question. La. C.Cr.P. art. 652; La. R.S. 14:14;
State v. Holder, 50,171 (La. App. 2d Cir. 12/9/15), 181 So.3d 918. All
evidence, including both expert and lay testimony, along with defendant’s
conduct and actions before and after the crime, may be considered in
determining whether the defendant has met his burden of proof on an
insanity defense. Holder, supra.
In reviewing a claim of insufficiency of evidence in regard to a
defense of insanity, this court applies the test set forth in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The
appellate court, viewing the evidence in the light most favorable to the
prosecution, determines whether any rational trier of fact could have found
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that the defendant had not proved by a preponderance of the evidence that
she was insane at the time of the offense. State v. Armstrong, 94-2950 (La.
4/8/96), 671 So.2d 307; State v. Peters, 94-0283 (La. 10/17/94), 643 So.2d
1222; State v. Sepulvado, 26,948 (La. App. 2d Cir. 5/10/95), 655 So.2d 623,
writ denied, 95-1437 (La. 11/13/95), 662 So.2d 465.
The determination of sanity is a factual matter reserved to the jury or
other fact finder. Expert testimony is relevant to the issue of whether a
defendant is insane, but even where experts opine that the defendant is
insane, the issue is for the jury to decide. Sepulvado, supra. The fact
finder’s decision should not be overturned unless no rational juror could
have found the defendant failed to prove his insanity at the time of the
offense. State v. Sharp, 418 So.2d 1344 (La. 1982); Holder, supra.
All evidence, including expert and lay testimony, besides the
defendant’s conduct and actions, should be reserved for the fact finder to
establish whether the defendant has proven by a preponderance of the
evidence that he was insane at the time of the offense. Lay testimony
concerning the defendant’s actions, both before and after the crime, may
give the fact finder a rational basis for rejecting unanimous medical opinion
that the defendant was legally insane at the time of the offense. State v.
Appacrombie, 33,551 (La. App. 2d Cir. 9/12/00), 766 So.2d 771, writ
denied, 00-2856 (La. 10/5/01), 798 So.2d 961, citing State v. Horne, 28,327
(La. App. 2d Cir. 8/21/96), 697 So.2d 953, writ denied, 96-2345 (La.
2/21/97), 688 So.2d 521.
The DVD recording was admitted into evidence.2
6
At trial, Carolyn Ann Butler testified that on the evening of December
21, 2012, she and her fiancé, Larry Patterson, returned to her home on
Milton Street in Shreveport, to find Joseph eating noodles at the kitchen
table. Patterson questioned Joseph about some missing socks and he replied
that he was missing some socks as well. The argument escalated and the
defendant told Patterson to “get the f--- out of my face.” According to
Carolyn, Joseph left the kitchen and went to his room, but Patterson
followed him.
Carolyn said that she walked back toward Joseph’s bedroom and saw
Patterson holding a baseball bat. Then she saw her son grab a gun from his
bed. She turned to leave and heard gunshots. Frightened, Carolyn quietly
left the house. While she was trying to get into her car, she saw Joseph
through the kitchen window, trying to open a package of noodle sauce.
Carolyn drove down the street to a school where she called her other son,
Shreveport Police Officer Louis Butler, II, and told him that Joseph had shot
Patterson.
After Joseph’s arrest, he called Carolyn from jail. Carolyn identified
a telephone recording of a conversation between her and Joseph while he
was in jail. The recording was played in open court. During their 2
conversation, Carolyn asked Joseph why he shot Patterson. He responded
that “he could only take so much” and that “it went to that level.” Neither
Carolyn nor Joseph ever mentioned Patterson having a baseball bat during
their telephone conversation. Carolyn admitted that she never mentioned to
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police or the grand jury that she saw Patterson with a baseball bat and had
instead indicated that she remained in the kitchen before she left. She
explained that she “didn’t remember” the other parts of her story (going to
Joseph’s bedroom and the bat) because it “was such a shock to [her] to see
what [she] saw.”
Carolyn explained that Patterson had been living with her and the
defendant for approximately a year and a half. Patterson would tease Joseph
and “slap box” with him, but they had a good relationship and were never
physically violent to one another.
Carolyn also testified about Butler’s history of mental illness. Her
son was diagnosed with schizophrenia and bipolar disorder when he was a
teenager after sustaining injuries from an automobile accident in 1996. She
said that after the accident Butler was withdrawn, did a lot of aimless
walking, talked to himself and stared at people. Carolyn recalled that he
would just start laughing for no apparent reason. She testified that Butler
once “poked” her and threw water at her without provocation. She did not
think he remembered the incident. According to Carolyn, Joseph never
threatened anyone, but would talk to himself and to things. He was treated
for mental illness at several facilities, including Louisiana State University
Health Sciences Center (“LSUHSC”) in Shreveport.
At the time of Patterson’s death, the defendant was taking medication,
administered by injection every two weeks, for his mental illness. He was
due for his injection the week after the accident, and was current on his
medication. Carolyn testified that when it got close to the time when Butler
Neither Dr. Colon’s nor Dr. Seiden’s reports regarding their evaluation of the defendant3 were admitted into evidence at trial.
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was due to receive his medication, his behavior would change, his hygiene
would deteriorate and he would have trouble sleeping.
Shreveport Police Officers Ryan Holly, Thomas LaValley and
Kimberly McKenzie Harris responded to Carolyn Butler’s house after the
shooting and found Patterson, who had been shot in the head, lying on the
floor in one of the bedrooms. The officers identified photographs of the
victim introduced into evidence. They did not find a baseball bat or any
other weapons in the house, but did discover shell casings next to
Patterson’s body.
Dr. James Traylor, Jr., a forensic pathologist, conducted Patterson’s
autopsy on December 22, 2012. Dr. Traylor noted that Patterson had
received two gunshot wounds (one to the back and one to his head), but
opined that Patterson died from the wound inflicted to his head. The soot
and searing located on the entrance wound indicated that the gun barrel was
directly against Patterson’s head when the fatal shot was fired. Patterson
was also shot on the left side of his back. Dr. Traylor could not give an
opinion as to which gunshot wound was inflicted first.
Dr. Colon, an expert forensic psychiatrist, testified at trial regarding
his evaluation of Butler on September 5, 2013. Dr. Colon reviewed 3
Joseph’s Caddo Correctional Center records, his medical records from
LSUHSC and Mind Rehabilitation and Resource Center, his Social Security
Administration records and records from the pharmacy that prepared his
medication. The records revealed that Butler had a long history of
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hospitalization and treatment for paranoid schizophrenia and/or
schizoaffective disorder occurring after he sustained head injuries in an
automobile accident in 1997. Dr. Colon explained that paranoid
schizophrenics often have prominent and bizarre hallucinations or
delusions, and can suffer from disorganized or irrational thinking or
behavior. Dr. Colon noted that a person suffering from paranoid
schizophrenia may be unable to distinguish right from wrong due to a
hallucination or delusion, but others can. Butler’s medical records indicated
that he was compliant with his medical treatment, received biweekly
injections of the antipsychotic medication Risperdal, and was not suffering
from hallucinations or delusions at the time of the shooting.
Dr. Colon also interviewed Butler and found him to be “stable
psychiatrically,” and very appropriate for the evaluation. Butler was
articulate and able to recall the events that led to his arrest. He understood
the concept of an insanity defense, knew that he had been charged with
second degree murder for “shooting my mother’s boyfriend,” and
recognized that he was facing a life sentence if convicted. Butler told Dr.
Colon that he knew that “shooting someone is wrong,” and felt that he was
in his right mind at the time of the shooting and knew right from wrong. Dr.
Colon found that Butler “presented as someone who was compliant with
outpatient treatment and stable psychiatrically even when he arrived at
Caddo Correctional Center.” Dr. Colon’s diagnosis of was that Butler
suffered from paranoid schizophrenia, but was stable on his medication. Dr.
A diagram of the scene, several photographs and the cartridge casings were admitted4 into evidence.
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Colon opined that Butler had the capacity to distinguish right from wrong at
the time of the shooting.
On cross-examination, Dr. Colon conceded that a patient can build a
tolerance to psychiatric medications, which is why patients are evaluated
regularly. Dr. Colon did not feel that Butler was malingering his psychiatric
symptoms. While housed at the Caddo Correctional Center prior to his trial,
the defendant was receiving injections of Haldol, a medication comparable
to Risperdal, which the correctional facility did not supply.
Corporal John Madjerick, a crime scene investigator with the
Shreveport Police Department, investigated the homicide scene. Corporal
Madjerick described the scene, including a description of the victim and
noted that there were six cartridge casings in the room where police
discovered Patterson’s body. Referring to the photographs taken of the 4
scene, Corporal Madjerick testified that police did not find a baseball bat or
any other weapons in Carolyn Butler’s home. He confirmed the existence
of blood evidence at the scene. Two projectiles were recovered from the
house and taken to the crime lab for analysis. A Hi-Point .45 caliber
handgun was discovered on the roof of the garage at Carolyn Butler’s house
and also sent to the crime lab for testing. DNA swabbings were conducted
on the grip, slide area and magazine of the gun.
Corporal Madjerick saw Butler shortly after the shooting; he did not
see any marks on him that indicated he had recently been involved in a fight
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or struggle. However, Butler had red stains on his shirt and pants that
looked like blood.
Louis Butler, Sr., the defendant’s father, testified that Carolyn Butler
called him shortly after the shooting and told him that “Joe Joe done killed
Larry.” Butler, Sr., found his son with friends and drove him to the police
station. When Butler, Sr., got out of his car and approached his son, Joseph
told his father than he “had to shoot Larry,” because he could not get him to
“stop messing with me, you know.” On the way, Butler, Sr., overheard his
son on the phone with his mother and heard him again say that he killed
Patterson because he was “messing with” him.
Louis Butler, Sr., confirmed his son’s mental illness issues. He
recalled a prior violent outburst by the defendant where he broke all the
windows in his mother’s car. When the father tried to intervene, Joseph
attempted to hit him with a stick. Another time, shortly after Joseph was
released from prison a few years ago, he went missing and his father found
him talking to some dogs.
According to his father, the defendant had been to LSUHSC
numerous times for his mental illness and was committed to an institution
for six months due to his mental illness.
Butler, Sr., testified that Butler received his medication by injection
every other Wednesday and that a few days before he was due for his next
injection he would begin talking to himself frequently.
Dr. Seiden, a forensic psychiatrist appointed by the court to examine
Butler, testified at trial regarding his evaluation on October 15, 2013. Prior
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to interviewing Butler, Dr. Seiden reviewed the defendant’s “extensive”
medical records and police reports. Dr. Seiden explained that Butler had a
long history of psychotic and mood symptoms and had a psychotic disorder
for which he had been hospitalized on several occasions. The defendant’s
mood symptoms included thoughts of suicide and death. Butler’s psychotic
symptoms included delusions and hearing hallucinations. However, Butler
told Dr. Seiden that prior to his most recent arrest he was receiving
injections of the antipsychotic medication Risperdal and that the medication
made him feel calm. According to Dr. Seiden, the medications treat the
mental illness but do not cure it. One of the side effects of Risperdal can be
akathisia, or motor restlessness, which may cause patients to pace or rock.
Dr. Seiden found Butler cooperative during his interview. Butler told
Dr. Seiden that he got into an argument with Patterson over whether the
defendant was going to wash a pot and at some point he asked Patterson if
he was drunk. Patterson threatened to choke Butler if he did not clean the
pot and then pulled a knife on the defendant. Butler said that he then ran to
his room to get his gun, but that Patterson followed him and pushed him, so
the defendant shot him three times in the stomach and once in the head. Dr.
Seiden did not think that Butler’s behavior stemmed from hallucination or
delusion, but was in response to a disagreement with Patterson. Butler
understood that murder was wrong because he said “I knew eventually there
would be a warrant for my arrest,” and if convicted he could receive a life
sentence.
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Dr. Seiden explained that a person afflicted with schizophrenia or
paranoid schizophrenia may still have the ability to discern right from
wrong. In his opinion, Butler had the ability to know right from wrong at
the time of Patterson’s murder, especially considering his “clear statement”
that what he did was wrong and would be arrested for it. Additionally, Dr.
Seiden testified that he found no evidence that Butler was suffering from
any hallucinations or delusions at the time of the offense.
Naomi Johnson, the defendant’s sister and a registered nurse, testified
on Butler’s behalf. She stated that she visited her mother and the defendant
often and was aware that her brother suffered from schizophrenia and
bipolar disorder for a number of years. Johnson said that Butler would start
pacing, talking and laughing to himself, and staring when he needed his
medication. Johnson never saw Butler and Patterson argue. In fact, Butler
told Johnson that he loved Patterson and that he treated him well.
Johnson recalled several strange incidents with Butler occurring years
before the homicide. For example, Johnson testified that approximately 10
15 years before, she saw her brother walking down the street naked. She
yelled at him and he ran into their mother’s house. Another time, Johnson
saw Butler by the side of the road holding a shoe, with one pant leg rolled
up and with very messy hair. Nineteen years or so years before, the
defendant bit her son on the face for no apparent reason. He also choked his
grandmother close to 20 years before. There were instances many years
before where her brother would laugh out loud inappropriately and refer to
the photograph of a baby as his girlfriend. The most recent occurrence
14
happened three or four years prior to the shooting, when Johnson saw Butler
talking to what seemed to be an imaginary friend.
Following Johnson’s testimony, the defense introduced Butler’s
medical, Social Security Administration and Caddo Correctional Center
records into evidence and rested. Butler’s medical records confirm his
history of schizophrenia and bipolar disorder. The jail records reveal that
the Butler was receiving Haldol in jail to treat symptoms related to his
mental illness. Butler’s pharmacy records indicate that he was given an
injection of Risperdal Consta every two weeks; the last injection was
administered on December 12, 2012, nine days before the shooting.
When viewing this evidence in a light most favorable to the state, we
find that a rational fact finder could have reasonably determined that Butler
failed to prove that he was insane at the time he shot and killed Patterson.
After their examination of Butler, both Drs. Colon and Seiden concluded the
defendant could distinguish between right and wrong at the time of the
offense. Butler’s medical records confirm he was consistently receiving
medication, Risperdal, by injection to control the symptoms of his mental
illness at the time he killed Patterson. He confided to Dr. Seiden during an
interview that the Risperdal made him feel calm. Butler also told Dr. Seiden
that he knew there would be a warrant for his arrest for killing Patterson,
which indicated to Dr. Seiden that the defendant knew that he had done
something wrong. Futher, Butler told Dr. Colon that he was not suffering
from hallucinations or delusions when he killed Patterson and that he knew
that “shooting someone is wrong.” Butler himself told the physicians that
15
he was in his right mind at the time of the shooting and could distinguish
right from wrong.
Moreover, the testimony of the lay witnesses regarding Butler’s
behavior did not provide the trial court with a rational basis for rejecting the
unanimous medical opinion that the defendant was legally sane at the time
of crime. Butler’s sister and father testified regarding strange behavior
exhibited by the defendant years ago, not before or during the instant
offense. Furthermore, the state’s evidence suggested Butler’s understanding
that his actions were wrong at the time of the shooting. He attempted to
conceal evidence by throwing the gun used to kill Patterson on the roof of
his mother’s garage and left the scene. While the basis of the argument
between Butler and Patterson may have been trivial, Butler’s statements to
his mother after the incident revealed that the argument escalated because
Butler grew tired of Patterson’s “messing” with him and that he “could only
take so much.”
This evidence supports the manslaughter verdict. Accordingly, these
assignments of error are without merit.
Second Felony Offender Adjudication
Butler next argues that he should not have been adjudicated a second
felony offender because the state illegally used a prior theft conviction
which was an enhancement of a prior conviction to prove his habitual
offender status. He contends that the use of an enhancement to enhance
another conviction constitutes double jeopardy.
The parties agreed to move forward with the hearing and have the trial court hold the5 defendant’s motion to quash in abeyance.
The Louisiana Supreme Court denied review of this court’s ruling as being untimely.6
16
On December 1, 2014, Butler filed a motion to quash the habitual
offender bill arguing that since his conviction for theft of goods, second or
subsequent offense, was an enhancement of a prior conviction, its use to
prove his status as a habitual offender violated his right against double
jeopardy. Nevertheless, on that date Butler’s habitual offender hearing was
conducted. 5
After the hearing on December 3, 2014, the trial court granted
Butler’s motion to quash the habitual bill of information on the basis of the
double jeopardy claim. The state sought supervisory review of the trial
court’s ruling and on January 29, 2015, this court granted the state’s writ
application, reversed the trial court’s ruling and remanded the case to the
trial court for further proceedings (No. 49,929-KW). Specifically, this court
explained that per State v. Baker, 06-2175 (La. 10/16/07), 970 So.2d 948,
cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed. 2d 49 (2008) and State
v. Platt, 43,708 (La. App. 2d Cir. 12/3/08), 998 So.2d 864, writ denied, 09
0265 (La. 11/6/09), 21 So.3d 305, the defendant’s prior conviction for
felony theft of goods, second or subsequent offense, could be used to
enhance the defendant’s manslaughter sentence under La. R.S. 15:529.1, so
long as the predicate offense underlying the felony theft conviction was not
also independently used to enhance the manslaughter sentence. 6
On May 27, 2015, the trial court adjudicated Butler a second felony
offender. Butler filed an objection to the determination in order to preserve
17
for appeal his argument that his prior offense could not be used to prove his
status as an habitual offender.
The Louisiana Supreme Court has held that a sentence imposed under
La. R.S. 14:95.1, the statute prohibiting possession of firearms by convicted
felons, may be enhanced under the habitual offender law, as long as the
prior felony conviction used as an element in the possession of firearms
conviction is not also used as a prior felony conviction in the habitual
offender bill of information. Baker, supra. This court subsequently held
that the use of the charge of possession of marijuana, second offense, was
permitted as a predicate felony in a habitual offender charge. Platt, supra.
The sentence for felony theft of goods, second or subsequent offense,
is set forth in La. R.S. 14:67.10(B)(3) as follows in pertinent part:
If the offender in such cases has been convicted of theft or theft of goods two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than one thousand dollars, or both.
Initially we note that this issue was considered by this court when it
reviewed the state’s writ application regarding the trial court’s ruling
granting the defendant’s motion to quash the habitual bill of information.
The law of the case doctrine provides that this court is not required to, but
may in its discretion, revisit an issue on appeal that has previously been
decided on a writ application. Robideau v. Johnson, 31,770 (La. App. 2d
Cir. 3/31/99), 731 So.2d 955, writ denied, 99-1564 (La. 9/17/99), 747 So.2d
562.
Apparently, there was a victim impact hearing. The record does not contain the7 transcript of the hearing, nor does it contain any written statements by the victim’s family.
18
Accordingly, upon a review of the full record on appeal, we maintain
that Butler’s sentence for his manslaughter conviction was properly
enhanced under La. R.S. 15:529.1(A)(1). As determined by Baker, supra
and Platt, supra, the state properly utilized Butler’s prior conviction for
theft, second or subsequent offense, to enhance the sentence for his instant
manslaughter conviction under La. R.S. 15:529.1, because it did not also
independently use the conviction underlying the theft, second or subsequent
offense conviction (a misdemeanor), to enhance the sentence for the
defendant’s manslaughter sentence.
Accordingly, this assignment is without merit.
Excessive Sentence
Butler argues that the trial court failed to sufficiently particularize the
sentence to him given his mental health issues and the irrational nature of
the crime. He argues that he did not commit the offense for monetary gain
and that he has only one other conviction, simple battery, that is considered
a crime of violence. Butler also argues that his sentence is
unconstitutionally excessive.
On June 9, 2015, Butler’s sentencing hearing was conducted. The
trial court noted that it had reviewed all the documentation and statements
by the parties regarding sentencing. Further, the trial court considered the 7
sentencing factors set forth in La. C.Cr.P. art. 894.1, noting that the offense
was committed with the use of firearm and that the defendant had a criminal
record. However, the trial court also emphasized Butler’s struggles with
19
mental illness. Based on the aforementioned facts, the trial court sentenced
Butler to 28 years at hard labor without the benefit of probation or
suspension of sentence. As noted above, the court later removed the
probation and suspension of sentence restrictions.
La. R. S. 15:529.1(A)(1) provides in pertinent part:
A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one half the longest term and not more than twice the longest term prescribed for a first conviction.
The crime of manslaughter is punishable by imprisonment at hard
labor for not less than 40 years. La. R.S. 14:31.
Butler was subject to a term of imprisonment for not less than 20
years and not more than 80 years as a second felony offender.
The test imposed by the reviewing court in determining the
excessiveness of a sentence is two-pronged. First, the record must show
that the trial court took cognizance of the criteria set forth in La. C. Cr. P.
art. 894.1. The trial judge is not required to list every aggravating or
mitigating circumstance so long as the record reflects that he adequately
considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.
1983); State v. Johnson, 48,320 (La. App. 2 Cir. 11/20/13), 127 So.3d 988;
20
State v. Watson, 46,572 (La. App. 2d Cir. 9/21/11), 73 So.3d 471. The
articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art.
894.1, not rigid or mechanical compliance with its provisions. Where 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. Jones, 398 So.2d 1049 (La. 1981); Johnson,
supra; State v. Ates, 43,327 (La. App. 2d Cir. 8/13/08), 989 So.2d 259, writ
denied, 08-2341 (La. 5/15/09), 8 So.3d 581. The important elements which
should be considered are the defendant’s personal history (age, family ties,
marital status, health, employment record), prior criminal record,
seriousness of offense and the likelihood of rehabilitation. There is no
requirement that specific matters be given any particular weight at
sentencing. Johnson, supra.
Second, a sentence violates La. Const. art. 1, §20, if it is grossly out
of proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Smith, 01
2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.
1993); State v. Shoupe, 46,395 (La. App. 2 Cir. 6/22/11), 71 So.3d 508, writ
denied, 11-1634 (La. 1/13/12), 77 So.3d 950. A sentence is considered
grossly disproportionate if, when the crime and punishment are viewed in
light of the harm done to society, it shocks the sense of justice. State v.
Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166; Johnson, supra; Shoupe,
supra.
21
The trial judge is given wide discretion in the imposition of sentences
within the statutory limits, and the sentence imposed by him should not be
set aside as excessive in the absence of a manifest abuse of his discretion.
State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; Shoupe, supra.
The record clearly reveals adequate 894.1 compliance by the trial
court. In particular, the trial court noted Butler’s history of mental illness,
his criminal record which included one crime of violence and the fact a
firearm was used in the commission of the offense. Moreover, considering
the facts of the case with the imposed sentence, including Butler’s mental
illness history, we cannot find that this low-range punishment shocks the
sense of justice. Butler’s actions caused the death of an unarmed man. The
circumstances of this case fit the chosen punishment, which is not
excessive.
Accordingly, this assignment is without merit.
Error Patent:
We note that Butler’s sentence should have been imposed without the
benefit of probation or suspension of sentence per La. R.S. 15:529.1(G),
which requires that any sentence imposed under the habitual offender law
shall be at hard labor without the benefit of probation or suspension of
sentence. Shoupe, supra. As discussed above, the trial court initially
imposed Butler’s sentence without benefit of probation or suspension of
sentence, but subsequently amended his sentence to delete the restriction.
An illegal sentence may be corrected at any time by the court that
imposed the sentence or by an appellate court on review. La. C.Cr.P. art.
22
882(A). Further, an appellate court may notice sentencing errors as error
patent. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790.

Outcome: For the aforementioned reasons, Butler’s conviction and sentence, as
amended, are affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: