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Date: 11-16-2016
Case Style:
Case Number: 50,920-KA
Judge: Jeanette G. Garrett
Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: JAMES E. STEWART SR.
District Attorney
REBECCA A. EDWARDS
TRENEISHA J. HILL
JOSHUA K. WILLIAMS
Assistant District Attorneys
Defendant's Attorney: Carey J. Ellis III
Description: The following facts were elicited during the defendant’s jury trial. On
the evening of November 6, 2012, the victim walked to the defendant’s
house in Shreveport to find a friend of hers who, along with several other
people, was watching an NBA game there. After the game, the other people
left. The victim and the defendant smoked crack cocaine; the victim also
drank a beer. The defendant had a weed pipe that he wanted to sell, so the
victim suggested several friends who might be interested. After walking to
their homes and trying unsuccessfully to sell it, the victim ended up back at
the defendant’s house. She wanted to rest awhile before she walked home.
While she was on the couch, the defendant tried to get close to her. She
went to the bedroom to get away from him, but he followed her.
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Realizing that the defendant was not going to stop following her, the victim
got up to leave. As she approached the front door in the living room, the
defendant hit her in the back of the head with a bat. She fell to her knees
and screamed for help as the defendant continued hitting her. During the
ensuing struggle, the victim managed to take the bat from the defendant and
hit him across the back. However, he overpowered her and regained control
of the bat. As he continued to hit her, she fell to her knees. Every time she
tried to get up, he hit her again. He struck her in the face around her eye
with the butt of the bat. The victim began bleeding profusely from her many
injuries.
The defendant then made the victim remove her clothes and forced
her into the bedroom, where he tied her to the bed with neckties around her
wrists and ankles. The victim testified that the defendant raped her
repeatedly – vaginally and anally. He also forced her to perform oral sex on
him. During this time, the defendant had a large knife and told the victim
that, if she tried to fight, he would cut her. The victim was covered in blood
and still hemorrhaging; it became difficult for her to breathe. After a while,
he told her that he had to go somewhere and threatened her if she tried to
escape. Once she was confident the defendant was gone, she freed herself,
broke the bedroom window, and escaped out of the house, still naked and
bleeding. The defendant, along with his brother and grandmother, were
standing outside in front of his grandmother’s house, which was across the
street. The defendant grabbed the victim and tried unsuccessfully to drag
her back into his house. She pulled away and screamed for help. The
defendant’s grandmother gave her a duster to put on. The victim was then
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told to “get out of there.” The victim fled to a friend’s house, which was
nearby. The police and paramedics were called.
The victim was taken to University Health, where she was treated for
her injuries and underwent a sexual assault examination. She suffered two
severe scalp lacerations, a left forearm fracture, a fractured jaw, a laceration
over her eyebrow, other facial fractures, and bruising all over her body. She
was hospitalized for several days. Subsequent testing conducted on the
material recovered during the sexual assault examination found DNA
matching that of the defendant.
Officers secured the crime scene and obtained a search warrant for the
defendant’s house. In the living room, officers found a black baton in a
chair, blood on the floor, and a knife under the couch. In the bedroom, the
bed was drenched in blood, neckties were tied to the bed posts, and the
window was broken. Numerous photographs of the crime scene and the
victim’s injuries were introduced into evidence.
In a post-Miranda statement, the defendant claimed that he had
consensual sex with the victim on the night of the incident.1 According to
him, after they had sex, the victim pulled a knife on him and demanded more
crack cocaine. He told her that he did not have any more. The defendant
admitted that he picked up a bat and beat the victim in the head and face. He
then dragged her back to the bedroom and tied her to the bed with neckties
because he did not want her to leave. After the victim escaped, he tried
unsuccessfully to drag her back into his house. He then returned to his
1He initially denied having sex with the victim. However, he changed his story after the detective informed him that DNA testing on the rape kit samples from the victim’s sexual assault examination would reveal if he had had sex with the victim.
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house to grab some clothes before fleeing. The bat he admittedly used to
beat the victim was never recovered.
The jury trial began on August 5, 2015, and on August 12, 2015, the
jury unanimously found the defendant guilty as charged of both offenses.
The jury obviously rejected the defendant’s claim to the police that he and
the victim had engaged in consensual sex and, instead, found the victim to
be a credible witness.
A sentencing hearing was conducted on August 20, 2015. The trial
court considered the defendant’s criminal history from Texas, which
included three misdemeanors, two felony drug offenses, and a second degree
felony assault conviction from 2006. Defense counsel requested that
concurrent sentences be imposed, and the state voiced the victim’s desire for
maximum consecutive sentences. In reviewing the sentencing guidelines set
forth in La. C. Cr. P. art. 894.1, the court stated that there was an undue risk
that the defendant would commit another offense if not incarcerated, that he
was in need of correctional treatment, and that a lesser sentence would
deprecate the seriousness of his crimes. As aggravating factors, the court
noted that the defendant’s conduct during the commission of the offenses
manifested deliberate cruelty to the victim, that he used threats or actual
violence in the commission of the offenses, that the offenses resulted in
significant permanent injury or economic loss to the victim, and that the
defendant used a dangerous weapon in the commission of the offenses. The
court found that none of the mitigating factors were applicable. The trial
court noted that both offenses were crimes of violence.
The trial court then sentenced the defendant to 25 years at hard labor,
with credit for time served, with two years to be served without the benefit
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of parole, probation, or suspension of sentence, for second degree
kidnapping, and 25 years at hard labor, with credit for time served, for
forcible rape. The sentences were ordered to be served consecutively. No
motion to reconsider sentence was filed. This appeal followed.
EXCESSIVE SENTENCE
Law
Both forcible rape2 and second degree kidnapping are punishable by
imprisonment at hard labor for not less than five nor more than 40 years,
with at least two years of the sentence being imposed without benefit of
parole, probation, or suspension of sentence. See La. R.S. 14:42.1 and
14:44.1.
La. C. Cr. P. art. 881.1(E) precludes a defendant from presenting
sentencing arguments to the court of appeal which were not presented to the
trial court. Accordingly, when, as in this case, a defendant fails to file a
motion to reconsider sentence, the appellate court’s review of a sentencing
claim is limited to the bare claim that the sentence is constitutionally
excessive. State v. Mims, 619 So. 2d 1059 (La. 1993); State v. Smith, 50,342
(La. App. 2d Cir. 1/13/16), 184 So. 3d 241.
Constitutional review turns upon whether the sentence is illegal,
grossly disproportionate to the severity of the offense or shocking to the
sense of justice. State v. Lobato, 603 So. 2d 739 (La. 1992); State v. Davis,
50,149 (La. App. 2d Cir. 11/18/15), 181 So. 3d 200; State v. Smith, supra.
A sentence violates La. Const. Art. I, § 20, if it is grossly out of
proportion to the seriousness of the offense or nothing more than the
2In 2015, “forcible rape” was renamed “second degree rape.”
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purposeless infliction of pain and suffering. State v. Dorthey, 623 So. 2d
1276 (La. 1993). A sentence is grossly disproportionate if, when the crime
and punishment are viewed in light of the harm to society, it shocks the
sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Smith, supra.
The trial court is given wide discretion in the imposition of sentences
within the statutory limits. Such a sentence will not be set aside as excessive
absent a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.
12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La. App. 2d Cir. 12/14/11),
81 So. 3d 228; State v. Hebert, 50,163 (La. App. 2d Cir. 11/18/15), 181 So.
3d 795.
A presentence investigation report is an aid to help the court, not a
right of the defendant, and the court is not required to order a presentence
investigation. La. C. Cr. P. art. 875; State v. Houston, 50,126 (La. App. 2d
Cir. 11/18/15), 181 So. 3d 188.
When two or more convictions arise from the same act or transaction,
or constitute parts of a common scheme or plan, the terms of imprisonment
shall be served concurrently, unless the court expressly directs that some or
all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences
arising out of a single course of conduct are not mandatory, and consecutive
sentences under those circumstances are not necessarily excessive. State v.
Hebert, supra.
Although La. C. Cr. P. art. 883 favors imposition of concurrent
sentences for crimes committed as part of the same transaction or series of
transactions, a trial court retains the discretion to impose consecutive
penalties in cases in which the offender’s past criminality or other
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circumstances in his background or in the commission of the crimes justify
treating him as a grave risk to the safety of the community. State v. Walker,
2000-3200 (La. 10/12/01), 799 So. 2d 461; State v. Simpson, 50,334 (La.
App. 2d Cir. 1/13/16), 186 So. 3d 195.
When consecutive sentences are imposed, the court shall state the
factors considered and its reasons for the consecutive terms. However, the
failure to articulate specific reasons for consecutive sentences does not
require remand if the record provides an adequate factual basis to support
consecutive sentences. State v. Robinson, 49,677 (La. App. 2d Cir. 4/15/15),
163 So. 3d 829, writ denied, 2015-0924 (La. 4/15/16), 191 So. 3d 1034.
Discussion
The trial court did not abuse its discretion by imposing consecutive
25-year sentences. Because the defendant failed to file a motion to
reconsider sentence, he is entitled to review of his sentence only for
constitutional excessiveness, without consideration of the alleged errors
regarding the failure to order a presentence investigation report,
consideration of mitigating factors, and the consecutive nature of his
sentences. Nevertheless, his claims are without merit. The defense did not
request a presentence investigation report prior to sentencing, did not object
to the lack thereof at the time of sentencing, and failed to present any
evidence in mitigation. The trial court was not required to order a
presentence investigation report, and the record shows that the court
adequately complied with La. C. Cr. P. art. 894.1 and considered the
appropriate factors in determining the defendant’s sentences, as noted above.
Also, although the trial court did not specifically provide reasons for
ordering that the sentences be served consecutively, the court did not abuse
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its discretion in doing so because the record adequately supports the
imposition of consecutive sentences in this case. The trial court heard all of
the gruesome evidence outlined herein and also had the benefit of seeing all
of the physical evidence which was admitted during the trial. The
particularly brutal actions of the defendant justify treating him as a grave
risk to the safety of the community.
Further, the defendant’s sentences are not constitutionally excessive.
The defendant viciously beat the victim with a bat, forced her to the
bedroom, tied her to the bed, threatened her with a large knife, and
repeatedly raped her vaginally and anally and forced her to perform oral sex
while she was bleeding profusely from her injuries. The victim sustained
severe injuries and likely only survived because she was able to escape
through a window and run, naked and covered in her own blood, down the
street to seek help. Considering the extremely violent nature of the
defendant’s crimes and the serious injuries sustained by the victim, the
midrange sentences imposed by the trial court do not shock the sense of
justice, nor are they grossly disproportionate to the severity of the offenses.
This assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR
In his pro se assignment of error, the defendant argues that the trial
court erred in not giving him a contradictory hearing within 30 days of filing
a pro se motion for speedy trial under La. C. Cr. P. art. 701(F).
Once a defendant has been convicted, any allegation that La. C. Cr. P.
art. 701 has been violated becomes moot. State v. Bradham, 46,985 (La.
App. 2d Cir. 2/29/12), 87 So. 3d 200.
This assignment lacks merit.
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ERROR PATENT
Our error patent review reveals that the defendant’s sentence for
forcible rape is illegally lenient. The transcript of the sentencing reflects that
the trial court failed to restrict at least two years of the defendant’s sentence
from benefit of parole, probation, or suspension of sentence, as required by
La. R.S. 14:42.1(B).3 Because the language of the sentencing provision
gives the trial judge discretion in determining the exact length of time that
benefits were to be withheld, the jurisprudence dictates that the defendant’s
sentence for forcible rape must be vacated and the case remanded for
resentencing in compliance with La. R.S. 14:42.1(B). State v. Drew, 47,531
(La. App. 2d Cir. 11/14/12), 107 So. 3d 748; State v. Carter, 43,304 (La.
App. 2d Cir. 6/18/08), 987 So. 2d 364, writ denied, 2008-2752 (La. 9/25/09),
18 So. 3d 86.
Additionally, the trial court failed to inform the defendant of the sex
offender notification and registration requirements, as mandated under La.
R.S. 15:543. The defendant’s conviction of forcible rape, a “sex offense”
under La. R.S. 15:541, requires that defendant be subjected to the sex
offender notification and registration requirements. See La. R.S. 15:542.
The trial court is required to notify a defendant convicted of a sex offense in
writing, using the form contained in La. R.S. 15:543.1, of the registration
and notification requirements. See La. R.S. 15:543. The statute further
requires that an entry be made in the court minutes stating that the written
notification was provided. The record does not indicate that the defendant
3We note that the minutes incorrectly indicate that the defendant’s sentence for each count was imposed with a restriction of two years without benefit of parole, probation, or suspension of sentence. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Robinson, 49,319 (La. App. 2d Cir. 10/1/14), 151 So. 3d 627, writ denied, 2014-2111 (La. 5/1/15), 169 So. 3d 371.
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was provided with either written or oral notification of the sex offender
registration requirements. As a result, remand is required for the purpose of
providing the appropriate written notice to the defendant of the sex offender
registration requirements.4
Plaintiff's Experts:
Defendant's Experts:
Comments: Louisiana Department Of Corrections Offender Info