Opinion
NUMBER 2014 KA 0295
09-19-2014
STATE OF LOUISIANA v. SHERYL LEE MARIE MARTIN
Joseph L. Waitz, Jr. District Attorney Counsel for Appellee State of Louisiana Ellen Daigle Doskey Assistant District Attorney Houma, LA Cynthia K. Meyer Louisiana Appellate Project New Orleans, LA Counsel for Defendant/Appellant Sheryl Lee Marie Martin
NOT DESIGNATED FOR PUBLICATION
On appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
Docket Number 618,429 Division "E"
Honorable Randall L. Bethancourt, Judge Presiding
Joseph L. Waitz, Jr.
District Attorney
Counsel for Appellee
State of Louisiana
Ellen Daigle Doskey
Assistant District Attorney
Houma, LA
Cynthia K. Meyer
Louisiana Appellate Project
New Orleans, LA
Counsel for
Defendant/Appellant
Sheryl Lee Marie Martin
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.
GUIDRY, J.
The defendant, Sheryl Lee Marie Martin, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42. She pled not guilty and, following a jury trial, was found guilty as charged. She filed motions for new trial and post-verdict judgment of acquittal, both of which were denied. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. She filed a motion to reconsider sentence, which was denied. She now appeals, designating three assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.
The victim's date of birth is February 1, 1999.
FACTS
In August of 2011, the victim, twelve-year-old K.B., was at the defendant's home in Chauvin, Louisiana, where her friend, R.A. lived. R.A. is the defendant's niece. The defendant's adult daughter, B.M., also lived in the home. The victim and R.A. were lying in R.A.'s bedroom when B.M. came in and said a man (later identified as Terry LeBoeuf) wanted a "blow job." The defendant walked in and said, "Don't be a pussy[,] come on[,] just do it." The victim stated that the defendant told her she would buy her earrings, hair dye, and anything else she wanted in exchange for her performing the act. After the victim agreed, the defendant gave her clothes to wear, told her to take a bath, and to put on makeup.
Pursuant to La; R.S. 46:1844W, the initials of the minor victim and other witnesses will be used to protect the identity of the victim.
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LeBoeuf picked up the victim and the defendant from the defendant's home, and the defendant told LeBoeuf that the victim was eighteen years old. The three drove to LeBoeuf s house and went into his bedroom. LeBoeuf removed his clothing, and the defendant told the victim to remove her shirt and bra. The defendant also removed her own shirt and bra. While the victim performed oral sex on LeBoeuf, the defendant was lying in the bed with them, drinking a Dr. Pepper. According to the victim, the defendant and LeBoeuf were whispering to each other.
The defendant then told the victim to remove her pants and underwear, and LeBoeuf performed oral sex on the victim. At this point, the defendant had left the room, but was "peeking" in. Afterward, LeBoeuf gave the victim $100.00 and gave the defendant $10.00, but as they were walking out the door, the defendant took the victim's money. LeBoeuf then drove the defendant and the victim to Wal-Mart, where the defendant bought hair dye for the victim. The three ran a few other errands before returning to the defendant's house. The victim stated that the defendant and her daughter wanted the money for pills.
LeBoeuf testified that he received a telephone call from the defendant wherein she stated that she "found someone for [him]." The defendant told LeBoeuf to come to her house. He went to the defendant's house and picked up the defendant and the victim. He testified that he made the deal with the defendant and that they came to an agreed upon price of $100.00. LeBoeuf stated that at the time of this event, he was sixty-five years old. He claimed that the defendant told him the victim was eighteen years old. After the victim performed oral sex on him, he gave her $100.00.
According to the defendant's testimony, her daughter approached her about calling someone to get some money, so the defendant called LeBoeuf. The defendant went with the victim to LeBoeuf s house and discussed money with him. The defendant claimed that the night before, she was at a party drinking and doing cocaine and Roxycontin. She testified that the drugs usually stay in her system for three days, and that it took her approximately one month after the incident to get a "clear head." However, she also testified that when she was riding to LeBoeuf s house, she knew what the "situation" was. Of the $110.00 the defendant received from the deal, she purchased two Roxycontins, which were $20.00 each, paid a $10.00 debt, bought the victim $40.00 worth of items from Wal-Mart, and gave another man $20.00.
The defendant, the defendant's daughter, and LeBoeuf, were all placed under arrest in connection with this incident.
ASSIGNMENT OF ERROR NUMBER 1
In her first assignment of error, the defendant argues that the district court erred in failing to instruct the jury on voluntary intoxication.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. La. C. Cr. P. art. 807. The refusal to give a requested special charge does not warrant reversal of a defendant's conviction unless it prejudices substantial rights of the accused. La. C. Cr. P. art. 921; State v. Marse, 365 So. 2d 1319, 1324 (La. 1978).
After the jury charge conference, the district court asked the State and defense counsel if there were any objections. The defendant did not object to the exclusion of voluntary intoxication. The court then gave both sides a finalized copy of the jury charges and verdict. After the defendant testified, defense counsel asked to add an instruction on voluntary intoxication because the jury charges were agreed to before his client took the stand, and evidence of intoxication came out during the defendant's testimony. The State objected to the charge, arguing that aggravated rape is a general intent crime and voluntary intoxication is a defense only in cases requiring specific intent. The district court agreed with the State, and the defendant objected.
It is well settled that voluntary intoxication can be considered as a defense only in cases where specific intent is a necessary element of the crime. State v. Boleyn, 328 So. 2d 95, 98 (La. 1976). Aggravated rape is a general intent crime. See La. R.S. 14:11, 14:42 & State ex rel. L.W., 09-1898, p. 6 (La. App. 1st Cir. 6/11/10), 40 So. 3d 1220, 1224, writ denied, 10-1642 (La. 9/3/10), 44 So. 3d 708. The defendant was, therefore, not entitled to use voluntary intoxication as a defense. Thus, the requested charge was not pertinent as required by La. C. Cr. P. art. 807. Accordingly, the district court did not err in refusing to give the requested charge. No rights of the accused were prejudiced by the refusal of the court to give the defendant's requested charge. This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 2
In her second assignment of error, the defendant contends that the district court erred in failing to reinstruct the jury on the definitions of the responsive verdicts when requested.
After the jury retired for deliberations, the bailiff gave the court a note from the jury asking, "Can we have a copy of the definitions of all the responsive verdicts?" The following exchange then occurred:
[Defense counsel]: That's fine with me, Your Honor.
[Prosecutor Erny]: I don't think that -
[The court]: The law is that they can't.
[Prosecutor Erny]: Yeah, I don't think they can. I think the only thing you can do -
[The court]: As you know.
[Prosecutor Erny]: - is bring them in and instruct them.
[The court]: And reread it. I was going to suggest
[Prosecutor Erny ]: If they want.
[The court]: - that bring them in, and I'll read the definitions to them from pages 22 through 37, inclusively. Any objection to that?
[Defense counsel]: No, sir. Whatever the Court wishes to do.
[The court]: Any problem with that, either side?
[Prosecutor Barnes]: Well, I don't have a problem with that. Perhaps it would be better to give them a choice, though, if they need the definition tell them I have to read it to you in court. And if they want to come in they can do it. If they don't want to come -
[Prosecutor Erny]: They may only want the definition of one or two of them, if any.
[Prosecutor Barnes]: But you have can't [sic] - you have to give it all, right?
[Defense counsel]: Something or else they wouldn't ask the question.
[Prosecutor Barnes]: I think the answer to that is they can't have anything in writing, but they can reread charge.
[Prosecutor Erny]: Yeah, I agree.
[The court]: How about this response in writing, "I can give you the definitions of all of the responsive verdicts, but it must be done by the Court in open court." Any objection to that going to the jury?
Neither the State nor defense counsel objected. The court sent its response to the jury, and the bailiff advised the court that the jurors said it would not be necessary for them to come into court. Defense counsel stated, "That's fine with me, Judge."
Louisiana Code of Criminal Procedure article 808 provides:
If the jury or any member thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. The further charge may be verbal, but shall be in writing if requested by any juror. No charge shall be reduced to writing at the request of a juror pursuant to this Article unless consent is obtained from both the defendant and the state in open court but not within the presence of the jury. The lack of consent by either the defendant or the state shall not be communicated to the jury. A copy
of the court's written charge shall be delivered to the defendant, the state, and the jury.
Based on our review of the record, we agree that the district court did not follow the procedure outlined in Article 808. Pursuant to that article, the jury is allowed a written copy of the instructions if consent is obtained from both the defendant and the State. See State v. Joseph, 03-1445, p. 11 (La. App. 5th Cir. 5/26/04), 875 So. 2d 1011, 1016-17. The district court did not attempt to obtain consent from either party when the jury requested a copy of the definitions of the responsive verdicts, and instead, stated that the "law is that they can't."
However, the record does not reflect that the defendant objected to the court's decision to bring the jury in for further charges. The court specifically asked whether there were any objections to its decision to bring the jury in and read the definitions to them, and defense counsel responded, "No, sir. Whatever the Court wishes to do." Defense counsel also failed to object to the court's written response to the jury stating that the definitions of the responsive verdicts would have to be given in open court. Our law requires that a defendant make a contemporaneous objection and state the reason therefore to allow the district court the opportunity to rule on it and prevent or cure the error. See La. C. Cr. P. art. 841; State v. Trahan, 93-1116, p. 16 (La. App. 1st Cir. 5/20/94), 637 So. 2d 694, 704. Thus, the defendant failed to properly preserve this assignment of error for review.
Moreover, even if the defendant had properly objected at trial, the district court's error would not warrant reversal. Louisiana Code of Criminal Procedure article 921 provides that a ruling shall not be reversed because of any error which does not affect the defendant's substantial rights. Following its request, the court informed the jury that it would read the definitions of all of the responsive verdicts again in open court. However, the jury retracted its request by advising the court that it would not be necessary for it to return to the courtroom. Thereafter, the jury posed no more questions, finished deliberations, and returned with a unanimous verdict. Prior to the jury retiring to deliberate, the jury instructions were read in their entirety in open court in the presence of the defendant and his counsel. Therefore, the district court's failure to rein struct the jury did not prejudice the defendant. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER 3
In her last assignment of error, the defendant argues that the district court imposed an excessive sentence. Specifically, she contends that a sentence of life imprisonment is cruel given the unique facts and circumstances of this case. According to the defendant, the penalty provision of La. R.S. 14:42 was intended to protect society from "incorrigible pedophiles, not lock up a 34 year-old nonviolent female drug addict for the rest of her life." The defendant also claims that she was under the influence of drugs and alcohol at the time of the offense, is in need of treatment, and did not participate in the sex act.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm caused to society, it is so disproportionate as to shock one's sense of justice. State v. Reed, 409 So. 2d 266, 267 (La. 1982).
Under La. R.S. 14:42D(2)(b), a person convicted of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Courts are charged with applying statutorily mandated punishment unless it is unconstitutional, State v. Dorthey, 623 So. 2d 1276, 1278 (La. 1993). Indeed, it is incumbent on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional by ''clearly and convincingly" showing that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.State v. Johnson, 97-1906, p. 8 (La. 3/4/98), 709 So. 2d 672, 676; States v. Henderson, 99-1945, p. 19 (La. App. 1st Cir. 6/23/00), 762 So. 2d 747, 760 n.5, writ denied, 00-2223 (La. 6/15/01), 793 So. 2d 1235.
The district court did not give reasons for its sentence and, prior to sentencing the defendant, stated that it had no sentencing discretion because there was only one sentence under the law. The court pointed out that the defendant had been found guilty of aggravated rape of a victim under the age of thirteen. Although the defendant claims that she did not "participate" in the act, she testified that she called LeBoeuf and set up the "deal." She negotiated the price, prompted the victim on what to do, took the money from the victim, and spent the money. In addition to the instant offense, the defendant testified to a criminal history including multiple offenses.
The defendant did not prove by clear and convincing evidence that she was exceptional such that the mandatory life sentence was not meaningfully tailored to her culpability, the gravity of the offense, and the circumstances of the case. See Johnson, 97-1906 at p. 8, 709 So. 2d at 676. Accordingly, there was no reason for the district court to deviate from the provisions of La. R.S. 14:42D(2)(b) in sentencing her. The defendant set up a sexual encounter between a twelve-year-old girl and a sixty-five-year old man and enticed the girl, whom she had supervision over, to submit to an aggravated rape. The sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.