Opinion
2012 KA 1569
04-26-2013
STATE OF LOUISIANA v. MICHAEL E. RICK
Walter P. Reed District Attorney Covington, Louisiana Plaintiff/Appellee State of Louisiana Kathryn W. Landry Attorney for the State Baton Rouge, Louisiana Mary E. Roper Baton Rouge, Louisiana Counsel for Defendant/Appellant Michael E. Rick
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
No. 490278
Honorable Richard A. Swartz, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
Plaintiff/Appellee
State of Louisiana
Kathryn W. Landry
Attorney for the State
Baton Rouge, Louisiana
Mary E. Roper
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Michael E. Rick
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ .
McCLENDON , J.
Defendant, Michael E. Rick, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42 (count one), and aggravated incest, a violation of LSA-R.S. 14:78.1 (count two). He pled not guilty and, after a jury trial, was found guilty as charged on each count. The trial court subsequently denied defendant's motions for new trial and postverdict judgment of acquittal. Defendant waived all sentencing delays, and on count one, the trial court imposed the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On count two, the trial court sentenced defendant to twenty years imprisonment at hard labor. The trial court ordered defendant's sentences to run concurrently. Defendant filed a motion to reconsider his sentences, but the trial court denied that motion. On appeal, defendant alleges three assignments of error. For the following reasons, we affirm defendant's convictions and sentences.
FACTS
At trial, M.G. testified that defendant, her stepfather, sexually abused her on numerous occasions, beginning in approximately June 2005 and continuing until about October 2006. M.G. stated that around June 2005, she, her mother, her sister, and defendant moved back to Covington after a short period living in Baton Rouge. The family resided in a duplex with two upstairs bedrooms. Defendant and M.G.'s mother occupied one bedroom, and M.G. occupied the other with her younger sister.
In accordance with LSA-R.S. 46:1844(W), the minor victim herein is referenced only by her initials.
M.G. testified that on several occasions, beginning when she was twelve years old, defendant would come into her room in the middle of the night and perform oral sex on her. According to M.G., defendant continued this behavior past her thirteenth birthday, which occurred in October 2005. In addition, M.G. stated that defendant once placed his penis into her vagina.
M.G. did not officially report the abuse until February 2009, when she told her therapist about it. However, she had previously confided in her high school boyfriend and her aunt and uncle about defendant's actions. After an investigation, Detective Scott Davis of the St. Tammany Parish Sheriff's Office secured an arrest warrant for defendant, and defendant was eventually apprehended in April 2010.
NON-UNANIMOUS JURY VERDICT
In his first and second assignments of error, defendant argues that the non-unanimous jury verdicts supporting his convictions violate the Equal Protection Clause of the Fourteenth Amendment and his right to a jury trial under the Sixth and Fourteenth Amendments. On both counts, defendant was convicted by a non-unanimous, ten-to-two jury vote.
Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure Article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 406, 92 S.Ct. 1628, 1630, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La. 1982); State v. Shanks, 97-1885 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, 164-65.
In State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, 741-43, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Further, the Bertrand court briefly addressed the same general contentions raised in defendant's Equal Protection Clause argument and noted that the Apodaca court had found them to be meritless. See Bertrand, 6 So.3d at 743.
Accordingly, these assignments of error are without merit.
FAILURE TO ORDER PSI REPORT
In his final assignment of error, defendant alleges that the trial court abused its discretion in failing to order a pre-sentence investigation ("PSI") report in his case.
Defendant did not object to being sentenced without the judge first ordering a PSI report. Further, in his motion to reconsider sentence, defendant did not raise the issue of the trial judge's failure to order a PSI report. Thus, LSA-C.Cr.P. arts. 841 and 881.1(E) preclude defendant from raising this issue on appeal. Further, as noted by defendant, there is no mandate that a PSI report be ordered, and the trial court's failure to order a PSI report will not be reversed absent an abuse of discretion. See LSA-C.Cr.P. art. 875(A)(1); State v. Wimberly, 618 So.2d 908, 914 (La.App. 1 Cir.), writ denied, 624 So.2d 1229 (La. 1993).
Even if we were to consider defendant's arguments, based on the record before us, we would not find that the trial court abused its discretion in imposing defendant's sentences without ordering a PSI report. Defendant's sentence of life imprisonment at hard labor, without benefits, for aggravated rape was the mandatory sentence for that offense, and his twenty-year sentence for aggravated incest, while the maximum possible for this conviction, was ordered to run concurrently with his sentence for aggravated rape. See LSA-R.S. 14:42(D)(2)(b); LSA-R.S. 14:78.1(D) (prior to 2006 amendment). The record reflects that the trial court carefully considered the sentencing factors under LSA-C.Cr.P. art. 894.1 before imposing the non-mandatory sentence for defendant's aggravated incest conviction. Further, defendant has highlighted nothing in the record to support a downward deviation from the mandatory sentence for his aggravated rape conviction. Thus, even if we were to consider defendant's arguments, we would find them meritless.
CONCLUSION
For the foregoing reasons, we affirm the defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.