Opinion
2015 KA 0510
11-06-2015
STATE OF LOUISIANA v. D'ANDRE WALKER
Hillar C. Moore, III District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Mary E. Roper Louisiana Appellate Project Baton Rouge, Louisiana Counsel for Defendant/Appellant D'Andre Walker
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. 12-13-0437
Honorable Richard "Chip" Moore, Judge Presiding Hillar C. Moore, III
District Attorney
Allison Miller Rutzen
Assistant District Attorney
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Mary E. Roper
Louisiana Appellate Project
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
D'Andre Walker
BEFORE: McDONALD, McCLENDON, AND THERIOT, 33. McCLENDON, J.
Defendant, D'Andre Walker, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62. He pled not guilty. Following a jury trial, he was found guilty as charged. Defendant was sentenced to four years imprisonment at hard labor. Defendant now appeals, designating three assignments of error. For the following reasons, we affirm the conviction and sentence.
FACTS
On November 6, 2013, Dion Sideboard was at his home on St. Katherine Avenue in Baton Rouge. He needed an extension cord, which was in the storage room outside of the house. As Dion walked outside, he saw defendant sitting in the front passenger seat of his (Dion's) Ford Ranger truck under the carport. With the truck door open and defendant's feet hanging outside of the truck, Dion could see defendant rummaging through the cab. Dion asked defendant what he was doing, and defendant said he needed fifty cents. Dion went back inside, called 911, and retrieved his gun. As Dion was walking back out, defendant was standing in the doorway. Dion testified that when he came back to the door the defendant "was standing in the door as if he was looking for me -- as if he was waiting on me to come back with fifty cents I'm assuming." Dion ordered defendant to the ground and held him at gunpoint until Corporal Rudy Harmon, with the Baton Rouge Police Department, arrived. Nothing was taken from Dion's truck. Dion found his glove compartment and center console opened, and items and papers (insurance and registration) thrown on the floor. Defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant argues the trial court allowed evidence of another crime as part of the res gestae. Specifically, defendant contends that the false information he gave Corporal Harmon upon his arrest was not an integral part of the crime of simple burglary, and the prejudicial effect of the evidence outweighed any probative value.
When Corporal Harmon arrived at the scene, he Mirandized defendant, and placed him in the back of his police unit. He asked defendant his name and date of birth. Defendant provided the officer a false name and false date of birth. Before Corporal Harmon was questioned about this, the jury was recessed and a bench conference was held on the issue. The prosecutor informed the trial court that she was seeking to introduce this testimony regarding defendant's lying to Corporal Harmon, and that while it likely constituted other crimes evidence, it was admissible as res gestae. Defense counsel argued that providing a false identity to the police was other crimes evidence, that it did not constitute res gestae, it was irrelevant, and there had never been a Prieur hearing to address the issue. The prosecutor countered there was no notice requirement for res gestae, and that the evidence was relevant because the evidence was to rebut the defense's theory of the case that defendant was merely hiding in the truck to avoid being caught as a truant. The trial court ruled the testimony admissible, finding the other crimes evidence relevant and comprising part of the res gestae.
Subsequently at trial, Corporal Harmon testified that after he placed defendant in his police unit, his initial question to defendant was regarding his name. Defendant said his name was "Dante Johnson." When asked his date of birth, defendant said it was in February of 1997, although his actual date of birth was June of 1996. This false date of birth would have made defendant a minor.
Defendant argues in brief that he did not receive prior notice of the State's intent to introduce this evidence and, as such, he did not have the opportunity to challenge its admission pretrial. This erroneous admission of evidence, according to defendant, interfered with his ability to receive a fair trial, since the crime of misrepresentation involves untruthfulness. Defendant asserts that after hearing these acts of misrepresentation, the jury was more likely to believe that defendant had lied about why he got into the truck in the first place.
The trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. See State v. Galliano, 02-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam). We find no abuse of discretion in the trial court's ruling. The evidence constituted res gestae and any prejudicial effect was outweighed by the probative value of such evidence.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. The Louisiana Supreme Court has left open the question of whether res gestae evidence presented under LSA-C.E. art. 404(B)(1) must pass the balancing test of Article 403. See State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1076 (per curiam). At any rate, we find the prejudicial effect from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence.
Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. Colomb, 747 So.2d at 1076. The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004); LSA-C.E. art. 404(B)(1). Integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the State's case would lose its narrative momentum and cohesiveness. Taylor, 838 So.2d at 741.
In State v. Lukefahr, 363 So.2d 661, 664-65 (La. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979), when the defendant was arrested, he identified himself with a driver's license bearing a name other than his own. The defendant sought to prevent this testimony as to the alias because it was prejudicial and suggested he had criminal characteristics. The supreme court found, "[t]he objections to the evidence concerning this circumstance of the arrest are patently without merit." Id. at 665.
Accordingly, the statements made by defendant immediately following his arrest were part of one continuous transaction of the criminal act of simple burglary and the attempt to conceal his identity after being caught.
Pursuant to State v. Prieur, 277 So.2d 126, 130 (La. 1973), the State shall within a reasonable time before trial furnish in writing to defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice, however, is required as to evidence of offenses which are a part of the res gestae. See Lukefahr, 363 So.2d at 665; LSA-C.E. art. 404(B)(1).
Further, even if the other crimes evidence is inadmissible, we conclude that the admission of such evidence would have been harmless error. See LSA-C.Cr.P. art. 921. The erroneous admission of other crimes evidence is a trial error subject to harmless error analysis on appeal. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 102. The test for determining whether an error is harmless is whether the verdict actually rendered in the case "was surely unattributable to the error." Id. at 100 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)); Johnson, 664 So.2d at 100. The State's evidence clearly established defendant's guilt. As such, the guilty verdict rendered was surely unattributable to any evidence of defendant's false information he provided to Corporal Harmon. Any error in allowing such other crimes evidence to be presented to the jury was harmless beyond a reasonable doubt. See LSA-C.Cr.P. art. 921; Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.
Accordingly, this assignment of error is without merit.
ASSIGNMENTS OF ERROR NOS. 2 and 3
In these related assignments of error, defendant argues, respectively, that the sentence imposed is excessive, and that defense counsel's failure to file a motion to reconsider sentence constitutes ineffective assistance of counsel.
The record does not contain an oral or written motion to reconsider sentence. Louisiana Code of Criminal Procedure article 881.1(E) provides that the failure to file or make a motion to reconsider sentence precludes the defendant from raising an excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this article and the holding of State v. Duncan, 94-1563 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam), we would not consider an excessive sentence argument. However, in the interest of judicial economy, we will consider defendant's argument that his sentence is excessive, even in the absence of a motion to reconsider sentence, in order to address defendant's claim of ineffective counsel. See State v. Wilkinson, 99-0803 (La.App. 1 Cir. 2/18/00), 754 So.2d 301, 303, writ denied, 00-2336 (La. 4/20/01), 790 So.2d 631.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating the performance of counsel, the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La.App. 1 Cir. 1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La.App. 1 Cir.), writ denied, 476 So.2d 350 (La. 1985).
Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. See State v. Felder, 00-2887 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 370, writ denied, 01-3027 (La. 10/25/02), 827 So.2d 1173.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.
The articulation of the factual basis for a sentence is the goal of LSA-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 LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review, for example, the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
Defendant argues in brief that none of the aggravating circumstances under LSA-C.Cr.P. art. 894.1 were present in this case, and that several of the mitigating circumstances of Article 894.1 were present, like his conduct did not cause or threaten serious harm; he acted under strong provocation; there were substantial grounds tending to excuse or justify his criminal conduct; and he had no history of prior delinquency or criminal activity. According to defendant, a four-year sentence at hard labor "for going into a truck, where nothing was taken and nothing was damaged, was grossly out of proportion to the severity of the crime."
The trial court ordered and reviewed a presentence investigation report. While not specifically mentioned by name, it is clear in its reasons for sentence that the trial court considered the various aggravating and mitigating circumstances pursuant to LSA-C.Cr.P. art. 894.1. In arriving at its sentence, the trial court stated in pertinent part:
Mr. Walker, the issue that I have, to put it simply, is this: people have a right to go to trial and everybody in front of me that comes -- that gets charged with a criminal case -- or criminal -- of a crime, they have a fundamental right that they're given by our land that our forefathers fought for, and one of those is the presumption of innocence. I understand it. I totally agree with it. But where I am with you is that, I believe and to this date, you're still denying anything bad happened. And, I mean, if you're getting out of the rain, my question is: why get in the car? Just stand under the car port. Why have to get in the Ford []Ranger at all[?] That didn't make any sense to me. So, the issue becomes for me is: how do you punish people?
***
They -- I know from the presentence investigation that the State, whoever did this report. Let me see who wrote it.
***
Mr. Walker, considering this is your first felony conviction, that this crime carries up to 12 years at the Department of Corrections, I'm going to sentence you to serve four years at the Department of Corrections at hard labor. I'm going to give you credit for all time served on this charge from date of arrest through execution of this sentence. And I'm going to use -- I'm going with the four-year sentence taking the fact that: number one, you had never admitted
to responsibility; also, number two, that this is your first felony conviction. So, I'm trying to find a middle ground for you in that parameters; giving you credit for all the time served on this charge going back to November 6th, 2013 through the present date. You have 30 days to appeal this sentence should you believe this sentence to be unconstitutional. You have 30 days to ask me to reconsider this sentence. And you have two years from the finality of the judgment of conviction to file a petition for post-conviction relief. Mr. Walker, I hope everything gets better for you. I do. Good luck to you, sir.
***
I want to recommend that he be allowed to participate in the GED programs offered by D.O.C. and that he be allowed to participate in any trade schools that they may have.
Despite defendant's contention, the trial court adequately considered the factors set forth in Article 894.1. Given the trial court's review of the circumstances and the nature of the crime, we find no abuse of discretion by the trial court. The sentence imposed, which was only one-third the sentence defendant could have received, is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. See LSA-R.S. 14:62(B).
Because we conclude that the sentence is not excessive, defense counsel's failure to file or make a motion to reconsider sentence, even if constituting deficient performance, did not prejudice defendant. See Wilkinson, 754 So.2d at 303. His claim of ineffective assistance of counsel, therefore, must fall.
These assignments of error are without merit.
CONCLUSION
For the foregoing reasons, we affirm defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.