Opinion
2017 KA 1127
04-09-2018
STATE OF LOUISIANA v. LOUIS EDWARD BETHLEY, JR.
Hillar C. Moore, III District Attorney and Stacy Wright Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Lieu T. Vo Clark Mandeville, Louisiana Attorney for Defendant/Appellant Louis E. Bethley Louis Bethley, Jr. Winnfield, Louisiana Pro Se
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE 19th JUDICIAL DISTRICT COURT EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 10-14-0658 HONORABLE RICHARD "CHIP" MOORE, III, JUDGE Hillar C. Moore, III
District Attorney
and
Stacy Wright
Assistant District Attorney
Baton Rouge, Louisiana Attorneys for Appellee
State of Louisiana Lieu T. Vo Clark
Mandeville, Louisiana Attorney for Defendant/Appellant
Louis E. Bethley Louis Bethley, Jr.
Winnfield, Louisiana Pro Se BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ. McDONALD, J.
The State charged the defendant, Louis E. Bethley, with second degree battery, a violation of LSA-R.S. 14:34.1. He pled not guilty and after a jury trial was found guilty as charged. The trial court sentenced the defendant to five years imprisonment at hard labor. The State then filed a habitual offender bill of information and after a hearing the trial court adjudicated the defendant a fourth-felony habitual offender. The trial court vacated the previous sentence and resentenced the defendant to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one counseled assignment of error and five pro se assignments of error. We affirm the conviction and habitual offender adjudication. We amend the sentence and affirm as amended.
Several variations of defendant's name appear in the record and appellate filings, including "Louis Edward Bethley, Jr.," "Louis E. Bethley," "Louis Bethley," and "Louis Bethley, Jr." For consistency, we will use "Louis E. Bethley" as stated in the bill of information.
The defendant has prior convictions for possession of marijuana, second offense; possession of a Schedule IV drug; and unauthorized entry of an inhabited dwelling.
FACTS
On October 18, 2014, at about 3 a.m., Linda Bethley and her husband, the defendant, began arguing at their home on Greenwell Springs Road. The defendant punched Mrs. Bethley in her face multiple times. At some point during the attack, Mrs. Bethley briefly lost consciousness. She was eventually able to call 911 and the police and EMS arrived. Mrs. Bethley was taken by ambulance to Our Lady of the Lake Regional Medical Center, where she was treated for her injuries, which included receiving nine stitches to her forehead. The police found the defendant under a bed in the couple's home and arrested him.
The defendant did not testify at trial.
COUNSELED ASSIGNMENT OF ERROR
In his sole counseled assignment of error, the defendant argues the trial court erred in imposing an illegal parole restriction on his sentence.
The defendant was sentenced as a fourth-felony habitual offender to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, pursuant to LSA-R.S. 15:529.1A(4)(a), which provides for a "determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life." Whoever commits the crime of second degree battery shall be fined not more than $2,000, or imprisoned, with or without hard labor, for not more than eight years, or both. LSA-R.S. 14:34.1C.
The minutes and criminal commitment order both indicate the sentence is to be served without benefit of parole, probation, or suspension of sentence.
The sentencing provisions of both the underlying crime and the Habitual Offender Act determine a defendant's sentence under the Habitual Offender Act. See State v. Bruins, 407 So.2d 685, 687 (La. 1981). There is no parole restriction in the penalty provision for second degree battery, and the applicable provisions of the Habitual Offender Act do not preclude eligibility for parole. See LSA-R.S. 15:529.1A(4)(a) and 15:529.1G. Accordingly, the defendant's enhanced twenty-year sentence as a habitual offender should not have contained a parole restriction and is, therefore, illegally harsh. The defendant's argument has merit.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. LSA-C.Cr.P. art. 882A. Accordingly, we amend the defendant's twenty-year sentence by deleting the parole restriction and affirm the sentence as amended. See State v. Campbell, 10-0693 (La. App. 1 Cir. 10/29/10), 2010 WL 4273273 *1 (unpublished). The defendant's entire sentence is still to be served without benefit of probation or suspension of sentence. See LSA-R.S. 15:529.1.G. We remand for correction of the minutes and the commitment order and for transmission of a corrected commitment order to the Department of Corrections. State v. Sibley, 15-1424 (La. App. 1 Cir. 4/15/16), 2016 WL 1535157 *7.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In his first pro se assignment of error, the defendant argues that the evidence was insufficient to support his second degree battery conviction. Specifically, the defendant contends the State did not prove that he had the specific intent to inflict serious bodily injury upon Mrs. Bethley. He further argues that her injuries were "moderate" and do not meet the definition of "serious bodily injury."
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, §2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in LSA-C.Cr.P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that, to convict, the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
Louisiana Revised Statute 14:34.1 provides in pertinent part:
A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury[.]
B. For purposes of this Section, the following words shall have the following meanings:
* * * *
(3) "Serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Battery is the intentional use of force or violence upon the person of another. LSA-R.S. 14:33.
To prove a second degree battery, the State must prove the defendant: (1) committed a battery upon another, (2) without his consent, and (3) intentionally inflicted serious bodily injury. State v. Young, 00-1437 (La. 11/28/01), 800 So.2d 847, 852. Second degree battery is a crime requiring specific criminal intent. State v. Fuller, 414 So.2d 306, 310 (La. 1982). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific criminal intent need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant. Id. The existence of specific criminal intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1 Cir. 1986).
The testimonial evidence in this case establishes the defendant forcefully struck Mrs. Bethley multiple times. She sustained several injuries, some of which readily meet the definition of "serious bodily injury" under LSA-R.S. 14:34.1B(3). At some point during the attack, Mrs. Bethley briefly lost consciousness. At the hospital, Mrs. Bethley received nine stitches to her forehead. She remained in the hospital for two weeks. Mrs. Bethley testified at trial that she still has pain in her face and a permanent scar by her right eye. She also has double vision in that eye due to the defendant's blows and will need corrective surgery to repair her sight.
Based on her extensive injuries, a rational juror could have reasonably concluded the defendant had the specific intent to inflict serious bodily injury on Mrs. Bethley. The defendant's repeated infliction of blows to her face was particularly relevant regarding intent. See State v. Johnson, 602 So.2d 310, 311-12 (La. App. 1 Cir. 1992); State v. Hager, 13-546 (La. App. 5 Cir. 12/27/13), 131 So.3d 1090, 1093; State v. Landry, 03-1671 (La. App. 4 Cir. 3/31/04), 871 So.2d 1235, 1236-39.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of witness credibility, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The existence of evidence that conflicts with the testimony accepted by a trier of fact does not render the latter evidence insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Further, the victim's testimony alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1 Cir. 1987), writ denied, 519 So.2d 113 (La. 1988).
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The undisputed testimony was that the defendant repeatedly punched Mrs. Bethley in her face and this attack left her with protracted impairment of vision in one eye. The jury's guilty verdict reflects the reasonable conclusion that, based on the defendant's actions and Mrs. Bethley's multiple injuries, the defendant intended to cause, and in fact did inflict, serious bodily injury to her. In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence. See Moten, 510 So.2d at 61.
After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found that the defendant was guilty of second degree battery beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 421-22 (per curiam). This pro se assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR NUMBERS TWO AND FOUR
In these interrelated pro se assignments of error, the defendant argues the trial court judge erred in denying the defense motion to recuse the judge and also erred in counting two of his prior convictions as separate convictions for purposes of the habitual offender adjudication.
At the habitual offender hearing, defense counsel argued that, for purposes of the habitual offender adjudication, two of the defendant's prior convictions should count as one conviction. The prior convictions at issue are possession of a Schedule IV drug under 19th JDC Docket number 10-09-0845 and unauthorized entry of an inhabited dwelling under 19th JDC Docket number 10-09-0846. The crime of unauthorized entry of an inhabited dwelling was committed on June 27, 2009. The crime of possession of a Schedule IV drug was committed on September 6, 2009. The defendant pled guilty to both charges on July 18, 2011. The defendant was sentenced to five years imprisonment at hard labor for the drug conviction and to two years imprisonment at hard labor for the unauthorized entry conviction; the sentencing court ordered the sentences to run consecutively.
The defendant testified at the habitual offender hearing that his attorney at the time of his July 18, 2011 guilty pleas (defendant's former attorney) told him that his two convictions would be counted as one conviction, and that based on this advice, the defendant pled guilty to the two charges. After the defendant testified, his current attorney argued that the State should have called defendant's former attorney to testify at the habitual offender hearing, and its failure to do so violated the defendant's due process rights. The trial court told the parties that he was going to continue the habitual offender hearing and subpoena the defendant's former attorney to testify about what he told the defendant regarding the previous guilty pleas. Defendant's current attorney did not object to the trial court's plan and in fact expressed appreciation to the trial court for being fair.
Inexplicably, defendant's current attorney later filed a motion to recuse the trial court, indicating in the motion that the trial court had "crossed the line" in deciding to subpoena the defendant's former attorney and that the defendant's due process rights to a neutral and impartial judge were in serious jeopardy. The motion also stated that the trial court judge should recuse himself, because the defendant's current attorney intended to call the judge to the stand at the hearing on the motion.
At the later continuation of the habitual offender hearing, the defendant's former attorney was present to testify. The trial court addressed the defense motion to recuse. The defendant's current attorney argued that the trial court had stepped outside of its role as an impartial trier of fact and stated: "It's the State's responsibility to subpoena witnesses ... not this court. At that point, the court crossed the line, and we do intend to call the -- the court as a witness in our hearing." The State responded that the defendant's current attorney's remarks were conclusory and that there was no real substantive evidence that showed bias or prejudice on the part of the court. The trial court denied the motion to recuse and told the parties he was going to call the defendant's former attorney to testify. The defendant's current attorney objected and told the trial court he did not want the defendant's former attorney to be called. He argued that the State had rested its case at the first habitual offender hearing and the case had been submitted. Based on the objection, the trial court excused the defendant's former attorney as a witness.
The trial court then proceeded with the habitual offender hearing and adjudicated the defendant a fourth-felony habitual offender, having been convicted of three prior crimes, notwithstanding the instant offense. The trial court found that the two prior convictions, discussed above, were counted as separate convictions for purposes of the defendant's status as a fourth-felony habitual offender.
The defendant's assertion that the trial court was obligated to recuse himself is groundless. First, the mere filing of a motion to recuse does not compel a judge to act on that motion. Only when there is a valid ground for recusation in the motion is a judge obliged to act. See LSA-C.Cr.P. art. 674. Further, the defendant's simple assertion that he would call the trial court judge as a witness at the habitual offender hearing was also insufficient to warrant recusal.
Louisiana Code of Criminal Procedure article 671A(1) provides that a judge in a criminal case shall be recused if he is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial. Further, if a judge is to take the stand as a witness, regardless of the nature or materiality of his testimony, he should be recused from presiding at the trial or hearing. State v. Wille, 595 So.2d 1149, 1156; see also LSA-C.E. art. 605. Under LSA-C.Cr.P. art. 674, if a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in LSA-C.Cr.P. art. 675.
Construing LSA-C.Cr.P. arts. 671 and 674, the Louisiana Supreme Court in State v. Beavers, 394 So.2d 1218, 1229 (La. 1981) stated:
Under the jurisprudence interpreting [these] articles, a motion for recusal must set forth allegations of fact which state a statutory cause for recusation before the trial judge is required to refer the motion to another judge. ... Where, as here, the motion is based on mere conclusory allegations, the trial court does not err in refusing to refer the motion to another judge for hearing. (Internal citations omitted.)
In this case, the defendant's motion to recuse the trial court did not satisfy the statutory provisions regarding the proper recusation of a judge. The defendant set forth no valid ground for recusation in his motion to recuse. He did no more than simply assert that the judge was biased or prejudiced and that the defense intended to call the judge as a witness at the habitual offender hearing, without any support for these assertions. A motion to recuse a judge must be based on more than mere general conclusory allegations. State v. Lukefahr, 363 So.2d 661, 663 (La. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). See also State v. Littleton, 395 So.2d 730, 732 (La. 1981); State v. Gordy, 380 So.2d 1347, 1353 (La. 1980); State v. Skipper, 03-842 (La. App. 3 Cir. 12/10/03), 861 So.2d 796, 810 (concluding the Louisiana Supreme Court did not intend its holding in State v. Wille to allow a defendant to force a recusal by simply arguing that he would call the judge as a witness in his case.)
The defendant's motion was not sufficient to warrant consideration and, as such, the trial court was not obliged to hear the motion. Furthermore, on appeal, the defendant has failed to demonstrate prejudice or that the trial court's ruling affected any substantial rights. See LSA-C.Cr.P. art. 921; State v. Gaddis, 36,661 (La. App. 2 Cir. 3/14/03), 839 So.2d 1258, 1267, writ denied, 03-1275 (La. 5/14/04), 872 So.2d 519.
We find, further, that the trial court correctly found that the defendant's prior convictions of felony possession of a Schedule IV drug and unauthorized entry of an inhabited dwelling were to be counted as separate convictions for purposes of the habitual offender adjudication. As noted, while the defendant pled guilty on the same day (July 18, 2011) to both offenses, the crime of unauthorized entry of an inhabited dwelling was committed on June 27, 2009, and the crime of possession of a Schedule IV drug was committed on September 6, 2009.
Under the Habitual Offender Act, amendments to LSA-R.S. 15:529.1B, which became effective on August 15, 2005, added the following single sentence: "Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section." See 2005 La. Acts No. 218, §1. Thus, as of August 15, 2005 (the effective date of the amendment), same-day convictions prior to October 19, 2004 are counted as one conviction; however, those same-day convictions on or after October 19, 2004 may be counted as separate convictions. The issue, thus, in the instant matter would have been whether the defendant's predicate convictions to which he pled guilty arose from a single criminal act or from separate and distinct events. Given that the defendant committed unauthorized entry of an inhabited dwelling on June 27, 2009 and, over two months later, committed possession of a Schedule IV drug on September 6, 2009, it is clear the crimes were completely unrelated and that the convictions arose from separate and distinct events and not part of a single criminal act. Accordingly, the trial court properly adjudged the defendant to be a fourth-felony habitual offender. See State v. Green, 15-0308 (La. App. 1 Cir. 12/17/15), 2015 WL 9260586 *10 (unpublished), affirmed in part, sentence amended and remanded, 16-0107 (La. 6/29/17), 225 So.3d 1033, cert. denied, ___ U.S. ___ , 138 S.Ct. 459, 199 L.Ed.2d 338 (2017); State v. Dorsey, 04-1358 (La. App. 1 Cir. 3/24/05), 907 So.2d 154, 157; State v. Lowery, 04-0802 (La. App. 1 Cir. 12/17/04), 890 So.2d 711, 721-22, writ denied, 2005-0447 (La. 5/13/05), 902 So.2d 1018. Based on the foregoing, these pro se assignments of error are without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
In his third pro se assignment of error, the defendant argues the trial court erred in qualifying Cindy Kilcrease as a fingerprint expert because she was not "certified" as an expert in fingerprint examination.
At the habitual offender hearing, the State called Ms. Kilcrease, a Louisiana State Police criminal records analyst, as a witness. She was voir dired on her qualifications as an expert in fingerprint analysis. She indicated that she was not certified and that she had been qualified as an expert in a St. John the Baptist Parish court. On cross examination, defense counsel asked Ms. Kilcrease why she was not certified, and she responded that it had not been required in her job. Defense counsel objected to Ms. Kilcrease being accepted as an expert, arguing that she was not qualified because she was not certified. The trial court disagreed and accepted her as a qualified expert in fingerprint examination.
An expert may be qualified by knowledge, skill, experience, training, or education. LSA-C.E. art. 702. In reviewing an expert's qualifications, the trial court is vested with wide discretion in determining the witness' competence. An expert witness' competence is a question of fact to be determined within the trial court's sound discretion, and such rulings will not be disturbed absent manifest error. See State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1239-40, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); State v. Harris, 510 So.2d 439, 446-47 (La. App. 1 Cir.), writ denied, 516 So.2d 129 (La. 1987).
At the habitual offender hearing, it was established that Ms. Kilcrease was a criminal records analyst for fourteen years with the Louisiana State Police. Ms. Kilcrease indicated she worked as a fingerprint examiner and had done daily fingerprint comparisons for twelve years. She received special education and/or training in this area, including eighty-eight hours of training with the FBI and six-months of intense on-the-job training under a fingerprint expert's supervision. She indicated she had done thousands of fingerprint examinations. She also attended continuing education courses. She also attended a forty-hour ten-print examiners' program. Based on the foregoing, we find the trial/sentencing court did not abuse its discretion in qualifying her as an expert witness in this case. See Harris, 510 So.2d at 446-47. See also State v. Foster, 10-871 (La. App. 3 Cir. 3/16/11), 59 So.3d 500, 503 (finding a witness' experience sufficient to qualify him as a fingerprint expert, despite no formal certification); State v. George, 39,959 (La. App. 2 Cir. 10/26/05), 914 So.2d 588, 592-93, writ denied, 06-0707 (La. 10/6/06), 938 So.2d 66. This pro se assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER FIVE
In his fifth pro se assignment of error, the defendant argues the trial court failed to advise him of his rights under the Habitual Offender Act.
This argument is groundless. If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony, the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous conviction. See LSA-R.S. 15:529.1D(1)(a). After a habitual offender bill of information is filed, the court in which the subsequent conviction was had shall cause the person to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law, and shall also require the offender to say whether the allegations are true. Id.
At a post-trial hearing, a few months before the habitual offender hearing, the trial court arraigned the defendant on the habitual offender bill of information. The trial court fully informed the defendant of the allegations in the habitual offender bill of information, his right to be tried as to the truth of these allegations, and his right to remain silent. After this, the trial court asked how he pled, and the defendant denied the allegations by pleading "not guilty." Moreover, even if the trial court had not fully advised the defendant of his rights, any omission would have been harmless in light of the documentary proof introduced by the State at the habitual offender hearing establishing the defendant's identity and his prior convictions. See State v. Brown, 11-1656 (La. 2/10/12), 82 So.3d 1232, 1233-34 (per curiam); State v. Goosby, 47,772 (La. App. 2 Cir. 3/6/13), 111 So.3d 494, 506-07, writ denied, 13-0760 (La. 11/1/13), 125 So.3d 418. This pro se assignment of error is without merit.
CONCLUSION
For the above reasons, we affirm the defendant's conviction and habitual offender adjudication. We amend his enhanced twenty-year sentence to delete the parole restriction, and we affirm the sentence as amended. We remand this matter to the trial court for correction of the minutes and the commitment order and for transmission of the amended commitment order to the Louisiana Department of Corrections.
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF MINUTES AND COMMITMENT ORDER.