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State v. Bookhardt

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Sep 16, 2016
2016 KA 0270 (La. Ct. App. Sep. 16, 2016)

Opinion

2016 KA 0270

09-16-2016

STATE OF LOUISIANA v. CURTIS BOOKHARDT, SR.

Cynthia K. Meyer New Orleans, Louisiana Attorney for Appellant/Defendant, Curtis Bookhardt, Sr. Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Attorneys for Appellee, State of Louisiana


NOT DESIGNATED FOR PUBLICATION On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Trial Court No. 561,075, Div. "A" The Honorable Raymond S. Childress, Judge Presiding Cynthia K. Meyer
New Orleans, Louisiana Attorney for Appellant/Defendant,
Curtis Bookhardt, Sr. Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Attorneys for Appellee,
State of Louisiana BEFORE: PETTIGREW, MCDONALD, AND DRAKE, JJ. DRAKE, J.

Defendant, Curtis Bookhardt, Sr., was charged by bill of information with failure to properly register as a sex offender (first offense), a violation of La. R.S. 15:542.1.4(A)(1). He pled not guilty and, following a jury trial, was found guilty as charged. The trial court denied the defendant's motions for new trial and postverdict judgment of acquittal and sentenced the defendant to five years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Thereafter, the trial court denied the defendant's motion to reconsider sentence. Defendant now appeals, alleging two assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

On March 29, 2004, the defendant was convicted of molestation of a juvenile, a violation of La. R.S. 14:81.2. As a result of this conviction, the defendant was required to register as a sex offender. Having been classified as a "Tier 2" offender, the defendant was required to update his registration every six months for twenty-five years. See La. R.S. 15:542.1.1(A)(2).

On August 5, 2014, the defendant reported to the St. Tammany Parish courthouse to update his registration. At that time, the defendant received and signed a form informing him that his next registration date was February 3, 2015. According to Corporal Mandie Spell, a clerk in the sex offender registration office, this registration date was automatically calculated using a calendar in the "Offender Watch Program," a software program required by the state.

On January 29, 2015, an automated courtesy call was placed to the defendant's phone to remind him of his upcoming registration date. Call logs introduced at trial show that this courtesy call was answered by "machine." Defendant failed to appear at the courthouse to register on February 3, 2015. Corporal Stephen Bircher, the sex offender registration office supervisor, attempted to contact the defendant via phone on February 4, 2015. His call, too, went to the defendant's voicemail, as did a second automated phone call placed later that evening. On February 6, 2015, the defendant was arrested pursuant to a warrant for failure to register. He did not testify at trial.

JURY'S REQUEST TO VIEW EVIDENCE

In his first assignment of error, the defendant contends that the trial court erred in allowing the jury to take State's Exhibit 4 into the jury room. He argues that this exhibit, the "Update Information" form from his August 5, 2014 registration, was written evidence under La. C.Cr.P. art. 793 and should not have been provided to the jury during deliberations. The state agrees that the defendant's argument has merit, but argues that the error was harmless.

During its deliberations, the jury requested to "see the [e]xhibits." Ultimately, the trial court allowed the jury to view State's Exhibits 1 and 2 (logs of the automated calls placed to the defendant), State's Exhibit 4 (the "Update Information" form containing the defendant's next registration date), and Defense Exhibit 1 (the arrest warrant). The court excluded State's Exhibit 3 (an "Investigative Notes Report"), finding that it was a writing. In allowing the jury to review State's Exhibit 4, the trial court stated:

I think they get [State's Exhibit] 4 because that's their update note which they sent out, which is not like, this is more of a document to me, a fill-in-the-blank type thing. It's dated and signed, as opposed to a recapitulation of somebody's discussion within the affidavit for arrest.

I think it speaks for itself.

On appeal, the defendant takes issue only with the trial court's ruling as to State's Exhibit 4. He argues that when this exhibit was given to the jury during its deliberations, it was necessarily inspected for its verbal contents, and the prior testimony of the state's two witnesses was improperly reflected and supported.

Louisiana Code of Criminal Procedure article 793(A) states, in pertinent part:

[A] juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written
evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

The Louisiana Supreme Court has recognized that jurors may, during deliberations, inspect physical evidence in order to arrive at a verdict but cannot inspect written evidence to assess its verbal contents. State v. Perkins, 423 So. 2d 1103, 1109 (La. 1982); State v. Freetime, 303 So. 2d 487, 489 (La. 1974). The general rule, as expressed by Article 793, is that a jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue that does not require the examination of the verbal contents of the document. For example, a jury may examine a written statement to ascertain or compare a signature, or to see or feel it with regard to its actual existence. State v. Johnson, 541 So. 2d 818, 824 (La. 1989); Perkins, 423 So. 2d at 1109-10; State v. Lewis, 590 So. 2d 1266, 1267 (La. App. 1st Cir. 1991), writ denied, 600 So. 2d 634 (La. 1992), abrogated on other grounds as recognized by State v. Brooks, 01-0785 (La. 1/14/03), 838 So. 2d 725, 729 n.2.

In Freetime, 303 So. 2d at 490, the Supreme Court held that allowing the jury to have a copy of the defendant's confession to re-read its verbal content during deliberations was error. In Perkins, 423 So. 2d at 1109-10, the Supreme Court held that an inculpatory written statement by the defendant should not have been allowed into the jury room for deliberations. Johnson, 541 So. 2d at 824-25, concerned the improper admission of an autopsy report, a crime lab report, and municipal court documents pertaining to one victim's request for the issuance of a peace bond against the defendant where the only way such exhibits could be of any assistance to the jury was if they were examined for their verbal contents. In Lewis, 590 So. 2d at 1268, this court determined that the trial court erred in allowing the jury to have a tape recorder and tape of the conversation between the defendant and the undercover officer recorded on the night of the offense.

Cases in which courts have found certain documentary evidence to be reviewable by the jury have generally involved reproductions of physical objects or scenes relevant to the case. See State v. Davis, 92-1623 (La. 5/23/94), 637 So. 2d 1012, 1025, cert. denied, 513 U.S. 975, 115 S. Ct. 450, 130 L. Ed. 2d 359 (1994) (videotape properly allowed injury room during penalty phase deliberations); State v. McKinney, 174 La. 214, 218, 140 So. 27, 28 (1932) (finding that a map should have been allowed in the jury room). See also State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So. 2d 22, 53, writ denied, 97-1470 (La. 11/14/97), 703 So. 2d 1288 (photograph of actual test results on DNA and DNA results themselves in the form of numbers and letters properly allowed during deliberations); State v. Lewis, 611 So. 2d 186, 187-89 (La. App. 5th Cir. 1992) (fingerprints and bill of information containing item number matching number on arrest registry containing fingerprints properly was viewed by jury); State v. White, 543 So. 2d 611, 612 (La. App. 2d Cir. 1989) (jury allowed to view photograph of crime scene).

The case with perhaps the greatest similarity to the instant case is State v. Marlbrough, 2013-0688 (La. App. 5th Cir. 3/12/14), 138 So. 3d 65. In Marlbrough, the defendant was arrested for DWI and ultimately charged for third-offense DWI, based on two prior convictions. Marlbrough, 138 So. 3d at 69-70. In closing arguments, defense counsel admitted that the defendant had operated a vehicle while intoxicated in the instant offense, but argued that the jury had to decide whether the state had sufficiently proven his two prior convictions. Marlbrough, 138 So. 3d at 78. During its deliberations, the jury asked to view the evidence relating to one of the defendant's prior convictions, which included minute entries, a bill of information, a guilty plea form, fingerprints, and a master docket sheet. Marlbrough, 138 So. 3d at 78. The trial court ultimately denied the jury's request, over defense counsel's objection, based on Article 793. Marlbrough, 138 So. 3d at 77.

In affirming the defendant's conviction, the fifth circuit considered the exhibit at issue to constitute "written evidence." Marlbrough, 138 So. 3d at 78. The court contrasted Lewis, 611 So. 2d at 189, which found that the sole purpose for the requested evidence in that case was a physical examination of fingerprints. Instead, in Marlbrough, the appellate court determined that it appeared the jury wanted to review the requested exhibit to determine whether the defendant's lack of a signature on the "Certificate" at the end of his waiver of rights form invalidated that guilty plea. The court found that this review would have necessarily caused the jury to read the entire plea agreement, which was prohibited by Article art. 793. Marlbrough, 138 So. 3d at 78-79.

Defendant did not testify in the instant case. Through cross-examination and closing argument, defense counsel advanced the theory that the February 3, 2015 registration date was improperly calculated, as no one could testify to the date of the defendant's initial registration.

In contrast to the trial court's determination, we find that the "Update Information" form clearly constituted "written evidence" under Article 793(A). This form, though a fill-in-the-blank writing, set forth the defendant's next registration date (February 3, 2015), his tier classification (2), and his registration requirements (every 6 months for 25 years). It contained information relating to change of address notifications, hurricane or emergency evacuation plans, physical verification of his residence, and penalties for non-compliance. This form was signed and dated by the defendant and Corporal Spell.

The question that remains is whether this exhibit could have qualified as an "object or document" that required "a physical examination thereof . . . to enable the jury to arrive at a verdict." See La. C.Cr.P. art. 793(A). In its request, the jury simply asked to view all of the exhibits, and neither the court nor the parties inquired any further into the jury's reasons. Even if we could presume that the jury wished to view this exhibit solely for its existence (i.e., to determine whether the defendant had received notice of his next registration date), any such inspection would have necessarily mandated a review of the verbal contents of this written evidence (e.g., the registration date itself). Therefore, this exhibit more closely resembles that which was properly excluded in Marlbrough than it does any other types of evidence that are generally permissible for the jury to review, such as photographs, maps, and fingerprints. Accordingly, the trial court erred in allowing the "Update Information" form to be reviewed by the jury during its deliberations.

Despite this error, a violation of Article 793 does not mandate an automatic reversal of a defendant's conviction. Rather, such a violation constitutes trial error that is subject to a harmless error analysis. See State v. Zeigler, 40,673 (La. App. 2d Cir. 1/25/06), 920 So. 2d 949, 956, writ denied, 2006-1263 (La. 2/1/08), 976 So. 2d 708; State v. Johnson, 97-1519 (La. App. 4th Cir. 1/27/99), 726 So. 2d 1126, 1134, writ denied, 99-0646 (La. 8/25/99), 747 So. 2d 56. A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance that does not affect substantial rights of the accused. La. C.Cr.P. art. 921. The test for determining whether an error is harmless is whether the verdict actually rendered in the case "was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993).

In the instant case, we do find that the trial court's allowing the jury to view the "Update Information" form was a harmless error. As noted in Perkins and Freetime, the general reason for the prohibition against providing the jury with written evidence during its deliberations is a fear that the jurors might give undue weight to the limited portion of verbal testimony brought into the room with them. See Perkins, 423 So. 2d at 1110; Freetime, 303 So. 2d 488-89.

Under the facts and circumstances of this case, there was little to no danger of the jury giving undue weight to the "Update Information" form. The information in this form did not conflict with any of the unequivocal testimony given by Corporals Bircher and Spell at trial regarding the defendant's registration date of February 3, 2015. At trial, defense counsel attempted to insert doubt by cross-examining the witnesses about the defendant's initial registration date (which neither knew). However, Corporal Spell explained that each subsequent registration date is determined by the actual date an individual renews his registration. As a result, the uncontroverted testimony presented at trial demonstrated that the defendant's required registration date was February 3, 2015. The simple reproduction of this date on the exhibit improperly considered during jury deliberations does little to call the jury's verdict into doubt. Considering the record as a whole, we find that the jury's verdict in this case was surely unattributable to its consideration of the "Update Information" form during its deliberations. Accordingly, this error was harmless beyond a reasonable doubt.

Therefore, if an individual registers earlier than his required registration date, the computer software assigns a new registration date six months from the early registration date. --------

This assignment of error is without merit.

EXCESSIVE SENTENCE

In his remaining assignment of error, the defendant contends that his sentence of five years at hard labor, without the benefit of parole, probation, or suspension of sentence, is excessive. Defendant argues that he complied with his registration requirements for ten years, making his sentence nothing more than a needless imposition of pain and suffering. He also posits that his five-year sentence is a penalty for rejecting a two-year plea bargain and electing to proceed to trial.

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). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So. 2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So. 2d 962. A sentence is 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. Hogan, 480 So. 2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So. 2d 739, 751 (La. 1992).

Upon a first conviction for failure to register as a sex offender, an offender shall be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence. See La. R.S. 15:542.1.4(A)(1). Here, the defendant was sentenced to five years at hard labor, without benefit of parole, probation, or suspension of sentence.

Defense counsel filed a written motion for reconsideration of sentence and brought it to the trial court's attention following the imposition of sentence. This motion asserted simply that the sentence was, on its face, constitutionally excessive and that the interests of justice required a less severe sentence. The motion also adopted all reasons orally argued before the court at the time of sentencing (of which there were none), and the ruling in State v. Dorthey, 623 So. 2d 1276 (La. 1993). A party is precluded from urging on appeal any ground that was not raised in a motion to reconsider. See La. C.Cr.P. art. 881.1(E). Defendant did not raise the issue concerning his decision not to accept a plea bargain in his motion, so he is entitled only to a review in this appeal of a bare claim of excessiveness. See State v. Mims, 619 So. 2d 1059, 1060 (La. 1993) (per curiam).

In the instant case, the defendant received a mid-range, five-year sentence for failing to update his registration as a sex offender. We accept as true the defendant's representation that he continuously registered as required for a ten-year period following his conviction. However, the trial court was aware, at least in part, of the defendant's criminal history, as it was a prerequisite for his instant conviction. Further, the trial court stated that the defendant was being sentenced in accordance with La. C.Cr.P. art. 894.1, with the specific finding that the imposition of a lesser sentence would deprecate the seriousness of the offense. On appellate review of a sentence, the relevant question for the reviewing court is whether the trial court abused its broad sentencing discretion, and not whether other sentences might have been more appropriate. State v. Soraparu, 97-1027 (La. 10/13/97), 703 So. 2d 608 (per curiam). Nothing in the record causes us to conclude that the district court abused its sentencing discretion.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.


Summaries of

State v. Bookhardt

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Sep 16, 2016
2016 KA 0270 (La. Ct. App. Sep. 16, 2016)
Case details for

State v. Bookhardt

Case Details

Full title:STATE OF LOUISIANA v. CURTIS BOOKHARDT, SR.

Court:STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Sep 16, 2016

Citations

2016 KA 0270 (La. Ct. App. Sep. 16, 2016)