Opinion
2023 KA 0271
11-03-2023
STATE OF LOUISIANA v. BRANDON LEE ANDERSON
Joseph L. Waitz, Jr., District Attorney, J. Christopher Erny, Ellen Daigle Doskey, Assistant District Attorneys Houma, Louisiana, Attorneys for Appellee State of Louisiana Jane Hogan, Hammond, Louisiana, Attorney for Defendant/Appellant Brandon Lee Anderson
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana, Trial Court No. 839823 Honorable Juan W. Pickett, Judge Presiding
Joseph L. Waitz, Jr., District Attorney, J. Christopher Erny, Ellen Daigle Doskey, Assistant District Attorneys Houma, Louisiana, Attorneys for Appellee State of Louisiana
Jane Hogan, Hammond, Louisiana, Attorney for Defendant/Appellant Brandon Lee Anderson
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
PENZATO, J.
The defendant, Brandon Lee Anderson, was charged with operating a vehicle while intoxicated (DWI), fourth offense, a violation of La. R.S. 14:98.4(A). He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, which were denied by the trial court. The trial court sentenced the defendant to fifteen years imprisonment at hard labor. The defendant filed a motion to reconsider sentence, which was denied by the trial court. The defendant now appeals, assigning error to the trial court's denial of challenges to strike three potential jurors, and contending he received ineffective assistance of counsel and an excessive sentence. For the following reasons, we affirm the conviction and sentence.
Five predicate offenses are listed in the bill of information, consisting of DWI convictions on July 11, 2007, August 7, 2009, February 15, 2011, May 19, 2015, and September 17,2020. Prior to trial, the trial court quashed the 2020 conviction.
STATEMENT OF FACTS
On February 25, 2022, at 6:32 p.m., Sergeant Darryl Cunningham, Jr. of the Houma Police Department (HPD) was dispatched to a car accident at Bayou Express Seafood ("Bayou Express"), located at 243 Grand Caillou Road. According to the complainant, Sierra Mebane, as she was exiting the seafood store, between 6:00 and 6:30 p.m., a vehicle ran into the building and hit her right knee, knocking her into the store door. Ms. Mebane provided a description of the driver and the license plate number for the vehicle. Sergeant Cunningham obtained the address to which the vehicle was registered, which was near the store, and proceeded to the address.
When Sergeant Cunningham arrived at the residence, he observed the vehicle and the defendant, who was standing in the front yard. After approaching the defendant, Sergeant Cunningham detected the odor of alcohol from the defendant's breath and person. He further observed the defendant as he swayed while standing and spoke with slightly slurred speech. After being advised of his Miranda rights, the defendant admitted drinking "a few beers" after work and coming from Bayou Express, but denied being in an accident. The defendant was non-compliant with Sergeant Cunningham's attempt to conduct a field sobriety test. Sergeant Cunningham placed the defendant under arrest for DWI and hit and run and transported him to the HPD where he took a breathalyzer test, which showed that he had a blood alcohol content (BAC) of 0.231 grams percent. Ms. Mebane came to the HPD and identified the defendant as the driver of the truck that ran into the store and hit her, and she identified the defendant again at trial.
Miranda v. Arizona, 384 U.S. 436, 478- 79, 86 S.Ct. 1602, 1634, 16 L.Ed.2d 694 (1966).
ASSIGNMENT OF ERROR NUMBER ONE: ERRONEOUS DENIAL OF CHALLENGES FOR CAUSE
In assignment of error number one, the defendant notes that three prospective jurors, James Griffin, Robin Lapeyrouse, and Louise Hebert, stated that they believed the defendant was likely guilty given his prior record, revealing bias. He argues the trial court's refusal to grant challenges for cause of these three prospective jurors was reversible error.
The United States Constitution's Sixth Amendment guarantees the accused the right to a trial by an impartial jury. Louisiana Code of Criminal Procedure article 797 provides, in pertinent part, that the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. La. C.Cr.P. art. 797(2). Additionally, La. C.Cr.P. art. 797(4) provides that the State or the defendant may challenge a juror for cause on the ground that "[t]he juror will not accept the law as given to him by the court." A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Odenbaugh, 2010-0268 (La. 12/6/11), 82 So.3d 215, 237, cert, denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). However, a prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge's refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if, after further questioning, the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. Id. at 242.
Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. This is because an erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error. See Odenbaugh, 82 So.3d at 237. A trial court's ruling on a motion to strike jurors for cause is afforded broad discretion because of the court's ability to get a first-person impression of prospective jurors during voir dire. State v. Halford, 2020-0585 (La.App. 1st Cir. 6/4/21), 327 So.3d 1004, 1012, writ denied, 2021-00866 (La. 11/3/21), 326 So.3d 884, cert, denied,___U.S.___, 142 S.Ct. 2658, 212 L.Ed.2d 612 (2022).
In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges. In all other cases, each defendant shall have six peremptory challenges, and the State six for each defendant. La. C.Cr.P. art. 799. Thus, in this case, the defendant was entitled to six peremptory challenges. See La. R.S. 14:98.4(A). The record reflects that the defendant exhausted all six peremptory challenges and used peremptory challenges to remove the prospective jurors at issue.
Herein, during voir dire, defense counsel asked the first prospective juror at issue, Mr. Griffin, if the fact that someone has three previous convictions for DWI suggested that it was more likely that the person might have committed a fourth DWI offense. In response, Mr. Griffin stated, "I don't think he should've committed a 4th time. If he already had 3, he shouldn't have had the 4th one." Mr. Griffin likewise agreed that the fact that someone has three DWI convictions indicates that the person is probably guilty if charged with a fourth DWI offense. When asked if there was anything that could be said to change his mind, Mr. Griffin stated, "No, if you already got three convictions, I don't think you should have a 4th conviction."
Ms. Lapeyrouse, the second prospective juror at issue, was then asked about the probability of guilt for a fourth DWI offense after commission of three offenses and stated, "I think it's a strong possibility." After additional probing, Ms. Lapeyrouse stated, "I mean, I would hope that after being . . . convicted three times, that he wouldn't do it again - but, I would just have to see the evidence and see if they were or not - it just depends on what is presented." She confirmed that she agreed with Mr. Griffin in that it was a "strong possibility" that someone who had three DWI convictions "would do it again."
Ms. Hebert, the third prospective juror at issue, gave initial responses similar to those of Mr. Griffin and Ms. Lapeyrouse, specifically stating that she would find someone guilty of a fourth offense of DWI based on his commission of three prior DWI offenses. She stated, "he should have learned his lesson after the first time, not to do it again. And then, his second and his third - now, his fourth." When the defense attorney asked her if there was anything he, the prosecutor, or the judge could say that might change her mind, she replied, "Not at the moment."
Subsequently, after the prospective jurors were thoroughly advised of the State's burden of proof in a criminal case and the presumption of innocence, the trial court asked them if they could promise that regardless of what the State proved as to a first, second, or third prior conviction, they would hold the State to its burden of proving all elements of the fourth offense. Tn response, Mr. Griffin stated, "Right, first, second and third have nothing to do with the fourth one." After individually questioning Mr. Griffin, the trial court asked Ms. Lapeyrouse and Ms. Hebert if they could also hold the State to its burden of proving every element of the fourth offense, and they replied in the affirmative.
Defense counsel moved to strike all three jurors, arguing that their responses indicated that they would not give the defendant the presumption of innocence. In denying the challenge of Mr. Griffin, the trial court noted that after it read the jury instructions, Mr. Griffin agreed that he would hold the State to its burden of proving each and every element. The trial court similarly found that Ms. Lapeyrouse and Ms. Hebert had been rehabilitated and denied defense counsel's challenges against the prospective jurors.
We note that defense counsel did not object to the trial court's denial of his challenges for cause. In accordance with La. C.Cr.P. art. 800(A), a defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection. Thus, by failing to object to the trial court's refusal to grant for-cause challenges, the defendant waived any claims on appeal regarding the challenges at issue. Odenbaugh, 82 So.3d at 237; State v. Mullen, 2018-0643 (La.App. 1st Cir. 12/21/18), 269 So.3d 772, 778-79, writ denied, 2020-00408 (La. 10/6/20), 302 So.3d 529 (finding that where the record did not indicate any objection by defense counsel to trial court's denial of his challenge for cause, any claim on appeal was waived).
Cf State v. Pinion, 2006-2346 (La. 10/26/07), 968 So.2d 131, 136 (per curiam), wherein the Louisiana Supreme Court reversed this Court's ruling rejecting the defendant's claim that he was deprived of a meaningful appellate review by the court reporter's failure to record bench conferences that included challenges for cause and peremptory challenges. While this Court faulted the defendant for the lack of a general objection to the composition of the jury, the Supreme Court stated, "In jury selection, counsel satisfies the requirements of Louisiana's contemporaneous objection rule by stating his grounds for a cause challenge and then by removing the juror with one of his remaining peremptory challenges when the court declines to excuse the juror for cause." The supreme court cited La. C.Cr.P. art. 841, but made no mention of La. C.Cr.P. art. 800.
Moreover, a charge of juror bias may be removed if the prospective juror is rehabilitated; that is, if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. The trial court has broad discretion and reviewing courts will not disturb its rulings absent an abuse of that discretion. Mullen, 269 So.3d at 779. After being instructed on the State's burden of proving each element of the instant offense beyond a reasonable doubt, regardless of the existence of any other offenses, each prospective juror at issue, without hesitation or equivocation, agreed that they could and would follow the law. Based on our review of the voir dire examination of each prospective juror, we find that the totality of the responses by the prospective jurors at issue demonstrated their willingness and ability to decide this case impartially according to the law and evidence, and did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred. Thus, the trial court did not abuse its broad discretion in denying the challenges for cause at issue. This assignment of error lacks merit.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL/EXCESSIVE SENTENCE
In assignment of error number two, the defendant contends his trial counsel was ineffective in failing to object or move for a mistrial based on the admission of other crimes evidence. The defendant also contends his trial counsel was ineffective for failing to present mitigating evidence prior to sentencing. In a related argument on assignment of error number three, the defendant argues the trial court failed to consider mitigating circumstances and failed to state sufficient reasons for the fifteen-year sentence imposed.
The defendant is essentially raising an excessive sentence argument in assignment of error number three. However, we note that the defendant's motion to reconsider sentence does not contain any specific ground in support of the motion. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. La. C.Cr.P. art. 881.1(E). However, in this case, as further discussed herein, immediately after the sentence was imposed, defense counsel stated several grounds for reconsideration. Moreover, this Court will address the defendant's excessive sentence claim in order to address the related claim of ineffective assistance of counsel. See State v. Collins, 20091617 (La.App. 1st Cir. 2/12/10), 35 So.3d 1103, 1107, writ denied, 2010-0606 (La. 10/8/10), 46 So.3d 1265.
Failure to object to other crimes evidence
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the trial court where a full evidentiary hearing may be conducted. However, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Dilosa, 2001-0024 (La.App. 1st Cir. 5/9/03), 849 So.2d 657, 668, writ denied, 2003-1601 (La. 12/12/03), 860 So.2d 1153. The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, that must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Anderson, 2022-0587 (La.App. 1st Cir. 12/22/22), 357 So.3d 845, 855, writ denied, 2023-00352 (La. 9/6/23), 369 So.3d 1267.
The defendant would have to satisfy the requirements of La. C.Cr.P. art. 924, et seq., in order to receive such a hearing. Anderson, 357 So.3d at 855 n.4.
After the State's witnesses testified, the parties stipulated to the admission of certified documents showing the dates of the defendant's prior offenses and the length of time he spent in prison or under supervision. In addition to the documents regarding prior DWI offenses, the State introduced into evidence the bill of information and minutes from a plea to possession with intent to distribute cocaine and possession of Xanax "for the purposes of going against the time line." Defense counsel did not object to the introduction of this evidence.
A defense counsel's decision of whether to object to the introduction of evidence may be strategic. See State v. Caminita, 2016-0121 (La.App. 1st Cir. 9/16/16), 203 So.3d 1100, 1106-07, writ denied, 2016-2045 (La. 9/6/17), 224 So.3d 988; State v. Thurman, 2009-1627 (La.App. 1st Cir. 3/26/10), 2010 WL 1170226, *6 (unpublished), writ denied, 2010-1411 (La. 6/24/11), 64 So.3d 212. Accordingly, this allegation is not subject to appellate review.
Failure to present mitigating evidence/excessive sentence
Regarding the defendant's claim that his defense counsel failed to present mitigating circumstances prior to sentencing, we note that if the 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, 2000-2887 (La.App. 1st Cir. 9/28/01), 809 So.2d 360, 370, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173. The Louisiana Code of Criminal Procedure sets forth, in Article 894.1, items that must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Harper, 2007-0299 (La.App. 1st Cir. 9/5/07), 970 So.2d 592, 602, writ denied, 2007-1921 (La. 2/15/08), 976 So.2d 173.
Louisiana Constitution Article I, Section 20, 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. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the 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 to society, it is so disproportionate as to shock one's sense of justice. A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of that discretion. Harper, 970 So.2d at 602.
Pursuant to La. R.S. 14:98.4(A)(1), the defendant's sentencing exposure was imprisonment with or without hard labor for not less than ten nor more than thirty years, with two years of the sentence without benefit of suspension of sentence, probation, or parole, and a fine of five thousand dollars. Thus, the fifteen-year sentence imposed by the trial court in this case is at the lower end of the sentencing range. Immediately after the imposition of the sentence, defense counsel informed the court of his desire to state mitigating factors for the record. Specifically, defense counsel stated that the defendant's criminal record consisted primarily of prior DWI offenses and some drug possession offenses. Defense counsel noted that the defendant's record was indicative of an alcohol or substance abuse problem requiring treatment, that there was no injury to any victim, the impact of sentencing on the defendant's family, that the offense was not premeditated, and that the defendant has no history of violence. In response, the trial court noted that the defendant was previously offered a ten-year sentence, before the trial court was aware of the number of prior DW1 offenses. The trial court then recommended treatment during incarceration.
While the mitigating factors were not stated prior to the imposition of sentence, we find no deficiency in defense counsel's performance. As noted, after defense counsel stated the mitigating factors, the trial court explicitly recommended that the defendant receive treatment, including substance abuse treatment, and stated that successful completion of such treatment could affect the defendant's period of incarceration. Thus, the trial court apparently considered the factors. Further, even assuming deficiency in defense counsel's performance, the defendant failed to show a reasonable probability that, but for counsel's error, his sentence would have been different. Once defense counsel presented the factors at issue, the trial court gave no indication that it was not already aware of those factors, nor did they have an altering effect on the trial court's decision to impose the fifteen-year sentence. Particularly in light of the fact that the defendant received only a low-range sentence in this case and the facts of the instant offense, we cannot say that the trial court abused its discretion in imposing the sentence, we find an adequate factual basis for the sentence, and we find that the sentence is not constitutionally excessive. Considering all of the above, we find no merit in assignments of error numbers two and three.
PATENT ERROR REVIEW
In accordance with La. C.Cr.P. art. 920(2), all appeals are reviewed for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Price, 2005-2514 (La.App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. In our review, we have discovered two sentencing errors.
As noted above, La. R.S. 14:98.4(A)(1) provides that a person who is convicted of a fourth or subsequent DWI offense shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Two years of the sentence shall be imposed without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:98.4(A)(1). Herein, the trial court sentenced the defendant to fifteen years imprisonment at hard labor without imposing the statutorily required two-year restriction of benefits. Nevertheless, the two-year restriction of benefits is statutorily deemed to be part of the defendant's sentence pursuant to the self-activating provisions of La. R.S. 15:301.1. See State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 799. Thus, no corrective action is needed due to this error. The trial court also failed to impose the mandatory fine. Accordingly, the defendant's sentence is illegally lenient. However, since this error is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this issue on appeal, we decline to correct this error. See Price, 952 So.2d at 124-25.
CONVICTION AND SENTENCE AFFIRMED.