Opinion
NUMBER 2012 KA 0999
2013-09-13
STATE OF LOUISIANA v. MICHAEL COMERY
Ricky L. Babin District Attorney Donald Candell Assistant District Attorney Gonzales, LA Counsel for Plaintiff/Appellee State of Louisiana Jarrett P. Ambeau Baton Rouge, LA Bertha M. Hillman Louisiana Appellate Project Thibodaux, LA Counsel for Defendant/Appellant Michael Comery Counsel for Defendant/Appellant Michael Comery
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket Number 27624, Division A
Honorable Ralph Tureau, Judge Presiding
Ricky L. Babin
District Attorney
Donald Candell
Assistant District Attorney
Gonzales, LA
Counsel for Plaintiff/Appellee
State of Louisiana
Jarrett P. Ambeau
Baton Rouge, LA
Bertha M. Hillman
Louisiana Appellate Project
Thibodaux, LA
Counsel for Defendant/Appellant
Michael Comery
Counsel for Defendant/Appellant
Michael Comery
BEFORE: PARRO, GUIDRY AND DRAKE, JJ
GUIDRY, J.
Defendant, Michael Comery, was charged by grand jury indictment (as amended) with second degree kidnapping on counts one through four and armed robbery on counts five and six, violations of La. R.S. 14:44.1 and La. R.S. 14:64. He pled not guilty on each count. After a trial by jury, defendant was found guilty as charged on counts one through four and six, and guilty of the responsive offense of attempted armed robbery on count five. See La. R.S. 14:27 and 64. Defendant filed a pro se motion for new trial, but the trial court denied that motion. As to each conviction on counts one through four, the trial court sentenced defendant to forty years imprisonment at hard labor, to be served concurrently. On count five the trial court sentenced the defendant to forty-five years imprisonment at hard labor, to be served consecutive to the sentences imposed on counts one through four. Finally, on count six the trial court sentenced the defendant to ninety-nine years imprisonment at hard labor, to be served consecutive to the other sentences. Defendant now appeals, asserting five assignments of error. For the following reasons, we affirm all the convictions, as well as the sentences imposed on counts five and six. However, we vacate the sentences imposed on counts one through four and remand for resentencing on those counts.
Defendant was originally charged with aggravated kidnapping on counts one through four. However, the state amended the indictment the day before jury selection began, and the defendant was re-arraigned and pled not guilty to the amended charges. He was charged and tried along with co-defendant Lester Bell. In an unpublished opinion, this court affirmed Bell's convictions on the same six counts as defendant and his sentences on counts five and six. However, we vacated his sentences on counts one through four and remanded for resentencing on those counts. State v. Bell 12-1000 (La. App. 1st Cir. 2/15/13) (unpublished opinion).
In an unpublished order, this court had previously remanded defendant's appeal for the trial court's failure to rule on this motion.
FACTS
On May 2, 2009, sometime after 9:00 p.m., two armed African-American males (one later identified as Lester Bell) entered Kendall Converse's rental home located at 804 Bayou Road in Donaldsonville. At the time, Converse's friends, Brian Carr, Tedronne Breston, and Nathanial Eseff, were helping him move to another residence. They were taking a break to watch a basketball game when the assailants knocked on the door, forced entry with their handguns drawn, and ordered the men to get down on the floor. When Converse stood up, both of the gunmen struck him in the head with their weapons, forced him back down to the floor, and demanded money. The gunmen took cash, and threatened to kill the victims as they demanded more money.
According to police testimony, one of the perpetrators was still at large at the time of the trial.
While Bell held the other victims at gunpoint, the other gunman led Converse out of the home alone. Subsequently, all of the victims were forced, at gunpoint, to get into Converse's truck. The gunmen instructed Converse to drive and to follow a red or maroon Toyota, which was driven by a third perpetrator, who was later identified as defendant. Converse followed defendant to Converse's new residence located at 217 Madewood Drive. Bell sat in the front seat with his gun pointed at Converse while the other gunman sat in the back of the vehicle with the other victims. When the gunmen entered the home with Converse and his friends, Converse attempted to calm his girlfriend and children who were home at the time, and immediately activated the silent home alarm. Converse then gave the gunmen a bag containing approximately five thousand dollars and his payment stub. The perpetrators took the money and fled from the scene in defendant's vehicle.
Converse and Eseff testified that they were familiar with defendant, having seen him in the area before the incident.
At approximately 9:40 p.m., Sergeant Jeff Griffin of the Ascension Parish Sheriff's Department responded to a BOLO (a be-on-the-lookout dispatch), spotted a vehicle that fit the given description near I-10 at La. Highway 73 near Baton Rouge travelling westbound, and alerted dispatch. Louisiana State Trooper Jeremy Ballard also responded to the BOLO. For several miles, the police pursued the vehicle at high speed with activated sirens and lights. The vehicle exited at College Drive in Baton Rouge, and several individuals, including defendant, jumped out of the vehicle behind Ruby Tuesday's restaurant and fled on foot. Sergeant Griffin observed items that fell out of the vehicle when one of the passengers exited the vehicle, including Converse's payment stub that was subsequently recovered. The police pursued the individuals on foot and apprehended defendant and Bell.
ASSIGNMENT OF ERROR #1
In his first assignment of error, defendant argues that the trial court abused its discretion in refusing to inform the jury of the violation of a sequestration order and of potential contamination of witness testimony.
According to La. C. Cr. P. art. 764, the exclusion of witnesses is governed by La. C.E. art. 615, providing that on request of a party, the court shall order that witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. La. C.E. art. 615(A). The court may impose appropriate sanctions for violations of its exclusion order including contempt, appropriate instructions to the jury, or when such sanctions are insufficient, disqualification of the witness. La. C.E. art. 615(C).
The purpose of sequestration is to assure that a witness will testify as to his own knowledge of the events, to prevent the testimony of one witness from influencing the testimony of others, and to strengthen the role of cross-examination in developing facts. State v. Nevers, 621 So.2d 1108, 1112 (La. App. 1st Cir.), writ denied, 617 So.2d 906 (La. 1993). The district court judge, in Ms discretion, may determine the disqualification of a witness when a rule of sequestration has been violated. This ruling will not be disturbed absent an abuse of the district court's discretion. State v. Draughn, 05-1825, p. 57 (La. 1/17/07), 950 So.2d 583, 621, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
At the outset of trial, Bell's attorney moved for sequestration of all witnesses. The trial court granted that motion and asked all potential witnesses to step outside of the courtroom.
After the testimonies of Converse, Carr, and two law-enforcement witnesses, the court took a brief recess. Outside of the jury's presence after that recess, Bell's defense counsel put on the record an allegation that a woman had been entering and exiting the courtroom to give information to the sequestered victims about the testimony in the case. He stated that he had walked outside the courtroom and found the woman, identified as Colonsa Hayman, sitting and talking with Converse and another of the victims. However, he was not able to hear exactly what they were discussing. Bell's attorney asked the court to restrict the state from calling Eseff or Breston to testify, or to instruct the jury that Carr's testimony had been tainted by a violation of the sequestration order.
The trial judge ordered Colonsa Hayman to testify under oath in response to defense counsel's allegations. In response to the trial court's questioning, Hayman stated that she had not told anyone about what was happening during the trial and that she was simply informing Converse, a friend of hers, that she was about to leave for the day. Hayman also stated that, "Everything here already been arranged. . . . [I]t's not have anything to [do with] me anyway. I'm not talking about anything in here." The trial judge ultimately concluded that he did not find any violation of the rules of sequestration, and he refused to give any such instruction to the jury. Defendant now argues on appeal that the victims violated the sequestration order either by receiving information from Hayman about the testimony presented at trial, or by arranging their respective testimonies to more closely match the details in their stories.
We note first that La. C.E. art. 615(B)(4) does not authorize the sequestration of the victim of an offense. Therefore, the victims in this case would have been entitled to sit in the courtroom throughout the entirety of the trial and to observe the testimonies of ail witnesses.
Secondly, even if we were to assume, as defendant suggests, that the sequestration order was valid as to the victims as well, we find that the trial court did not abuse its discretion in finding no violation of the sequestration order. Bell's defense counsel raised this issue as a result of seeing Hayman speaking with Converse and another victim. However, he admitted that he did not hear the conversation. Hayman testified to the trial judge's satisfaction that she had not spoken with the victims about the testimony presented at trial, and there was no evidence to contradict her testimony. Defendant also argues on appeal that Hayman's statement indicating, "Everything here already been arranged," meant that the victims had colluded, in violation of the sequestration order, to make their testimonies as similar as possible. This claim, too, is unsupported by any evidence in the record. Defendant has made no showing to rebut the likelihood that the similarities among the victims' stories are attributable to anything other than the fact that they were all present at the time of the offenses.
This assignment of error is without merit,
ASSIGNMENT OF ERROR #2
In his second assignment of error, defendant argues that the trial court erred in admitting into evidence a quick call report from Baton Rouge and an. incident report from Ascension Parish. Defendant contends that several statements in these reports constituted hearsay, which were intended to bolster witness testimony.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Records of regularly conducted and recorded activities of a public office or agency are excepted from the hearsay rule. See La C.E. art. 803(8)(a)(i). However, investigative reports by police and other law enforcement personnel and factual findings resulting from investigation of a particular complaint, case, or incident do not fall within this hearsay exception. See La. C.E. art. 803(8)(b)(i) and 803(8)(b)(iv).
At trial, the state elicited testimony from Lieutenant Cody Melancon, the communications supervisor for the Ascension Parish Sheriff's Office. He testified that he was the custodian of records relating to 911 dispatches in Ascension Parish. Lieutenant Melancon identified the "incident report" as a log created when Converse's alarm company called to report a holdup alarm at his Madewood Drive residence. He identified the "quick call" report as a log created when Sergeant Griffin attempted to initiate a traffic stop of defendant's vehicle. Lieutenant Melancon explained that incident reports are created when 911 operators are contacted by a citizen; quick call reports are initiated with reports from law enforcement. Each of these reports contained time-stamped information logged by dispatchers listening to the radio traffic of responding officers.
Initially, counsel for neither defendant lodged any objection to the incident and quick call reports coming into evidence. However, after Lieutenant Melancon's testimony, both defense attorneys urged hearsay objections to several statements in the logs. Most notably, defendant's attorney objected to the inclusion of defendant's name in the incident report. The trial judge ordered one redaction on the quick call report - a line that referred to the police officers' recovery of "a lot of crack" - but he otherwise denied defense counsels' objections and ordered both reports to be received into evidence.
The quick call report contained what was essentially a play-by-play account of the officers' actions in pursuit of defendant's vehicle. It detailed the route along which the car chase occurred, ultimately culminating in details relating to the arrests of defendant and Bell. In this sense, the contents of the quick call report qualify as res gestae exceptions to the hearsay rule.
Res gestae is defined as events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive, and spontaneous words and acts of the participants. State v. Castleberry, 98-1388, p. 18-19 (La. 4/13/99), 758 So.2d 749, 765, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); see also La. C.E. art. 801(D)(4). This doctrine includes not only spontaneous utterances and declarations made before and after commission of a crime, but also includes testimony of witnesses pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances. See Castleberry, 98-1388 at p. 19, 758 So.2d at 765. It is possible that a police officer, in explaining his own actions, may refer to statements made to him by other persons, not to prove the truth of the out-of-court statements, but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer. See State v. Broadway, 96-2659, p. 7 (La. 10/19/99), 753 So.2d 801, 808, cert. denied, 529 U.S. 1056, 120 S.Ct 1562, 146 L.Ed.2d466 (2000).
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided by legislation. La. C.E. art. 805. Because the contents of the quick call report were subject to the res gestae exception of the hearsay rule, the only question that remains is whether the quick call report itself is subject to the public records and reports exception to the hearsay rule. In short, we find that it is. Lieutenant Melancon testified at trial that he was the custodian of the quick call report records and that the 911 dispatchers regularly take timestamped notes from the radio traffic of responding officers. See La. C.E. art. 803(8)(a)(i). Further, based on the type of information included in the quick call report, we find that this simple log of police activity in the quick call report does not qualify as an investigative report or a factual finding resulting from an investigation, which would disqualify it from the public records and reports hearsay exception. See La. C.E. art. 803(8)(b)(i) and 803(8)(b)(iv). Therefore, the trial court did not abuse its discretion in admitting the quick call report into evidence.
We turn next to the incident report. The incident report differs slightly from the quick call report in that some of its contents were clearly the result of statements given by the victims to the officers responding to Converse's home. Such statements included descriptions of the perpetrators, defendant's name, and details of the offenses. Without even considering whether the underlying statements in the incident report were subject to any hearsay exception, we conclude that the incident report itself is not subject to the public records and reports hearsay exception. While also a log of contemporaneous events, it plainly contains factual findings resulting from a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based. See La. C.E. art. 803(8)(b)(iv). Therefore, the trial court abused its discretion in allowing the incident report to come into evidence without first redacting the hearsay statements included in it.
Despite the trial court's error in admitting the incident report into evidence, we are convinced that the evidence of defendant's name in the incident report was merely cumulative of the properly admitted testimony of two of the victims who identified defendant by photographic lineup prior to trial and again during the trial. Considering these circumstances, the convictions surely were not attributable to any trial error that may have occurred as a result of a violation of the hearsay rule. See Sullivan v. Louisiana. 508 U.S. 275, 279, 113 S.Ct 2078, 2081, 124 L.Ed.2d 182 (1993). The error was harmless beyond a reasonable doubt. See La. C. Cr. P. art. 921.
This assignment of error is without merit.
ASSIGNMENT OF ERROR #3
In his third assignment of error, defendant contends that the trial court erred in granting the jury's request to have access to the quick call and incident reports included in State exhibit S-29. Defendant characterizes both reports as written evidence of testimony, and he asserts that the trial court committed prejudicial error by sending this evidence to the jury during deliberations.
In accordance with Louisiana Code of Criminal Procedure article 793(A), a juror must rely upon his memory in reaching a verdict and shall not be permitted to refer to notes or to have access to any written evidence. While 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 general rule as expressed by Article 793 is that the 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. State v. Perkins, 423 So.2d 1103, 1109-10 (La. 1982).
Black's Law Dictionary defines "testimony" as follows, "Evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition." Black's Law Dictionary 1485 (9th ed. 2009). The prohibition against repeating testimony to the jury is reflected in jurisprudence applicable in this state since the earliest times and was first codified by Article 395 of the Louisiana Code of Criminal Procedure of 1928. The policy choice represented by Article 793 is to require jurors to rely on their own memory as to verbal testimony, without notes and without reference to written evidence, such as to depositions or transcribed testimony. The general reason for the prohibition is a fear that the jurors might give undue weight to the limited portion, of the verbal testimony brought into the room with them. However, such prohibition is contrary to the growing trend to permit discretion in the trial court, in the absence of a statutory prohibition, to accede to jury requests to see exhibits and writings (except depositions). States v. Freetime, 303 So.2d 487, 488 89 (La. 1974).
Moreover, 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, p. .11 (La. App. 2d Cir. 1/25/06), 920 So.2d 949, 956, writ denied, 06-1263 (La. 2/1/08), 976 So.2d 708: State v. Johnson, 97-1519, p. 17 (La. App. 4th Cir. 1/27/99), 726 So.2d 1126, 1134, writ denied, 99-0646 (La. 8/25/99), 747 So.2d 56.
Herein, the defense attorney noted that two different reports were admitted in S-29, a quick call report from Baton Rouge and an Ascension Parish incident report. In initially objecting, co-defendant Bell's defense counsel noted that the reports were full of codes and ambiguous references. The trial judge concluded that based on the wording of the jury's request, it could be fulfilled by a review of the quick call report. The trial judge specifically stated. "Yes, I understand. Since they specifically said quick call report, we'll send them the quick call report. If they want the report, they can request the other report." The defense counsel then simply stated, "Okay." Before sending the exhibit to the jury, the trial court stated, "Okay. Since they're requesting, "Time got call from alarm company,' and it's on the Ascension incident report and it's part of the same exhibit, State's Exhibit Twenty-nine, everybody agree that that information is on this report." The defense attorney agreed and the trial court allowed the jury to review the exhibit. We note that Bell's defense counsel arguably abandoned his initial objection and acquiesced in the jury's review of S-29.
For the purposes of this assignment of error, we mil assume that the objection by co-defendant Bell's defense counsel sufficed to preserve this issue for review as it relates to defendant. See La. C. Cr. P art. 842
The parties may agree to waive the statutory prohibitions contained in Article 793. However, such an agreement must be in clear, express language and must be reflected in the record. See State v. Adams, 550 So.2d 595 599 (La 1989).
Further, a call log, which in this case apparently contained the time the police were contacted by the alarm company monitoring Converse's residence on Madewood Drive, is neither written evidence nor testimony under the plain meaning of that word or the language of Article 793. See State v. Brooks, 01-0785, p. 3 (La. 1/14/03), 838 So.2d 725, 727-28 (per curiam). See also State v. Pooler, 96-1794, p. 47 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 52-53, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288 (documentary evidence in form of a photograph of DNA test results and DNA results themselves in the form of numbers and letters was evidence requiring physical examination to enable the jury in a murder prosecution to arrive at a verdict, and thus, was properly given to jury during its deliberations); State v. Lewis, 611 So.2d 186 (La. App. 5th Cir. 1992) (fingerprints and a bill of information containing an item number matching the number on the arrest register containing fingerprints were properly viewed by the jury). Subject to the explicit restrictions imposed by Article 793, and by the jurisprudential rule precluding the use of a defendant's confession in any form in the course of jury deliberations, a trial judge has sound discretion in permitting the jury's review of properly-admitted evidentiary exhibits during its deliberations. Brooks, 01-0785 at p. 4, 838 So.2d at 728. Therefore, the trial court did not err or abuse its discretion in allowing the jury to review the quick call report.
Finally, as previously noted, the trial court erred in allowing into evidence the Ascension Parish incident report. However, as we noted earlier, two of the victims positively identified defendant by photographic lineup prior to the trial and again during the trial. Considering the circumstances, the convictions surely were not attributable to any trial error that may have occurred as the result of a violation of La. C. Cr. P. art. 793. See Sullivan, 508 U.S. at 279, 113 S.Ct at 2081. This error was harmless beyond a reasonable doubt. See La. C. Cr. P. art. 921.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR #4
In his fourth assignment of error, defendant points out that the trial court erred in not imposing parole restrictions on his four sentences for second degree kidnapping. Accordingly, he asks this court to vacate his sentences for counts one through four and to remand this matter for resentencing on those counts.
In addition to this sentencing error, we have conducted our routine review of the record for errors discoverable by a mere inspection of the pleadings and proceedings pursuant to La. C. Cr. P. art. 920(2). We note that the trial court also failed to restrict parole for defendant's convictions on counts five and six - attempted armed robbery and armed robbery. However, the self-activating provisions of La. R.S. 15:301.1(A) eliminate the need to remand for a ministerial correction of an illegally lenient sentence. See State v. Williams, 00-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799. Accordingly, the sentences imposed on counts five and six will automatically be served without the benefit of parole in their entirety. See La. R.S. 14:27(D)(3), 14:64(B), and 15:301.1(A).
Defendant is correct that his sentences for second degree kidnapping fail to restrict parole in accordance with the sentencing statute. Under the sentencing provisions for second degree kidnapping; the trial court may order all or a portion, but at least two years, of the sentence to be served without benefit of parole. La. R.S. 14:44.1(C). Because a determination of the maximum number of years to be served without parole eligibility involves sentencing discretion, correcting this error is not a viable option for this court. See State v. Havnes, 04-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). Therefore, we vacate defendant's sentences on counts one through four and remand for resentencing on these counts.
ASSIGNMENT OF ERROR #5
In his final assignment of error, defendant contends that his counsel's lack of communication prior to trial and lax representation at trial unfairly prejudiced him. He argues that his counsel had tittle to no communication with him in the two years leading up to trial, that his counsel relied on co-defendant Bell's defense counsel to defendant's detriment, and that his counsel failed to remind the court that defendant's name was mentioned on the incident report sent to the jury during its deliberations.
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... resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating the performance of counsel, the inquiry must be whether the counsel's assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La. App. 1st 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. 1st Cir.), writ denied, 476 So.2d 350 (La. 1985).
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court, where a full evidentiary hearing may be conducted However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337, p. 10 (La. App. 1st Cir. 11/8/96), 684 So.2d 432, 438.
We have already determined that any error related to the introduction of the incident report, including defendant's name and its subsequent publication .to the jury- during its deliberations, was harmless beyond a reasonable doubt, Therefore, the record is sufficient for this court to conclude that defendant cannot make a showing of sufficient prejudice to sustain a claim of ineffective 'assistance of counsel on this argument.
However, defendant's remaining allegations of ineffective assistance of counsel cannot be sufficiently investigated from an inspection of the record alone, Decisions relating to investigation, preparation, and trial strategy cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond what is contained in the instant record, could these allegations' be sufficiently investigated. See State v. Martin, 607. So.2d 775, 788 (La. App. 1st Cir. 1992). Accordingly, the allegations are not subject to appellate review.
Defendant would have to satisfy the requirements of La. C Cr. P. art, 924, et .seq, in order to receive such a hearing.
The arguments contained in this assignment of error are meritless or otherwise not subject to appellate review.
ALL CONVICTIONS ON COUNTS ONE THROUGH SIX AND SENTENCES ON COUNTS FIVE AND SIX AFFIRMED; SENTENCES ON COUNTS ONE THROUGH FOUR VACATED AND REMANDED FOR RESENTENCING.