Opinion
2016 KA 1614
06-02-2017
STATE OF LOUISIANA v. DAMON DELMORE
Ricky L. Babin District Attorney Donaldsonville, Louisiana Counsel for Appellee State of Louisiana Donald D. Candell Assistant District Attorney Gonzales, Louisiana Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant-Appellant Damon Delmore
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
NUMBER 32656, DIVISION A, PARISH OF ASCENSION
STATE OF LOUISIANA HONORABLE JASON VERDIGETS, JUDGE Ricky L. Babin
District Attorney
Donaldsonville, Louisiana Counsel for Appellee
State of Louisiana Donald D. Candell
Assistant District Attorney
Gonzales, Louisiana Frederick Kroenke
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Damon Delmore BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: CONVICTIONS AND SENTENCES AFFIRMED.
CHUTZ, J.
The defendant, Damon Delmore, was charged by bill of information with aggravated burglary on count one and unauthorized entry of an inhabited dwelling on counts two and three, violations of La. R.S. 14:60 and La. R.S. 14:62.3, respectively. He pled not guilty and not guilty by reason of insanity. After a trial by jury, the defendant was found guilty as charged on all three counts. The trial court denied the defendant's motion for new trial and motion for postverdict judgment of acquittal. The trial court sentenced the defendant to thirty years imprisonment at hard labor on count one and to six years imprisonment at hard labor each on counts two and three, with all sentences be served consecutively. The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, assigning error in a counseled brief to the sufficiency of the evidence on count one and to the constitutionality of the sentences imposed. The defendant filed a pro se brief assigning error to the trial court's denial of defense challenges for cause of several prospective jurors, and to the jury instructions. For the following reasons, we affirm the convictions and sentences.
The defendant initially pled not guilty, but was subsequently allowed to change his plea as stated above.
STATEMENT OF FACTS
On the morning of May 20, 2014, the defendant, without authorization, entered three residences located in close proximity to each other in Gonzales, Louisiana. At approximately 6:00 a.m., Sabina Medrano was cooking breakfast for her husband, Julio Medrano. While in the kitchen, Sabrina was startled by the defendant entering the back door of the kitchen. After seeing Sabrina, the defendant threw himself on the floor and began making statements that Sabrina, who knew very little English, was unable to understand. Speaking in English, Sabrina pleaded with the defendant to leave her home. Sabrina ran to the bedroom where her husband Julio was at the time and locked the door. Julio called 911 as Sabrina grabbed a bat that was located in the bedroom. The defendant began banging on the door and yelling for someone to open the door. As Julio was speaking to the police, the defendant could be heard throwing objects around in the house. After the noises stopped, the Medranos realized the defendant had exited the home and came out of the bedroom to assess the damages to their property. They discovered damage to the kitchen window and several ceramic items.
A few minutes later, at approximately 6:15 a.m., twenty-year old Michael Elisar had just woken up and rolled over in bed to see the defendant standing over him. When Michael began questioning the defendant, the defendant began panicking and asked Michael to tie him up. Michael grabbed a katana sword (described as a blunt sword used for Taekwondo demonstrations) that was located in his bedroom and showed it to the defendant, but the defendant did not respond and continued rolling around on the floor asking to be tied up. Michael gave the defendant some crackers and a cup of water before again telling him to leave, and the defendant finally stepped out through the front door. Michael quickly closed the front door and ran to his parents' bedroom and told them what happened before dialing 911, as his father, Don Elisar, confronted the defendant.
Don saw a police car passing nearby as he opened the front door, and calmly told the defendant that he was going to have to leave the house and face the consequences of his actions. Don noted that the defendant appeared to be scared. Don observed the defendant as he stayed on the porch, squatting down, noting that the defendant saw the police car when it passed. As Don locked the door, he saw the defendant run across the street.
Moments later, the defendant entered the Rogers' residence. Joann Rogers had just woken up at about 6:45 a.m., let her dog out of the back door, and propped the screen door open with a can of paint. After she went into the kitchen to cook breakfast, she heard her dog barking loudly. As she went to let in the dog, she saw the defendant in her work room. The defendant threw his hands up and said, "I won't hurt you, I won't hurt you." The defendant followed Joann as she turned around and ran down the hall to her bedroom, alerting her husband, Harold Rogers, who was in the bathroom getting dressed. Joann entered the bathroom with her husband, and the defendant shoved her against the bathroom door. As the defendant put his hand over Joann's mouth, his hand slipped and hit her in the eye and his knee hit her leg, giving her a black eye and a bruise on her thigh. Harold repeatedly asked the defendant to leave and, when he was able to goad the defendant out of the bathroom door, he instructed Joann to lock the door. Joann cut her leg as she unsuccessfully tried to escape through the bathroom window.
While Joann was in the bathroom trying to escape, Harold was trying to get the defendant to leave, but the defendant kept pushing him. After the defendant pushed Harold three or four times, causing him to fall to the floor and against the dresser, Harold told the defendant that he was going to get his gun and shoot him if he did not leave. At that point, the defendant went to the front door and Harold opened the door to let him out. As the defendant exited, officers of the Ascension Parish Sherriff's Office, who had responded to calls from the Medrano and Elisar residences, immediately apprehended the defendant. The officers heard Joann screaming for help as she was attempting to escape through the bathroom window.
The police placed the defendant in handcuffs and took him into custody. Deputy Bob Escamilla noted that the defendant was advised of his Miranda rights. During a pat down search for weapons, a glass pipe with white residue and a lighter were recovered from the defendant's front right pocket. The defendant stated that he used the pipe to smoke "crystal meth" that day. Deputy Escamilla had Michael and Sabina walk over from their nearby residences to view the defendant while he was secured in the back seat of a patrol car, and both victims identified the defendant as the perpetrator. Deputy Escamilla also summoned an ambulance to have the victims examined. He further processed the scenes, which included taking photographs of the interior of the residences and photographs of the Rogers' injuries. Sergeant Larry Lejuene took the defendant to St. Elizabeth Hospital for an evaluation due to his statement that he had used drugs, specifically to have his vital signs checked and to make sure that he was stable enough to be incarcerated. The defendant was discharged from the hospital and taken to jail.
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
The pipe was later submitted for testing at the crime lab and tested positive for the presence of methamphetamine.
COUNSELED ASSIGNMENT OF ERROR NUMBER ONE
In counseled assignment of error number one, the defendant challenges the sufficiency of the evidence on count one, aggravated burglary. While the defendant does not deny that he committed the offenses, he argues the evidence showed that voluntary intoxication precluded the presence of the specific intent required to prove aggravated burglary. The defendant contends that witness testimony shows he had been partying all night before the offenses, further noting the recovery of the glass pipe and his statement to the police that he had used methamphetamine that day. The defendant further contends the witnesses indicated he was throwing things, was intoxicated or in a crazy state, and reeked of alcohol at the time of the offenses. He further claims that he was having hallucinations as he was rolling around on the floor asking to be tied up. The defendant argues the State failed to present any evidence that he formed the specific intent required to be guilty of aggravated burglary, and that there was no evidence to negate that he was precluded from doing so.
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, 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 also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson v. Virginia standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. Patorno, 822 So.2d at 144.
Aggravated burglary is defined, in pertinent part, as the unauthorized entering of any inhabited dwelling where a person is present, with the intent to commit a felony or any theft therein if the offender commits a battery upon any person while in such place, or in entering or leaving such place. La. R.S. 14:60(A)(3). The intent required by the burglary statutes is specific intent. The actor must specifically intend to accomplish certain prescribed criminal consequences. State v. Lockhart, 438 So.2d 1089, 1090 n.4 (La. 1983). Thus, aggravated burglary is a specific intent crime. As noted, specific intent, particularly whether it was precluded by voluntary intoxication, is the only issue raised in assignment of error number one.
Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. 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 intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982).
Louisiana Revised Statutes 14:15 provides in pertinent part:
The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:Voluntary intoxication will not excuse a crime, but it is a defense to a specific intent offense if the circumstances demonstrate that intoxication precluded formation of the requisite intent. See La. R.S. 14:15(2); State v. Legrand, 2002-1462 (La. 12/3/03), 864 So.2d 89, 95-96, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005). The defendant has the burden of proving his intoxication defense; thereafter, it falls to the State to negate that defense by showing beyond a reasonable doubt that specific intent was present despite the defendant's alleged intoxication. See State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Harris, 527 So.2d 1140, 1143 (La. App. 1st Cir. 1988). Whether voluntary intoxication in a particular case is sufficient to preclude specific intent is a question to be resolved by the trier-of-fact. See Davis, 637 So.2d at 1020.
* * *
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
When asked if she perceived the defendant to be intoxicated, Sabina Medrano testified that she thought he was either crazy or intoxicated. Michael Elisar stated that he could tell that the defendant was "on some kind of drug," further noting that he was not sober, seemed "out of it," was sweaty and reeked of body odor, and was not acting normal. When Michael told the defendant to leave, he refused, stating in part, "I can't leave, they're after me." Don Elisar noted that the defendant was unarmed and scared when he confronted him. Don stated that the defendant began making self-degrading remarks, specifically testifying, "He kind of kept putting his self down, like I'm a no good and this and that." Don confirmed that the defendant waited until the police unit was out of sight before running toward another residence. When Joann Rogers, in fear, asked the defendant to leave their residence, in addition to claiming that he would not hurt her, he stated in part, "I just want to be a man." At that point, Joann became even more afraid and ran to her husband, Harold Rogers, for assistance. As Harold tried to get the defendant to leave, the defendant repeatedly attacked him, finally retreating after Harold threatened to get a gun. Harold confirmed that he did not actually have a gun but that the threat was enough to persuade the defendant to go to the front door to leave. Once the defendant was apprehended, the police officers did not recall him speaking in gibberish and he did not ask for medical assistance. According to the officers, the defendant appeared to be afraid and on some kind of drug. After the defendant was discharged from the hospital, Sergeant Lejuene took him to jail.
While the defendant claims otherwise on appeal, Michael did not specifically state that the defendant reeked of alcohol, instead repeatedly describing the odor as "body odor." When asked to elaborate, he stated, "Well, he was very sweaty and it was just -- it smelled like body odor but it just didn't smell very good."
London Stucky was dating the defendant at the time of the offenses and was working at a restaurant the night before the offenses. The defendant picked her up from work at midnight, and they went to a party in the Bayou Grand Subdivision at the home of her cousin's friend. They arrived at the party around 2:00 a.m., and by approximately 5:00-5:15 a.m., the defendant's behavior began to change. According to Stuckey, after he consumed an unknown liquid, he began sweating, talking fast, and appeared to be in "panic mode." She asked the defendant what he had consumed, and he informed her that he had drank from the cup sitting in front of her. When Stucky informed the defendant the cup did not belong to her, the defendant started "freaking out" and Stucky offered to take him to the hospital. Stucky testified she had never seen the defendant act this way before, although they had been dating for several months. The defendant left without Stucky at approximately 6:00 a.m., and she assumed he left on foot since his vehicle was still there. Stucky did not use drugs at the party and did not see the defendant use any drugs that night or at any other point while they were dating.
The trier-of-fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The trier-of-fact's determination of the weight to be given to 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. 1st Cir. 9/25/98), 721 So.2d 929, 932.
Based on the record, there was sufficient evidence in this case to support the jury's rejection of voluntary intoxication as a defense. The defendant's behavior, including hiding from the police, leaving the Rogers' residence after Harold threatened to obtain a gun and shoot him, and his further interaction with the victims, revealed he was aware of his actions. Though the victims perceived the defendant as acting weird or intoxicated, their testimony did not indicate he was mindless or incapable of forming thoughts. By the time the defendant arrived at the Rogers' residence, he had become verbally and physically aggressive. His proclamation of wanting to "be a man" immediately preceded his physical attacks against Joann and Harold Rogers.
Thus, the record supports a determination by the jury that the State sufficiently negated the defense of voluntary intoxication by showing beyond a reasonable doubt that specific intent was present despite the defendant's alleged intoxication. In reviewing the evidence, we cannot say the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a factfinder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, ___, 2016 WL 314814 (per curiam). After a thorough review of the record, we are convinced a rational trier-of-fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of aggravated burglary.
Counseled assignment of error number one lacks merit.
COUNSELED ASSIGNMENT OF ERROR NUMBER TWO
In counseled assignment of error number two, the defendant challenges the constitutionality of the sentences imposed. The defendant asserts he was intoxicated or suffering from a mental defect when he entered the residences without authorization. The defendant further contends the trial court did not provide any finding that he posed an unusual risk to the safety of the public and, therefore, did not give any justification for imposing maximum consecutive sentences. The defendant concludes that the sentences imposed shock the sense of justice.
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).
The defendant correctly points out that the trial court imposed the maximum term of imprisonment statutorily allowed on each offense. See La. R.S. 14:60; La. R.S. 14:62.3. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040 (La. App. 1st Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors the trial court is to consider when imposing sentence. It states three general conditions under which a court should impose a prison sentence: (1) when there exists undue risk that the defendant will commit another crime during the period of a suspended sentence or probation; (2) when the defendant is in need of the correctional services provided by an institution; or (3) when a lesser sentence will deprecate the seriousness of the crime. Other factors for review by the trial court before determining the sentence are the defendant's personal history (age, marital status, dependents, family stability, employment, mental, emotional and physical health), defendant's prior criminal history, the seriousness of the crime, the circumstances of the offense, the likelihood the defendant will commit another crime, and his potential for rehabilitation. State v. Lang, 430 So.2d 1239, 1242 (La. App. 1st Cir. 1983). Finally, the statute requires the trial court to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569. 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. State v. Watkins, 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La. 1982).
In imposing sentence, the trial court pointed out the defendant's status as a sixth felony offender. The trial court also indicated it had thoroughly reviewed the defendant's presentence investigation report (PSI) and made the PSI part of its reasons for sentence. The trial court specifically noted the portion of the PSI that observed the defendant had been afforded the opportunity of probation and parole supervision on multiple occasions but failed to become a productive member of society and continued to engage in criminal activity and illegal drug use. The trial court also referenced the portion of the PSI stating it appeared the defendant had a total disregard for the legal system and a lack of appreciation for the leniency he had been afforded in the past. Further, the Department of Public Safety and Corrections recommended the imposition of the maximum sentences of thirty years imprisonment at hard labor and two sentences of six years imprisonment at hard labor, to run consecutively. Considering the PSI and the facts of the case, the trial court imposed the sentences as recommended.
We note the defendant became increasingly aggressive and violent as he entered residence after residence without permission, creating a dangerous situation for the occupants. The victims were all fearful and distraught due to the defendant's actions. In addition to the emotional damage the defendant caused to each victim, he further inflicted significant physical injuries to Joann and Harold Rogers. Joann suffered a black eye and bruised leg and was cut and further injured as she tried to escape. Harold, who had pre-existing back problems, testified his back condition was aggravated by the defendant repeatedly pushing him and causing him to fall to the floor and against furniture.
As noted in the PSI, the defendant has a lengthy criminal record spanning his entire adult life, and including numerous crimes of violence. His prior offenses include simple battery, aggravated battery, aggravated flight from an officer, resisting an officer, simple criminal damage to property, and possession of cocaine, opiates, methamphetamine, and marijuana. Several of these offenses were committed multiple times over the twenty-year period comprising the defendant's criminal history, which also includes many other arrests and charges that were dropped. A trial court is entitled to consider a defendant's entire criminal history in determining the appropriate sentence to be imposed, including the defendant's arrests as well as convictions. See State v. Myles, 94-0217 (La. 6/3/94), 638 So.2d 218, 219 (per curiam); State v. Allen, 2005-1622 (La. App. 1st Cir. 3/29/06), 934 So.2d 146, 157.
The nature of the offenses and the defendant's history of repeated criminality over an extended period of time is sufficient to demonstrate that he is among the worst type of offenders, making him eligible for maximum sentences. See Miller, 703 So.2d at 701. Considering the record as a whole, we find the trial court did not err or abuse its discretion in imposing maximum consecutive sentences in this case.
Counseled assignment of error number two lacks merit.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In pro se assignment of error number one, the defendant argues the trial court erroneously denied several challenges for cause of prospective jurors. Specifically, the defendant argues the challenge for cause of Keioca Long should have been granted because of her relationship with State witness Deputy Escamilla, who trained her several years earlier for her current job. The defendant argues he was prejudiced by Long's inability to fairly weigh the credibility of Deputy Escamilla. The defendant further argues the trial court should have granted the challenge for cause of Lon Mouhot since he also knew Deputy Escamilla and stated he would believe police officers without judging their credibility. Additionally, the defendant contends Linda Singletary should have been excused for cause because she knew Don Elisar, one of the victims, and stated that she would hold a person responsible despite instructions on the intoxication defense. Similarly, the defendant contends four additional prospective jurors, Anthony Mueller, Paula Lacour, Danielle Ricks, and Israel Williams, should have been excused due to their stance that even if instructed that the law could possibly preclude intent, a person should still be held responsible for a crime.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors' qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La. App. 1st Cir.), writ denied, 468 So.2d 570 (La. 1985). Pursuant to La. Code Crim. P. art. 797(2), a prospective juror may be challenged for cause on the ground that the juror is not impartial, whatever the cause of his partiality.
An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 460-61, cert. denied, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). 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. However, if a prospective juror is able, after subsequent questioning, or rehabilitation, to declare to the court's reasonable satisfaction that he is able to render an impartial verdict according to the law and evidence, a challenge for cause is properly denied. See Sparks, 68 So.3d at 461; State v. Claiborne, 397 So.2d 486, 489 (La. 1981).
It is well settled that relationship to a law enforcement officer is not of itself grounds for a challenge for cause. Rather, the question presented is whether the prospective juror could assess the credibility of each witness independently of his relationship with members of law enforcement. State v. Carlos, 618 So.2d 933, 938 (La. App. 1st Cir.), writ denied, 623 So.2d 1305 (La. 1993).
When addressing whether a challenge for cause should be granted, the trial court must look at the prospective juror's responses during his or her entire testimony, not just isolated answers. Sparks, 68 So.3d at 461. A trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Martin, 558 So.2d 654, 658 (La. App. 1st Cir.), writ denied, 564 So.2d 318 (La. 1990). Thus, only where it appears the trial court's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will the ruling of the trial court be reversed. See State v. Lee, 93-2810 (La. 5/23/94), 637 So.2d 102, 108.
Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant has exhausted his peremptory challenges. State v. Kang, 2002-2812 (La. 10/21/03), 859 So.2d 649, 651-52. Therefore, in order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. See Kang, 859 So.2d at 652. Since the defendant in this case exhausted all twelve of his peremptory challenges, we need only consider the issue of whether the trial court erroneously denied the defendant's challenges for cause contested herein. See La. Code Crim. P. art. 799.
As the defendant notes, Long and Mouhot both indicated they knew Deputy Escamilla. Long explained she knew Deputy Escamilla because he had trained her five years prior to trial for her current bank teller job. Regarding Deputy Escamilla's credibility, Long stated, "I would judge it just as everybody else." She also stated she would not be swayed by the fact that her brother-in-law is a police officer at the Gonzales Police Department. Long further agreed that the fact that someone has been arrested does not mean they must be guilty.
When asked how he knew Deputy Escamilla, Mouhot stated he knew Deputy Escamilla from attending the same gatherings but did not see him often. He confirmed that his acquaintance with Deputy Escamilla would not influence him. When asked if he would judge Deputy Escamilla's credibility, he stated, "I would not judge his credibility." He added, "I just know him as a very good deputy." He indicated that if Deputy Escamilla made a statement, he would believe it to be truthful.
Additionally, the defendant points out that Singletary stated her husband had a co-worker named Don Elisar, although she was not certain he was the same individual involved in the instant case. She confirmed that if this case involved the same Don Elisar she was familiar with, it would not influence her in any way. When asked if she had a problem with someone having a defense to a charged act when they were so intoxicated that they were unable to form the intent to commit the act, Singletary responded, "I don't have a problem with it[,] but I do think whether that person is intoxicated or on drugs, whatever, they're still responsible for the act that they committed."
Singletary stated she believed the wife of the Don Elisar her husband worked with was named Melanie. While victim Don Elisar was never asked his wife's name during trial, Michael Elisar testified he lived with his parents, Cathy Elisar and Don Elisar.
Prospective jurors Mueller, Lacour, Ricks, and Williams indicated they agreed with Singletary when asked if they would hold someone responsible despite being instructed that the law could possibly preclude intent. Each of the prospective jurors agreed that a past criminal record does not indicate guilt in this case and that they would not change their verdict due to pressure by other jurors or try to pressure other jurors to change their verdicts.
Mueller, Lacour, Ricks, and Williams initially indicated that they would be capable of looking at all of the circumstances to make a determination regarding intent. They further indicated they would not have a problem with judging others based on their actions, and agreed to keep an open mind and apply the presumption of innocence in this case. When asked hypothetically if he would still require physical evidence despite the existence of eyewitness testimony by three bank tellers identifying a perpetrator, Williams even indicated that video evidence would not be enough to persuade him to convict, stating, "I mean you could do so much with cameras today." He added that the existence of physical evidence would be better than being required to make a determination based on the credibility of the witnesses alone. Ricks indicated, "If there's three credible witnesses I wouldn't require it [physical evidence]."
In denying the defense's challenge of Long due to her prior status as a bank employee trainee of Deputy Escamilla, the trial court agreed with the State's argument that she would be fair, noting both that she gave all the right answers and that the training took place years before the trial. Prior to the defense's challenge of Mouhot based on his acquaintance with Deputy Escamilla and statement regarding the deputy's credibility, the State challenged Mouhot for cause based on his response that he would want the police to check for DNA or fingerprint evidence even in a case where video evidence was obtained. The trial court denied the dual challenges, opining that Mouhot was seemingly confused by the credibility question and that the question was incomplete and unclear. Similarly, both the State and the defendant challenged Williams. The State noted Williams indicated eyewitness testimony would be insufficient and the defendant noted Williams stated he could not follow the law regarding an intoxication defense. The trial court rejected both arguments.
Further, with respect to the defense's challenges of prospective jurors regarding their responses on the defense of intoxication, the trial court considered the context and concluded:
I don't agree with the way you were giving the law to them. I think it was a confusing issue and I don't believe that that [sic] was their intent when they were saying that they wouldn't -- I think they were maybe more leaning towards maybe they don't like it but I don't think they were saying they couldn't follow the law so I'm going to deny that.
Based on our review of the entire voir dire, we find the trial court did not abuse its broad discretion in denying the defendant's challenges for cause as to these prospective jurors. The record indicates the trial court properly considered the prospective jurors' responses as a whole and concluded the overall responses of the jurors at issue indicated they would be open-minded, fair, and impartial.
Pro se assignment of error number one is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
In pro se assignment of error number two, the defendant argues the trial court abused its discretion and committed reversible error in excluding testimony on the defense of involuntary intoxication. The defendant notes a motion to give notice of an intoxication defense was filed, but recalled before the trial. He further notes that his defense attorney alluded during opening statements to testimony that would show the defendant unknowingly consumed a drink containing mushroom tea at a party before the offenses occurred. Finally, the defendant contends he was prejudiced when the trial court subsequently ordered defense counsel to instruct his girlfriend, Stucky, not to testify concerning what was in the cup the defendant drank from when they were together the night before the offenses.
A criminal defendant's right to present a defense is guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution. Evidentiary rules may not supersede the fundamental right to present a defense. See U.S. Const. amend. VI; La. Const. art. I, § 16; State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198, 202. However, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value can be admitted. See State v. Governor, 331 So.2d 443, 449 (La. 1976). Thus, while hearsay should generally be excluded, if it is reliable and trustworthy and its exclusion would interfere with the defendant's constitutional right to present a defense, it should be admitted. See La. Code Evid. art. 802; State v. Gremillion, 542 So.2d 1074, 1078 (La. 1989). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. La. Code Evid. art. 403. Ultimately, questions of relevancy and admissibility of evidence are discretion calls for the trial court. Such determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. See State v. Mosby, 595 So.2d 1135, 1137-39 (La. 1992).
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. Code Evid. art. 801(C).
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence that is not relevant is not admissible. La. Code Evid. art. 402.
In this case, the record shows the defendant filed a pretrial notice of intoxication defense that notes aggravated burglary is a specific intent crime and that the defendant "intends to present evidence of his intoxication as is contained in the information provided by the State." Prior to the defense calling Stucky to testify, the State suggested to the trial court that if she was going to testify she was involved in giving the defendant drugs or alcohol without his knowledge, she should be advised by counsel regarding her rights. Defense counsel denied Stucky would provide such testimony and responded negatively when the trial court asked if Stucky had any knowledge of involuntary intoxication. Defense counsel indicated Stucky subsequently learned what was in the defendant's cup although she was not involved in giving him the substance. Defense counsel was unaware of how Stucky acquired such knowledge and stated, "She's [Stucky] going to say -- she's going to be able to testify as to his behavior after he drank from the cup and that he didn't know anything was in the cup nor did she. And that's relevant information."
The trial court held Stucky would be allowed to testify as to her observations, but in ruling hearsay inadmissible, the trial court stated, "if all she's going to say is simple hearsay as to someone told her something in a cup [sic] then you got to bring that person." Defense counsel then stated, "Okay, but she can testify as to she saw him drink out of the cup and after he drank out of the cup he acted in a different manner." The trial clarified, "You can't bring up anything about what she thinks is in that cup, none. She can just say I saw him drink it and I saw the way he was acting. And make sure you advise her of that before she gets on the stand."
Stucky testified the defendant started acting weird after she saw him drink something from a cup that had been sitting in front of her. She stated the cup was not hers but she saw "something in the cup." According to Stucky, after drinking the substance, the defendant "started like sweating and like tapping me and like, you know, like panicking." She added the defendant was turning pale, talking fast, and was not acting normal. She further testified he responded, "no, no, no, no," when she asked him if he was okay. She testified that when she told the defendant the cup he drank from was not hers, "he was like, oh, my god, and he started freaking out and everything like that." Stucky stated she offered to take the defendant to the hospital. When she began to testify as to what her cousin told her, the State objected on the grounds of hearsay. The trial court gave her a limiting instruction, advising her not to go into the conversation with her cousin.
At the outset, we note defense counsel failed to proffer any additional testimony that Stucky would have presented regarding her knowledge, if any, as to what was in the defendant's cup, if she were allowed to testify to such at trial. Louisiana Code of Evidence article 103(A)(2) provides that, "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel." See also State v. Johnson, 2000-0680 (La. App. 1st Cir. 12/22/00), 775 So.2d 670, 678-79, writ denied, 2002-1368 (La. 5/30/03), 845 So.2d 1066. Thus, the defendant did not preserve this issue for review.
Further, the record indicates defense counsel acquiesced in the trial court's ruling that Stucky would not be able to testify as to what was in the defendant's cup based on hearsay. Consistent with the defense's request and the trial court's ruling, Stucky was allowed to present testimony that the defendant accidentally drank from a cup he mistakenly believed belonged to Stucky and his behavior changed after consuming the substance in the cup. Further, when the State objected as Stucky began to testify concerning what her cousin told her, defense counsel simply responded, "It's not hearsay yet; she hasn't said anything." There was no objection by the defense following the trial court's subsequent limiting instruction, nor any attempt to admit the hearsay under any exception to the hearsay rule.
In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. Code Crim. P. art. 841(A). It is well established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. See State v. Holmes, 2006-2988 (La. 12/2/08), 5 So.3d 42, 87-88, cert. denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009); State v. Cooks, 97-0999 (La. 9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999). As stated, not only did the defendant not object below, but he further acquiesced in the trial court's ruling limiting Stucky's testimony and has not presented any argument below or on appeal for the allowance of any additional testimony by Stucky. We find no abuse of discretion or violation of the defendant's constitutional right to present a defense in the trial court's ruling.
Pro se assignment of error number two lacks merit.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
In pro se assignment of error number three, the defendant argues the trial court committed reversible error by not giving the defense's proposed jury instruction on the legal effect of a verdict of not guilty by reason of insanity at the time of the offense. The defendant contends the proposed jury instruction would have advised the jury that if found not guilty by reason of insanity at the time of the offense, he would have been remanded to parish prison or a mental institution as opposed to being automatically set free. In arguing the trial court's failure to give the proposed instruction affected the outcome of the trial, the defendant contends some prospective jurors were concerned that such a verdict would absolve him from being held responsible.
The proposed jury charge provided:
If you, the jury, should find the defendant not guilty by reason of insanity at the time of the offense, the effect of that verdict is as follows: The Court shall remand the defendant to the Parish Prison or to a private mental institution and shall promptly hold a hearing to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself. If the Court determines that the defendant cannot be released without such danger, it shall order him committed to East Louisiana State Hospital at Jackson, Louisiana, until such time, if ever, that the Court determines, based on physicians' recommendations, that he can be released without danger to himself or to others. The only restriction on the length of time during which the defendant may be confined is that the confinement period may not exceed the time to which he could be legally sentenced should he have been found guilty, in this instance, thirty (30) years on the charge of Aggravated Burglary and six (6) years on each count of Unauthorized Entry of an Inhabited Dwelling.
State v. Gurley, 376 So.2d 110, 111 (La. 1979); State v. Beckert, 326 So.2d 494, 495 (La. 1976).
We note, as later detailed herein, Gurley was called into doubt by the Fourth Circuit Court of Appeal in State v. Everett, 505 So.2d 133, 134 (La. App. 4th Cir. 1987).
The trial court refused to give the proposed charge and, in pertinent part, instructed the jurors of their duty to find the defendant not guilty by reason of insanity should they find, "one, that the State proved beyond a reasonable doubt that the defendant did commit the offense charged or a responsive offense, and two, that the defendant established by a preponderance of evidence that he was unable to distinguish right from wrong with respect to the conduct in question at the time of the offense." The trial court further instructed the jurors of their duty to reach a just verdict and that they were not to consider sentencing in reaching their verdicts, because sentencing is not the function of the jury.
The general rule is that the jury need not be told of the applicable penalty on conviction because the imposition of sentence is solely within the province of the trial court, and is not a function of the jury, which is concerned with the guilt or innocence of the accused. See State v. Lilly, 2012-0008 (La. App. 1st Cir. 9/21/12), 111 So.3d 45, 52, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386; State v. Albert, 430 So.2d 1279, 1286 (La. App. 1st Cir.), writ denied, 433 So.2d 711 (La. 1983). However, an instruction explaining the consequences of a verdict of not guilty by reason of insanity must be given if requested by the defendant or jurors if the defendant pled not guilty and not guilty by reason of insanity at arraignment. See La. Code Crim. P. arts. 803 & 552; State v. Babin, 319 So.2d 367, 381 (La. 1975) (on rehearing). Moreover, a requested special charge shall be given by the trial court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. La. Code Crim. P. art. 807. Thus, when the trial court's general charge does not include an instruction explaining or quoting the law applicable to a verdict of not guilty by reason of insanity, then upon the defendant's request, the trial court must read the defendant's suggested charge to the jury if it is wholly applicable and wholly correct. Babin, 319 So.2d at 381.
The Supreme Court in Babin, did not mandate that the trial court must give a verbatim reading of La. Code Crim. P. arts. 654-658. In fact, the Court stated quite clearly: "We prefer not to prescribe any particular form that such instructions must take." Babin, 319 So.2d at 381.
At the outset, we note the requested special jury charge in this case was not wholly correct. Relying on the holding in Gurley, the requested charge states that if the jury finds the defendant not guilty by reason of insanity, the period of confinement period may not exceed the time to which he could be legally sentenced should he have been found guilty. However, as held by the United States Supreme Court, the committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous, i.e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. Foucha v. Louisiana, 504 U.S. 71, 77, 112 S.Ct. 1780, 1784, 118 L.Ed.2d 437 (1992), (citing Jones v. United States, 463 U.S. 354, 368-70, 103 S.Ct. 3043, 3052-53, 77 L.Ed.2d 694 (1983).
In Everett, the previously-mentioned case in which the Fourth Circuit called Gurley into doubt, the defendant requested a special charge providing that "not guilty of manslaughter by reason of insanity" is a responsive verdict to a charge of second degree murder. Everett, 505 So.2d at 134. The trial court refused to give the charge and found the defendant not guilty by reason of insanity. On appeal, the defendant contended the facts did not support a charge of second degree murder but rather one of manslaughter. The defendant argued that Gurley set forth the rule of law that a defendant found not guilty by reason of insanity cannot be confined for a longer period of time than he could have been if found guilty of the crime charged. He argued the trial court should have returned a verdict of "not guilty of a particular offense, i.e. manslaughter," so that the Gurley rule of law could be applied. Everett, 505 So.2d at 134. In finding no error in the trial court's ruling, the Fourth Circuit noted that the pronouncements in Gurley were not supported by statutory authority, but were based on cases rendered prior to the United States Supreme Court's holding in Jones v. United States. In Jones, the Supreme Court held a defendant found not guilty by reason of insanity may be confined for as long as he is both mentally ill and dangerous. See Jones, 463 U.S. at 368. Herein, the defendant relied on Gurley in proposing incorrect language in the requested special charge. Thus, since the requested special charge was not wholly correct and pertinent, the trial court was not required to give the instruction. La. Code Crim. P. art. 807.
Moreover, although the proposed jury charge was included in a written request, the defendant did not object to the jury charges at the trial court level. La. Code Crim. P. art. 801(C) provides that a "party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error." Absent such a contemporaneous objection, a defendant may not complain on appeal of the trial court's jury charge. See La. Code Crim. P. art. 841(A); State v. Parker, 506 So.2d 675, 682-83 (La. App. 5th Cir.), writ denied, 512 So.2d 456 (1987).
Finally, it has been held that failure to give a requested charge constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, 937, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); see also La. Code Crim. P. art. 921. In this case, no evidence was introduced to show the presence of a mental disease or defect in the nature of insanity. The evidence of record that the defendant may have been in an intoxicated condition due to a consumed substance is not pertinent to the legal insanity issue. See State v. Rives, 407 So.2d 1195, 1198 (La. 1981); State v. Hilburn, 512 So.2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So.2d 444 (La. 1987). Given the evidence that supports the jury's verdicts and the lack of any evidence presented by the defendant to prove insanity, we do not find the trial court's failure to give an instruction explaining the consequences of a verdict of not guilty by reason of insanity prejudiced the defendant. See State v. Leeming, 612 So.2d 308, 315 (La. App. 5th Cir. 1992), writ denied, 616 So.2d 681 (La. 1993); see also State v. Allen, 537 So.2d 1312, 1314 (La. App. 4th Cir. 1989) ("[B]ecause relator presented no evidence of the defense [of insanity] and was convicted based upon the overwhelming evidence of his guilt for the crime charged, we find the trial judge's refusal to instruct the jury on the law of insanity does not rise to the level of a fundamental constitutional or statutory claim.").
In Louisiana, a defendant is presumed to be sane and the State is not required to prove his sanity. La. R.S. 15:432; State v. Edwards, 257 La. 707, 712, 243 So.2d 806, 808 (1971). A defendant who wishes to negate the presumption must put forth an affirmative defense of insanity and prove his insanity by a preponderance of the evidence. La. Code Crim. P. art. 652; State v. Roy, 395 So.2d 664, 665 (La. 1981); Hilburn, 512 So.2d at 503. --------
We find no merit in pro se assignment of error number three.
CONCLUSION
For the above reasons, the defendant's convictions and sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.