Opinion
2012 KA 2084
2013-09-13
STATE OF LOUISIANA v. RANDY FORTENBERRY
Walter P. Reed District Attorney Lewis V. Murray, III Assistant District Attorney Franklinton, Louisiana and Kathryn Landry Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Powell Miller New Orleans, Louisiana Counsel for Defendant/Appellant Randy Fortenberry
NOT DESIGNATED FOR PUBLICATON
On Appeal from the Twenty-Second Judicial District Court
In and for the Parish of Washington
State of Louisiana
No. 111169
Honorable William J. Crain, Judge Presiding
Walter P. Reed
District Attorney
Lewis V. Murray, III
Assistant District Attorney
Franklinton, Louisiana
and
Kathryn Landry
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Powell Miller
New Orleans, Louisiana
Counsel for Defendant/Appellant
Randy Fortenberry
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
McCLENDON, J.
Defendant, Randy Fortenberry, was charged by amended bill of information with three counts of attempted first degree murder (counts I, II, and III), violations of LSA-R.S. 14:27 and LSA-R.S. 14:30. He entered a plea of not guilty. Following a jury trial, on count I, defendant was found guilty of the responsive offense of attempted manslaughter, a violation of LSA-R.S. 14:27 and LSA-R.S. 14:31, by a ten to two verdict; on count II, he was found guilty of the responsive offense of aggravated battery, a violation of LSA-R.S. 14:34, by unanimous verdict; and on count III, he was found guilty as charged by an eleven to one verdict. On count I, defendant was sentenced to twenty years at hard labor. On count II, he was sentenced to ten years at hard labor. On count III, he was sentenced to forty years at hard labor without benefit of parole, probation, or suspension of sentence. Additionally, the court ordered that the sentences on counts I, II, and III would run concurrently with each other. Defendant now appeals, contending his conviction by a non-unanimous verdict on counts I and III violated his federal constitutional rights. For the following reasons, we affirm the convictions and sentences.
The sentencing minutes indicate the sentences on counts I and II were imposed without benefit of probation, parole, or suspension of sentence. The sentencing transcript, however, does not reflect these restrictions on the sentences. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
FACTS
On August 5, 2010, at approximately 10:30 p.m., David Crumedy (the victim of count I), Billy "Efrem" Williams (the victim of count II), Williams' girlfriend, Lisa Lucas Martin (the victim of count III), and David Cotton were in the home of Latimore "Ted" Holmes, Jr., in Bogalusa. Defendant came to the home and complained to Cotton about Williams punching defendant that afternoon over an incident that had occurred the previous night. Cotton told defendant, "[m]an, you-all too old for that; you-all need to cut that out, bro." Defendant, stated, "all right, man, you right[,]" and left without incident.
Defendant returned to the house about thirty minutes later and complained about Williams again. Cotton spoke to defendant again, and defendant left again without incident. Subsequently, Roger Holmes knocked on the door of the house, and Cotton let him in and locked the door.
Approximately five minutes later, defendant kicked in the door. He told Williams, "Billy, we going to settle this like two men, let's go outside." Williams went outside to have a fistfight with defendant, while Cotton tried to stop the fight. Thereafter, defendant pulled a pistol from his pocket and began shooting. Williams was shot in the wrist and ran back into the house. Defendant followed Williams into the house and shot Crumedy in the shoulder, stating, "[m]an, you sunt that n---- at me." Defendant also shot Martin in the shoulder and the middle of the forehead, stating, "[a]w, bitch, here you go, right here, I been looking for you[,]" and "[b]itch, you going die."
Defendant did not testify at trial, but the State played his statement concerning the offense, recorded on August 5, 2010, at 4:15 a.m. The statement was largely unintelligible due to defendant mumbling. However, defendant complained that Williams had punched him in the head. Additionally, he stated, "I shot them," and indicated he "did what [he] had to do."
CONSTITUTIONALITY OF NONUNANIMOUS VERDICT
In his sole assignment of error, defendant argues his conviction by a non-unanimous verdict on counts I and III violated his federal constitutional right to equal protection.
Initially, we note that defendant failed to preserve this claim for review by special pleading and particularized argument. See State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 739 ("It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. ... While there is no single procedure for attacking the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.").
Furthermore, LSA-Const. art. I, §17A and LSA-C.Cr.P. art. 782A are constitutional and do not violate the Fifth, Sixth, and Fourteenth Amendments. Bertrand, 6 So.3d at 743; State v. Jones, 09-0751 (La.App. 1 Cir. 10/23/09), 29 So.3d 533, 540.
This assignment of error is without merit.
DECREE
For the above and foregoing reasons, we affirm defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.