Opinion
2021 KA 1489
09-16-2022
STATE OF LOUISIANA v. HAROLD J. MELANCON, SR.
M. Bofill Duhe Walter J. Senette, Jr. Franklin, LA Counsel for Appellee, State of Louisiana Cindy Meyer Mary Constance Hanes New Orleans, LA Counsel for Defendant/Appellant, Harold J. Melancon, Sr.
Appealed from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana Docket Number 2017-200885 Honorable Lewis H. Pitman, Jr., Judge Presiding
M. Bofill Duhe Walter J. Senette, Jr. Franklin, LA Counsel for Appellee, State of Louisiana
Cindy Meyer Mary Constance Hanes New Orleans, LA Counsel for Defendant/Appellant, Harold J. Melancon, Sr.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
The defendant, Harold J. Melancon, Sr., was charged by bill of information with vehicular homicide (0.130 percent blood alcohol concentration), a violation of LSA-R.S. 14:32.1(A)(2). He pled not guilty. Following a jury trial, he was found guilty as charged. He was sentenced to twenty-four years at hard labor, five years without benefit of probation, parole, or suspension of sentence, and fined $2,000.00. He moved for reconsideration of sentence, but the motion was denied. He now appeals, challenging the sufficiency of the evidence, the admission of certain photographs at trial, the response of the trial court to a jury request for further instruction, and the sentence imposed. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
On August 5, 2017, at approximately 10:30 p.m., Louisiana State Police Trooper Jeremy Broussard responded to a vehicle crash at the intersection of Louisiana Highway 182 and Katy Bridge Road in St. Mary Parish. He found a pickup truck "sitting across both lanes" and a black motorcycle on its side. The defendant was the driver of the pickup truck. The driver of the motorcycle, Erin Demarco (the victim), had been transported from the scene. Trooper Broussard stated that the defendant told him that he had been trying to turn onto Highway 182, "and the bike came into his lane and hit him." Trooper Broussard told the defendant "it didn't look like that because the bike was still in [its] proper lane." Thereafter, the defendant provided the following written witness statement:
I dropped my son of[f] at Candy's. I was going to get his mom (Mary Melancon). I stopped at the stop sign of the parking lot and looked both ways. I seen clear on both sides and pulled out. Next I knew, man pulled out and hit me on the front driver side of my lane. I saw no head lights [sic]. The air bag deployed. Got out the vehicle and customers of the bar dialed 911. I remained on the scene and assisted [the] victim [un]til emergency personnel arrived.
Trooper Broussard testified the weather was clear at the scene and there was "a fair amount of lighting." He noted the presence of street lights alongside of Candy's Bar, which was visible from the crash scene. He discovered a skid mark from the motorcycle, which he used to determine the lane and position of the motorcycle before the crash. He also found a "tire crook," which indicates a point of impact on the motorcycle where the motorcycle had impacted or had a sudden change of direction. He concluded the victim applied his rear brake, locking up the rear wheel of the motorcycle, and skidded into the defendant's truck.
The victim was wearing a helmet at the time of the crash, which contained the following notice on the inside of the helmet:
WARNING THIS COLLECTORS PRODUCT DOES NOT MEET DEPARTMENT OF TRANSPORTATION SPECIFICATIONS.
IT IS NOT TO BE USED ON ANY MOTORIZED VEHICLES. IT IS NOT DESIGNED TO BE A SAFETY HELMET AND DOES NOT PROTECT YOUR HEAD ON IMPACT.
Trooper Broussard testified the taillights of the motorcycle were still on, while the headlight was broken during the crash. He indicated, based on his experience as an experienced motorcyclist and an endorsed motorcycle rider, that unless a motorcycle had been modified, the headlight and the taillight came on together.
The speed limit on Katy Bridge Road was twenty-five miles-per-hour. The speed limit on Highway 182 in the area of the crash was fifty-five miles-per-hour. The distance from the stop sign to the crash scene was fifty-six feet. There was no indication of skid marks from the tires of the truck. Trooper Broussard concluded that the defendant, while attempting to make a left turn onto LA-182, failed to yield the right-of-way to the motorcycle driven by the victim. The motorcycle then struck the left front fender of the truck, breaking the motorcycle's tire, and throwing the victim from the motorcycle.
After the defendant was taken for a chemical test, Trooper Broussard advised the defendant of his Miranda rights and conducted a DWI interview. The defendant did not report having any physical "defects" and indicated the only medication he was taking was for high blood pressure. He did not know on which roadway he was travelling. He indicated he had been drinking at "the bar." When asked how much he had been drinking, he replied "[a] lot." He stated he began drinking at 10:30 a.m. and stopped at 2:00 p.m.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694
Trooper Broussard testified that he had received training in field sobriety testing, advanced roadside drug impairment testing, and basic alcohol impairment testing. He indicated that he had previously identified impaired drivers on approximately twenty occasions. He testified that during his "very brief' initial contact with the defendant, which was prior to the chemical test, and while the defendant was sitting on the fire truck, he did not notice any signs of impairment. During the interview, however, he noted the defendant was having trouble standing up on his own and was swaying "front to back." Trooper Broussard also noticed that the defendant's eyes were glassy and bloodshot. Additionally, he smelled alcohol on the defendant. Trooper Broussard testified that the defendant's level of impairment was obvious. According to Trooper Broussard, the defendant should not have been driving a vehicle. The defendant was taken away for a voluntary submission to chemical testing and then was returned to the scene. Thereafter, Trooper Broussard arrested him for vehicular homicide and failure to yield. While transporting the defendant to jail, Trooper Broussard asked the defendant if he had any questions. According to Trooper Broussard, "[the defendant] said no. [The defendant] said that he knows he messed up[;] he knew he was going to be in jail for a while."
Former Louisiana State Trooper Eric Paul Burson was accepted by the court as an expert in accident reconstruction and the examination of headlamps. He also responded to the crash scene on the night of the incident. He testified the motorcycle's skid mark was consistent with a rear wheel skid only and indicated "the rider still had some sort of input." He elaborated that "[i]fs a tendency of a motorcycle rider if they're involved in an incident like a vehicle pulling out in front of them or some sort of emergency incident, [their] tendency is to hit the brake - the rear brake only and not the front brake." He stated the majority of the damage was to the front of the motorcycle, but there was illumination to the rear of the motorcycle. Burson testified that the motorcycle's headlamp was functioning at the time of the crash. He noted that on most motorcycles, the headlamp and the taillamp came on together. Further, when examining photographs of the damaged headlamp, Burson observed "blue, purplish, black ... discoloration," as well as stretching of the filament. Burson stated that headlamp filaments are made of tungsten, and, in order for the tungsten to stretch and for the lamp to operate properly, the headlamp must heat to four thousand degrees. Burson testified that, "[i]n order for [the filament] to stretch like it is[,] that filament has to have been illuminated. It has to be hot, because they usually cool down within about a second."
Following the incident, Burson retired from Louisiana State Police with twenty-five years of service.
The witnesses used "headlamps" and "headlights" interchangeably.
Burson advised the defendant that he would need to be chemically tested due to the fatality involved. The defendant cooperated and Burson transported him to the Baldwin Police Department. During his interaction with the defendant, Burson smelled the odor of an alcoholic beverage on the breath of the defendant and noticed he had slurred speech and glassy blood shot eyes. At 12:17 a.m., an Intoxilyzer 5000 machine indicated the defendant's blood alcohol content was .130 grams percent. According to Burson, based on the defendant's blood alcohol content, he should not have been driving on the night of the incident due to his "inability to perceive or react [to a] motorcycle or any other vehicle coming at him[.]"
Benjamin Paul Picard was a longtime friend of the victim. The State asked him what kind of driver had the victim been. Picard answered "[the victim] was safe, paid attention to his surroundings, obeyed traffic laws. He was a really good person on a motorcycle." Picard saw the victim riding his motorcycle a couple of days prior to his death and testified that everything was working on the motorcycle.
Picard also saw the victim at approximately 9:30 p.m. on the night of his death. The victim was on Highway 182 and was heading in the direction of his home. According to Picard, everything on the victim's motorcycle was still working and functioning. Picard testified that the lighting on the stretch of Highway 182 is "[v]ery poor" and "[t]here's no possible way to travel that stretch with no headlights on at night."
Dr. Amanda Krausert was accepted by the court as an expert in forensic pathology. She performed the autopsy on the victim. She testified that he suffered blunt injuries to his head and torso in the accident and both of the injuries were life threatening. She further testified that the victim's head injury was "not inconsistent" with his "helmet being slammed [into] his face."
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant contends the evidence is insufficient to support the verdict of guilty of vehicular homicide. He argues the evidence failed to prove a causal link between his intoxication and the death of the victim. He argues that "[t]he State failed to establish both the extent of [the defendant's] impairment at the time of the accident and whether such caused him to make the driving error of failure to yield."
The standard of review for 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 conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove, in order to convict," every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438; State v. Currie, 2020-0467 (La.App. 1st Cir. 2/22/21), 321 So.3d 978, 982.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. LSA-R.S. 15:438; Currie, 321 So.3d at 982.
In State v. Leger, 2017-2084 (La. 6/26/19), 284 So.3d 609, 613-14, the Louisiana Supreme Court found that since 2008, in conducting sufficiency of the evidence analysis in vehicular homicide cases, the intermediate courts of appeal had over relied on State v. Taylor, 463 So.2d 1274, 1275 (La. 1985) ("[t]he evident purpose of the vehicular homicide statute is to curb traffic fatalities caused by the consumption of alcohol. It is not aimed at persons involved in vehicular fatalities whose alcohol consumption does not cause but merely coincides with such an accident."), rather than looking to the plain text of the vehicular homicide statute.
Louisiana Revised Statutes 14:32.1 provides, in pertinent part:
A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, ... whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exist and such condition was a contributing factor to the killing:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
The court in Leger found that the 2008 legislative amendment of the statute, which added the language "and such condition was a contributing factor to the killing[,]":
See 2008 La. Acts. No. 451, §2.
embodied and clarified the Taylor causation requirement to make it more workable as a matter of proof. The plain text of the statute now requires the state to prove four things: 1) the killing of a human being; 2) caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle; 3) a prohibited degree of intoxication; and 4) a link between the intoxication and the killing. Most importantly, the link between the intoxication and the killing does not have to be a "proximate cause," but simply a "contributing factor."
A "proximate cause" is one that directly produces an event and without which the event would not have occurred. See Black's Law Dictionary (10th ed. 2014). By contrast, a "contributing cause" is a factor that -though not the primary cause - plays a part in producing a result. See id. N "factor" is an agent or cause that contributes to a particular result. See id.', see also "Factor," American Heritage Dictionary (5th ed. 2019) ("One that actively contributes to an accomplishment, result, or process"). Therefore, the 2008 amendment was a subtle but important change for vehicular homicide cases.Leger, 284 So.3d at 615-16 (some italics added; footnote omitted).
In the instant case, the defendant challenges the link between his intoxication and the killing. Viewing the evidence presented at trial in the light most favorable to the prosecution, it is unquestionable that the defendant's operation of his truck was a direct cause of the victim's death, and that the defendant operated the truck while intoxicated. The only question is whether the defendant's intoxication was a "contributing factor" to the killing. See LSA-R.S. 14:32.1(A); Leger, 284 So.3d 615-16.
The State's theory was that the killing of the victim occurred when "[the defendant] failed to yield at the stop sign and pulled out in front of [the victim,] causing [the victim] to collide with the truck that [the defendant] was driving, ejecting [the victim] from his motorcycle." According to the defense, however, "what caused [the defendant] to pull out in front of the motorcycle was the fact that the motorcycle was barreling along at fifty-five miles an hour in the dead of night with no headlight."
Causation is a question of fact which has to be considered in the light of the totality of the circumstances surrounding the ultimate harm and its relation to the actor's conduct. Leger, 284 So.3d at 617. The defense's hypothesis of innocence, i.e, the victim was driving "with no headlight," relied upon the defendant's written witness statement that he "saw no [headlights]." Specifically, the defendant argues that because the victim was driving at night without his headlight on and approaching from a distance in the dark, the defendant "could easily have failed to realize a motorcycle was approaching" and that "[t]his mistake would have been one that anybody could have made under the circumstances," whether intoxicated or not. Thus, he argues, the State failed to establish that the defendant's intoxication was a "contributing factor" to the killing.
On the record before us, we conclude that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find the evidence proved beyond a reasonable doubt, and to the exclusion of the hypothesis of innocence raised by the defendant, that the State proved the essential elements of vehicular homicide and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. The jury's inference that the defendant's intoxication led to the failure to yield was perfectly reasonable considering the evidence presented at trial. See Leger, 284 So.3d at 618. Picard testified that approximately an hour before the incident, he saw the victim operating his motorcycle in good working order on Highway 182. According to Picard, it would be impossible to travel on that portion of Highway 182 on a motorcycle "with no headlights on at night." Trooper Broussard and Burson both testified there was a skid mark from the rear wheel of the motorcycle. According to Burson, the skid mark was consistent with "a vehicle pulling out in front [the motorcycle]." Trooper Broussard testified that unless the motorcycle had been modified, the fact that the motorcycle's taillight was on following the crash suggested the headlight had also been on at the time of the incident. Burson testified "[m]ost motorcycles[,] when you turn the key ... to the position where it could be started, the headlamp and the tail lamps come on." Additionally, Burson testified that based on the color and stretching of the tungsten in the headlamp, the filament "[had] to have been illuminated" at the time of the crash. Considering the evidence presented herein, the State established that the defendant's intoxication "contributed to" or was a "contributing cause" of the accident and the resulting killing of the victim. After considering the testimony and evidence, the jury could reasonably conclude that the defendant's intoxication impaired his ability to see the approaching motorcycle and caused him to improvidently pull out in front of it, resulting in the victim's death.
The jury also did not act irrationally in finding that the defendant's intoxication was a contributing factor to the killing even though the victim was wearing a nonapproved crash helmet at the time of the incident. Dr. Krausert testified that, in addition to his head injuries, the victim suffered a pelvic fracture that "could be death causing."
In reviewing the evidence, we cannot say that the jury's determinations were irrational under the facts and circumstances presented to them. See generally State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the fact finder. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). The State presented sufficient evidence that the defendant's intoxication was a contributing factor in the death of the victim where the defendant failed to yield at a stop sign, causing the collision which ejected the victim from his motorcycle, resulting in his death.
This assignment of error is without merit.
GRUESOME PHOTOGRAPHS
In assignment of error number two, the defendant contends the trial court erred in allowing the admission of gruesome autopsy photographs. He argues that over defense objection, "the trial court allowed the State to show the jury numerous gruesome photographs from the autopsy of the victim, one of which gratuitously showed where the victim's leg bones had been removed for tissue donation, a matter completely unrelated to his death."
The admission of gruesome photographs will not be overturned unless it is clear the prejudicial effect of the evidence outweighs its probative value. Admission of such evidence will not be found to constitute error unless the photographs are so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence. Gruesomeness of photographs does not, in and of itself, prevent admissibility. Generally, photographs of a victim's body which depict the fatal wounds are relevant to prove the corpus delicti, to establish the identity of the victim, the location, severity and number of wounds, and to corroborate other evidence of the manner in which the death occurred. Moreover, the defendant cannot force the State to use drawings or other evidence instead of photographs, and cannot deprive the State of the moral force of its case by offering to stipulate to what is shown in photographs. State v. Collins, 2021-1048 (La.App. 1st Cir. 2/25/22), 2022 WL 575319, *4 (unpublished), writ denied, 2022-00519 (La. 5/24/22), 338 So.3d 1193.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.
During the testimony of Dr. Krausert, the defense objected to the introduction of any autopsy photographs, arguing they were highly inflammatory. Additionally, the defense offered to "stipulate [the victim was] dead." The State's response was that Dr. Krausert had testified she took photographs during her examination of the victim, and the jury should be permitted to look at those pictures which showed the existence of the victim's injuries. The court overruled the defendant's objection. The defense asked the court for reasons for the ruling and the court replied "[i]t's part of the coroner's report." Additionally, the court stated:
We have an objection raised by the defense as to photographs of the - in connection with the autopsy of the coroner. The Court has
previously overruled that objection, now we're here looking at the photographs. The Court finds that the coroner's testimony previously indicated that trauma to the upper chest area and head were the cause of his death. In viewing the photographs there are several photographs which do not have any indication of those two areas, therefore those have no probative value whatsoever. As I go through them I am taking aside those that do not affect his upper torso or his head area. Okay, I have separated those photographs which depict the upper torso and the head area of the autopsy and those photographs ....
Court accepts State Exhibit 11-A, State Exhibit 11-G, State Exhibit 11-H, State Exhibit 11-I, State Exhibit 11-J. The Court finds ... inappropriate the following offered photographs that being State Exhibit 11-K, State Exhibit 11-0, State Exhibit 11-N, State Exhibit 11M, State Exhibit 11-L, State Exhibit 11-F, State Exhibit 11-E, State Exhibit 11-D, State Exhibit 11-C, and State Exhibit 11-B.
State Exhibit 11-A was a photograph of the victim from his head to his waist, depicting injuries to his head, chest, and arms. State Exhibit 11-G was a photograph of the victim's face and upper chest, depicting injuries to his head and chest. State Exhibit 11-H was a photograph of the right side of the victim's head, depicting injuries to his forehead, nose, and right cheek. State Exhibit 11-1 was a photograph of the left side of the victim's head, depicting injuries to his forehead and nose. State Exhibit 11-J was a photograph of the victim from his shoulders to above his groin area, depicting injuries to his chest and arms.
The trial court correctly concluded that the probative value of the challenged photographs outweighed their possible prejudicial effect. The photographs admitted into evidence concerned the nature and severity of the fatal injuries suffered by the victim during the crash. They were highly probative of the link between the intoxication of the defendant and the killing of the victim, specifically, that the defendant's intoxication was a "contributing factor" to the killing. See LSA-R.S. 14:32.1(A); Leger, 284 So.3d at 615-16. Additionally, the probative value of the photographs depicting the fatal injuries to the victim's torso increased in light of the evidence that the victim was not wearing an approved crash helmet at the time of the crash and to overcome any assertion that the failure to wear a proper helmet, not the intoxication of the defendant, caused the killing of the victim. Accordingly, we find no abuse of discretion by the trial court in allowing the photographs into evidence.
This assignment of error is without merit.
JURY QUESTION
In assignment of error number three, the defendant contends the trial court failed to fully respond to a question from the jury requesting further instructions.
Louisiana Code of Criminal Procedure article 808 provides:
If the jury or any member thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. The further charge may be verbal, but shall be in writing if requested by any juror. No charge shall be reduced to writing at the request of a juror pursuant to this Article unless consent is obtained from both the defendant and the state in open court but not within the presence of the jury. The lack of consent by either the defendant or the state shall not be communicated to the jury. A copy of the court's written charge shall be delivered to the defendant, the state, and the jury.
After being retired to deliberate, the jury asked the court "[w]hat is the difference between vehicular &negligent homicide? Two charges or either or??" In response, the court reread the jury instructions on vehicular homicide and negligent homicide.
Initially, we note the defendant failed to object to the court's response to the jury question, and thus, failed to preserve this issue for review. See LSA-C.Cr.P. art. 801(C) ("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. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.").
Moreover, there was no error. The jury requested to be recharged on vehicular and negligent homicide and the court did not misstate the law in recharging the jury on those offenses. See LSA-C.Cr.P. art. 808; State v. Ducksworth, 496 So.2d 624, 634 (La.App. 1st Cir. 1986) ("[I]t is well established that the trial court may recharge the jury, or explain his charge verbally in greater detail, upon being requested by the jury, as long as he does not misstate the law.").
This assignment of error is without merit.
EXCESSIVE SENTENCE
In assignment of error number four, the defendant contends the sentence imposed is excessive. He argues the sentence is excessive for a vehicular homicide, particularly considering his advanced age of sixty-three years. He further argues that "Louisiana courts have increasingly recognized that a defendant's age is a significant mitigating factor in sentencing and that such can even warrant a downward departure from the mandatory minimum sentence." See State v. Mosby, 2014-2704 (La. 11/20/15), 180 So.3d 1274 (per curiam) (minimum habitual offender sentence of thirty years imprisonment held unconstitutionally excessive for a non-violent, seventy-two-year-old offender, suffering from severe infirmities, convicted of cocaine distribution). Lastly, he argues the trial court should have considered his age and that his driving error, "if he made one," was a "common mistake that sober people make every day." He notes that even though "a person is dead as a result of a mistake he may have made[,]" his conviction was for a nonviolent offense.
See LSA-R.S. 14:2(B) ("The following enumerated offenses ... are included as 'crimes of violence': ... (46) Vehicular homicide, when the operator's blood alcohol concentration exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood.").
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. 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 imposition of pain and suffering. 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. 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. Currie, 321 So.3d at 984.
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing a sentence. See LSA-C.Cr.P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. 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. Currie, 321 So.3d at 984-85.
Louisiana Revised Statutes 14:32.1(B), in pertinent part, provides:
Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years. ... If the operator's blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. If the offender was previously convicted of a violation of R.S. 14:98, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.
The defendant was sentenced to twenty-four years at hard labor, five years without benefit of probation, parole, or suspension of sentence, and fined $2,000.00.
Demarie Demarco Charpentier, the mother of the victim, testified at the sentencing hearing. The victim was her only child. He was bom when she was sixteen-years-old. She testified she and the victim "grew up together," and that he taught her "what unconditional love really [was]." The victim was twenty-nine-years-old at the time he was killed. He had seven children. Charpentier stated that the defendant had given her family "a life sentence" and "should have a life sentence, too." She further stated:
I do understand the process and [the court] can't do that and nothing will bring my son back, but [the court] can stop [the defendant] from getting out any time soon and hurting another family like he has hurt mine. His record shows us he won't stop because he thinks he can drink and [d]rive.
The defendant made the following statement at the sentencing hearing:
Your Honor, I'd like to apologize to the Demarco family. It's something that I wish had never happened and it did, and I'm not going to lie really don't - there's family on both sides are tom up over this and I [have] destroyed two families, not just one. And I knew [the victim] for a few years before this accident. I worked with him and when I'd see him on the street we'd talk to each other. He was a good kid. He was. I agree to that. And like I said I am totally sorry for this and I would like to apologize to the Demarco family. I really am sorry. Thank you, Your Honor.
The State pointed out that the presentence investigation report (PSI) indicated the defendant had at least three prior felony convictions, including two previous convictions for third-offense DWI. The State noted the defendant's probation for possession of Lortab ended only six months before he killed the victim. The State also set forth that in addition to his felony convictions, the defendant had a "lengthy criminal history," with DWIs dating back to 1985.
Defense counsel argued "this [was] a tragedy all around." He stated that while "retribution is not part of' the purpose of "criminal sentences," "the Court has an obligation to protect the public so that something like this never happens again and [the defendant] is never allowed to drive on the roads again." Defense counsel argued because the defendant was sixty-three-years old, however, "any sentence over ten years is pretty much going to be a life sentence" and went on to "suggest to the [C]ourt that a sentence in the ten to fifteen year range would accomplish everything [that] needs to be accomplished in this matter."
The State asked the court to impose the maximum sentence "to keep the public safe and make sure [the defendant] does not continue to drink and drive."
See 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 ("Maximum sentences may be imposed ... when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality.").
In sentencing the defendant, the trial court noted the defendant had three prior convictions for DWI, as well as other felony convictions. The court stated that pursuant to LSA-C.Cr.P. art. 894.1, the court shall impose a sentence of imprisonment if any of the following occurs: (1) there is an undue risk that during the period of a suspended sentence or probation, the defendant will commit another crime; (2) the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; and (3) a lesser sentence will deprecate the seriousness of the defendant's crime. LSA-C.Cr.P. art. 894.1(A)(1)-(A)(3). The court found all three guidelines were applicable to the defendant.
A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See LSA-C.Cr.P. art. 894.1(A)(1), (A)(2), (A)(3), (B)(9) & (B)(12). Further, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive. The court was aware of the age of the defendant, but ultimately determined his criminal history and the facts of the case warranted the sentence imposed. We find no error or abuse of discretion.
This assignment of error is also without merit.
CONVICTION AND SENTENCE AFFIRMED.