Opinion
2022 KA 1004
05-18-2023
STATE OF LOUISIANA v. WADE RYAN OSTARLY
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana Timothy T. Yazbeck Lafayette, Louisiana Counsel for Defendant-Appellant Wade Ryan Ostarly Wade Ostarly Angie, Louisiana Pro Se
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-Second Judicial District Court, Parish of St. Tammany, State of Louisiana Number 33362019, Division E Honorable William H. Burris, Judge
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana
Timothy T. Yazbeck Lafayette, Louisiana Counsel for Defendant-Appellant Wade Ryan Ostarly
Wade Ostarly Angie, Louisiana Pro Se
Before: Theriot, Chutz, and Hester, JJ.
CHUTZ, J.
Defendant, Wade Ryan Ostarly, was charged by bill of information with two counts of domestic abuse aggravated assault with child endangerment (counts I and II), violations of La. R.S. 14:37.7(A) &(D); one count of illegal use of a weapon during a drug offense or a crime of violence (count III), a violation of La. R.S. 14:94(F); one count of possession of a firearm or carrying a concealed weapon by a person convicted of domestic abuse battery (count IV), a violation of La. R.S. 14:95.10(A) &(B); and one count of attempted second degree murder (count V), a violation of La. R.S. 14:27 &30.1. He pled not guilty on all counts.
Following a jury trial, he was found guilty as charged by unanimous verdicts on counts I through IV. On count V, he was found guilty of the responsive offense of attempted manslaughter, a violation of La. R.S. 14:27 &31. A motion for new trial filed by defendant was denied. On counts I and II, he was sentenced to five years hard labor, two years to be served without benefit of probation, parole or suspension of sentence. On counts III and IV, he was sentenced to twenty years hard labor without benefit of probation, parole or suspension of sentence. On count V, he was sentenced to twenty years hard labor. The court ordered that the sentences on counts I, III, and V run concurrently with one another, but consecutively to the sentences on counts II and IV, and that the sentences on counts II and IV run concurrently with one another, but consecutively to the sentences on counts I, III, and V. Defendant moved for reconsideration of sentence, but the motion was denied. For the following reasons, we affirm the convictions and sentences.
FACTS
On August 26,2019, the St. Tammany Parish Sheriffs Office received a 911 call indicating domestic abuse at a residence off Highway 1129 in St. Tammany Parish. Responding police officers found defendant at the scene. Inside the residence, the police observed blood smears on the floor, found cartridge casings, and discovered human hair on the shattered micro wave. The victim, Katherine Ostarly (Katherine), was located at a neighbor's house.
On May 20, 2019, defendant was convicted of domestic abuse battery in a prior incident involving Katherine and was still on probation. Among the conditions of that probation, defendant was restricted from possessing firearms.
SUFFICIENCY OF THE EVIDENCE
In the first assignment of error of his counseled brief, defendant asserts the evidence presented at trial was insufficient to support the jury's guilty verdict of attempted manslaughter. He maintains the testimony of Katherine and C.O., his daughter with Katherine, cannot be afforded the weight necessary to convict him. Defendant also suggests the evidence was insufficient to support the counts of domestic abuse aggravated assault with child endangerment.
We reference this witness by her initials because she was a minor at the time of the commission of the offense. See La. R.S. 46:1844(W).
A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const, amend. XIV, La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 2013-2973 (La. 2/21/14), 133 So.3d 1255, 1258-59 (per curiam). See also La. C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988); State R Livous, 2018-0016 (La.App. 1st Cir. 9/24/18), 259 So.3d 1036, 1039-40, writ denied, 2018-1788 (La. 4/15/19), 267 So.3d 1130. When circumstantial evidence forms the basis of the conviction, the evidence, "assuming every fact to be proved that the evidence tends to prove . . . must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; Oliphant, 133 So.3d at 1258; Livous, 259 So.3d at 1040.
The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 702-03 (per curiam). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Gardner, 2016-0192 (La.App. 1st Cir. 9/19/16), 204 So.3d 265, 267. The weight given evidence is not subject to appellate review; therefore, an appellate court will not reweigh evidence to overturn a fact finder's determination of guilt. Livous, 259 So.3d at 1040.
In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La. 1982), cert, denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court recognized the legitimacy of a "compromise verdict," i.e., a legislatively approved responsive verdict that does not fit the evidence, but that the jurors deem to be fair, as long as the evidence is sufficient to sustain a conviction for the charged offense. If the defendant timely objects to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict, the court overrules the objection, and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection at a time when the trial judge can correct the error, then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. Id.
Attempted manslaughter is a legislatively approved responsive verdict to a charge of attempted second degree murder. La. C.Cr.P. art. 814(A)(4). In this case, there was no objection to the instruction on attempted manslaughter. The jury's ultimate reasoning for returning this responsive verdict is unclear. Because it is possible that this verdict represented a compromise, we review the evidence presented at trial to determine whether it was sufficient to convict defendant of attempted second degree murder alongside our review of the convictions for domestic abuse aggravated assault.
SECOND DEGREE MURDER
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). A specific intent to kill is an essential element of the crime of attempted murder. State v. Coleman, 2021-0870 (La.App. 1st Cir. 4/8/22), 342 So.3d 7, 12.
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. La. R.S. 14:27(B)(1). Specific criminal intent is that state of mind which 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). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. Coleman, 342 So.3d at 12.
DOMESTIC ABUSE AGGRAVATED ASSAULT
Domestic abuse aggravated assault is an assault with a dangerous weapon committed by one household member or family member upon another household member or family member. La. R.S. 14:37.7(A). Spouses, former spouses, and children are included within the definition of family members. La. R.S. 14.37.7(B)(1)- A "household member" is "any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides." La. R.S. 14:37.7(B)(2).
Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. Aggravated assault is an assault committed with a dangerous weapon. La. R.S. 14:37(A).
Katherine testified that she married defendant in December of 2002 and they separated in August of 2018. On August 16, 2018, defendant choked her during a fight about defendant seeing another woman. Defendant pled guilty to domestic abuse as a result of the incident.
Katherine explained that at the end of August 2019, while she was visiting friends in Virginia, defendant realized she was involved with someone else. At that time, C.O. was twelve years old, and their son was almost six years old. On the day before Katherine was scheduled to return, defendant retrieved a key to Katherine's house and slept there overnight. According to defendant's testimony, after searching through Katherine's belongings in the house that night, he confirmed she had been cheating on him. In her testimony, Katherine stated that defendant repeatedly called, texted, and messaged her, stating he knew she was with someone else. The following day, August 25, 2019, defendant consumed over 18 beers, smoked marijuana, took a handful of Lexapro, three "Xan" bars and, at around 8:00 or 8:30 p.m., took a Xanax, according to his testimony.
Katherine stated that at 11:00 p.m., she returned to her house. Around midnight, while the children were in the home, defendant banged on the front door and then kicked it in. Katherine told defendant to leave or she would call the police.
According to Katherine, defendant took her 9mm handgun from her bedroom, forced her against the sofa, and fired the handgun into the sofa. He fired the weapon again before dragging Katherine by the hair into the garage where he shot at her but missed. He then dragged her outside the garage where he again fired at her, but the bullet went by her leg. Katherine testified that defendant thereafter pointed the gun at her face, and she grabbed his wrist in an effort to avoid being hit. When defendant again fired the gun, the bullet hit the gravel and ricocheted into Katherine's left arm. Katherine stated that defendant told her he was "finishing [her] tonight," and she believed that he was going to kill her.
C.O. testified at trial, stating that on the night of August 25, 2019, she saw and heard defendant kicking in the front door. After defendant armed himself with Katherine's gun, C.O. and her brother fled to their grandmother's nearby house.
According to defendant's testimony, upon his arrival on August 25, 2019, he saw Katherine and their children sitting on the couch, watching a movie. Infuriated because Katherine had been seeing someone else, defendant kicked down the door. He approached Katherine, who reached for a gun in the couch. Defendant grabbed the weapon from Katherine and pinned her to the couch. He then dragged her by the hair out to the garage. Defendant admitted he fired the gun and claimed that he shot into the yard. Conceding that the gun discharged again, defendant explained it happened when the family dog bit his hand. Although he acknowledged that he pointed the gun at Katherine, defendant denied that he intentionally fired the weapon at her or that they struggled for the weapon.
Defendant stated that Katherine locked the garage entry door and in his "drug induced alcohol state," he rammed the door with his shoulder. He saw Katherine in the kitchen calling 911, grabbed her by the hair and pinned her to the microwave, causing it to shatter. Defendant denied that he intended to kill Katherine.
Having determined that all the elements necessary to support a conviction for the charged offense of attempted second degree murder were proven, we find the jury could have compromised by returning the verdict of guilty of attempted manslaughter. See State ex rel, Elaire, 424 So.2d at 251. Likewise, all of the elements of the domestic abuse aggravated assault of C.O. and W.O. were proven by the evidence presented. And defendant's identity as the perpetrator of those offenses was proven beyond a reasonable doubt.
Mindful that the testimony of the victim alone is sufficient to prove the elements of the offense, see Coleman, 342 So.3d at 12, Katherine's testimony established both defendant's specific intent to kill her and his commission of an act in furtherance of that intent. She testified defendant stated he was going to "finish [her]" and she only avoided having been shot in the face because she grabbed his wrist before he fired the shot that ricocheted into her arm. C.O.'s testimony established that after defendant broke into the home and took Katherine's handgun, C.O. fled from her home with her brother in fear of receiving a battery from him. Moreover, defendant did not dispute that he knew the children were present when he forced his way into the home.
This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. And when 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. Id., 342 So.3d at 12-13.
Accordingly, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See 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 jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). To otherwise accept a hypothesis of innocence that was reasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). Thus, the challenges to sufficiency of the evidence are without merit.
MOTION FOR NEW TRIAL
Following the return of the verdicts at trial, defendant moved for a new trial. The motion was denied. In his second counseled assignment of error, defendant contends the trial court erred in denying his motion for new trial.
La. C.Cr.P. art. 851, in pertinent part, provides:
A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence....
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.Trial courts are to use the thirteenth-juror standard when the asserted ground in the motion for new trial is not newly discovered evidence, but is another ground stated in Article 851, such as a verdict being contrary to the law and the evidence or the court being of the opinion that the ends of justice would best be served by granting a new trial. State R Watts, 2000-0602 (La. 1/14/03), 835 So.2d 441, 448 n.8.
This court, however, is constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases, since that determination rests solely within the discretion of the trier of fact. State v. Law, 2015-0210 (La.App. 1st Cir. 2/24/16), 189 So.3d 1164, 1168, writ denied, 2016-0926 (La. 4/24/17), 220 So.3d 740. An appellate court may review the ruling on a motion for new trial only for an error of law. See La. C.Cr.P. art. 858. Thus, to the extent that defendant claims the verdicts were contrary to the law and evidence, the denial of his motion for new trial is not subject to review on appeal. See State v. Landry, 2019-0486 (La.App. 1st Cir. 2/21/20), 297 So.3d 8, 14 n.3.
Article 851(B)(5) allows the trial court to grant a new trial if the ends of justice would be served, although the defendant may not be entitled to a new trial as a matter of strict legal right. The grant or denial of a new trial pursuant to Article 851(B)(5) does not involve questions of fact. In deciding whether the trial court abused its great discretion in granting or denying a new trial under Article 851(B)(5), we keep in mind two precepts. First, the trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. Second, this ground for a new trial is based on the supposition that injustice has been done to the defendant, and, unless such injustice is shown, the motion shall be denied, no matter upon what allegations it is grounded. State v. Dyson, 2016-1571 (La.App. 1st Cir. 6/2/17), 222 So.3d 220, 234-35, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685.
Here, defendant has made no showing in the trial court or on appeal that an error of law, injustice, or abuse of discretion was committed. Thus, the trial court did not abuse its discretion in denying the motion for new trial under Article 851(B)(5). See Dyson, 222 So.3d at 234-35. Accordingly, this assignment of error is without merit.
RIGHT TO COUNSEL
In counseled assignment of error number three, defendant contends the trial court violated his Sixth Amendment right to counsel. He argues he was denied his right to his counsel of choice and the counsel he was provided was forced to go to trial with limited preparation.
At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. La. Const, art. I, § 13. The Sixth Amendment to the U.S. Constitution likewise carries such a guarantee. As a general proposition, a person accused in a criminal trial has the right to counsel of his choice. Although a defendant who is indigent has the right to court-appointed counsel, an indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Loper, 2010-0582 (La.App. 1st Cir. 10/29/10), 48 So.3d 1263, 1268. While a defendant's right to the counsel of his choice is firmly established in our law, that right may not be used to obstruct the orderly procedure of the courts or to interfere with the fair administration of justice. A criminal defendant must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings. State v. Delatte, 506 So.2d 898, 904 (La.App. 1st Cir.), writ denied, 511 So.2d 769 (La. 1987).
On January 13, 2020, defendant retained attorney Ravi Shah for arraignment but terminated him on November 17, 2020. In February of 2021, defendant retained attorney Vincent Wynne, and in March, he retained attorney Roy Burns. By May 4, 2021, defendant had fired both attorneys. On May 13, 2021, the trial court advised defendant the matter was set as a priority trial, and he should retain counsel by June 1, 2021. On June 1, 2021, the Office of the Public Defender was appointed to represent defendant, and trial was scheduled for August 16, 2021. On August 16, 2021, on motion of the defense, trial was continued to December 6, 2021.
Trial was originally scheduled for March 23, 2020. On defense's motion, that trial date was continued to May 26, 2020. No minute entry appears in the record for May 26, 2020. On July 13, 2020, trial was set for September 14, 2020, but on motion of the defense was continued to November 16, 2020. On November 4, 2020, on motion of the defense, the trial was continued to February 22, 2021. On that date, the trial court continued trial to June 1, 2021.
On Thursday, December 2, 2021, Timothy Yazbeck moved to enroll as counsel of record. Indicating that he was recently retained and, based on his review of the record, believed there could be outstanding discovery requests, motions needed to be filed, and that it would be impossible for him to be prepared for trial scheduled to begin on Monday, Yazbeck sought to continue the trial date. The State objected.
Noting the attorneys that defendant had hired and fired, the delayed trial dates, and defendant's retention of the Office of the Public Defender, in light of the imminent trial date, the trial court denied defendant's motion to continue, suggesting "a very clear pattern." The trial court allowed Yazbeck to enroll as counsel of record, but because he could not be fully prepared for trial on December 6, 2019 determined that the public defender would continue to represent defendant. Yazbeck objected and requested that the trial start later in the week.
Willis Ray of the Office of the Public Defender was present in court for defendant on December 6, 2021 for a hearing on a motion to suppress. At the commencement of the hearing, the trial court vacated its earlier order allowing Yazbeck to enroll as counsel, stating that while Yazbeck was permitted to be present at trial, he could not sit at counsel table or actively participate. The trial court thereafter denied the motion to suppress and advised defendant that trial would start the following day.
The attempt to relieve the Office of the Public Defender was not an exercise of defendant's right to counsel of his choice at a reasonable time, in a reasonable manner, or at an appropriate stage of the proceedings. Furthermore, nothing in the record demonstrates why it was necessary for defendant to replace counsel two business days before the commencement of the trial, particularly given that new counsel was unavailable for the scheduled trial date. Absent a justifiable basis, there is no constitutional right to choose new counsel on the eve of trial with the attendant necessity of a continuance and its disrupting implications. De latte, 506 So.2d at 905. Additionally, a request by the State that Katherine and her children not be forced to relive the incident in preparation for yet another rescheduled trial date was fully supported by the law. See La. R.S. 46:1844(1) ("When ruling on a defense motion for continuance, the court shall consider the impact on the victim."). Accordingly, there was no abuse of discretion in either the denial of the motion to enroll Yazbeck or the motion to continue, and this assignment of error is without merit.
EXCESSIVE SENTENCES
In counseled assignment of error number four, defendant contends the trial court violated the Eighth Amendment by running the sentences consecutively. He asserts that the trial court abused its discretion by imposing consecutive sentences.
Louisiana Constitution article I, § 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Parker, 2013-1050 (La.App. 1st Cir. 2/20/14), 2014 WL 687992, at *2, cert, denied, 575 U.S. 941, 135 S.Ct. 1714,191 L.Ed.2d 687 (2015).
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing a sentence. La. 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 criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. Parker, 2014 WL 687992, at *2.
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C.Cr.P. art. 883. Thus, Article 883 specifically excludes from its scope sentences which the court expressly directs to be served consecutively. A trial judge retains discretion to impose consecutive penalties based on the offender's past criminality, violence in the charged crimes, or the risk he poses to the general safety of the community. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. The failure to articulate specific reasons for imposing consecutive sentences does not require remand if the record provides an adequate factual basis to support the consecutive sentences. State v. Alexander, 2021-1346 (La.App. 1st Cir. 7/13/22), 344 So.3d 705, 725-26.
Whoever commits the crime of domestic abuse aggravated assault shall be imprisoned at hard labor for not less than one year nor more than five years and fined not more than five thousand dollars. La. R.S. 14:37.7(C). When the State proves, in addition to the elements of the crime set forth in La. R.S. 14:37.7(A), that a minor child thirteen years or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence imposed by the court shall be two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:37.7(D). On both counts I and II, the trial court sentenced defendant to five years hard labor, two years without benefit of probation, parole or suspension of sentence.
Whoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm while committing or attempting to commit a crime of violence shall be imprisoned at hard labor for not less than ten years nor more than twenty years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:94(F). On count III, the trial court sentenced defendant to twenty years hard labor without benefit of probation, parole or suspension of sentence.
Whoever is found guilty of possession of a firearm or carrying a concealed weapon by a person convicted of domestic abuse battery shall be imprisoned with or without hard labor for not less than one year nor more than twenty years without the benefit of probation, parole, or suspension of sentence, and shall be fined not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.10(A)(1) &(B). On count IV, the trial court sentenced defendant to twenty years hard labor without benefit of probation, parole or suspension of sentence.
As applicable here, whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years, and whoever attempts to commit manslaughter shall be imprisoned in the same manner as for manslaughter, but the imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for manslaughter. La. R.S. 14:27(D)(3) &La. R.S. 14:31(B). On count V, the trial court sentenced defendant to twenty years hard labor.
The court ordered that the sentences on counts I, III, and V would run concurrently with one another, but consecutively to the sentences on counts II and IV, and that the sentences on counts II and IV would run concurrently with one another, but consecutively to the sentences on counts I, III, and V.
The record indicates the trial court was well aware of defendant's family situation, including his marriage with Katherine and his claims of substance abuse and depression but found these factors insufficient to outweigh the need for consecutive penalties based on defendant's past criminality, particularly his prior assault of Katherine and the violence of the charged crimes. See Alexander, 344 So.3d at 725. In imposing sentence, the trial court cited the PSI, which included the statements of Katherine and defendant, and concluded that the seriousness of the offense would be minimized by a low sentence.
The record fully supports the imposition of consecutive sentences in this matter. Defendant stormed the home Katherine shared with their young children, viciously attacked her, and injured her with one of several gunshots he fired while the young children fled in fear. The trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentences. See La. C.Cr.P. art. 894.1 (A)(1), (2), (3), (B)(1), (5), (6), (10), (12), (18), &(21). The sentences were not grossly disproportionate to the severity of the offense, and, thus, were not unconstitutionally excessive. This assignment of error is without merit.
MOTION TO SUPPRESS
In his pro se brief, in the first assignment of error, defendant asserts the trial court erred in denying the motion to suppress his statement, claiming that as a result of his mental illness and intoxication, his statement was not freely and voluntarily given.
The State has the burden of proving the admissibility of a purported confession or statement by the defendant. See La. C.Cr.P. art. 703(D). Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Since the general admissibility of a confession is a question for the trial court, its conclusions on the credibility and weight of the testimony are accorded great weight and will not be overturned unless they are not supported by the evidence. Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Batiste, 2022-0437 (La.App. 1st Cir. 11/4/22), 2022 WL 16707991, at *4.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
When challenged on the ground that it was not freely and voluntarily given because the defendant was intoxicated at the time of the statement, a confession will be inadmissible only when the intoxication is of such a degree as to negate the defendant's comprehension and to make him unconscious of the consequences of what he is saying. Whether intoxication exists and is sufficient to vitiate the voluntariness of a confession are questions of fact, and the ruling of the trial court on this issue will not be disturbed unless unsupported by the evidence. Id.,
St. Tammany Parish Sheriff's Office Sergeant Jed Sharp testified at the hearing on the motion to suppress, stating that he Mirandized defendant prior to taking defendant's statement and obtaining a signed written waiver of those rights. During Sergeant Sharp's twenty-year career in law enforcement, he had interacted with persons who were under the influence of alcohol or drugs and had received training in administration of the standardized filed sobriety test. Sergeant Sharp stated that when he took defendant's statement, defendant did not appear to be intoxicated or impaired, indicating that defendant was able to answer questions coherently and in a timely manner. Although Sergeant Sharp did not have defendant examined by medical personnel prior to taking a statement from him, he pointed out that defendant did not request a medical examination, and Sergeant Sharp saw no need for one.
The trial court denied the motion to suppress, finding that the statement was appropriately taken after defendant had been advised of, and waived, his Miranda rights orally and in writing prior to being interrogated. The audio recording, which begins at 2:09 a.m. and ends at 2:17 a.m. on August, 26, 2019, fully supports the trial court's conclusions, memorializing that Sergeant Sharp advised defendant of his Miranda rights and that defendant signed a form indicating that he understood and waived those rights. Defendant sounded alert, rational, and responsive as he answered questions.
The State's evidence provided a sufficient basis for the trial court's finding that defendant knowingly and intelligently waived his right to remain silent, comprehend the meaning of his confession, and that the confession was freely and voluntarily made. See Batiste, 2022 WL 16707991, at *5. The trial court did not err or abuse its discretion in denying the motion to suppress. Therefore, this assignment is without merit.
JURY POLLING
In the second assignment of error of his pro se brief, defendant contends his Sixth Amendment right to a unanimous jury verdict was violated when the trial court failed to individually poll the jurors and defense counsel failed to request such polling.
La. C.Cr.P. art. 812 provides:
A. The court shall order the clerk to poll the jury if requested by the state or the defendant. The poll shall be conducted in writing by applying the procedures of this Article, and shall be done in open court.
B. (1) The procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words "Is this your verdict?" Each juror shall write on the slip of paper the words "Yes" or "No" along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and record the results.
(2) If a sufficient number of jurors as required by law to reach a verdict answer "yes" the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the verdict and order the jury discharged. If an insufficient number required to find a verdict answer "Yes," the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775.
The trial court did not wait for counsel to request jury polling in this matter, and sua sponte protected defendant's right to a unanimous jury verdict. All twelve jurors circled "yes" on their respective polling slips for each of the five verdicts. Thus, this assignment of error is without merit.
Any failure of the trial court to strictly comply with La. C.Cr.P. art 812(A) by acting sua sponte, protected, rather than prejudiced, the substantial rights of the accused. See La. C.Cr.P. art. 921.
CONSTITUTIONAL VIOLATIONS
In the third assignment of error of his pro se brief, defendant contends his Second Amendment right to bear arms was violated when the investigating officer filed an invalid affidavit in support of the arrest warrant. He also claims that the entire investigatory process was violative of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because evidence vital for his defense was removed from jail property without a warrant.
The record does not indicate that these alleged constitutional violations were raised in the trial court and, therefore, were not preserved for review. See La. C.Cr.P. art. 841(A) ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence."); State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 718 ("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."); State v. Dupre, 2021-0390 (La.App. 1st Cir. 12/22/21), 2021 WL 6063881, at *1 n.2. Accordingly, these issues are not properly before this court.
SENTENCING ERROR
Under La. C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found a sentencing error. See State v. Price, 2005-2514 (La.App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
On count IV, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.10(B). Accordingly, defendant's sentence is illegally lenient. However, since the sentence is not inherently prejudicial to defendant, and neither the State nor defendant has raised this sentencing issue on appeal, we decline to correct this error. See State v. Loper, 2010-0582 (La.App. 1st Cir. 10/29/10), 48 So.3d 1263, 1269; Price, 952 So.2d at 124-25.
DECREE
For these reasons, we affirm the convictions and sentences imposed against defendant, Wade Ryan Ostarly.
CONVICTIONS AND SENTENCES AFFIRMED.