Opinion
NO. 2012 KA 0467
11-02-2012
STATE OF LOUISIANA v. GREG HARRIS
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 03-09-0429
Honorable Trudy M. White, Judge Presiding
M. Michele Fournet
Baton Rouge, LA
Attorney for Defendant-Appellant,
Greg Harris
Hiliar C. Moore, III
District Attorney
Premila Burns
First Asst. District Attorney
Monisa L. Thompson
Asst. District Attorney
Baton Rouge, LA
Attorneys for Appellee,
State of Louisiana
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
The defendant, Greg Harris a/k/a Greg Ficklin, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty of the responsive offense of manslaughter, a violation of La. R.S. 14:31. He was sentenced to forty years at hard labor without benefit of probation, parole, or suspension of sentence. He moved for reconsideration of sentence, but the motion was denied. He now appeals, contending: the trial court erred in admitting evidence of prior instances of his alleged misconduct; the trial court erred in accepting a verdict based on insufficient evidence; the trial court erred in admitting hearsay of prior alleged offenses; the trial court erred in imposing the maximum sentence; and the trial court erred in accepting a verdict based on less than unanimous concurrence by the jurors. For the following reasons, we affirm the conviction, amend the sentence, and affirm the sentence as amended.
FACTS
The victim, Chiquita Patrece Tate, worked as an attorney in the State National Life Building in Baton Rouge. She married the defendant on February 8, 2008, and lived with him in his home on Charry Drive in Baker. However, on January 12, 2009, the victim leased her own apartment.
The defendant worked as a carpenter for Group Contractors (Group). On February 5, 2009, his mortgage loan was placed "in default" for non-payment. On February 18, 2009, he asked the Executive Vice President of Group, Kirk Gavin Johnson, for a loan from the company. The defendant claimed he needed money to help his brother because he had been charged with murder. Johnson refused to give the defendant any money due to "economics" and because the defendant already had an outstanding loan from Group. The defendant's mother, Joyce M. Henderson, testified none of her sons were charged with murder in February of 2009.
The jury was instructed that although a mortgage delinquency notice was issued, there was a possibility the notice was sent in error because the mortgage had been paid, or that the defendant's payments were "in the mail."
On the morning of February 20, 2009, the victim's dead body was discovered in her office. She had suffered thirty-one stab wounds, i.e., wounds deeper in the body than longer on the skin's surface, including two fatal stab wounds to her neck. She also had twelve incised wounds, i.e., wounds longer on the skin's surface than deeper in the body, and had suffered blunt-force trauma. Long strands of hair were in the open palm of her left hand. She was still wearing her diamond engagement ring, her wedding ring, her watch and her diamond earrings, but her Gucci wallet was found lying on a road in the Gardere area on February 19, 2009, at approximately 10:30 p.m. Additionally, her computers, televisions, and keys to her Hummer II vehicle were not taken from her office. The victim was thirty-four years old at the time of her death.
The State National Life Building "automatically lock[ed] down" at 5:30 p.m., and, thereafter, a security card was required to enter it until it opened the next day. No security cards were used to access the building between 5:30 p.m. on February 19, 2009 and 6:04 a.m. on February 20, 2009.
Baton Rouge Police Department Homicide Detective Elvin Howard testified, in his opinion, the hair in the victim's hand had been placed there because her hand would have been closed if she had pulled the hair from her assailant's head. Detective Howard also stated he would have expected the hair to have been between the victim's fingers if she had pulled it out from someone's head. Scientific analysis of the hair indicated it had come from more than one human head and had been dyed after being removed, consistent with hair used for a wig. Additionally, the absence of skin cells on the hair indicated it had not been pulled out.
Lessie Marie Hookfin worked as a legal assistant for the victim. The victim would notify her if a client would be coming in for a meeting "after hours." The victim did not tell Hookfm any clients were coming in on February 19, 2009. Additionally, the victim had no client appointments for late in the day on February 19, 2009. Hookfin indicated, in order to take a deposition, a date and location would have to be coordinated with opposing counsel and a court reporter would have to be secured. Hookfin could not recall the victim ever scheduling a deposition "late into the evening." Hookfin testified, when she left the victim's office on February 19, 2009, at approximately 5:15 p.m., the victim stated she would "only be there a couple more hours."
Chris Washington was working as an attorney in the State National Life Building on February 19, 2009. He returned to the building at approximately 7:24 p.m. because his law partner, Harry Daniels, III, had forgotten his keys in their office. The door to the building was propped open with a book, and as Washington and Daniels entered the building, the defendant said, "Hey, man, that's my book."
On February 19, 2009, at 8:23 p.m., the defendant's Mercedes was ticketed for failure to pay for parking in the parking lot across from the State National Life Building. Sunglasses with a bloodstain were later found under the seat of the vehicle. DNA testing indicated the genetic profile of the stain on the sunglasses was consistent with the genetic profile of the victim with a 1 in 8.7 trillion probability of seeing that unique profile again in the population.
The defendant's Mercedes was actually registered in the victim's name.
A bleach bottle, with a bloodstain on the handle, was recovered from the microwave area in the defendant's home. DNA testing indicated the genetic profile of the stain on the bleach bottle was consistent with being a mixture of DNA from two individuals, and the victim and the defendant could not be excluded as contributors to the mixture. The likelihood the stain was a mixture of DNA from the victim and some unknown individual, rather than a mixture of DNA from the victim and the defendant, was one in 70.3 billion.
On November 17, 2008, in the presence of the defendant, the victim had purchased a $250,000 life insurance policy, naming the defendant as one of the beneficiaries. Additionally, shortly prior to her death, she won a $500,000 judgment in one of her civil cases. Early on February 19, 2009, the victim told her sister, Danita Tate Joseph, "I don't think I can do the married thing anymore."
On February 20, 2009, after being advised of, and waiving, his Miranda rights, the defendant gave a statement to the police. He stated he had gone to the State National Life Building on the day of the offense to take the victim some food. He claimed the victim let him into the building, and he helped her organize her books. He indicated he went downstairs to collect some money from a woman in connection with one of the victim's cases, and propped the door open with a book so he could get back into the building. He stated he left the building after the victim told him to go home because he was tired. He claimed, before he left, the victim told him she had another client to see and a deposition to work on and she may "be a little late." He stated he went to his home in Baker, washed work clothes, and then fell asleep. He indicated he woke up at 3:00 a.m. and became angry because the victim was not home yet. He claimed he suspected the victim was out drinking and cheating on him. He stated he contacted the police to check on the victim after he returned to the State National Life Building and saw that her vehicle had not been moved. The defendant claimed he and the victim had a wonderful marriage. He denied ever striking the victim.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In accordance with standard interrogation techniques, the police advised the defendant surveillance showed him in the Gardere area after the murder of the victim. Thereafter, the defendant claimed he went from the State National Life Building to Gardere to purchase steroids. He then claimed he went from the State National Life Building to his home in Baker, and then to Gardere.
The defendant exercised his privilege not to testify at trial. The defense theory was that an unknown intruder committed the offense.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 2, the defendant argues the verdict was unsupported by the evidence because the circumstantial evidence did not exclude the reasonable hypothesis that someone else killed the victim.
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. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).
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. Wright, 730 So.2d at 487.
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 which does not fit the evidence, but which (for whatever reason) 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. See State ex rel. Elaire, 424 So.2d at 251. The record in the instant case does not show any objection to the instruction on manslaughter. Accordingly, we will review the sufficiency of the evidence to support second degree murder.
As applicable here, second degree murder is the killing of a human being "[w]hen the offender has a specific intent to kill or to inflict great bodily harm." La. R.S. 14:30.1(A)(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. State v. Henderson, 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.
In State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, the Louisiana Supreme Court set forth the following precepts for appellate review of circumstantial evidence in connection with review of the sufficiency of the evidence:
On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events." Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.Mitchell, 772 So.2d at 83 (citations omitted).
The jury is the ultimate factfinder of "whether a defendant proved his condition and whether the state negated that defense." The reviewing court "must not impinge on the jury's factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process."
Further, the Mitchell Court cautioned:
"The actual trier of fact's rational credibility calls, evidence weighing, and inference drawing are preserved ... by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt." The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Rather, the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt. The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Finally, the "appellate court is constitutionally precluded from acting as a 'thirteenth juror' in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact."Mitchell, 772 So.2d at 83 (citations omitted).
After a thorough review of the record, we are convinced that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator of that offense against the victim. The verdict returned in this case indicates the jury rejected the defendant's theory that some unknown intruder killed the victim. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in the instant case. Further, 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. State v. Calloway, 2007-2306 (La, 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit.
EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS
In assignment of error number 1, the defendant argues the trial court committed reversible error by allowing the admission of alleged prior incidents of his misconduct concerning the victim, Charlene Sartin, and Parthena Below.
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 which is not relevant is not admissible. La. Code Evid. art. 402. 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.
It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. Code Evid. art. 404(B)(1). Evidence of other crimes, wrongs, or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. However, the State may introduce evidence of other crimes, wrongs, or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. Code Evid. art. 404(B)(1). Upon request by the accused, the State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. The State also bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Rose, 2006-0402 (La. 2/22/07), 949 So.2d 1236, 1243.
Any inculpatory evidence is "prejudicial" to a defendant, especially when it is "probative" to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id; see also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) ("The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged."). Rose, 949 So.2d at 1244.
Prior to trial, the State filed a notice of intent to offer evidence of other crimes under La. Code Evid. art 404(B)(1) and La. Code Crim. P. art. 720. In the notice, the State set forth it sought to introduce certain evidence at trial to establish identity, pattern, system, and motive. The notice listed details concerning: a 911 call concerning prior violence between the defendant and the victim; a recording of a verbal argument between the defendant and the victim concerning the division of community property; text messages "of an intimate sexual nature" received by the defendant's cell phone between February 6, 2009 and February 20, 2009 from women other than the victim; violence by the defendant against Charlene Sartin; and violence by the defendant against Parthena Below. Following a hearing, the trial court ruled the evidence involving the victim, Sartin, and Below was admissible, but the evidence concerning the text messages was inadmissible.
At the hearing on the motion, Baker Police Department Communications Officer Mary Elizabeth Ratcliff testified she received a 911 call at 4:03 a.m. on December 22, 2007. The State played a recording of the call. In the call, the victim pleaded for help, stating "[m]y fiance is still beating me." She stated, "I think he broke - he choked me. And I think - I think he broke my arm." The victim stated the defendant claimed she had been "cheating" on him (which she denied). She also stated "y'all please have the police come and see the house. Our house is so nice. And he - he just called me nasty and that evidently - and he's saying I'm nothing. And he's grabbing on me. He's a big guy. I tried - myself in the room, and he wouldn't leave me alone. I can't believe it's who he is."
Baker Police Department Captain Michael Shropshire testified he responded to the 911 call. The victim was 5'6" tall and weighed between 130 and 140 lbs. The defendant was 6'3" or 6'4" tall and weighed over 200 lbs. The victim was crying and upset. Her hair was in disarray, consistent with "possibly a fight." Scratches, which appeared "recent and fresh" were present on her upper body, arms, and in the area of her shoulders. The victim and the defendant both claimed to have been attacked by each other, so they were both issued citations.
Baker Police Department Lieutenant Chris Becnel testified he also responded to the 911 call. He indicated the victim was crying, her hair was "a complete mess," and she was "in a panic state." He saw fresh marks "where somebody had been grabbing" around her neck and on her arms. The victim claimed an argument with the defendant turned physical because she received a text message about her being sexy. According to the victim, the defendant then grabbed her, threw her onto the bed, and accused her of cheating on him. Lieutenant Becnel also saw fresh marks on the defendant.
Baton Rouge Police Department Officer Ross Williams testified he searched the defendant's home pursuant to a warrant on March 4, 2009, and recovered a digital recorder from the closet in the first bedroom. The State played audio from the digital recorder. The recording began with the defendant telling the victim, "Yeah, I just want to say that I'm not - I'm not - I'm not doing it anymore. It's the last point. I'm not doing it anymore." The defendant also stated, "[m]y home was fully [f----] furnished." He claimed the victim was "not leaving me with nothing in my house." The recording ended with the defendant telling the victim, "[l]ike I say, Chiquita, what goes around comes around[,]" and "[r]emember that."
Charlene Sartin testified she was in a relationship with the defendant for approximately two years, during approximately 1998 and 1999. During that period, the defendant hit her. She stated she was 5'2" tall and weighed between 120 and 125 lbs. She also witnessed the defendant losing his temper after she drove his car into high water on a flooded street. The defendant "got into a rage" and "picked up the bed and threw the bed and all that stuff." Sartin indicated, on another occasion, the defendant choked her until she was "blanking out" during an argument, and had to be pulled off her by his brother. Sartin stated, on another occasion, the defendant hit her in the back during an argument in his car. After the defendant struck her in the back, Sartin "felt that I couldn't really move around like I wanted to." Sartin indicated, after she went to work on her regular day off to make up for missed work, the defendant gave her and her children a "deadline to move out." He refused to believe she had gone to work, and pushed her and hit her "against the wall." Sartin testified the defendant told her she was "nasty" and would ask her "did you clean this up[.]"
Louisiana State Trooper Jason Ransome testified that on May 10, 2005, he was contacted by Parthena Below. Trooper Ransome identified the police report filed by Below concerning a May 8, 2005 verbal altercation "which turned physical," at the residence she shared with the defendant. Below indicated she did not want to press charges, but wanted a report on file in case another incident occurred or in case she had to defend herself. Detective Howard testified he interviewed Below in Texas on May 20, 2009. Below indicated she lived with the defendant for a "period of time" and had a child with him. Below did not fully remember the incident with a physical confrontation, but stated "if the report said that [the defendant] hit her[,] then that would be correct."
In May of 2005, Trooper Ransome was employed by the Baker Police Department.
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There was no error by the trial court in regard to the challenged evidence concerning the victim, Sartin, and Below. The defendant denied killing the victim. He did not rely on a defense of killing the victim accidentally or in the heat of passion. Thus, his identity as the killer was a material issue in this case. The challenged evidence showed the defendant's pattern of questioning the whereabouts of the women he lived with, and becoming violent with them if he suspected they had been with other men. It also demonstrated the defendant thought the women he lived with were "nasty" if they failed to clean his home as thoroughly as he desired. The challenged evidence was highly probative to show the defendant's identity, pattern, system, and motive, as well as his vicious attitude toward women with whom he shared a close personal relationship. See Rose, 949 So.2d at 1237. Further, the prejudicial effect to the defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence.
Moreover, the erroneous admission of other-crimes evidence is a trial error subject to harmless-error analysis on appeal. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 101. The test for determining whether an error is harmless is whether the verdict actually rendered in this case "was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct 2078, 2081, 124 L.Ed.2d 182 (1993). Specifically considering the evidence that the defendant's 2005 verbal altercation with Below turned physical, we find that any possibility that the jury was prejudiced against the defendant due to Below's claim is so remote as to render the verdict surely unattributable to the evidence. See La. Code Crim. P. art. 921. See also State v. Morris, 99-3075 (La. App. 1st Cir. 11/3/00), 770 So.2d 908, 915, writ denied, 2000-3293 (La. 10/12/01), 799 So.2d496, cert. denied. 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d220 (2002).
This assignment of error is without merit.
CONFRONTATION OF ACCUSERS
In assignment of error number 3, the defendant argues the State violated the defendant's right to confrontation of his accuser by presenting testimonial hearsay concerning the victim's 911 call, Lieutenant Becnel's testimony concerning the victim's account of what had occurred, and the evidence concerning the complaint by Below.
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).
The recording of the 911 call by the victim was nontestimonial. It was made under circumstances objectively indicating that the primary purpose of any questioning of the victim was to enable police assistance to meet an ongoing emergency. The recording was also admissible under the hearsay exceptions for present sense impression and excited utterance because the victim was describing or explaining the defendant's attack on her immediately after the attack and while she was still under the stress of excitement caused by the attack. See La. Code Evid. art. 803(1) & (2).
The defendant failed to object to Lieutenant Becnel's testimony concerning what had occurred. Accordingly, he failed to preserve the issue of a Crawford or hearsay violation, if any, for review. See La. Code Evid. art. 103(A)(1) ("Error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection ... appears of record, stating the specific ground of objection"); La. Code Crim. P. art. 841(A) ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence").
In regard to the evidence concerning the complaint by Below, we note Below testified at trial concerning her complaint and was cross-examined by the defense. Thus, no Crawford violation occurred, and hearsay, if any, concerning the complaint was harmless beyond a reasonable doubt because it was cumulative of Below's testimony and because the defense was allowed to cross-examine her. See La. Code Crim. P. art. 921; Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).
This assignment or error is without merit.
EXCESSIVE SENTENCE
In assignment of error number 4, the defendant argues the maximum sentence was excessive because nothing in his history suggests he is beyond all redemption.
The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La. Code Crim. 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. 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.
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. 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. Hurst, 797 So.2d at 83.
As applicable here, whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. La. R.S. 14:31(B). The defendant was sentenced to forty years at hard labor without benefit of probation, parole, or suspension of sentence.
Initially, we note there was no authority to deny parole in this case. This court may, however, correct the illegal sentence by amendment on appeal, rather than by remand for resentencing, because the trial court attempted to impose the maximum legal sentence, and thus, no exercise of sentencing discretion is involved. See La. Code Crim. P. art. 882(A); 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. Accordingly, the sentence hereby is amended to forty years at hard labor.
At sentencing the trial court noted that after stabbing his wife to death, the defendant had "concocted an elaborate ruse in an attempt to throw off suspicion from [the defendant]." The court found the defendant's actions after the crime were "additional aggravating factors." The court noted the defendant had frantically called 911, asked a police officer to check on his wife, and appeared surprised when he learned the victim was dead. He had also removed the victim's Gucci wallet from her purse and placed it in the Gardere Area. Additionally, he had placed wig hair in the victim's hand after killing her. The court also found the DNA evidence on the bleach bottle at the defendant's home indicated he had taken the time to clean up before returning to the crime scene. The court stated the victim was a tenacious lawyer who had fought against adversity from a young age. She was stabbed thirty-one times, and also suffered twelve incised wounds, as well as blunt-force trauma. The court found the defendant had taken the life of a legal warrior and a gifted lawyer.
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 La. Code Crim. P. art. 894.1(A)(2), (A)(3), (B)(1), (B)(6), (B)(9), (B)(10) & (B)(21). Further, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.
Additionally, a maximum sentence was warranted in this matter. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. Miller, 703 So.2d at 701. This was the most serious offense because the defendant brutally stabbed the victim to death. The defendant is the most serious offender because after the murder of the victim, he used an "elaborate ruse" to attempt to escape suspicion after the offense.
This assignment of error is without merit.
CONSTITUTIONALITY OF NONUNANIMOUS VERDICT
In assignment of error number 5, the defendant argues his conviction by a nonunanimous verdict under La. Code Crim. P. art. 782(A) violated his state and federal constitutional rights.
Initially, we note the minutes indicate the verdict in this case was unanimous. The trial transcript, however, indicates one juror voted not guilty. 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).
Louisiana Code of Criminal Procedure article 782(A) is constitutional and does not violate the Fifth, Sixth, and Fourteenth Amendments. State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, 743; State v. Jones, 2009-0751 (La. App. 1st Cir. 10/23/09), 29 So.3d 533, 540. There is no authority to the contrary. Accordingly, we are not at liberty to ignore the controlling jurisprudence of superior courts on this issue. See Bertrand, 6 So.3d at 743.
This assignment of error is without merit.
CONVICTION AFFIRMED; SENTENCE AMENDED, AND AFFIRMED AS AMENDED.