Opinion
No. 10-00800.
February 2, 2011.
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, NO. 09-K-0550-D, HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE.
Earl B. Taylor, District Attorney, 27th J.D.C., Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, Counsel for Appellee: State of Louisiana.
Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, Counsel for Defendant/Appellant: Willie Joseph.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
On April 20, 2009, the St. Landry Parish District Attorney's Office filed a bill of information charging Defendant, Willie Joseph, with aggravated second degree battery, a violation of La.R.S. 14:34.7. On December 4, the parties selected a jury that heard evidence and rendered a guilty verdict on December 22. On January 28, 2010, the trial court sentenced Defendant to serve fourteen years at hard labor.
Defendant now appeals his conviction and sentence. We affirm.
FACTS:
On January 30, 2009, the victim, Dorian Thomas, visited Opelousas. When he initially came into town, he saw Defendant in a truck. Later, the victim walked to a store with his girlfriend's minor daughter and his dog. When they left the store, he saw Defendant and another man, Jonah Richard. Defendant approached the victim, cursing and threatening him. Apparently, Defendant was a friend of a man who had been jailed for shooting the victim in 2008.
Richard remained across the street, but Defendant came closer to the victim and stabbed or cut his chest. The victim's girlfriend was nearby, at her mother's house; she ran to the scene and took the victim to the hospital. Medical examination revealed the knife had penetrated the victim's chest wall. The treating physician closed the wound with five deep-tissue sutures and eleven exterior sutures.
ASSIGNMENT OF ERROR NO. 1:
In his first assignment of error, Defendant argues that the State's evidence was insufficient to support his conviction. This analysis is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La. 1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 ( citing State v. Richardson, 425 So.2d 1228 (La. 1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Second degree battery is defined by La.R.S. 14:34.7, which states, in pertinent part:
A. (1) Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
(2) For purposes of this Section, "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
The first portion of Defendant's argument suggests the victim did not suffer "serious bodily injury." He contends that "no life saving measures" were necessary to repair the injury to the victim caused by the knife-wound. Defendant acknowledges the victim's testimony that he received a disability check, suffered from paranoia, and had memory loss. However, he argues that these symptoms could be consequences of the 2008 shooting.
We note that there is no question the knife penetrated the victim's chest wall, albeit slightly. Although no internal organs were damaged, we find that a wound that breaches the chest wall may be logically termed a "serious bodily injury."
Dr. Alain, the treating physician, explained that a CT scan revealed air within the chest wall, which meant it had been breached.
The second circuit has observed:
The evidence is also adequate to demonstrate that Henry inflicted wounds which qualified as serious bodily injury. Dr. Sorkey stated that Farris had multiple injuries, mostly lacerations, which required a combination of sutures and steel staples. Dr. Sorkey explained the complications of such wounds as being infection, permanent scarring and that Farris's hair would not grow back over the cuts on Farris's head. Dr. Sorkey noted that had Farris's temple injuries been inflicted with enough force, the wounds could have been fatal. No contrary evidence was presented by Henry. From this testimony, we find that a jury would be reasonable in concluding that the scarring left by these wounds qualified as an obvious disfigurement. Likewise, the photographs depicting Farris's wounds support a conclusion that Farris experienced extreme physical pain from the lacerations which required sutures and copious amounts of staples. Finally, Dr. Sorkey's uncontradicted testimony shows that the injuries received by Farris created a substantial risk of death. When viewed in the light most favorable to the state, this evidence is adequate to support the conviction.
State v. Henry, 36,217, pp. 5-6 (La.App. 2 Cir. 8/14/02), 823 So.2d 1064, 1069.
Similarly, in the present case the treating physician noted the potential for infection or inflammation from the victim's wound. The physician opined that "[i]t was a significant injury." As mentioned earlier, closure of the wound required sixteen sutures. Also, the victim testified that the wound was painful, which is certainly a credible assertion, given the medical testimony. Accordingly, we find that the State proved "serious bodily injury" beyond a reasonable doubt.
Next, Defendant attacks the victim's credibility. He acknowledges that a single witness can support a conviction and that credibility is not usually re-examined on appeal. However, he argues that a jury's credibility assessments can be reviewed if the testimony is too inconsistent and incredible.
Defendant states that the victim failed to admit that he had ever used any drug other than marijuana. However, he does not demonstrate that the victim was untruthful on this point. During cross-examination, the following colloquy occurred while the victim was testifying:
Q. Now you said — the prosecutor, Mrs. Gothreaux, went over your convictions, and what were they for?
A. Possession of marijuana and possession of cocaine?
Q. Okay. Do you remember in docket number 02-0615-C of the Twenty-Seventh Judicial District Court that you were convicted of distribution of cocaine?
A. I don't understand what you're saying.
Q. Well, your first felony — your felony conviction, what was it for?
A. Marijuana.
Q. So you're saying that you weren't convicted of possession with intent or distribution of cocaine? That's your statement?
A. I ain't said I was convicted of it. That was my second charge. My first — the first time I got arrested was for marijuana.
Q. That was in '98, is that correct?
A. Yes, sir.
Q. So you said you were arrested, what was the charge when you were arrested?
A. In '98?
Q. Uh hum.
A. For possession of marijuana.
Q. Are you sure it wasn't possession with intent to distribute marijuana?
A. That's the same thing huh?
Q. Okay. And then do you remember docket no. 02-3980-C, that's over here in St. Landry Parish, where you have convictions for two counts of — two separate counts of distribution and/or possession with intent to distribute cocaine?
A. In what year?
Q. That was in 2002. It ended up — probably 2004 was the conviction.
A. I went do time [sic] in 2004 for the conviction of the —
Q. When you picked up the third charge you got revoked, right?
A. The third time?
Q. Yes, when you got picked up the third time.
A. I had two charges; one was for possession of marijuana and one was a possession of cocaine.
Q. And there was a third charge where you pled to two counts of distribution of cocaine?
A. I don't know nothing about no third charge.
Q. You don't know anything about — you said you just had possession of cocaine?
A. I had one charge in '98 for a possession of marijuana and I had another charge in 2002 for possession of cocaine.
Q. Okay. And do you remember when the nurses were interviewing you at the hospital and they said, "Do you have a history of drug use?" You said, "No"?
A. They ain't asked me none of that. They asked me if I was on any kind of drugs.
Q. That's what your understanding was?
A. Yes.
Q. Not do you have a history of using drugs?
A. No.
Q. And your testimony is with the benefit of hearing what the doctor testified to?
A. No, I'm saying what they asked me.
Later, while still questioning the victim, defense counsel returned to the subject:
Q. Okay. Let me ask you about being paranoid. Do you know what PCP is?
A. Not really.
Q. You know what "wetting up" means? Do you know what "wetting up" means?
A. Wetting up?
Q. Yeah, the street name for what happens when you dip tobacco or marijuana in a liquid — formaldehyde.
A. That's what they say they do.
Q. So you're saying you don't know anything about that?
A. No, sir.
Q. And so you do have a history of doing drugs, right?
A. I have a history of marijuana.
Q. Not cocaine?
A. No, sir.
Q. You know what cocaine looks like when you see it?
A. Everybody should know.
Q. Okay. And you've possessed cocaine?
A. Yes.
Q. But it wasn't for personal use? It wasn't for you to use?
A. No, sir.
Again, we observe that Defendant does not cite any evidence that demonstrates the victim's assertion was false.
The next argument suggests the victim's testimony that Defendant was the aggressor was not credible. Without citing a record page number, Defendant notes that the victim's comment that he and Defendant were going to fight. The victim made such a remark during his statement to police but was referring to his initial encounter with Defendant earlier in the day.
Also, Defendant states that the victim "had an aggressive pit bull dog," but the victim testified that his dog was not aggressive. Again, Defendant fails to show the victim's testimony was false or questionable on this point. We do note that there was testimony the dog was combative during the confrontation, but Defendant does not make any showing that the victim's testimony was incredible. According to the jurisprudence already cited, it was within the jury's province to determine the relative credibility of each witness.
Defendant also points to what he characterizes as other inconsistencies in the victim's testimony. The victim told police that Defendant had a handgun but handed it to Jonah Richard, who handed him the knife in exchange. He did not mention the gun in his initial testimony. He also told police that his friend, Mark Keys, transported him to the hospital, but he testified that Jeanetta Atlow, his girlfriend at the time, transported him.
It is rare for this court to overturn a fact-finder's credibility determinations, as we have explained:
As mentioned in Kennerson, credibility assessments are within the province of the fact-finder, in this case the jury. A jury may "accept or reject, in whole or in part," any witness's testimony. State v. Silman, 95-0154, p. 12 (La.11/27/95), 663 So.2d 27, 28. Clearly, the jury believed the victim's version of events, and Hypolite's brief offers no concrete reason why the jury's conclusion should be considered unreasonable. This court will overturn a jury's credibility assessment only when a witness's own testimony demonstrates that the witness's ability to perceive events was impaired in some way. See, e.g., State v. Bourque, 94-291 (La.App. 3 Cir. 11/2/94), 649 So.2d 670, wherein one eyewitness had consumed a large amount of alcohol before the offense and the other was a minor who believed all white men looked alike, and defendant was white.
State v. Hypolite, 04-1658, pp. 4-5 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, 1279, writ denied, 06-618 (La. 9/22/06), 937 So.2d 381.
In the present case, there is no indication that the victim's perception of events was impaired. However, one of Defendant's witnesses, Jonah Richard, acknowledged that he had consumed at least a pint of vodka by the time of the incident. Also, Richard testified that he did not see the victim get cut. Since the victim clearly was wounded, Richard's testimony opens three possibilities: first, he was so intoxicated that he could not properly perceive or recall the relevant events; second, Richard was lying; or third, he left the scene while the incident was still unfolding. Regarding the latter scenario, although Richard expressed some uncertainty, on redirect he testified that Defendant left the scene before he did. This leaves open the first two possibilities listed.
Richard claimed that only the victim had a knife. Another defense witness, Nakeitha Leday, testified that Defendant told her the victim stabbed himself; however, Leday was not an eyewitness. Also, we note that Lday testified that about eight years before trial, she had dated the victim. At the time of the trial, she had been dating Defendant for a year and seven months.
Given the above, we find that Defendant has failed to show that the jury's credibility determinations were unreasonable or improper. Therefore, the assignment lacks merit.
ASSIGNMENT OF ERROR NO. 2:
In his second assignment of error, Defendant argues his fourteen-year sentence is excessive. As Defendant observes, it is one year short of the fifteen-year maximum. La.R.S. 14:34.7. He also contends that the trial judge failed to consider the mitigating factors pursuant to La. Code Crim.P. art. 894.1. However, he failed to include this ground in his motion to reconsider sentence, and he did not raise it at the hearing on the motion. Therefore, he is limited to his general claim of excessiveness. La. Code Crim.P. art. 881.1(E); State v. Salameh, 09-1422 (La.App. 3 Cir. 5/5/10), 38 So.3d 568.
In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted), this court discussed the analysis for such claims:
La.Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
This court has also discussed a more detailed framework for an excessive-sentence analysis:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00)[,] 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La.5/31/96)[,] 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.
Regarding the nature of the offense in the instant case, it was clearly a violent crime. As for the nature of the offender, the trial court explained:
I'll note that I'm going to consider the sentencing statute, the aggravating and mitigating circumstances of Article 894.1, the gentleman's record in general, I'll note that this gentleman has an extensive criminal record and at this point he is a fifth time felon, which in this Court's opinion makes him a menace to society. As a result, I am going to consider Article 894.1(A)(1)(2) and (3) and given the record, the circumstances of this particular case, I am going to sentence him to fourteen years at hard labor. I find that this is, indeed, a crime of violence. I'll note that the penalty has not been enhanced.
At the hearing on the motion to reconsider sentence, the court further stated the following:
As I recall, this gentleman had a significant record, that he was a six time felon, and I will say what I always say, I consider very carefully before issuing a sentence in any case. Given the record of this gentleman, he's exhibited an inability to involve himself in common polite society and behave in a manner consistent with the laws of this country. As a result, your motion to reconsider sentence is denied.
On appeal, Defendant does not dispute that he has prior felonies. Regarding the final Smith factor, Louisiana courts have upheld fifteen-year sentences for defendants with prior felonies convicted under La.R.S. 14:34.7. See, e.g., State v. Bajoie, 04-1843 (La.App. 4 Cir. 3/9/05), 899 So.2d 78, writ denied, 05-909 (La. 11/29/05), 916 So.2d 167, and State v. Pamilton, 43,112 (La.App. 2 Cir. 3/19/08), 979 So.2d 648, writ denied, 08-1381 (La. 2/13/09), 999 So.2d 1145. In State v. Tellis, 44,010 (La.App. 2 Cir. 2/25/09), 5 So.3d 987, writ denied, 09-800 (La. 12/18/09), 23 So.3d 933, the court upheld a thirteen-year sentence imposed upon a defendant who pled guilty to aggravated second degree battery. Also, in State v. Livingston, 39,390 (La.App. 2 Cir. 4/6/05), 899 So.2d 733, the court upheld a thirteen-year sentence, again upon a defendant who pled guilty to aggravated second degree battery. Although the defendant was first offender, he inflicted brutal injuries on the victim and benefited from his plea bargain.
The final sentence in Bajoie was based on the defendant's adjudication as a second habitual offender, but the fifteen-year term was the same as that imposed earlier on the underlying charge of aggravated second degree battery. In Pamilton, the relevant sentence was upheld in a footnote. Pamilton, 979 So.2d at 656, n. 6. (Although the earlier sentence was vacated, the original term was re-imposed.)
These cases demonstrate that the sentence at issue is not beyond the norms of Louisiana jurisprudence. Accordingly, we find that the Defendant's sentence is not excessive.
DECREE:
The conviction and sentence are affirmed.