Opinion
2016 KA 0264
09-20-2016
STATE of Louisiana v. Earl Kentrell RUFFIN
Joe Waitz, District Attorney, James Christopher Erny, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee, State of Louisiana Bertha M. Hillman, Covington, Louisiana, Counsel for Defendant/Appellant, Earl Kentrell Ruffin
Joe Waitz, District Attorney, James Christopher Erny, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee, State of Louisiana
Bertha M. Hillman, Covington, Louisiana, Counsel for Defendant/Appellant, Earl Kentrell Ruffin
BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
McCLENDON, J.
The defendant, Earl Kentrell Ruffin, was charged by bill of information with home invasion, a violation of Louisiana Revised Statutes 14:62.8. He entered a plea of not guilty and, following a jury trial, was found guilty as charged. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied. The State subsequently filed a habitual offender bill of information and, following a hearing, the defendant was adjudicated a third-felony habitual offender. The defendant was sentenced to sixteen years and nine months at hard labor without the benefit of probation or suspension of sentence. He filed a motion to reconsider sentence, which was denied. The defendant now appeals, alleging two assignments of error. For the following reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
Co-defendant Rosizena Renata Moore was charged by the same bill of information and entered a guilty plea prior to the defendant's trial.
The defendant's predicate convictions included his November 2, 2011, and December 4, 2012, guilty pleas to possession of a schedule II controlled dangerous substance under Thirty-Second Judicial District Court, Terrebonne Parish, docket numbers 603,238 and 628,408, respectively.
FACTS
On August 17, 2014, around 5:00 a.m., Julia Nevarez, the victim, was asleep at her home on Polk Street in Houma, Louisiana, when she heard yelling outside. She walked onto her porch and saw the defendant and his girlfriend, Rosizena Moore, banging on the door of the house belonging to the defendant's brother, Aaron Stevenson, which was across the street from the victim's home. The defendant and/or Moore were yelling, "I'm tired, let me in; I'm tired." The victim testified that she stated, "I'm tired, too, can y'all keep the noise down, can y'all be quiet?" The defendant walked toward the victim's home and asked, "Who is you?" He further stated, "You're not gonna talk to me like that, you're gonna respect me." The victim responded, "Whatever." Moore then said, " ‘F’ that ‘B,’ " started walking up the victim's driveway, and proceeded to enter the door of the victim's screened front porch. The defendant followed Moore. The victim grabbed a wooden chair and said, "If you don't get back then I'm gonna hit you with this chair." The defendant responded, "If you hit me with that chair[,] I'm going to ‘F’ you up." The victim put the chair down, and Moore "came at" the victim and punched her in the face. The defendant then kicked the victim in her back, and she fell to the ground. Moore started punching the victim in her chest, head, and face, and the defendant continued to kick the victim in her back until she passed out. When she regained consciousness, the defendant and Moore were dragging her down the steps of her home by her hair. Once she was dragged down the steps, she was dropped on the ground. The defendant and Moore left in the defendant's vehicle. Dale Naquin, a neighbor, called the police during the altercation, and officers reported to the victim's home. The victim provided a written statement, and the officers stated that they would be on the lookout for the defendant and Moore.
Later that day, the victim heard a horn blowing outside of her home. She walked outside and saw her husband sitting in her vehicle and also saw the defendant hitting him. Then, "before [she] knew it," Moore grabbed her by her hair and dragged her down the driveway. The victim testified that she later learned that the altercation began because her husband asked the defendant why he kicked her in her back. The victim called the police, and the defendant and Moore were placed under arrest. Naquin, the victim's neighbor, testified that his house is next door to Stevenson's house, and that on the morning of the incident, he was outside and heard screaming. He noticed the defendant and Moore arguing and observed Moore get into an argument with the victim. Moore threatened the victim prior to entering the doorway of the victim's porch. Naquin testified that the defendant also went onto the porch. The defendant and Moore then took a chair that the victim was using to defend herself and "put" her on the ground. They also punched her, kicked her, and dragged her outside. Once outside, they kicked her a few more times prior to leaving. Naquin testified that based on these observations, he immediately contacted the police.
Houma Police Department Officer Damien Melancon testified that he questioned the defendant. The defendant explained to Officer Melancon that he was trying to stop his girlfriend from attacking the victim, and he denied kicking the victim while she was on the ground.
Moore testified that she and the defendant were living with Stevenson on Polk Street at the time of the incident. According to Moore, despite the defendant telling her to stop arguing with the victim, Moore walked across the street "[b]ecause [she] was mad, [and she] wanted to fight." She testified that after she hit the victim, the defendant tried to pull her off the victim. Moore claimed that she was holding the victim by her hair and, as the defendant attempted to pull her off of the victim, she pulled the victim's hair. The defendant then picked Moore up, carried her out of the yard, and the two left. Moore testified that the defendant did not enter the front porch.
MOTION TO CONTINUE
In his first assignment of error, the defendant argues that the district court erred in denying the motion to continue made by him on the first day of trial. According to the defendant, the district court should not have denied the motion until information from Stevenson could be obtained. The defendant claims that Stevenson would have corroborated his contention that he did not have the "specific intent to injure" the victim. He contends that he was prejudiced because he was denied access to evidence and testimony that may have exonerated him. The defendant also complains that he only met with his attorney twice prior to trial.
Pursuant to Louisiana Revised Statutes 14:62.8A, home invasion is "the unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another."
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The defendant was arrested on August 17, 2014, and arraigned on October 7, 2014. At arraignment, a plea date was set for December 1, 2014, and a trial date was set for December 8, 2014. On December 8, 2014, on the State's motion, the plea date was continued to February 4, 2015, and the trial date was continued to February 9, 2015. According to the minute entry, the defendant and his counsel were not present at the hearing. On February 9, 2015, the defendant and his counsel appeared and stated that the defendant did not want to enter a guilty plea. On the State's motion, the trial was continued to the following day.
On the first day of trial, February 10, 2015, defense counsel moved for a continuance in order to subpoena witnesses. She explained that the subpoenas had not previously been issued because the defendant had not given her the names of the potential witnesses, Moore and Stevenson. The State told defense counsel to write down the names of the potential witnesses, and it would immediately subpoena them. The defendant then provided Stevenson's address and place of employment to the State. The district court noted that the defendant was arrested in August 2014, and stated that the defendant had "since August to let his lawyer know about witnesses, and here we are on the trial date, he chooses to keep these witnesses a surprise until the trial date. Well, we don't do things that way .... your motion to continue is certainly ingenuous and certainly denied."
The following morning, February 11, 2015, defense counsel re-urged the motion to continue. According to defense counsel, a DVD of interviews had just become available on February 10, 2015, and the defense needed additional time to prepare. In response, the State argued that the information had been in evidence at the Houma Police Department and was referenced in police reports that were included in previous open-file discovery. According to the State, there was never a request for the DVD. As soon as the State became aware of the DVD, it provided the DVD to defense counsel. The State further noted that it did not have a problem with allowing the defendant to view the DVD, but emphasized that the jury was waiting. The court pointed out that the information had been available for months, but indicated that the defendant would be allowed to view the DVD.
Prior to viewing the DVD, the defendant moved to dismiss his counsel and have the matter continued. The defendant stated to the court, "We are not properly prepared. I only [saw] her twice out of six months. [These are] my rights being violated. She's entitled to continuances[.]" Defense counsel responded that she met with the defendant "a couple of times" and "did give him a copy of the discovery" she had. She explained that she "met with him in great detail, [they] went over every step, including the statements." The district court denied the motions, and the defendant viewed the DVD prior to commencement of trial.
The defendant argues that the district court should not have denied the motion until information from Stevenson could be obtained. The defendant claims that Stevenson would have corroborated his contention that he did not have the specific intent to injure the victim.
Louisiana Code of Criminal Procedure article 707 provides:
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.
The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the district court judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. LSA–C.Cr.P. art. 712 ; State v. Strickland, 94–0025 (La. 11/1/96), 683 So.2d 218, 229. Whether refusal of a motion for continuance is justified depends on the circumstances of the case. Generally, the denial of a motion for continuance is not grounds for reversal absent a showing of specific prejudice. State v. Roy, 496 So.2d 583, 588 (La.App.1 Cir.1986), writ denied, 501 So.2d 228 (La.1987). Louisiana Code of Criminal Procedure article 709A sets forth the requirements for a motion for a continuance based on the absence of a witness:
A motion for a continuance based upon the absence of a witness shall state all of the following:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
Initially, we note that the defendant's motion for continuance was not in writing and, having been made the first day of trial, was not timely. The untimeliness issue notwithstanding, we see no reason to disturb the district court's ruling. The defendant in this case has not satisfied the requirements of article 709. As to article 709A(1), defense counsel did not include in the motion to continue any facts to which Stevenson would have testified, nor any evidence that his testimony would be material.
The defendant also failed to satisfy the requirements of article 709A(2) and A(3). The defendant made no showing of Stevenson's availability. In this regard, the defendant provided Stevenson's address and place of employment, but did not know Stevenson's telephone number or the times that he would be at work because "[i]t varies." The defendant further failed to show that due diligence was used to procure Stevenson's attendance at trial despite the State's offer to assist in locating him.
In summary, the defendant's motion was in improper form and was untimely. Further, he failed to meet the requirements of article 709, and he made no showing of specific prejudice. Accordingly, we find no abuse of the district court's discretion in denying the defendant's motion to continue trial.
This assignment of error is without merit.
MOTION FOR NEW TRIAL
In his second assignment of error, the defendant argues that the district court erred in denying his motion for new trial based on newly discovered evidence. Specifically, the defendant contends that Stevenson was located after trial, and his testimony that he saw "some things" from his window could have established a lack of specific intent to injure the victim.
Louisiana Code of Criminal Procedure article 851 provides, in pertinent part:
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:
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(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty[.]
* * *
Pursuant to Louisiana Code of Criminal Procedure article 854, a motion for new trial based on article 851B(3) shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.
In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it probably would have produced a different verdict. State v. Smith, 96–0961 (La.App.1 Cir.1997), 697 So.2d 39, 43. In evaluating whether the newly discovered evidence warrants a new trial, the test to be employed is not simply whether another trier of fact might render a different verdict, but whether the new evidence is so material that it should produce a verdict different from that rendered at trial. The district court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. State v. Henderson, 99–1945 (La.App.1 Cir.2000), 762 So.2d 747, 758, writ denied, 00–2223 (La. 6/15/01), 793 So.2d 1235.
The defendant filed a motion for new trial on the grounds that (1) the verdict was contrary to the law and evidence, and (2) the district court's rulings on the defendant's motion for a continuance made prior to trial showed prejudicial error affecting fundamental rights. At the hearing on the motion for new trial, the defendant argued that the motion should be granted based on newly discovered evidence, namely, that Stevenson had been located and gave relevant information to the defense. According to defense counsel, Stevenson claimed that during the incident, he was "peeping" out of his window and heard "some things" that were material. Defense counsel explained that she did not subpoena Stevenson for the hearing on the motion for new trial because she "just got the information." She also stated that Stevenson was aware of the hearing, but he told her that he had to work. Defense counsel asked the court to continue the hearing in order to get a "good address" for Stevenson. The State responded that there was not an exercise of due diligence on the defendant's part to find Stevenson. The State noted that it attempted to locate Stevenson on the morning of trial, but he no longer lived at the Polk Street residence.
When questioned by the court, defense counsel admitted that she did not obtain a sworn affidavit from Stevenson even though she had located Stevenson four days prior to the hearing and was aware that Stevenson might not appear at the hearing. Moreover, she did not request a continuance until the day of the hearing. Accordingly, the district court denied the motion to continue the hearing and the motion for new trial.
Based on our review of the record, we conclude that the district court did not abuse its discretion in denying the defendant's motion for new trial. Pursuant to article 854, "[t]he newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence." Further, the defendant failed to comply with the requirements set forth in article 854. Specifically, the defendant did not provide a concise statement of the "newly discovered evidence" or the facts that Stevenson's testimony would establish. See LSA–C.Cr.P. art. 854(2). Rather, defense counsel simply argued that Stevenson "heard some things" that were "material." These vague statements, even if properly presented, failed to establish the probability of a different verdict. The defendant also failed to establish that Stevenson's testimony was discovered after trial and that the failure to discover the testimony at the time of trial was not caused by lack of diligence. See Smith, 697 So.2d at 43.
CONCLUSION
For the foregoing reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.