Opinion
NUMBER 2016 KA 0519
09-15-2017
STATE OF LOUISIANA v. DAMION WILLIAMS
Hillar C. Moore, III, D.A. Allison Miller Rutzen, A.D.A. Baton Rouge, LA Attorney for Appellee Plaintiff - State of Louisiana Jane Hogan Hammond, LA Attorney for Appellant Defendant - Damion Williams
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 08-13-0994 Honorable, Richard Moore, III, Judge Hillar C. Moore, III, D.A.
Allison Miller Rutzen, A.D.A.
Baton Rouge, LA Attorney for Appellee
Plaintiff - State of Louisiana Jane Hogan
Hammond, LA Attorney for Appellant
Defendant - Damion Williams BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
Defendant, Damion Katraiel Williams, was charged by bill of information with armed robbery with a firearm, a violation of La. R.S. 14:64 and 14:64.3 (count one); second degree kidnapping, a violation of La. R.S. 14:44.1 (count two); and attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1 (count three). He pled not guilty and, following a jury trial, was found guilty as charged on all three counts. Defendant filed motions for new trial and post-verdict judgment of acquittal, both of which the trial court denied. On count one, the trial court sentenced defendant to 25 years at hard labor, without the benefit of parole, probation, or suspension of sentence; on count two, the trial court sentenced defendant to 15 years at hard labor, with the first 2 years to be served without the benefit of parole, probation, or suspension of sentence; on count three, the trial court sentenced defendant to 40 years at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court ordered these sentences to be served concurrently, with the exception that the first 5 years on count one be served consecutively with all other sentences. Defendant filed a motion to reconsider these sentences, which the trial court denied.
Following the initial sentencing, the state filed a habitual offender bill of information, alleging defendant to be a third-felony habitual offender and seeking to enhance only the instant armed robbery conviction. Following a hearing, the trial court adjudicated defendant to be a third-felony habitual offender with respect to the conviction on count one. The trial court vacated the prior sentence on count one and resentenced defendant as a third-felony habitual offender to 66.33 years at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant did not file a motion seeking reconsideration of this habitual offender sentence. Defendant now appeals, alleging six assignments of error. For the following reasons, we affirm the convictions, habitual offender adjudication, and sentences.
The alleged predicate offenses were: 1) a May 6, 2008 conviction for possession of a schedule II controlled dangerous substance under 19th JDC docket number 03-07-0939, and 2) an October 12, 2011 conviction for simple burglary under 19th JDC docket number 02-11-0260.
FACTS
In the early morning hours of May 19, 2013, Leroy Grant was walking in the Glen Oaks area of Baton Rouge when he was approached by men in an SUV, forced inside at gunpoint, and driven to Oaklon Avenue. Once there, he was forced to lie in a ditch, at which point he ran and was shot three times.
Following the incident, Grant met with a detective and identified defendant as the man who forced him into the car at gunpoint, robbed him of a Samsung Galaxy phone, and later shot him. At trial, Grant partially recanted this statement, indicating that defendant was not present at the time of the offenses.
INSUFFICIENT EVIDENCE
In his first assignment of error, defendant argues that the evidence presented at trial was insufficient to support his convictions. Defendant's primary contention is that the victim recanted his initial statement to the police wherein he identified defendant as one of four men who kidnapped, robbed, and shot at him, thus negating defendant's identity as a perpetrator. As a secondary matter, defendant avers that the state failed to prove anything of value was taken from the victim, so as to support the armed robbery conviction.
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, this court must consider 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 beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
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. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
The parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam). The state may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Arnold, 2007-0362 (La. App. 1st Cir. 9/19/07), 970 So.2d 1067, 1072, writ denied, 2007-2088 (La. 3/7/08), 977 So.2d 904. Thus, a general principle of accessorial liability is that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other. State v. Smith, 2007-2028 (La. 10/20/09), 23 So.3d 291, 296 (per curiam).
With the exception of the "anything of value" element of the armed robbery charge, defendant does not materially dispute that any of the alleged offenses took place against the victim. Rather, his primary argument is that the state failed to prove his identity as one of the perpetrators. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 2001-3033 (La. App. 1st Cir. 6/21/02), 822 So.2d 161, 163-64.
At trial, Leroy Grant testified that he was walking alone in the Glen Oaks area of Baton Rouge in the early morning hours of May 19, 2013. He stated that "a car full of guys" approached him, and one of the men forced him into the vehicle at gunpoint. According to Grant, the men in the vehicle forced him to close his eyes as they drove around the area. Eventually, the vehicle stopped in the vicinity of 4900 Oaklon Avenue, at which point the men forced Grant to lie in a ditch. Fearful that the men were going to kill him, Grant began to flee on foot. At least one of the men opened fire, and Grant was shot three times.
Immediately after the shooting, Grant was transported to the hospital, where he met with Baton Rouge Police Department Detective Jordan Lear. Grant told Detective Lear that he was approached by some men in a gold SUV, that defendant was seated in the rear seat on the driver's side, and that he spoke briefly with defendant before defendant pulled a gun and forced him inside the vehicle. Grant indicated to Detective Lear that the men demanded money from him, rummaged around in his pockets, and ultimately took his Samsung Galaxy phone. Grant stated that the men then forced him to lie down in a ditch and that he ran when he became afraid. Grant informed Detective Lear that defendant shot him three times as he ran. Detective Lear presented Grant with a six-person photographic lineup, from which Grant identified defendant as the person who shot and robbed him. The lineup statement indicates that Grant made this identification in "5 sec[onds]."
At trial, Grant testified that he did not know any of the men in the vehicle, that defendant was not in the car, and that he did not tell the detective his cell phone had been stolen. While he identified his initials and signature as being present on the photographic lineup and lineup statement, Grant stated that he did not remember signing anything in particular, but that he "signed so many papers at the hospital." Grant testified that he tried more than once to go to the district attorney's office and have the charges against defendant dismissed because he did not want the wrong man in jail. Grant explained that he only circled defendant's picture in the lineup because he knew him. He alleged that the police wrote everything else on the lineup statement.
To explain Grant's recantation of his identification of the defendant as one of the perpetrators, the state introduced several clips of jailhouse phone calls between defendant and an unidentified male. The state's implication of these calls is that defendant was seeking to intimidate the victim. In the first clip, defendant was informed by the unidentified male that Grant had been picked up on a material witness warrant and was being housed in the parish jail. The unidentified male stated that if Grant had a bond, he was going to attempt to get him out. Otherwise, "Chris" would call Grant in jail. Defendant appears to have agreed to this plan, saying, "Yeah mane, damn bruh."
In the second clip, defendant stated:
Yeah man, so, damn bruh, dawg, bruh, dawg. I'm saying so, he should, ok ok they got him in jail, cool, so he gone tell the truth or tell the people you know the same thing he been told them huh?
In the third clip, the unidentified male caller told defendant that "Chris" said to tell Grant to "call him and he got it from there." According to the unidentified male, "Chris" was "fixing [to] make it happen."
Finally, in the fourth clip, defendant stated, "[A]nd we gonna be ready Monday morning man, you know, shit, gone be ready Monday morning, make sure I got some supporters in the courtroom." The unidentified male caller told defendant that "Big Man said he ain't tripping tho, he coming to that bitch." The caller continued, "He said he gone come with us, where Leroy, where that a nigga can see he with, you know, like come on man."
To further bolster the state's contention that defendant participated in the kidnapping, robbery, and attempted murder, the state presented DNA evidence tying defendant to the scene of the shooting. Following the incident, crime scene investigators recovered a black knit cap from the area of the shooting. DNA evidence recovered from this cap was analyzed against a reference sample of defendant's DNA. The DNA analysis indicated that defendant could not be excluded as a major contributor of the DNA found on the cap. Statistically, the probability of finding the same major DNA profile from an unrelated random individual in the black population, other than defendant, was 1-in-305 quintillion.
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). In the case at bar, the jury rationally rejected defendant's hypothesis of innocence that he did not participate in the sequence of events that led to the kidnapping, robbing, and shooting of Grant. While Grant specifically testified at trial that defendant was not involved, the jury also heard the statements that Grant made to Detective Lear in the immediate aftermath of the incident, considered jailhouse phone calls that were indicative of witness intimidation, and were presented with DNA evidence of defendant's presence at the scene. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The jury could have rationally concluded that defendant participated in the kidnapping, robbery, and attempted murder of Grant. Similarly, though Grant testified at trial that he did not have a Samsung Galaxy taken from him on the night of the incident, the jury might have disregarded that testimony in favor of the contradictory testimony presented by Detective Lear.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). While defendant attempted to negate his identity as a perpetrator, the jury apparently rejected this explanation and found defendant guilty. We cannot say that this conclusion is unreasonable. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a factfinder'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), ___ So.3d ___, ___, 2016 WL 314814 (per curiam).
After a thorough review of the record, we find that the evidence supports the jury's guilty verdicts. We are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant was guilty of armed robbery with a firearm, second degree kidnapping, and attempted second degree murder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam); see also Mire, 2016 WL 314814.
Defendant's first assignment of error is without merit.
ADMISSIBILITY OF JAILHOUSE PHONE CALLS
In his second assignment of error, defendant contends that the trial court erred in allowing the state to introduce the jailhouse phone calls between defendant and an unidentified male caller. Defendant argues that these phone calls were insufficient to show that he authorized any witness intimidation and that their probative value did not outweigh their prejudicial impact.
In State v. Burnette, 353 So.2d 989 (La. 1977), the Louisiana Supreme Court addressed the issue of the admissibility of evidence that a defendant attempted to influence the testimony of witnesses. The court noted that actions by a defendant that are designed to prevent witnesses from testifying give rise to an inference that he acted from a consciousness of his own guilt. Further, the court indicated that such evidence has substantial probative value in a proceeding designed to test the guilt or innocence of an accused. See Burnette, 353 So.2d at 992. The Burnette court set forth the test for admissibility of such evidence as follows:
Thus, a trial court in determining the admissibility of evidence of other criminal acts of the accused, constituting admissions by conduct, intended to obstruct justice or avoid punishment for the present crime,
must decide outside the jury's presence and in advance of the introduction of the evidence whether (1) the evidence fits the class of evidence constituting such admissions by conduct; (2) there is substantial evidence that the defendant committed the other crimes; and (3) the probative value of such other crimes evidence will outweigh its prejudicial effect. If the other crimes evidence fails to pass any of these three tests it must be excluded.Id.
In the instant case, the trial court held a hearing outside the presence of the jury to determine the admissibility of six jailhouse phone call clips that the state sought to introduce. Ultimately, the trial court allowed the state to introduce the four clips described above in relation to the first assignment of error. The trial court determined that these four clips showed a consciousness of guilt on the part of defendant.
In looking to the three-pronged analysis set forth by Burnette, we find that the state met its burden of proving the admissibility of these four clips. As previously described, the four clips indicate that defendant was acutely concerned following the victim's arrest on a material witness warrant. In the first clip, defendant implicitly authorized the unidentified caller either to retrieve Grant from jail or to have someone make contact with Grant. In the second clip, defendant expressed dismay about what Grant's trial testimony would be. In the third clip, the unidentified caller informed defendant that Grant should make contact with "Chris," who was "fixing [to] make it all happen." Finally, in the fourth and most incriminating clip, defendant requested supporters in the courtroom for his trial, to which the unidentified male caller replied that "Big Man" would be coming and would sit where the victim could see him. Taken together, these clips can be fairly understood to fit in a class of evidence constituting witness intimidation by conduct. The uncontroverted testimony at trial is that defendant's voice is present on each of these calls, and he either requested certain assistance from the unidentified male caller or approved of plans set forth by the caller. Finally, the probative value of this evidence is substantial in that it was calculated to explain the victim's recantation of his statement to the police wherein he implicated defendant as the main perpetrator. Any prejudicial effect that might have existed was substantially outweighed by this probative value. As a result, the trial court did not err or abuse its discretion in admitting these jailhouse phone calls.
This assignment of error is without merit.
MOTIONS FOR MISTRIAL
In his third assignment of error, defendant argues that the trial court erred in denying two motions for mistrial, both of which were made when the state alluded to witness intimidation.
During his opening statement, the prosecutor described the victim's actions in the time following the incident:
[Leroy Grant] came and filled out an affidavit. And what Mr. Leroy Grant said was, maybe it's the wrong man. And you're going - I'm going to show the affidavit. I'm going to show it to you, and I'm going to let the jurors - I'm going to let you look at [it]. I intend to prove to you that Mr. Grant came and filled out that affidavit and he wasn't telling the truth. He was trying to protect himself.At that time, defense counsel objected and moved for a mistrial, arguing that this statement impermissibly referred to other crimes allegedly committed by defendant. The prosecutor countered that this statement was not intended to implicate anyone specific, but was more of a general discussion of the victim being considered a "rat" or a "snitch" in the neighborhood. In denying the motion for a mistrial, the trial court counseled the prosecutor to stick closely to that implication in his opening statement, and the prosecutor complied with that instruction for the remainder of his opening.
In his closing argument, the prosecutor stated, "Folks, if we get to the point where we allow witnesses to be intimidated and ---," at which point defense counsel asked to approach and again moved for a mistrial. Defense counsel argued that there had been no evidence of witness intimidation, and the prosecutor countered that there had been. The trial court overruled this motion for a mistrial and asked the prosecutor to "expound on other issues." The trial court noted that if it did not feel like the prosecutor's subsequent actions were sufficient, then it would instruct the jury to disregard any information about intimidating a witness.
Under La. C.Cr.P. art. 770(2), upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the district attorney in argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the accused. A trial court ruling denying mistrial will not be disturbed absent an abuse of discretion. State v. Smith, 418 So.2d 515, 522-23 (La. 1982).
In the instant case, defendant argues that both of the prosecutor's objected-to remarks implied that defendant was involved in the intimidation of the victim. While the prosecutor controverted that argument during his opening statement, he advocated for an intimidation claim during his closing remarks. Nonetheless, we have already determined (in our discussion of the second assignment of error) that the state's claims of witness intimidation were admissible. Therefore, any related remarks made inadmissible by the state during opening statements or closing arguments did not constitute other crimes evidence. See La. C.Cr. P. art. 770(2). As a result, no mistrial was warranted. Furthermore, even though the state's opening statement was made prior to the trial court's ruling on the admissibility of the intimidation evidence, that evidence was still ultimately admissible. Additionally, the state complied with the trial court's instruction during opening to talk more broadly about the victim's perception in the community, rather than any specific claim of intimidation by the defendant. Considering the above, the trial court did not err or abuse its discretion in denying the motions for mistrial.
This assignment of error is without merit.
CLIPPED PHONE CALLS
In his fourth assignment of error, defendant argues that the trial court erred in allowing the state to play clips of his jailhouse phone calls, rather than causing the entirety of these calls to be played, because these calls were tantamount to a confession, and the rule of completeness required the introduction of the entire calls. Louisiana Revised Statutes 15:450 provides:
Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.
A defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him, although, of course, he may waive the benefits of the protective statute. Consequently, when the state seeks to introduce a confession, admission or declaration against a defendant which contains other crimes evidence, but which is otherwise fully admissible, the defendant has two options. He may waive his right to have the whole statement used, object to the other crimes evidence, and require the court to excise it before admitting the statement; or, he may insist on his right to have the statement used in its entirety so as to receive any exculpation or explanation that the whole statement may afford. A third alternative, that of keeping the whole statement out, is not available to defendant, unless, of course, the confession itself is not admissible. State v. Morris, 429 So.2d 111, 121 (La. 1983).
In initial discussions pertaining to the admissibility of the at-issue phone calls, the trial court asked whether the parties had discussed "redacting some things." The prosecutor replied:
Right. And what I talked to [defense counsel] about is I listened to them again. There are some - there are some obvious things that we will - Mr. Smith will help us to play the recordings, but there are certain things that we will not play on them. For instance, he talks - there are
several references to Mr. Williams's Fifth Amendment right against testifying. Well, we're not going to play that portion of it because I think it's rather obvious that he's not going to testify in this case and we don't - and, I guess, we don't want that -The trial court finished the prosecutor's argument, "We don't want to bring that as an issue." Defense counsel made no discernible argument with respect to the completeness of the phone calls the state sought to play. Defense counsel argued that the calls were not relevant, and he asked the trial court to "make a determination before the jury gets to see that."
Therefore, while defense counsel argued that the calls should not have been played at all, he made no objection after the four clips were deemed admissible as to whether these calls needed to be played in their entirety. In fact, one of the clips played for the jury was a continuation of a clip deemed inadmissible by the trial court, and defense counsel did not ask to have the inadmissible clip played.
An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La. C.Cr.P. art. 841(A). Further, error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and when the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel. See La. C.E. art. 103(A)(2). While defendant objected to any of the calls coming into evidence, he did not lodge an objection of completeness as it related to the playing of certain "clips" of calls. Moreover, other than arguing the necessity of "context," defendant does not indicate what substantial rights of his might have been affected by the exclusion of the complete calls.
This assignment of error is without merit.
BILL OF INFORMATION
In his fifth assignment of error, defendant argues that his prosecution for armed robbery should have been instituted by grand jury indictment rather than a felony bill of information because the maximum sentence for this offense carries an "effective life sentence" of 99 years.
Defendant did not lodge an objection to his bill of information or file a motion to quash the same before the trial court. Therefore, this matter has not been preserved for review. La. C.Cr.P. art. 841(A).
In addition, defendant's contention that armed robbery carries an "effective life sentence" has no persuasive value as it concerns the institution of prosecution. The plain language of La. C.Cr.P. art. 382(A) indicates only that prosecutions punishable by death or "life imprisonment" shall be instituted by a grand jury, and other criminal prosecutions in a district court shall be instituted by indictment or by information. The term "effective life sentence" does not appear anywhere in Article 382, and a prosecution for any offense which carries with it the nebulous concept of an "effective life sentence" may be instituted by indictment or information.
This assignment of error is without merit.
EXCESSIVE SENTENCES
In his sixth and final assignment of error, defendant contends that his habitual offender sentence of 66.33 years at hard labor, without the benefit of parole, probation, or suspension of sentence, is both illegal as an "effective life sentence" and unconstitutionally excessive. He also argues that his 40-year sentence for attempted second degree murder is unconstitutionally excessive.
We note first that while defendant filed a motion to reconsider his initial sentences imposed by the trial court, he did not file a second motion to reconsider his habitual offender sentence. Under La. C.Cr.P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc) (per curiam). Additionally, when a defendant files a motion seeking reconsideration of his sentence and is subsequently resentenced, he must file another motion to reconsider sentence in order to receive appellate review of the newly imposed sentence. See State v. Smith, 2003-1153 (La. App. 1st Cir. 4/7/04), 879 So.2d 179, 183-84 (en banc). Therefore, defendant is procedurally barred from having his habitual offender sentence reviewed for excessiveness on appeal.
To the extent defendant argues his habitual offender sentence is illegal, he is incorrect, at least insofar as he argues it is illegal in an excessive way. The sentencing range for the underlying offense of armed robbery is not less than 10 nor more than 99 years, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64(B). As a third-felony habitual offender whose underlying conviction was punishable by imprisonment for a term less than his natural life, defendant's sentencing exposure was a determinate term not less than two-thirds of the longest possible sentence for the conviction (66 years) and not more than twice the longest possible sentence prescribed for a first conviction (198 years). See La. R.S. 15:529.1(A)(3)(a). The sentence imposed - 66.33 years at hard labor, without the benefit of parole, probation, or suspension of sentence - falls squarely within the allowable sentence. As the state points out in its brief, this sentence may actually be illegally lenient, as it fails to take into account the provisions of La. R.S. 14:64.3. However, because any illegality inures to defendant's benefit in this case, we elect not to amend the sentence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 124-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
With the firearm enhancement of La. R.S. 14:64.3, the offender shall be imprisoned at hard labor for an additional period of 5 years, without the benefit of parole, probation, or suspension of sentence, with this additional penalty to be imposed consecutively to the period imposed und La. R.S. 14:64. See La. R.S. 14:64.3(A).
We now address defendant's excessiveness argument as it relates to his sentence for attempted second degree murder.
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. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See 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. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
The goal of La. C.Cr.P. art. 894.1 is to have the sentencing court articulate a factual basis for the sentence, not rigid or mechanical compliance with the article's provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. See State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
Whoever commits the crime of attempted second degree murder shall be imprisoned at hard labor for not less than 10 nor more than 50 years without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(1)(a) & 14:30.1(B). For his conviction of attempted second degree murder, defendant was sentenced to 40 years at hard labor, without the benefit of parole, probation, or suspension of sentence. At the time of sentencing, in his motion to reconsider, and now on appeal, defendant argues that this sentence is unconstitutionally excessive. He contends that this sentence unnecessarily takes him away from his three young children and that his imprisonment costs the Louisiana taxpayers an exorbitant amount of money.
At the time of the sentencing, the trial court set forth its extensive reasons for the sentences it imposed. The trial court first noted the facts of the instant offenses. The trial court then summarized the presentence investigation report (PSI) prepared for defendant's sentencing. According to the trial court, the PSI indicated that defendant was on felony probation for simple burglary at the time he committed the instant offenses. Additionally, while also on felony probation, defendant had been arrested for domestic abuse battery, but that charge was subsequently dismissed. The trial court noted that defendant had an extensive criminal history with multiple arrests for crimes of violence, including for second degree murder (charge dismissed), simple battery (pled guilty), and aggravated battery (pled guilty to simple battery). The PSI indicated: a guilty plea for possession of cocaine, an arrest without disposition for entry after being forbidden, a guilty plea to misdemeanor possession of stolen things, a no-bill after an arrest for resisting an officer, guilty pleas to four counts of simple battery, an arrest for first degree murder, guilty pleas to simple battery and aggravated assault, and another arrest for second degree murder with no disposition.
In reviewing the Article 894.1 factors, the trial court found the following aggravating factors: defendant's conduct during the commission of the offenses manifested deliberate cruelty to the victim, defendant used actual violence in the commission of the offenses, defendant attempted to kill the victim to conceal the commission of other offenses, defendant used a dangerous weapon - a firearm - in the commission of the crimes, defendant foreseeably endangered human life by discharging a firearm during the commission of offenses which had an element of attempted use or threatened use of physical force against the person of another. The trial court found no mitigating factors.
Considering the totality of the circumstances, including those of the instant case, defendant's personal history, and defendant's extensive criminal record, we conclude that the trial court did not err or abuse its discretion in imposing the 40-year sentence, without benefits, for attempted second degree murder. Defendant's past conduct of repeated criminality indicates that he poses an unusual risk to the public safety and could have warranted a maximum sentence had the trial court chosen to impose such a sentence. See State v. Miller, 96-2040 (La. App. 1st Cir. 11/7/97), 703 So.2d 698, 701-02, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459. The instant sentence is not excessive.
This assignment of error is without merit.
For the foregoing reasons, the defendant's convictions, habitual offender adjudication, and sentences are affirmed.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.