STATE of Louisiana v. Joseph C. BALLAY, IV.
No. 97-KA-1749.
Court of Appeal of Louisiana, Fourth Circuit.
January 13, 1999.
727 So. 2d 1199
PLOTKIN, Judge.
Court composed of Judge STEVEN R. PLOTKIN, Judge CHARLES R. JONES, Judge Pro Tempore PHILIP C. CIACCIO.
Kevin Vincent Boshea, Regan & Boshea, New Orleans, Louisiana, Counsel for Defendant/Appellant.
PLOTKIN, Judge.
The primary issue in this appeal is whether defendant is entitled to a new trial because he was seen by prospective jurors in handcuffs for a short period of time during voir dire.
On August 15, 1995, a bill of information was filed charging the defendant, Joseph C. Ballay, IV, with violating
FACTS
Following the selection of the jury and prior to the commencement of the trial, the defendant‘s attorney moved for a mistrial based on the fact that it had come to his attention that some of the jurors saw his client handcuffed in the back of the courtroom while being led to the door. Deputy DeMoll admitted to the court that the defendant was handcuffed at the time he was taken back to the prison. The trial court noted the fact and then denied the motion for a mistrial. At the trial of the case the State presented testimony from seven witnesses. The defendant called no witnesses.
The following facts were adduced at trial. On July 15, 1995, a group of friends were at Mott‘s, a bar located in Port Sulphur, Louisiana, attending a surprise birthday party in honor of Tina Richard. The party was held in the back of the lounge; it was not a private party. The victim, Kenny Davis, arrived at the party with his wife, Trish, at approximately 11:00 that evening. When he arrived, Mr. Davis saw the defendant speaking with Gerald Cosse. Mr. Cosse was also at Mott‘s for the birthday party, however defendant was not. Mr. Davis approached the two men and said, “hello” to the defendant and shook his hand. Mr. Davis proceeded to join the group and partake in the birthday festivities. After an hour had passed, the defendant approached Mr. Davis and asked him to go outside with him. Once outside, Mr. Davis was struck in the face and knocked unconscious. Mr. Cosse testified that he ran outside when he realized what happened and saw the defendant on top of Mr. Davis. He stated that defendant was striking Mr. Davis in the face. He pushed defendant off of Mr. Davis and began trying to revive Mr. Davis. As a result of the blow to his face, Mr. Davis suffered a compound fracture of the nose, lost five teeth, and had a large bump on his head.
Mr. Cosse and his wife were the only witnesses who testified that they actually saw the defendant strike Mr. Davis. Mr. Davis admitted that he did not see who struck him; he walked outside and the next thing he knew, he was being revived. On cross-examination, Mr. Davis admitted that around twenty-seven years earlier, he took defendant‘s wife and child to California and this may have been the impetus for defendant to strike him.
ERRORS PATENT REVIEW:
A review of the record for errors patent suggests that the trial judge imposed an illegal sentence on the multiple bill conviction.
In the bill of information filed on October 9, 1996, the State charged the defendant with being a fourth felony offender. At the June 4, 1997 hearing on the multiple bill, the defendant consented to being adjudicated a third felony offender and waived a formal hearing on the multiple offender charge.
Notwithstanding the comments of the trial court, it appears the trial court imposed a sentence greater than that required by
(2) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(b) If the third felony and each of the two prior felonies are felonies defined as a crime of violence under
R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. (emphasis added)
The bill of information filed on October 9, 1996 indicated that the conviction forming the basis for the multiple bill was the defendant‘s 1996 conviction for second-degree battery, an offense that constitutes a crime of violence under
It does not appear that the requirements set forth in
In State v. Johnson, the court stated, “In any criminal case it is the mandatory duty of the district judge upon conviction of a defendant to impose a sentence authorized or directed by law, and, if he does not impose a sentence authorized or directed by law, the sentence is illegal, and the case is in the same condition as if no sentence at all has been imposed, and it must be remanded to the district court so that the judge may impose a legal sentence.” State v. Johnson, 55 So.2d at 783.
Because the trial court erroneously sentenced the defendant to an illegal sentence, the defendant‘s sentences must be vacated and the case remanded for resentencing pursuant to the provisions of
A review of the record reveals no other errors patent.
ASSIGNMENT OF ERROR
In his sole assignment of error the defendant argues that because his motion for mistrial was based on the fact that he was handcuffed during the voir dire, the court erred in denying the motion for a mistrial.
Ordinarily a defendant should not be shackled, handcuffed or garbed in any manner destructive of his presumption of innocence or destructive of the dignity and impartiality of the judicial proceedings. State v. Wilkerson, 403 So.2d 652 (La.1981).
The defendant cites two cases wherein the courts found that compelling a defendant to stand trial in readily identifiable prison attire was held to constitute reversible error. State v. Spellman, 562 So.2d 455 (La.1990); State v. Brown, 537 So.2d 1252 (La.App. 4 Cir.1989), writ granted, 578 So.2d 918 (La. 1991), vacated by, 585 So.2d 1211 (La.1991). Our courts have not hesitated to reverse convictions where the defendant is forced to sit through his entire trial in readily identifiable prison garb. However, in the instant case, it is undisputed that the defendant went to trial in civilian clothes.
Although no exceptional circumstances were shown to warrant restraints, the jurors observed the defendant in handcuffs early in the proceedings. Courts have been hesitant to find that the momentary use of shackles or handcuffs for the limited purposes of transporting an accused mandates a mistrial, particularly where the defendant was never handcuffed or shackled within the courtroom. Rather, the defendant must show that the jurors viewed him in restraints and that this resulted in prejudice to the defendant which affected the verdict. State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Cleveland, 25,628 (La.App. 2 Cir. 1/19/94), 630 So.2d 1365; State v. Brewington, 605 So.2d 4 (La.App.3 Cir.1992); State v. Otis, 586 So.2d 595 (La. App. 2 Cir.1991), reversed in part on other grounds, 589 So.2d 487 (La.1991); State v. McMellon, 525 So.2d 1094 (La.App. 3 Cir. 1988), writ denied, 532 So.2d 149 (La.1988); State ex rel. Cockerham v. Butler, 515 So.2d 1134 (La.App. 5 Cir.1987).
In State v. Wilkerson, the jury was leaving the courtroom at the end of the first day of trial. Before they left, a sheriff handcuffed the defendant and his co-defendant. Over half the jury passed within three or four feet of the defendant. The defendant argued that the jury must have seen him handcuffed. The Louisiana Supreme Court affirmed the denial of his motion for a mistrial. The Court stated that, if the handcuffing was objected to at the time of trial, the record must show an abuse of the trial court‘s discretion before the error would be reversible. See, Wilkerson, supra, 403 So.2d at 659. The Court also analyzed the case in terms of the
Similarly, in State v. Johnson, 94-1172 (La. App. 4 Cir. 12/15/94), 648 So.2d 43, this court held the trial court did not abuse its discretion in denying the defendant‘s motion for mistrial after one juror accidentally saw the defendant wearing handcuffs and shackles outside the courtroom. Johnson is distinguishable from the instant case in that the judge in Johnson questioned the juror about his observation, and the juror said that he did not attach any significance to the event. Further, there was no indication that he mentioned the handcuffs and shackles to the other jurors. The juror stated that the incident did not affect his ability to presume the defendant‘s innocence.
But, in Johnson, this court noted that the incident complained of was not one of the mandatory grounds for mistrial that was enumerated in
The facts in the instant case are similar to the facts in Johnson. The defendant was not handcuffed during the trial, nor was he forced to stand trial in prison garb. Rather, it merely appeared that some of the jurors observed the defendant handcuffed in the back of the courtroom momentarily when he was being taken back to prison. The case law does not support a finding that such a momentary observation automatically mandates a mistrial or reversal. The evidence of the defendant‘s guilt was overwhelming.
For the foregoing reasons, the defendant‘s conviction is affirmed but his sentence is vacated and the case is remanded for resentencing consistent with the legal principles stated herein.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.