STATE of Louisiana v. Billy BROWN.
No. 95-KA-124.
Court of Appeal of Louisiana, Fifth Circuit.
May 30, 1995.
656 So. 2d 1070
Bruce G. Whittaker, Gretna, for appellant.
Before GAUDIN, DUFRESNE and WICKER, JJ.
WICKER, Judge.
This criminal matter comes before us on direct appeal. The defendant, Billy Brown, appeals his conviction of four counts of intimidating a witness, the finding that he is a fourth-felony multiple offender, and his resulting sentence of forty years at hard labor. We affirm the convictions, but vacate the sentence and remand for resentencing.
FACTS
The victim, Nancy Stein, met Billy Brown in June of 1992 while they were living in the same apartment building. They became involved in a relationship, which Stein ended in September 1992. Brown continued to pursue Stein, however. Ultimately Brown was arrested on December 25, 1992 for an alleged extortion of Stein.
While Brown was incarcerated on the extortion charge, he sent numerous letters to Stein. Three of those letters are the basis for the charges in this case. Two of the letters, dated February 10, 1993 and October 31, 1993, were sent to Stein only; a third letter, dated November 14, 1993, was directed not only to Stein, but also to her daughter,
1. [Letter of Feb. 10, 1993, to Stein]
I have great news to tell you, if you are still caring about me at all. It has to do with my charges. * * * Since they will not hold Court on me until around April or May. That would cause me to lose my Social Security.
* * * * * *
So if the charge of extortion is droped [sic]. Then the Social Security has to start over....
* * * * * *
I swear to Jesus I forgive you for everything, regardless if you drop the charge or not! ...
* * * * * *
Drop the charge against me, and I will forget everything and not bother you ever again.... If I stay in jail Nancye [sic]2 and lose everything because of your lie. Then Nancye you will have to be made to pay for what you have done to me! ... I don‘t care if you take this letter and show to the Govenonor [sic]! I‘ll make you pay for it! So help me God! ... Now Nancye no matter what the fuck you do they can not keep me in jail for ever. They have to let me out one day! The day they let me out Nancye you had better pray you never see my face again! Not for a second. I‘ll promise you Nancye that will be the last face you ever see! So help me God! I don‘t care if you see me in the police station, that is your last. I know Nancye you think you are slick. Let me ask you. Why did you ask. How did you find me? That is because I have 17 [word illegible] years in prison, learning how to do shit you could never even dream of, let alone know about. I can find you Nancye in any country in the world.... I will show you what a fool I am. I will tell you this and you had better believe it, because your hole [sic] family‘s life depends on it. If you cause me to lose anything, I said “anything” because of having me in jail on a lie, I will promise you Ms. Stein that I will take care of you in a way that they will not find enough of you to bury! The law can not charge me, if they can not produce a body Nancye! If you think for one moment that I am playing a game with you. You are a fool! I‘ll not fuck up and write you anymore where you can run to a pig with it!. If you do not answer this letter Nancye and tell me what you want. So help me God I‘m going to take care of you. I don‘t care if it‘s in the Court room when you come to Court. I am going to take you out! ...
* * * * * *
What shall it be, life or death? You tell me what you want and live! You don‘t tell me what you want and die!
Witch [sic] do you prefer?
Your actions tell me you are tired of living! If that‘s the case Nancye. I can handle if for you! Soon!
* * * * * *
2. [Letter of October 31, 1993, to Stein]
I write this letter, so that you will understand how foolish you have been with this matter of me being in jail.
You send me to jail!
Anyone can do that, exspecially [sic] when they lie!
* * * * * *
Now I‘ll tell you want you are dealing with. A Career Criminal! Law says I‘m a Career Criminal. That means Nancye, that I have the mind to proceed with matters such as this one. Believe me Nancye, Law knows best!
* * * * * *
As I am a Carreer [sic] Criminal Nancye, I know my rights, I‘m entitled to know everything the State knows and will try to use as evidence against me at trial. I have all of that. Including your whereabouts! Now, Nancye, if this is what you want, then damn it, that is what you will get! What I want, does not seem to matter to you! but what I want is this over! You can end it by calling the Judge. That‘s your choice, not mine.... * * * I‘ll not write and threaten you Nancye you are a rat. There is only one good rat to a Criminal, and that‘s a dead rat!
* * * * * *
Do you want me to come to your house?
Do you really think you can hide from me, a Carreer [sic] Criminal?
Do you want strange things to happen to you after I‘m out?
Do you want to live your life watching for me?
* * * * * *
I‘m finished playing games Nancye.
If you are still playing games, it‘s time to stop. If it does not stop! Then I have to take that to mean, you are trying to put me in prison! If that is what it is, then I have to have some of my Criminal friends show you what a Criminal is! ... Any way it goes, I‘ll read about you in the paper! If you think I‘m playing games with you Nancye, call my pluff [sic]! look how easy it was to get in your apartment for me! Do you think it will be hard for me to have this taken care of!
* * * * * *
I‘ll give you two weeks to let me know something! If you don‘t. I‘ll let you know something quick!
Wait and see.
3. [Letter of November 14, 1993, to Barrilleaux and Stein]
As I know either of you don‘t like getting mail from me. You do not reply to it. Witch [sic] is your right. There is a reason for it. As I shall tell you now.... I could care less if either of you reply! The purpose is to harrass [sic] you both witch [sic] I will do until the day I die.
Your Mother, if you elect to call her such, fucked over me and you damm [sic] well know it!
* * * * * *
As far as I‘m concerned both of you should be hit by a car tonight! Why Jesus was killed for something like either of you is behond [sic] me! Do the world a favor drop dead! Quick!
I don‘t like writting [sic] a letter like this to anyone, however I don‘t like being in jail 10 months either. * * *
As I know I‘m just before getting out of jail. I‘ve done the time only because your Mother lied!
* * * * * *
What I do know. Is I am a Career Criminal! I will not let your mother get away with what she knows she has done to me. Before I allow that I will be glad to spend my life in Angola!
* * * * * *
I have the mind of a Career Criminal. Someone who has done time with all sorts of people! Murderers, Rapes [sic], etc and etc. I also have friends that owe me from every prison in La. Some that are getting out soon. Some that will never get out! Don‘t make me have to spell it out! I‘ll just say, it is in the best interest that your family try to undo the thing that has been done to me. or Ms. Barrilleaux in other words try! They could call the Judge! or write him! All I‘m asking that it be shown that it was tried to be resolved by your family, instead of just ... locking me up and forgetting about it! If this is done, it at least shows me that they tried to undo the mistake they made by locking me up on a lie! If it is not done. Then it only tells me they care less what happens to a person they lie on and put in jail.
* * * * * *
I‘m tired of being in jail. I‘m tired of being without my freedom. I‘m tired of not having my property.... I‘m tired of all this your Mother has put upon me because of lies!
All I ask, is that your Mother help end it! or you, or whoever is involved! If it is not done. I know I‘ll be out soon! This is because I‘ve studied Law 17 yrs. Since your family does not want to believe this, I‘m sorry for it.
This Parish is not big enough for your Mother and I both. When is she leaving. It had better be soon!
* * * * * *
Because of the letters Billy Brown was charged by bill of information filed on February 23, 1994 with five counts of violation of
Both Stein and Barrilleaux testified at trial. Stein stated that after reading the letters, she was “deathly afraid” and didn‘t want to come to court. Barrilleaux stated that after reading the letter she was “very afraid” for herself and her family and that she also was afraid to come to court. At the conclusion of trial, the jury returned with a verdict of guilty as charged on all four counts.
Subsequently the State filed a multiple offender bill of information pursuant to
On October 14, 1994, the State filed an amended multiple bill of information.3 At the conclusion of the multiple bill proceeding on November 17, 1994, the trial court found the defendant to be a fourth felony offender. The court then set aside the previous sentence and resentenced the defendant to forty years’ imprisonment at hard labor, with credit for time served. Thereafter, the defendant filed a motion to reconsider sentence, which was denied, and this appeal followed.
ASSIGNMENT OF ERROR NUMBER ONE
The defendant contends the trial court erred in admitting into evidence references to other alleged criminal activity which was not res gestae to the charged offense and was not otherwise properly admissible. Specifically, he contests the trial court‘s allowing into evidence references he made to his criminal record in the letters to the victims. He argues that the references were inadmissible under
At a pretrial hearing, the defendant moved to exclude his references in the letters to his “17 years in prison” and his status as “a career criminal,” and his statement that “there‘s only one good rat to a criminal, that‘s a dead rat.” However, the trial court denied the motion, finding that the statements were being offered to prove the essential elements of the crime of intimidating a witness.
Generally, evidence of other crimes is inadmissible in the guilt phase of a trial unless the probative value of the evidence outweighs its prejudicial effect and other safeguards are met. “This evidence is generally inadmissible because, in the determination
Except as provided in Article 412 [not relevant here], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is subject of the present proceeding.
“Evidence which constitutes an integral part of the crime, formerly known as res gestae, is admissible without prior notice to the defense.” State v. Bourque, supra, at 233.
Furthermore,
No person shall intentionally:
(a) Intimidate or impede, by threat of force or force, or attempt to intimidate or impede, by threat of force or force, a witness with intent to influence his testimony, his reporting of criminal conduct or his appearance at a judicial proceeding * * *.
In the instant case the references were highly probative of the elements of “intimidate ... by threat of force” by showing that the defendant had the wherewithal to harm Ms. Stein and her family, as opposed to just making “idle threats“. Furthermore, the references were contained in letters to the victims which were introduced at trial and, as such, constituted evidence of prime significance regarding the proof of the offenses. Therefore, the references were more probative than prejudicial and were properly admitted as evidence of conduct that constituted an integral part of the offenses of intimidating witnesses. Accordingly, we find this assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
The defendant next contends the trial court imposed an excessive sentence in sentencing him as a multiple offender. The trial court sentenced him to forty years at hard labor as a fourth felony offender, stating that the defendant posed an unusual risk of harm to the public. In his timely motion to reconsider sentence the defendant contended, “Forty years at hard labor for intimidation of a state witness even under R.S. 15:529.1 is an excessive sentence under the circumstances of this particular case.” However, the trial court denied the motion.
In order to raise an objection to the sentence on appeal, the defendant must make a motion to reconsider sentence which sets forth “a specific ground” upon which the motion is based.
In his motion to reconsider the sentence, the defendant alleged that his sentence was excessive “under the circumstances of this particular case,” but he did not set forth any specific grounds. On appeal the defendant now argues that the sentence is excessive because it is “a doubling of the recommended sentence” under the Sentencing Guidelines and the Multiple Offender
A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering.... 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.... The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court‘s wide discretion to sentence within statutory limits.... [Citations omitted.]
State v. Lobato, 603 So. 2d 739, 751 (La. 1992).
Regarding the imposition of a sentence mandated by the multiple offender statute, the Louisiana Supreme Court has stated:
If, ... when defendant is ultimately sentenced, the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime“, he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. [Footnote omitted.]
State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993).
The penalty for intimidating a witness is a fine of not more than five thousand dollars or imprisonment, with or without hard labor, for not more than five years, or both.
If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life * * *.
Therefore, the defendant‘s forty-year sentence was on the lower end of the sentencing range. The defendant‘s record included convictions for forgery, simple burglary, simple robbery and simple kidnapping, thereby demonstrating his propensity for criminal activity. Furthermore, the defendant obviously was sentenced not just for his last conviction, but also for his many years of law-breaking. See State v. Gibson, 596 So. 2d 832, 834 (La. App. 5th Cir. 1992), writ denied, 598 So. 2d 348 (La. 1992). Considering the above, it does not appear that the sentence imposed is constitutionally excessive.4 Accordingly, this assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER THREE
The defendant also assigns as error any and all errors patent on the face of the record. For the purpose of an error patent review the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict, and the judgment of sentence. See State v. Oliveaux, 312 So. 2d 337, 339 (La. 1975); State v. Weiland, 556 So. 2d 175, 178 (La. App. 5th Cir. 1990). We have found several patent errors, one of which requires us to vacate the sentence and remand for resentencing:
First, the State failed to specify in the multiple bill which of the counts was being considered for enhanced sentence. In
The second patent error is that the trial judge failed to specify that the sentence imposed pursuant to the multiple offender bill of information was without benefit of probation or suspension of sentence, as required by
The third patent error is that the trial court failed to observe the mandatory twenty-four hour delay between denying the motions for new trial and in arrest of judgment and imposing the original sentence, as required by
DECREE
For the foregoing reasons, the defendant‘s convictions are affirmed, but the sentence imposed pursuant to
CONVICTIONS AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.