State v. CoxState v. Cox
Defendant, Carol Diane Cox, was indicted by a grand jury for second degree murder, a violation of
FACTS
Defendant, Carol Diane Cox, and the victim, Tony Sfiеr, had been romatically involved for two years. In May of 1982, defendant broke up with Tony Sfier. On October 10, 1982, defendant shot and killed him in the bedroom of her home. Between May and the date of the shooting, defendant called the police at leаst ten times because of incidents involving the victim. These incidents included the victim‘s hitting defendant, his breaking into her house and attacking her friends, threatening to kill himself at defendant‘s house, and ramming defendant‘s car with his car. The victim also made threats regarding dеfendant‘s five-year-old daughter. Despite these incidents, there was evidence that on several occasions after she broke off the relationship with the victim, defendant sought out the victim‘s companionship.
Slightly less than a month before the shooting, defendant bought a handgun. The night before the shooting, the victim apparently rammed defendant‘s empty car. On the day of the shooting, the victim and defendant had an argument in Girard Park. Following this argument, defendant returned home and called the police. She informed the police that since they were unable to do anything about her problem with the victim, she would handle it herself.
Less than an hour later, the victim walked into defendant‘s bedroom, apparently having entered defendant‘s home through an unlocked door. Defendant retrieved her gun from the drawer where she kept it and told the victim to leave. The victim did not go, and when defendant pointed the gun at him, he told her, according to defendant‘s own testimony, “Go ahead and shоot me, I don‘t care anymore.” At this point, defendant shot the victim.
Defendant called the police, and when they arrived, she told them that at the time of the shooting the victim had not acted in a threatening manner. She told the police that she had shot the victim because she had had enough, that “she was fed up.”
ASSIGNMENT OF ERROR NUMBER 1
Defendant was originally indicted for second degree murder. In accordance with a plea bargain, the prosecution amended the indictment to reduce the charge to manslaughter. After defendant withdrew her guilty plea, the State failed to re-amend the indictment to second degree murder. As a result, defendant contends that she was tried under an invalid indictment.
The State‘s failure to re-amend the indictment is an errоr patent and, as such, may be asserted at any time. State v. Buttner, 411 So.2d 35 (La.1982). However, errors patent are not necessarily reversible errors. It is the potential impact of the error on the fairness of the proceedings which determines whether a reversal is required. State v. Minix, 438 So.2d 1261 (La.App. 3 Cir.1983); State v. White, 404 So.2d 1202 (La.1981).
The technical sufficiency of an indictment may not be raised after conviction where the accused has been fairly informed of the charge against him and has not been prejudiced by surprise or lack of notice and will nоt be truly subject to any jeopardy of further prosecution. State v. James, 305 So.2d 514 (La.1974); State v. Robicheaux, 412 So.2d 1313 (La.1982). In the present case, the reduction of the original charge to manslaughter was premised on a plea bargain arrangement. There is no claim that defendant and her attоrney were not fully aware that when defendant chose to withdraw her guilty plea, the prosecution‘s offer to reduce the charge was likewise withdrawn. The indictment for second degree murder and defendant‘s plea were read in opеn court. No objection was made on defendant‘s behalf at that time. No surprise
Furthermore, any error in failing to reamend the indictment to charge defendant with second degree murder was clearly harmless error. The State had amended thе indictment to charge defendant with manslaughter. Since defendant was convicted of manslaughter, the fact that the indictment was never formally re-amended resulted in no harm to defendant.
ASSIGNMENT OF ERROR NUMBER 2
By this assignment, defendant urges that the trial court should not have allowed defendant to withdraw her guilty plea. She contends that
Although
ASSIGNMENTS OF ERROR NO 3 & 4
The gravamen of defendant‘s complaint in these assignments is that
The United States Supreme Court had held that a state legislature may authorize imposition of cumulative punishments under two statutes even if those two statutes proscribe thе same conduct. The double jeopardy clause only prevents a sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). If a state legislature has specifically provided for the imposition of cumulative sentences under two statutes, the trial court or jury may constitutionally impose those sentences in a single trial, and it makes no difference that the two statutes proscribe the same crime. In light of Missouri v. Hunter, supra, we conclude that
Defendant has also objected to the trial court‘s application of both firearm enhancement statutes in imposing sentence. Once again, the question of the propriety of the sentencing judge‘s actions is a question of legislative intent. There is no violation of defendant‘s constitutional right against double jeopardy if the sentence imposed is that which the legislature intended.
It is quite apparent that the legislature intended to allow the application of both
ASSIGNMENTS OF ERROR NO. 5 & 6
In these assignments of error, defendant complains that the trial judge failed to follow the sentencing guidelines of
In sentencing defendant, the trial court made the following remarks:
“Now, the Court because of the circumstances feels that a lesser penalty would deprecate the seriousness of the crime. The Court feels that this type crime is one that requires institutionalization. I too have read the pre-sentence investigation report, which of course is confidential; but there are some disclosures that convince me of what I am saying.”
These remarks by the trial court are inadequate to fulfill the requirements of
The failure of the trial court to сomply with the sentencing guidelines of
In the present case, the record does not clearly illumine the trial court‘s sentence, which was roughly three-fourths of the maximum. In fact, the record before us suggests that the sentence was excessive. Although the seriousness of defendant‘s crime is self-evident, several factors mitigate in her favor. For a number of months prior to the shooting, the victim harassed and threatened defendant. There was testimony that the victim had hit defendant on many occasions, had broken into defеndant‘s home, and had rammed her car with his car. At the time of the killing, the victim had entered defendant‘s house uninvited and, when asked to leave, refused. We think the defendant acted under strong provocation and that there were substantial grounds tending to justify her conduct. The record also shows that she had no prior history of delinquency or criminal conduct.
Having found that the record before us does not support the trial court‘s sentence,
DECREE
For the foregoing reasons, defendant‘s conviction is affirmed, defendant‘s sentence is vacated, and this case is remanded to the trial court for resentencing in accordance with the views expressed above.
SENTENCE VACATED AND REMANDED.