State v. LathanState v. Lathan
Defendant, Paul G. Lathan, appeals his conviction and sentence for manslaughter. He was indicted for second degree murder, but the jury convicted him of the responsive verdict of manslaughter. The trial court sentenced Defendant to 27 years at hard labor with credit for time served. Defendant now appeals. For the reasons set forth below, Defendant‘s conviction and sentence are affirmed.
FACTS
Defendant approached his neighbor, Roy Jenkins, at his workplace and told him that he thought the victim, Ricky Lyons, had broken into his house. Mr. Jenkins confirmed that the victim probably had done it because he was known for doing things like that. Defendant responded that he was going to kill the victim the next time he saw him. Mr. Jenkins did not think Defendant was serious, so he did not repeat what Defendant had said to anyone.
The next day, a few minutes after 8:00 p.m. on the evening of July 9, 2003, Betty Crawford was taking her daughter home when she saw the victim, whom she knew, walking down Highway 146 outside the Ruston city limits. She dropped off her daughter and intended to come back to give the victim a ride. Ms. Crawford was waiting at the intersection of Highway 146 and South Chatham Spur as the victim walked toward her car. Before he could get there, however, a black Volvo driving down Highway 146 slammed on its brakes, swerving to a stop between the victim and Ms. Crawford‘s car. Ms. Crawford recognized the driver of the black Volvo as Defendant.
Ms. Crawford saw Defendant get out of the car with what she originally believed was a long stick, which she eventually realized was actually a “long gun.” The victim had nothing in his hands, appearing to be unarmed. She rolled down her window so she could hear what they were saying, but she could only hear Defendant talking. Defendant said, “Where‘s my s* * *? You‘re gonna tell me where my s* * * is. You think I‘m рlaying with you, don‘t you?” At that point, Defendant raised up the gun. Ms. Crawford drove away, and as she did so, she heard two shots fired.
Mr. Jenkins was in his kitchen when he heard the shots fired. He went out on his front porch to see what had happened and saw Defendant in his yard with a gun. Defendant walked to the corner of his house, bent over by a bush, walked back to his car and then drove away in his black Volvo. At the time, Mr. Jenkins could not see the victim‘s body because it was in the grass and surrounded by high weeds.
When paramеdics arrived on the scene, the victim had an obvious gunshot wound to the head. Although the victim was breathing and had a pulse when treated by paramedics at the scene, he was later placed on life support at the hospital and eventually died. According to Dr. Frank Peretti, the forensic pathologist, it was a close contact gunshot wound just above the victim‘s right eyelid. Dr. Peretti testified that the muzzle of the gun was approximately one-half to three-fourths inches away from the victim at the time the gun was fired.
Investigators found two spent shells at the scene, which were later identified by a firearms expert as having been fired from the same weapon and as being of a caliber typically fired from a semi-automatic rifle. Although Defendant voluntarily gave a statement and showed investigators where he abandoned the weapon after the shooting, investigators were unable to find the weapon.
DISCUSSION
Defendant argues that the trial court erred in denying his motion to quash based upon the State‘s failure to bring the case to trial within two years of instituting proceedings. The State has two years from the institution of prosecution to commence trial for a non-capital felony.
The purpose of Article 578 is to enforce a defendant‘s right to a speedy trial and to prevеnt the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. McDonald, 30,854 (La.App. 2d Cir.8/19/98), 718 So.2d 542, citing State v. Rome, supra; State v. Barley, 29,482 (La. App. 2d Cir.6/18/97), 698 So.2d 36. When a defendant files a preliminary plea, however, the two-year time period established by
Defendant contends that his motions for continuance should not toll the prescription period because they were not in writing, as required by
A motion for 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 requirement that a motion for continuance be made in writing can be waived under extenuating circumstances. State v. Overton, 337 So.2d 1058 (La.1976); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747; see also, State v. Washington, 407 So.2d 1138 (La.1981). For this reason, the fifth and third circuits have held that an oral motion for continuance suspends the limitations period. State v. Watts, 99-57 (La.App. 5th Cir.5/19/99), 738 So.2d 628; State v. Fanguy, 94-143 (La. App. 3d Cir.10/5/94), 643 So.2d 860, writ denied, 94-2726 (La.4/21/95), 653 So.2d 563; State v. Jones, 620 So.2d 341 (La. App. 5th Cir.1993). We agree.
To allow Defendant to delay the trial with oral motions for continuance, but penalize the State for not commencing trial within two years because Defendant failed to make thоse motions in writing would only give Defendant the benefit of his own failure to comply with the rules. “To now allow the defendant to make use of his own oral motion to continue . . . to allege a prejudicial delay in the start of trial is absurd. The defendant cannot now capitalize on his own request.” State v. Fanguy, supra. The State commenced trial within one year of Defendant‘s last motion for continuance. Therefore, the trial court properly denied Defendant‘s motion to quash the indictment bеcause the State properly commenced trial in accordance with
In addition, Defendant assigns error to the trial court in granting the State‘s motion in limine to exclude evidence that the victim was HIV positive, that he was under the influence of cocaine at the time of his death and that he had a reputation for burglarizing houses in the neighborhood. Defendant claims that this violated his right to present a defense so that he could explain the following: (1) that he was confronting the victim over the burglaries; (2) that he was carrying the gun with him to confront the victim because he wanted to avoid a physical confrontation that may expose him to HIV; and, (3) that the presence of cocaine in the victim‘s body at death could explain the victim‘s demeanor at the time of the confrontation.
A. Character evidence generally. Evidence of a person‘s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
. . .
(2) Character of a victim. (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; . . .
This article prohibits character evidence that simply paints the victim as a bad person deserving his fate of death at the hands of the defendant State v. Wade, 33,121 (La.App. 2d Cir.5/15/00), 758 So.2d 987, writ denied, 00-2160 (La.9/28/01), 797 So.2d 684.
In addition, under
The admissibility of evidence regarding the victim being HIV positive, under the influence of cocaine at the time of his death and having a reputation for burglary is, therefore, contingent on Defendant‘s presentation of a viable self-defense claim to make the proffered evidence relevant under
First, Defendant‘s self-defense claim fails, as the undisputed evidence shows he was the aggressor. According to
In the case sub judice, the victim was walking along the road when Defendant got out of his car with a rifle and angrily questioned him about the whereabouts of his belongings. The evidence presented does not suggest that the victim was armed. As the aggressor, Defendant is precluded from arguing self-defense. Thus, we conclude that the proffered evidence is inadmissible as irrelevant.
Further, Defendant has failed to produce any evidence that the victim made an overt act or otherwise put him in reasonable fear of immediate loss of life or great bodily injury as required by
Furthermore, Defendant claims that he should have been allowed to present evidence that the victim had HIV because the coroner noted in the death certificate that HIV was a contributing cause of death, along with the gunshot wound. Such an argument is disingenuous. The forensic pathologist who performed the autopsy testified that HIV did not cause or contribute to the victim‘s death because he died of a gunshot wound to the head. Also, the coroner, who is a family practice physician who does not perform autopsies, testified that HIV was not an immediate cause of death and that he did not know if HIV could have contributed to the victim‘s death. Rather, the coroner testified that he listed it on the death certificate simply because it is a significant disease. Thus, the fact that HIV was listed on the death certificatе is irrelevant.
In addition, Defendant argues that the exclusion of the proffered evidence violated his right to present a defense. Both the Sixth Amendment of the United States Constitution and Louisiana Constitution, Art. 1, Section 16, provide that a criminal defendant has the right to present a defense and that all relevant evidence necessary to that defense must be presented for a full adjudication. State v. Johnson, 553 So.2d 865 (La.App. 1st Cir.1989), writ denied, 558 So.2d 600 (La.1990), citing State v. Vigee, 518 So.2d 501 (La.1988). Evidentiary rules may not supersede the fundamental right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198; and State v. Gremillion, 542 So.2d 1074 (La. 1989). This right to present a defense, however, does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration
In support, Defendant cites Chambers, supra; State v. Van Winkle, supra; and State v. Gremillion, supra.2 In those cases, however, the excluded evidence was highly relevant in proving that someone else was responsible for the offense. However, the supreme court has distinguished Chambers and upheld the exclusion of relevant evidеnce despite a defendant‘s claim that it violated his right to present a defense. In State v. Mosby, supra, while acknowledging a defendant‘s right to present a defense, the supreme court excluded relevant evidence when the probative value of the evidence was substantially outweighed by the danger of confusing and misleading the jury, undue delay and unfair prejudice under
Finally, Defendant challenges his 27-year sentence as excessive under the circumstances of this case. He highlights his age of 51, his work history and a criminal history of misdemeanors committed 20 years ago during the breakup of his marriage. He characterizes the crime as confronting someone who was high on cocaine and whom he feared due to his belief that the victim had burglarized his house and taken almost all of his belongings. He also argues that he had no intent to kill the victim and that his actions are not likely to occur again.
In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of thе criteria set forth in
Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates
No requirement exists that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to impose sentenсes according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La. 1981). The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710.
According to
The trial court considered several circumstances in regard to Defendant‘s sentence. It considered Defendant‘s age, that this was his first felony conviction, his work history, that his criminal history showed only convictions for misdemeanors that occurred several years ago, the pre-sentence investigation report, that the community expressed support for Defendant and his family and that he had been a model prisoner during the time he had been incarcerated. Further, the trial court found that there would be an undue risk of Defendant committing another crime during a period of suspended sentence or probation; that he was in need of correctional treatment or a custodial environment; that a lesser sentence would deprecate the severity of the crime; that he manifested deliberatе cruelty by shooting the victim and leaving him and that he created a risk of death or great bodily harm to others by shooting someone in a neighborhood with houses and people. Thus, review of the record shows that the trial court was cognizant of the sentencing considerations of
By sentencing Defendant to 27 years, the trial court was more lenient than recommended
We review the record for patent error pursuant to
According to
CONCLUSION
For the foregoing reasons, Defendant‘s conviction and sentence are affirmed.
AFFIRMED.