State v. LewisState v. Lewis
- Reporters:
- ,
- Before:
- Waltzer, McKay, Kirby
KIRBY, Judge.
STATEMENT OF CASE1
On May 3, 1999, the defendant, Sugar Lewis, was charged with obscenity in violation of
STATEMENT OF FACT
On March 29, 1999, Doretha Nickles was living on Dauphine Street. On that day, she had sent her fiancé to the grocery to purchase some seasoning that she needed for the meal she was preparing. He was taking a long time so she went to look for him. She walked to the corner of Dauphine and Elysian Fields Avenue where she encountered the defendant. The defendant spoke to her. In response, Ms. Nickles nodded her head. Ms. Nickles decided to walk to Jean‘s Po-boy Shop as she thought her fiancé might have been playing a video poker machine. She crossed Elysian Fields by the Baptist Friendship House. As she passed the building, she heard someone say “psst.” She turned and saw the defendant. He had pulled down his pants and had his “private” out. The defendant came after her from behind, choked her and rolled her to her side. She fought with the defendant and was able to escape. As she was running, she noticed the defendant did not leave the scene. He stood there masturbating. When she looked back again, the defendant was running towards her on
Ferdinand Nickles, Doretha Nickles’ son, testified that he and his girlfriend were waiting at the bus stop at the intersection of St. Claude and Elysian Fields when they saw his mother running towards them on Elysian Fields. He shouted to his mother who looked distraught. His mother told him that someone had attempted to rape her. When he turned, his mother saw the guy and he ran after the subject. The witness stated that he had lost sight of the defendant when his girlfriend observed the defendant under a white van. They put barricades around the van to prevent the defendant from escaping. A cab driver pulled up and asked if any assistance was needed. They asked the cab driver to call the police. The witness identified the defendant at trial.
Monique Gonzales, Ferdinand Nickles’ girlfriend, saw the victim running towards them on Elysian Fields while she and Ferdinand were waiting for a bus. The victim told them that someone had just attempted to rape her. The victim pointed out the defendant who they saw running from the area. The witness and Ferdinand ran after the defendant. They lost sight of the defendant for a short while. However, the witness spotted the defendant on Rampart Street and they continued chasing him. They again lost sight of him but located him underneath a white van a few minutes later. They barricaded the defendant under the van until the police arrived.
Officer Dennis DeJean investigated the incident that occurred in the eight hundred block of Elysian Fields. When the officer arrived on the scene, he observed a white van parked near the intersection of Burgundy and Elysian Fields. The defendant was underneath the van. He was being held there by the victim, her son and his girlfriend. The officer‘s investigation revealed that the defendant attacked the victim in the eight hundred block of Elysian Fields while his penis was exposed and attempted to have sexual intercourse with the victim against her will. The victim positively identified the defendant as the perpetrator. The defendant was then removed from underneath the vehicle and placed under arrest.
Det. Shiryl Matthews, a rape detective with the New Orleans Police Department, responded to a call concerning an attempted rape on Elysian Fields Avenue on March 29, 1999. When the officer arrived on the scene, she met with the victim, the victim‘s son and the son‘s girlfriend. The officer also observed that the defendant was in the back seat of a police vehicle. After interviewing the victim and the witnesses, she determined that a rape did not occur. While on the scene, the officer called for a crime lab technician. The lab technician took photographs and collected evidence from the scene, including the defendant‘s clothing. Two liquid samples were taken from the ground. Sample one was taken from the eight hundred block of Elysian Fields. Sample two was taken in front of 813 Elysian Fields Avenue. The officer testified that the victim identified the defendant on the scene as the perpetrator.
Madelyn Collins, a criminalist with the New Orleans Police Department Crime Lab, testified that she tested several items
ERRORS PATENT
A review of the record for errors patent reveals none.
DISCUSSION
COUNSEL‘S ASSIGNMENT OF ERROR NUMBER 1
The defendant argues that the trial court erroneously adjudicated him to be a fourth felony offender. He contends that the State failed to produce any evidence concerning the “cleansing period” between each offense. A review of the appellate record reveals that the defendant did not file a motion to quash the multiple bill or object to the failure of the State to prove that the cleansing periods had not elapsed at the multiple bill hearing. As such, this issue has not been preserved for appeal. See
This assignment is without merit.
COUNSEL‘S ASSIGNMENT OF ERROR NUMBER 2
The defendant further suggests that his trial counsel was ineffective for failing to file a motion to quash the multiple bill which would have preserved his right to appeal the State‘s alleged failure to prove that the cleansing periods between the predicate offenses had not elapsed.
Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986). We find the record here is sufficient to address the merits of this claim.
The defendant‘s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel‘s performance was deficient and that the deficiency prejudiced the defendant. Counsel‘s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra at 686, 104 S.Ct. at 2064. Counsel‘s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).
In the present case, the defendant contends that his trial counsel was ineffective
This assignment of error is without merit.
COUNSEL‘S ASSIGNMENT OF ERROR NUMBER 3
The defendant also argues that the trial court imposed an unconstitutionally excessive sentence. After adjudicating the defendant to be a fourth felony offender, the trial court sentenced to life imprisonment at hard labor pursuant to
A sentence within the statutory limit is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering.” State v. Caston, 477 So.2d 868 (La. App. 4 Cir.1985). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in
If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, supra; State v. Guajardo, 428 So.2d 468 (La.1983).
Prior to sentencing the defendant, the trial court recognized that the defendant had more than four felony convictions, stating:
All right, the Court would, since the Court has noted that the Defendant does have a number of other convictions besides the ones sited [sic] in the Multiple Offender Bill, the Defendant also did
have another case in this Section of court charging him with rape that the State had to ultimately nolle prosed [sic] because of problems with the victim, but that along with some other arrests, the Court can consider in deciding the Defendant‘s character and propensities. The Court believes that Mr. Lewis has shown that if he‘s on the street, there is only one thing that he‘s going to do, and that is to commit crimes and prey on other people in this community. The Court believes that way the Court can assure that he does not do that is to make sure that he spends the remainder of his natural life in jail.
As the trial court noted, it was aware of the defendant‘s extensive criminal history. The defendant had been convicted of seven felonies from 1982 to 1999. In addition to the present offense, the defendant was also convicted of simple battery as a result of the same circumstances which led to the present conviction of attempted obscenity. Furthermore, the trial court was aware that, although the defendant was charged with obscenity and convicted of attempted obscenity, the facts of the present case indicate that the defendant was attempting to force sexual intercourse on the victim without her consent. Thus, the trial court was aware, and noted in its reasons, the defendant‘s propensity for serious and injurious criminal offenses. The facts of the present case and defendant‘s extensive criminal history clearly support the trial court‘s decision to sentence the defendant to life imprisonment. The sentence imposed is not unconstitutionally excessive.
This assignment is without merit.
DEFENDANT‘S PRO SE ASSIGNMENT OF ERROR NUMBER 1
The defendant contends that his convictions for simple battery and attempted obscenity violates his right against double jeopardy. As stated above, the defendant was convicted of simple battery of Doretha Nickles after a bench trial on the same day the jury convicted him of attempted obscenity.
In State v. Jones, 97-2217, p. 6-9 (La. App. 4 Cir. 2/24/99), 731 So.2d 389, 393-395, writ denied 99-1702 (La.11/5/99), 751 So.2d 234, this court discussed the law concerning double jeopardy:
Article 1, § 15 of the Louisiana Constitution of 1974 , and theFifth andFourteenth Amendments of the United States Constitution , prohibit placing a person in jeopardy twice for the same offense. See alsoLa.Code Crim. Proc. art. 591 .
Article 596 of the Louisiana Code of Criminal Procedure , in pertinent part, provides that double jeopardy exists in a second trial when the charge is “[b]ased on a part of a continuous offense for which the defendant was in jeopardy in the first trial.”When evaluating double jeopardy claims, Louisiana courts have recognized both the Blockburger test and the “same evidence” test; however, courts have mainly relied upon the “same evidence” test. See, e.g., State v. Vaughn, 431 So.2d 763 (La.1983). Nonetheless, the Louisiana Supreme Court has not adopted a “same transaction” test, which would prohibit, on double jeopardy grounds, prosecution for different crimes committed during one sequential and continuing course of conduct. City of Baton Rouge v. Jackson, 310 So.2d 596, 598 (La.1975); State v. Gaines, 96-1850, p. 9 (La.App. 4 Cir. 1/29/97), 688 So.2d 679, 684, writ denied, 97-0510 (La.9/5/97), 700 So.2d 503. Consequently, an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074, 1076-78 (La.1976); Gaines, supra, p. 9, 688 So.2d at 684.
Simple battery is defined as “a battery committed without the consent of the victim.”
In the case at bar, the defendant‘s two convictions do not violate his right against double jeopardy. While the two convictions arise from the same continuing set of circumstances, the evidence for each offense is completely separate and distinct. Evidence supporting the defendant‘s conviction for simple battery is based upon the victim‘s testimony that the defendant approached her from behind and choked her. Defendant‘s conviction for attempted obscenity is based upon the victim‘s testimony that after the defendant attacked her, she observed that the defendant had his pants down, his penis was exposed and he was masturbating.
This assignment is without merit.
DEFENDANT‘S PRO SE ASSIGNMENT OF ERROR NUMBER 2
The defendant further suggests that the jury verdict of attempted obscenity is not a legal verdict as it is not a responsive or lesser verdict to the original charge of obscenity. A review of the appellate record reveals that the defendant did not object to the jury verdict form or the jury verdict when rendered. Nor did the defendant file a motion for new trial or motion in arrest of judgment. Thus, this issue has not been preserved for appellate review.
This assignment is without merit.
CONCLUSION
Accordingly, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.