State v. PanepintoState v. Panepinto
This matter comes to us upon remand from the Louisiana Supreme Court. The defendant, Blaine Panepintо, was convicted by a six-person jury of cruelty to a juvenile in violation of
ASSIGNMENTS OF ERROR
(1) Whethеr the trial court erred in refusing to charge the jury that the State has the burden to prove, in order to introduce a confession, that the confession was given freely and voluntarily beyond a reasonable doubt, and
(2) Whether the trial court imposеd an excessive sentence. Other assignments of error have been raised, which we find have no merit.
ASSIGNMENT OF ERROR 1
The defendant argues that the jury should have been charged with the burden of proof necessary for the State to show voluntariness and, therefore, admissibility of the confession.
At trial, the defense counsel moved that the jury be charged under
If the state offers evidence of a statement by the defendant, you must first determine whether the statement was in fact made. You must then consider whether thе statement, if made, was accurately recorded or repeated.
If you find that defendant made a statement, you must also determine the weight or value that the statement should be accorded, if any. In determining the weight or value to be аccorded a statement made by a defendant, you should consider all the circumstances under which the statement wаs made. In making that determination, you should consider whether the statement was made freely and voluntarily, without the influence оf fear, duress, threats, intimidation, inducement, or promises.
In addition, the judge charged the jury that the State must prove the defendant‘s guilt beyond a reasonable doubt. There is no indication that the defendant objected to those jury charges.1
The defеndant has apparently confused admissibility of a confession, which is a matter of law for the judge to decide, with issues of weight and value to be afforded a statement, which, on the other hand, are issues within the province of the jury. State v. Gaskin, 412 So.2d 1007 (La.1982).
When a ruling on a motion to suppress a confession or statеment is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to thе jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement....
Before the State may introduce a confession for consideration by the jury it must affirmatively prove, as a predicate to the introduction, that the confession was free and voluntary.
Unfortunately, the jurisprudence has often intermingled
The court shall charge the jury:
(1) As to the law applicable to the case;
(2) That the jury is thе judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and apply the law as given by the court; and
(3) That the jury alone shall determine the weight and credibility of the evidence.
Further,
This assignment lacks merit.
ASSIGNMENT OF ERROR 2
Wenow turn to decide whether the sentence was excessive.
Our jurisprudence has established that a sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Jack, 448 So.2d 725, 728 (La.App. 5th Cir.1984) (citing State v. Telsee, 425 So.2d 1251, 1253 (La.1983) and State v. Sims, 410 So.2d 1082, 1084 (La.1982)). After a careful review of the record in its entirety, we note on the one hand a firsttime offender, a child who purportedly is not seriously injured, and a probation report recommending probation. On the other hand, we are dealing with a despicable criminal аct, which gives the trial judge the discretion of giving up to ten years of imprisonment; we have a child who has sustained physical injuries, and the resulting psychological impact cannot now be measured. More importantly, we have a defendant rеceiving an 18-month sentence which is on the “light side” of the spectrum within the trial court‘s sentencing discretion. Ergo, when considering аll the circumstances, we cannot say the sentence given was out of proportion to the severity of the crime nor can we say that the sentence is purposeless and a needless imposition of pain and suffering. Accordingly, wе find no merit.
ON REMAND FROM THE LOUISIANA SUPREME COURT, WE AFFIRM.