State v. PriceState v. Price
The defendant, Derek P. Price,1 was indicted by a grand jury for vehicular homicide, a violation of
FACTUAL AND PROCEDURAL BACKGROUND
The testimony of several witnesses at trial established that at about 2:10 a.m. on
Late March 8 and into the early morning of March 9, 2003, a group of friends were drinking at Club Outrageous in Chauvin. Among this group were the defendant, Porche, Kenny Luke, Douglas Luke, Skyla Bouquet, Jake Peltier, Paul Babin, Paul Domangue, and Kayla Britt. Kenny Luke, Douglas Luke, Peltier, Domangue, and Babin all testified that they saw the defendant drinking at the club. When the club closed at 2:00 a.m., the group gathered in the parking lot across the street. While in their respective vehicles, the defendant and Peltier began “brake-talking.”2 Kenny Luke was in the back of the defendant‘s truck while the defendant was “brake-talking.” Douglas Luke, Kenny‘s older brother, testified that he pulled Kenny out of the defendant‘s truck because he did not think that the defendant was fit to drive.
Eric Dumond was driving past Club Outrageous with Jaclyn Duncan and Shaun Lassere. According to the testimony of these three witnesses, they saw a truck do a “doughnut” as it was pulling onto the highway. The truck got directly behind Dumond and followed him. Shortly thereafter, the truck passed Dumond. As the truck was passing, it continued to veer to the left. The truck went off the road, hit a culvert, became airborne, hit a telephone pole, and flipped several times before сoming to rest on its side.
Mathew Chatagnier testified that he had not been at the club that night, but stopped by, while on his way to work, to see his girlfriend in the parking lot. Chatagnier saw a truck “brake-talking.” He noticed there was a female passenger in the truck. Later, when he was driving down the highway, he heard a loud crack and then saw a truck on his left flipping past him. He went to the scene of the accident and saw a male and female lying on the road and called 911.
Joey Lirette testified that he was working at the club that night as a deejay and that he saw a truck in the parking lot spinning its tires and doing a “doughnut.” When the truck got on the road, Lirette saw the truck do another “doughnut” and after almost going into the ditch, the truck “took off down the road.” A few minutes later, Lirette came upon the scene of the accident. Lirette testified that the wrecked truck was the same truck he saw spinning its tires and doing “doughnuts.”
Porche was supposed to ride home with Babin, but decided to ride with the defendant because the defendant was driving alone. Porche also told Douglas Luke that she was going to ride with the defendant. Domangue and Chatagnier testified that they saw a female in the passenger‘s seat of the defendant‘s truck before he left, but could not identify her.
Joshua Rodrigue testified that he stopped by the club around 1:00 a.m. and left about a half-hour later because Troy, the friend he was riding with, had to leave. Rodrigue planned on returning to the club to meet his friends, including the defendant, who was one of his best friends. As Rodrigue was driving back to the club, he received a phone call from Porche, who was using the defеndant‘s cell phone. Rodrigue testified that Porche was nervous and frantic during the call. Porche told
State Trooper Clifton Dupre, II, testified that he was dispatched to the scene of the accident. Trooper Dupre saw the defendant‘s truck on its side, the defendant being tended to, and Porche lying on the ground incapacitated. Trooper Dupre heard the defendant tell his mother that he did not understand why Porche was in his truck. He testified that he detected a strong odor of alcohol on the defendant‘s breath and that the defendant‘s speech was a little slurred. At Terrebonne General Medical Center, Trooper Dupre instructed Barbara Cheramie, a registered nurse, to draw blood from the defendant. Upon completion of the defendant‘s specimen kit, Trooper Dupre turned it over to Troop C of the Louisiana State Police the following morning. The blood sample was then sent to the State Police Crime Lab. The crime lab report indicated the defendant‘s blood alcohol concentration was .25 percent. Trooper Dupre also testified that he obtained the defendant‘s cell phone records, which indicated that a phone call was made from the defendаnt‘s cell phone to Rodrigue‘s cell phone at 2:10 a.m. on March 9, 2003.
Dr. Felix Mathieu testified that Porche died from a ruptured liver with massive internal hemorrhaging. He stated that Porche‘s injuries were consistent with being ejected from a vehicle and probably being crushed by the overturning vehicle, given the fairly-well localized injury to the liver area, as well as the external bruising. Dr. Mathieu took a blood sample from Porche and determined that her blood alcohol concentration was .15 percent. Dr. Amita Adhvaryu testified that the defendant was brought to the emergency room of Terrebonne General Medical Center, where he was treated for a broken leg and fractured vertebrae.
The defendant did not testify.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the evidence was insufficient to support the сonviction of vehicular homicide. Specifically, the defendant contends that the State failed to prove a causal connection between his intoxication and Porche‘s death. The defendant further contends that the State did not prove beyond a reasonable doubt that he was driving instead of Porche.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See
Louisiana Revised Statutes 14:32.1 provides in pertinent part:
A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator‘s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
Under the vehicular homicide statute, “the state . . . must prove that an offender‘s unlawful blood alcоhol concentration combined with his operation of a vehicle to cause the death of a human being.” State v. Taylor, 463 So.2d 1274, 1275 (La.1985). It is insufficient for the State to prove merely that the alcohol consumption “coincides” with the accident. Taylor, 463 So.2d at 1275. Causation is a question of fact that has to be considered in light of the totality of circumstances surrounding the ultimate harm and its relation to the actor‘s conduct. State v. Kalathakis, 563 So.2d 228, 231 (La.1990).
The evidence clearly established that the defendant had an unlawful blood alcohol concentration while he was operating his vehicle. Five witnesses testified that they saw the defendant drinking at Club Outrageous that night before he wrecked his truck. Moreover, the crime lab report, stipulated to by both parties, indicated the defendant had a blood alcohol concentrаtion of .25 percent, more than three times the legal limit.
The evidence further supports the jury‘s finding that the defendant‘s highly-inebriated condition caused him to wreck his truck, which resulted in the death of Porche. The defendant was “brake-talking” and doing “doughnuts” in his truck shortly before driving down the highway. Dumond testified that he was driving around 45 or 50 m.p.h. when the defendant was driving behind him. Duncan, who was riding with Dumond, testified that, when the defendant passed them up, he was going “really, really fast.” Also, Porche told Rodrigue that the defendant was “driving messed up” and that she was scared and she wanted the defendant to pull over. Under these circumstances, given the defendant‘s reckless manner of driving from the time he left the parking lot until the time he wrecked, it was reasonable for the jury to infer that his blood alcohol concentration contributed tо his running off the road and losing control of his truck. See State v. Trahan, 93-1116, pp. 11-14 (La.App. 1st Cir.5/20/94), 637 So.2d 694, 701-02.
Also, the defendant‘s hypothesis that Porche was driving the vehicle is unreasonable, especially in light of her conversation with Rodrigue just moments before the accident, wherein Porche indicated that the defendant‘s driving was scaring
After a thorough review of the record, we find that the evidence supports the jury‘s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of vehicular homicide. The trial court did not err in denying the motion for post-verdict judgment of acquittal.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in accepting blood test analysis results without proof of compliance with applicable regulations. Specifically, the defendant contends that the State failed to introduce any evidence that would indicate that, pursuant to
On June 30, 2004, over eight months before the commencement of trial, the State filed notice of its intent to present evidence through a State Police Crime Lab certificate and attached to this notice a copy of the crime lab certificаte, which indicated that the defendant‘s blood alcohol concentration was .25 percent. At the beginning of trial, prior to opening statements, the State and the defendant stipulated as to the authenticity of the crime lab certificate. Later during trial, both parties stipulated that the registered nurse who works at Terrebonne General Medical Center drew blood from the defendant at the direction of Trooper Dupre, placed the blood in a vial, and gave the vial to Trooper Dupre during the early morning of March 9, 2003, following the defendant‘s accident. The State also introduced into evidence, without objection, the Louisiana Register procedures for blood analysis.
When the State sought to introduce the crime lab certificate into evidence, the defendant objected on the grounds that the State failed to produce any evidence that the blood test analysis was performed consistent with proper scientific methods as adopted by the Department of Public Safety and Corrections. In overruling the defendant‘s objection, the trial court stated:
First of all, the Court does take judicial notice that the Department of Public Safety has published certain regulations and procedures that govern the obtaining of samples for purposes of chemical tests to determine levels of alcohol. And those regulations have been promulgated in the Louisiana Register.
. . . Second of all, in this matter, we had the Certificate of Scientific Analysis that was filed in this matter. That is State Exhibit 1. The Court is of the opiniоn that the certificate that is filed . . . pursuant to Revised Statute Title 15:499 and the following statutes after that . . . gives prima facie notice of the validity of the testing that was performed in this matter . . . as well as the validity of . . . the chain of custody.
So the Court is of the opinion that the State has properly complied with the law by virtue of taking judicial notice of the requirements.
We agree with the trial court. In compliance with the applicable law, the State properly established the statutory presumption of the defendant‘s intoxication. See
More importantly, however, the defendant did not comply with the applicable statutory requirements. Louisiana Revised Statutes 15:499-501 provide for the introduction of evidence from criminalistics laboratories. The statutes provide that all criminalistics laboratories are authorized to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis is made. If the cеrtificate from the laboratory contains the required statutory information, the certificate shall be prima facie proof of the facts shown thereon unless the defendant subpoenas the preparer of the certificate. This procedure relieves the proponent of the evidence of the burden of having to produce the person who performed any tests on the evidence but allows the opposing party to subpoena under cross-examination the person performing the tests. State v. Matthews, 632 So.2d 294, 301 (La.App. 1st Cir.1993).
The certificate introduced into evidence complied with
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues that Rodrigue‘s testimony about his conversation with Porche moments before the accident constituted impermissible hearsay. Specifically, the defendant contends that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), his right to confrontation was violated.
That portion of Rodrigue‘s testimony objected to by the defendant is the following:
Q. Okay. And what was the purpose of her call? And I know that you look like a nice young man, . . . but the jury needs to hear her exact words, as best you can recall them, what she was saying to you and how she was saying that. A. She said that Derek was driving — she said Derek was driving messed up, and she was scared or whatever. She wanted him to pull over. I told her to just tell him to pull over, and I will pick yоu up on my way up. She asked him to pull over and —
Q. Did she ask him in a calm voice, or was she yelling at him?
A. Yeah, it was, like, her regular voice.
Q. Okay.
A. And then she said, “Derek, pull the f___ over. Derek, pull over or I am jumping out.” She said, “Derek, pull the f___ over,” and the phone cut off.
Q. Okay. So when she said, “Derek, pull the f___ over. I am jumping out,” at that point, she was more excited —
A. Yeah.
Q. — than the first time she said it?
A. Like scared.
In overruling the defendant‘s objection, the trial court found that Rodrigue‘s testimony of what Porche told him was an exception to the hearsay rule under res gestae, present sense impression, or excited utterance. While we do not disagree with the trial court‘s finding regarding the applicability of all three exceptions, we find that the present sense impression exception is particularly applicable to the instant matter.
Louisiana Code of Evidence article 803 рrovides, in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Rodrigue‘s testimony is hearsay under
We also find the Crawford decision inapplicable to the instant matter. In Crawford, the issue was whether the use of a recorded statement at trial violated the Confrontation Clause. The State sought to introduce a recorded statement that defendant‘s wife, Sylvia, who did not testify at trial, had made during police interrogation, as evidence that the stabbing was not self-defense. Crawford, 541 U.S. at 40, 124 S.Ct. at 1358. The Court held that the use of Sylvia‘s statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Crawford, 541 U.S. at 68-69, 124 S.Ct. at 1374.
The defendant‘s reliance on Crawford is misplaced because Porche‘s statements to Rodrigue were not testimonial in nature. Porche was not speaking to the police. She was speaking to a friend. She had no expectation that her statements would be of later use to help establish that the defendant had committed a crime. She spoke informally and without coercion. Her statements, thus, are not the sort that implicates the requirement of Crawford that prior “testimonial” statements be subject to cross-examination prior to admission. See State v. Heggar, 39,915, p. 7 (La.App.2d Cir.8/17/05), 908 So.2d 1245, 1249.
We conclude that Porche‘s statements to Rodrigue moments before the accident were nontestimonial and that Rodrigue‘s testimony at trial about what Porche had told him falls within the present sense impression exception to the hearsay rule. The trial court, therefore, did not err in allowing Porche‘s statements into evidence.
This assignment is without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant argues his conviction by a unanimous six-person jury is unconstitutional. Specifically, the defendant contends that in light of recent United States Supreme Court decisions, his conviction should have been by a unanimous twelve-person jury.
The punishment for vehicular homicide is imprisonment with or without hard labor.
The defendant‘s reliance on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a unanimous six-person, as opposed to a twelve-person, jury verdict; rather, they address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the trial judge, sitting alone. These decisions thus stand for the proposition that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Nothing in these decisions suggests that the verdict must be by a unanimous twelve-person jury, or even a unanimous jury, for a defendant‘s sentence to be increased.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
In his fifth assignment of error, the defendant avers the trial court erred in imposing an excessive sentence.
Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when impоsing a sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one‘s sense of justice. State v. Andrews, 94-0842, pp. 8-9 (La.App. 1st Cir.5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir.1988). The trial court should review the defendant‘s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981).
At sentencing, it is clear the trial court considered
The seven-year sentence imposed by the trial court was well within the statutory sentencing range. The defendant could have received twenty years imprisonment at hard labor, as well as a fine of fifteen thousand dollars, for the crime of vehicular homicide.4 In view of its careful consideration of the circumstances of the offense and the defendant‘s criminal history, we find no manifest abuse of discretion by the court in imposing a sentence that was only about one-third the possible maximum sentence.
This assignment of error is without merit.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to
Louisiana courts have screened appeals for patent error at least since the mid-nineteenth century. See State v. Behan, 20 La. Ann. 389 (1868) (“Our appellate jurisdiction, in criminal cases, is limited to questions of law alone. These questions must be presented by bill of exceptions or assignments of errors; or the errors be apparent on the face of the record.“) The phrase “error pаtent” was in use even earlier, describing a potential defect in the proceedings as opposed to trial error. See State v. Swift, 14 La. Ann. 827 (1859).
When the intermediate appellate courts assumed jurisdiction over most criminal matters in 1982, we inherited a system requiring us to check for two dozen or so potential defects in every appeal. While most of these defects were based on articles of the Code of Criminal Procedure and required only a corrective notation in the opinion, a few were based upon constitutional provisions, and jurisprudentially most of these defects were held to be reversible error. See State v. Campbell, 95-1409 (La.3/22/96), 670 So.2d 1212 (per curiam) (return of non-responsive verdict); State v. Jenkins, 406 So.2d 1352 (La.1981) (per curiam) (verdict returned by jury composed of fewer than the correct number of jurors); State v. Williams, 404 So.2d 954 (La.1981) (no jury trial waiver); State v. Stevenson, 334 So.2d 195 (La.1976) (improperly charged by bill of information for life or capitаl offense).
Notably of late, the Louisiana Supreme Court has turned away from its own jurisprudence finding reversible patent error in a variety of these situations involving constitutional errors. For example, in State v. Jackson, 2004-2863 (La.11/29/05), 916 So.2d 1015, the court reviewed an appellate court‘s decision reversing a conviction after its patent error inspection revealed that the trial court had accepted a guilty plea to a crime that was not responsive to the crime charged in the bill of information. Therein, both the defendant and the State argued in favor of the validity of the plea, but the appellate court relied on State v. Cook, 372 So.2d 1202 (La.1979), and found the trial court lacked jurisdiction to accept the plea. The Louisiana Supreme Court reversed the court of appeal and “clarified” Cook by finding that it was not intended to create a broad rule vitiating guilty pleas that are voluntarily and intelligently made. Jackson, 2004-2863 at pp. 9-12, 916 So.2d at 1020-21.
In State v. Jones, 2005-0226 (La.2/22/06), 922 So.2d 508, the Louisiana Supreme Court reviewed an en banc decision by this circuit in which the court was split over the issue of a conviction returned by an improper configuration of jurors. In that case, the defendant was tried and unanimously convicted by a jury of twelve members for driving while intoxicated, although he was constitutionally and statutorily entitled to trial by six jurors. Six judges voted to affirm the conviction; six judges voted to reverse the conviction
The Louisiana Supreme Court, as a whole, has not recognized “patent error” since State v. Campbell, 2003-3035 (La.7/6/04), 877 So.2d 112.5 Therein, the court noted that the district court had allowed the DWI defendant to keep the car he was driving at the time of the offense, in violation of
Jackson and Jones were decided after Campbell, and they signal a clear change of direction for the appellate courts. Defects in the proceedings, even violations of the constitution, that are not inherently prejudicial to the defendant are no longer considered reversible “patent error.” Accordingly, we limit our review under
At the time of the commission of the crime on March 9, 2003, the law provided that whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than twenty years.
Although the trial court‘s failure to impose the mandatory fine in accordance with
CONCLUSION
For these reasons, we find no merit in the defendant‘s assignments of error, and we affirm his conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.
CARTER and WHIPPLE, JJ., concur.
GUIDRY, J., agrees with the affirming of the conviction and sentence and concurs with the overruling of Paoli.
McDONALD, J., concurs with reasons and agrees with reasons.
WELCH, J., concurs in part and dissents in part and will assign reasons.
McDONALD, J., Agreeing in Part and Concurring.
While I agree with the analysis and conclusions of the opinion authored by my esteemed colleague, Judge Kuhn, I take this opportunity to address the difference between plain and patent error.
Thus, a plain error is such that requires reversal because it is so fundamentally prejudicial to the due process rights of the defendant. In State v. Williamson, 389 So.2d 1328 (La.1980), the supreme court reviewed an erroneous jury instruction even though the defendant failed to object at trial. In reversing the conviction the court stated:
[T]he asserted error involves the very definition of the crime of which the defendant was in fact convicted. Such an error is of such importance and significance as to violate fundamental requirements of due process. 389 So.2d at 1331.
However, in State v. Thomas, 427 So.2d 428 (La.1982), on rehearing, the court warned against equating a patent error review with plain error. The court cautioned:
Williamson should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection at occurrence. 427 So.2d at 435; see also State v. Belgard, 410 So.2d 720, 727 (La.1982).
Thus, the error must be of such magnitude when found on a patent error search as to prejudice the defendant and the burden is
As Judge Kuhn aptly points out, Jackson and Jones have signaled a change of direction for the appellate courts in reviewing for patent error. Those errors that are not prejudicial to the defendant are no longer considered reversible patent error. Those that are prejudicial to the defendant would be reversible patent error, the same as plain error under federal law. For these reasons, including those stated in Judge Kuhn‘s majority opinion, I agree the conviction and sentence should be affirmed.
WELCH, J., Concurring in Part and Dissenting in Part.
I respectfully concur in part and dissent in part from the majority opinion in this case. I concur in the majority opinion insofar as it affirms the defendant‘s conviction and overrules State v. Paoli, 2001-1733 (La.App. 1st Cir.4/11/02), 818 So.2d 795 (en banc), writ denied, 2002-2137 (La.2/21/03), 837 So.2d 628, to the extent that it has been interpreted to mandate a remand for re-sentencing when the sentencing court has imposed an illegally lenient sentence.
However, I must respectfully dissent from that portion of the majority‘s opinion that suggests we no longer review records for errors patent and declines to correct the defendant‘s illegally lenient sentence. Louisiana Code of Criminal Procedure article 920(2) provides that “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence” shall be considered on appeal. The majority opinion notes that this article makes no reference to the errors for review as “patent.” However, as my colleague Judge McDonald succinctly noted, the review for errors under
In this case, the trial court sentenced the defendant to imprisonment for seven years at hard labor. However, at the time the crime was committed,
Louisiana Code of Criminal Procedure article 882(A) provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by
The majority declines to correct the illegally lenient sentence, since it is favorable to the defendant. However, it is well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence. Williams, 800 So.2d at 797. If we ignore this illegally lenient sentence, we are allowing the trial court, the State (district attorney), and the defendant to circumvent the punishment that our legislature has mandated to be imposed on the defendant. We should not sanction such action. Accordingly, since Paoli has been overruled, I would correct the defendant‘s illegally lenient sentence by imposing the minimum fine mandated by our legislature.
For these reasons, I respectfully concur in part and dissent in part.