State v. ToomerState v. Toomer
Melvin Ray Toomer was charged by indictment with aggravated rape, aggravated kidnapping and armed robbery, in violation of
FACTS:
On February 11, 1989, at about 7:00 p.m., a woman drove to the Baton Rouge Little Theater, located in the Bon Marche Mall in Baton Rouge. As she walked from her automobile to the theater, she passed two black men who spoke to her. She did not respond. One of the men grabbed her purse and swung her around. The other man flashed a gun in her face. The men forced her into the front seat of her car. The older of the two men drove, and the other man, who was carrying the gun, sat in the passenger seat. The younger man was later identified as defendant, Melvin Toomer. Defendant directed the driver to a certain area. Once they were on a secluded street, the victim was told to disrobe and was raped by both men. They then put her in the trunk of her car and drove around for about twenty minutes. When the car stopped, the victim could overhear the men talking about killing her. They opened the trunk, and she begged them not to kill her. She told them that she had a bank card and could withdraw money from her account for them. The men said they would release her and her car if she could give them $200.00. If she could only give them $100.00, they would only release her. She was then raped again by defendant. The men then drove the victim to a bank; she was only able to withdraw $100.00 from an automatic teller machine. The men drove the woman back to the Baton Rouge Little Theater parking lot and released her. They fled in her automobile with the money and some of the victim‘s jewelry. The victim informed friends in the theater of what had happened to her. Subsequently, the victim identified defendant, in a lineup and at trial, as one of the perpetrators.
ASSIGNMENT OF ERROR NUMBER THREE:
By this assignment, defendant contends the trial court erred in denying the motion to suppress his oral statement. He argues that his oral inculpatory statement was a result of promises, threats and duress, and thus was not freely and voluntarily given. Defendant contends the interrogating police officer promised to speak with the judge and district attorney about helping him with his case if he gave a statement. He also asserts that he was physically harmed by police officers who choked him and slapped him across the head.
When Toomer was arrested, he was advised of his Miranda rights and taken to the police station for booking. Detective Bryan White read defendant his rights from a rights form; defendant then signed the form. Toomer advised he understood his rights and did not request an attorney. During the questioning by Detective White as to whether he stole the victim‘s automobile, he stated, “You won‘t find my fingerprints anywhere on that car but on the passenger side.” He also responded to Detective White‘s questioning about his participation in the aggravated rape by saying,
At the motion to suppress hearing, Detective White was called by the State as a witness on its case-in-chief. He testified on direct examination that there were no threats or coercion used on defendant to force him to give a statement, nor were any promises made to encourage Toomer to speak. Although he remembered Toomer walked with a slight limp, Detective White did not recall defendant complaining of a leg injury or making any request for medical attention. Defendant did not appear to be intoxicated or under the influence of drugs, nor did he appear to have difficulty in understanding the questions posed to him or in phrasing answers to those questions. Detective White recalled that Detective Rick Temple and Major Silas Gerald also went into the interview room during the questioning of Toomer. At trial, Detective White recalled that defendant was provided medical attention by a medic for cuts and scrapes. He was also given some food from the snack machines in the police station. Detective Temple and Major Gerald did not testify at the motion to suppress hearing or at the trial.
Defendant also testified at the motion to suppress hearing. He stated that when he was brought in for questioning he was handcuffed behind his back and his leg was swollen. He also stated he was scared, tired and wet. He admitted he was provided with dry clothes, food and medical attention for his leg, and further admitted that he was not questioned until he changed clothes. Defendant also testified that Detective White said he was going to talk to the judge and district attorney “to help me with my case.” Toomer claimed that he was threatened and that he was treated brutally, including being slapped across his head and being held by the throat while pictures of him were taken. Additionally, defendant stated he had been using cocaine before he was arrested and that it made him lie. Toomer did not testify at his trial.
In order for a confession or inculpatory statement to be admissible into evidence, the State must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menace, or promises.
In the instant case, Detective White refuted defendant‘s allegations of promises to speak with the judge or district attorney in exchange for the statement. His testimony also rebutted Toomer‘s claim of abuse and threats. Thus, the trial court‘s ruling that defendant‘s statement was freely and voluntarily given is supported by the evidence; and we find the State met its burden of proving the voluntariness of Toomer‘s oral statement. The trial court properly denied the motion to suppress.
This assignment lacks merit.
By means of this assignment of error, the defendant contends that the trial court erred in imposing an excessive sentence and in failing to comply with the sentencing guidelines of
Toomer was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each of the convictions of aggravated kidnapping and aggravated rape. These sentences were mandatory. See
The Code of Criminal Procedure sets forth items which must be considered by the trial court in imposing sentence.
A review of the record indicates the trial court adequately complied with
Although a sentence is within the statutory limit it may nevertheless be excessive if it is grossly out of proportion to the severity of the crime or nothing more than the purposeless and needless imposition of pain and suffering. State v. Donahue, 408 So.2d 1262, 1267 (La.1982).
We do not find that the sentence in this case is excessive. The sentence is commensurate with, rather than grossly out of proportion to, the severity of defendant‘s offense. Nor is the 198 year sentence extraordinary. See State v. Donahue, 408 So.2d at 1267 and the cases cited therein.
Maximum sentences are imposed only in cases involving the most serious offenses and the worst offenders. State v. Watkins, 532 So.2d at 1186. In view of the facts of this crime and his previous record, clearly defendant is the worst type of offender. The defendant, a convicted burglar who committed aggravated rape, aggravated kidnapping and armed robbery within six weeks of his release from prison1, is the worst type of offender. See State v. Watkins, 532 So.2d at 1187. Considering the circumstances of this offense and the reasons for sentencing given by the trial court, we find no abuse of discretion in the sentence imposed.
This assignment lacks merit.
ILLEGALLY LENIENT SENTENCE:
In sentencing defendant, the trial court failed to state that the sentence for the armed robbery was without benefit of parole, probation or suspension of sentence.2
Herein, the State has complained in its brief to this Court that the sentence is illegally lenient. It requests this Court to review the sentence and either correct it on appeal or remand to the trial court for resentencing.
A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
C. Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.
Our brethren of the Louisiana Fifth Circuit Court of Appeal have ruled that a State‘s brief calling attention to an illegally lenient sentence and requesting a remand to the trial court for correction of the sentence constitutes an application for review by the State. See State v. Rogers, 519 So.2d 246, 249 (La.App. 5th Cir.1988); State v. Hardan, 501 So.2d 848, 851-852 (La.App. 5th Cir.1987); State v. Sepcich, 473 So.2d 380, 389 (La.App. 5th Cir.1985). The Louisiana Second Circuit has taken an opposite approach, requiring a formal application for review by the prosecution beyond mere argument in a brief. Cf. State v. Hadwin, 559 So.2d 525, 527 (La.App. 2d Cir.1990); State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990).
We find the position of our brethren in the Second Circuit to be the correct one. In State v. Fraser, supra, it was explicitly stated by our supreme court:
If the trial court refuses an application to correct an allegedly illegal sentence (or if the question is not raised in the trial court),
La.C.Cr.P. Art. 882 B provides that a sentence may be reviewed as to its legality, on the application of either the defendant or the prosecutor, by appeal or by writs....[Emphasis by the court.]
Article 882 B still requires an application for review of an illegal sentence by either the defendant or the prosecutor.
[Emphasis ours.]
This language, “by appeal or by writs” and “an application for review,” suggests a procedural formality not met by responsive argument in a brief. Such a posture is also consistent with this court‘s requirement in civil cases of an appeal or formal answer to an appeal in order for a party to receive any relief. We will not require less of the State in a criminal prosecution than we do of a civil litigant in a civil case. Therefore, we decline to correct the illegally lenient sentence.
Defendant‘s convictions and sentence are affirmed.
CONVICTIONS AND SENTENCE AFFIRMED.