State Of Louisiana VS Henry James Harper, Jr.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 KA 0299 STATE OF LOUISIANA VERSUS HENRY JAMES HARPER JR Judgment rendered SEP On Appeal from the 32nd Judicial 5 2007 District Court Parish of Terrebonne State of Louisiana Number 452 769 The Honorable Joseph C Ellender Judge Presiding Counsel for L Waitz Jr District Ellen Timothy Appellee State of Louisiana Attorney Daigle Dosky Assistant District Attorney Bouma LA Counsel for Appellant Katherine M Franks Abita Springs Henry James Harper Jr LA BEFORE PETTIGREW DOWNING AND HUGHES JJ iJ 9 lIP II 1 Je tv 9 Z IP tA V tc t h u r O p gt L DOWNING J The defendant indictment with Henry aggravated James count 2 both The State to guilty to count 2 charges bill of infonnation filed a as was imprisomnent found at now be hard reconsideration of the not pled the defendant to have guilty a third seven The trial sentence court appeals urging the following assigmnents a trial 1 He The was error by the state at trial to moved for defendant The defendant by counseled and insufficient was pro to meet Due Process standards 2 The judge trial erred in permitting the written of statements Toyomi Johnson and Jmmnie Smith into evidence The failure of the state to provide the circumstances surrounding the statements including the person s who wrote them out for the two children and the date and place where they were prepared should have been fatal to their use at trial Moreover the introduction of the without the required foundation precipitated their prejudicial use for of the hearsay allegations contained within them truth the statements into evidence over defense objection violation of the Code of Evidence and constitutional right to confront his true accusers 3 The sentence offender is excessive and prosecution and sanctioned the defendant for 1 The record does not reflect the final disposition inadequately reasoned the resulting lengthy going to trial ofthe the aggravated 2 rape when the charge the sentenced Counseled Assignments The evidence offered on The State briefs 1 as adjudicated and sentenced denied the motion of by jury multiple offender hearing years not of infonnation charged as felony habitual offender for labor and pled He 1 44 Following the defendant a 14 42 R S violation of La R S 14 45 a convicted was At the conclusion of to 14 subsequently amended the bill seeking habitual offender defendant violation of La R S He arraigned was re simple kidnapping charge a a charged by grand jury was violation of La a reducing the charge to simple kidnapping The defendant the 1 count rape aggravated kidnapping Harper originally in defendant s The habitual sentence also plea agreement se offered by the violation of his Counsel 4 right failure s the defendant state gave no other realistic choice a to Due Process file to motion a reconsider to sentence designating the grounds for reconsideration grounds he had argued during the sentencing hearing constituted ineffective assistance of counsel Pro Se 1 Assignments The trial and in judge erred Jammie Smith pennitting statements Admitting their respective appellant s constitutional right the be to evidence evidence into violated by admitting what would fair trial a into admitted statements to Toyomi Johnson juveniles otherwise be considered as inadmissible evidence 2 denied due process when the trial court denied a of his pro se motion to suppress witness statements of Johnson and Jammie Smith as well as allowing written Appellant hearing Toyomi was evidence to be Counsel 3 brought failure s to into deliberation without his consent inform consequences of his appellant of the full plea agreement and failure to inform appellant of his ability withdraw the plea constitutes ineffective assistance of counsel Finding merit no in the conviction habitual offender assigned we errors affinn the to defendant s and sentence adjudication FACTS On Valentine children from apartment on they Hem ishell needed move 2 a Payne Payne Street in after 2004 the defendant Denneshel met Valerie Shortly thereafter Denneshel moved in with the defendant and his Delmeshel two Day s met was a previous relationship In August On October 22 2004 street Denneshel and the defendant had confined constant to Marrero care to the hospital In accordance with La R S 46 1 844 W The defendant the victim is referenced 3 a daughter because she In order to be closer to the with her parents couple moved The victim S M Street in Houma Louisiana trailer down the 2004 the s was z to an also lived on only eight months Hem ishell born Harper prematurely and hospital Denneshel decided children stayed with him only by her initials to M and her two children moved in with the Shortly after Denneshelleft S S M lived with the defendant until December 2004 defendant and his children when Denneshel returned to Houma S M moved back into her trailer discontinue his On mother as to as to be with her to Payne he 22 and upset defendant have not was a still to a was door to the phone calls and defendant was one Im going to blues you S M calling explained s defendant S M anything possible to her by the S M to was S M question going s the to leave residence and walked back visited S M went was at not blues you s mother home with Kimber Kimber from the defendant Bitch you better helping telephone began S M s s house to retrieve home S M received According to S M Oh if I catch you step outside whore I m going the defendant The defendant also sent S M the not want to continue their of the calls the defendant told S M that questioned hear all that Kimber While she were him and whether he want to text messages of the continued never his cellular on upset because she told him that she did relationship During in the defendant did was aware and the defendant evening Joyce Kimber next hospital S M The defendant left S M at her mother her children she had left there you seeing Street because he did not Kimber lived released from the Denneshel it verbal altercation ensued why Denneshel Later that several problem with while S M 2005 Denneshel S M Denneshel called the defendant move became why January was Payne Street and Denneshel moved back on relationship with relationship and did defendant baby Despite having reconciled with Denneshel with the defendant not after her a to get meant he would do text message that read BESIDES IF I HAD EVERYTHING I YEA IF THAT S INCLUDING YOU WOULDN T BE OUT HERE WAITING 4 YOU GOOD OR BAD HOPN IT WORK OUT SO I DON T HAVE 2 KILL NOBODY AS SWEET AS YOU LUV ME 4 A little while later after Kimber left the residence the defendant entered and approached cousin Kimber w The s of disputed were knife inside a explained that upon Say what was not witnessed the encounter but did not Fearful S M focus turned s attempt to threatened bathroom bathroom taking a shower this to to Bitch ponytail to see what held the knife explained that as they The defendant s nieces was to walked going out brought S M want 1 me no more got to do after this was s to stab or your blood will be all and forced her to to you towards the now SM She walked by her walk outside S M rear going After he realized that there by SM grabbed life was over of the house He told her because you still 5 Toyomi you 15 times The defendant then to threaten the b itch throat and threatened on an area inside her head out of the shower curtain of this bathroom going niece also present in the house to As she told the defendant that of the house she feared that her armed with the knife he continued well do what Darnell Sneeze SM was her neck S M blues get away from the defendant to S M Im the He followed S M and the child into the peeked out to eleven year old s knife put it get the fl Johnson another of Kimber the bathroom bath Kimber fl m a to see to intervene trying As Jammie out the pulled got five seconds over her child Smith Jammie the defendant you give whore now look in the defendant s devilish she walked away from him and towards the bathroom she needed to go and inside but she could pocket According joking to say got you repeatedly mean SM approached claimed the defendant told her S M The defendant she realized that he eyes at trial observing the Darnell Sneeze her distant to the defendant once saying were talking the defendant had his hand in his S M to transpired that events say what you According S M she stood in the kitchen as residence hore imprint SM to were 1 Still might as tell me you don people passing t on the street the defendant decided to relocate to S M the knife in his s trailer The defendant to him demanded that S M walk close pocket and Meanwhile Darnell Sneeze called Iris Smith Jammie Smith to Kimber Toyomi s her to turn on any of the S M while admitted to He ordered her to s version of the becoming involved in anywhere question in a events differed threatening having they S M in the kitchen he a allow blues to 2and Although substantially being outside for while he and S M decided s or he to go residence s on only He testified that when he her was she still mad at him house with him ever S M forcing to go to S M to go s sending S M outside He After trailer because she despite having been given the defendant s jacket The defendant claimed he did not recall S M physically abusing knife and simply asked voluntarily left Kimber cold outside or made up claimed S M then a again threatened to verbal altercation with S M after Denneshel ever He denied called him and S M trailer the defendant forced The defendant claimed he went to Kimber with him approached was over she did not want him anymore called him the defendant denied night s get into the bed and refused The defendant lights asking why The defendant because mother and Dmnell Sneeze Iris Smith called 911 S M towards the bedroom the s Based upon information she received from Jammie residence Once the defendant and S M arrived at S M stab placed the to keep wann threatening text message call to 911 dispatched to In response to Iris Smith Houma Police Department was s the Officer Neil Abbott III area residence Abbott made contact with Jammie and what Toyomi they witnessed between the defendant and S M description of the knife that proceeded to S M s was used at Upon arriving The by the defendant Kimber s who advised him of girls also Abbott provided a immediately trailer where he and several other officers knocked 6 of the on the door and announced information their presence no S M was arrested As she towards the defendant and was escorted was Based upon the response movement S M forced entry into the residence a nothing happened defendant was they received and the fact that they heard the officers made officers There inside the trailer hysterically told the and the of the residence out leaving the residence S M kept looking back continuously and spontaneously repeated Nothing happened While the officers scene and did not return At trial S M explained trailer the defendant told her to tell the She fmiher explained officers that explained was afraid to fully provided blank because she the defendant was anything transpired a field that to on Payne to her Street She night Toyomi Officer Abbott witness statement forms for them to record their statements bring the statements to the Iris Smith later turned the defendant entered Kimber stated that he would cut s over police depmiment placed her fifteen times if she did signed by Jammie Smith the other once two handwritten statements residence a her instructions to tell the afraid of what he would do made contact with Jammie and initially s entered the police he did not do she hid in scene disclose the events that instructed them to was that before the police that complied with that when she left the When he completed that she nothing happened She M walked away from the subduing the defendant S were knife not go to S M with him they He were indicating s that throat and One statement by Toyomi Johnson COUNSELED ASSIGNMENT OF ERROR 1 SUFFICIENCY OF THE EVIDENCE In his evidence presented conviction was first counseled at the trial Specifically assignment of was error insufficient the defendant asserts to defendant contends the support the simple kidnapping that S M incredible and should have been discredited 7 the s account of the events He argues that because S M s story contradicted was by other witness Mussall 523 So 2d 1305 v Louisiana Supreme Court affirmed evidence and asselis that the claims reviewing In must consider it is obvious that the dysfunctional relationships convicted him based upon his Thus he cites State testimony jury s a reversal of verdict was a La and 1988 the evidence a case in which the insufficient on irrational and should be reversed the evidence evidence in the viewing the on conviction based challenging the sufficiency of whether after not jury light most this cOUli favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a S Ct 2781 2789 61 L Ed 2d 560 Crim P v Virginia 443 U S 307 319 99 See also La Code 1979 emphasis in original 821 B mi In Mussall cOUli Jackson reasonable doubt should apply First a the Louisiana Supreme COUli elaborated the Jackson Virginia standard review of evidence does a v criminal conviction record for require not a on how a reviewing sufficiency of ask itself whether it believes court to that the evidence at the trial established guilt beyond a reasonable reviewing court must consider the record through the eyes of a hypothetical rational trier of fact who interprets all of the evidence as favorably to the prosecution as any rational fact finder can Third the inquiry requires the reviewing court to ask whether such a hypothetical rational trier of fact interpreting all of the doubt Second evidence in this crime beyond a The a manner could have found the essential elements of the reasonable doubt criterion of Jackson principal rationality A it is based record from which on a a criminal conviction no v cannot Virginia review constitutionally stand is if rational trier of fact could find guilt beyond a reasonable doubt Accordingly under the Jackson methodology a reviewing COUli is required to view the evidence from the perspective of a hypothetical rational trier of fact in detennining whether such unconstitutional an rational triers of fact could evidence the favorable to the conviction has occurred disagree rational trier s prosecution view to the as of all must be If interpretation of the of the adopted evidence Thus most irrational decisions to convict will be overtUl11ed rational decisions to convict will be the actual fact finder upon extent necessary upheld and only to the protection to s discretion will be guarantee of due process of law MussaIl 523 So 2d at 1309 10 footnotes omitted 8 impinged the fundamental Revised Louisiana Statute peliinent pmi as from to another without his place Initially victim testimony s Instead he her note we challenges testimony jury elements decision to believe the victim s of the offense s and contradicted being incredible inconsistent as claim that if believed the not insufficient to establish the the any person consent that the defendant does was in simple kidnapping seizing and carrying of the intentional and forcible one defines 1 14 45 A story attacking the by testimony of other State and defense witnesses The verdict in this witnesses and and rejected the testimony of the other witnesses presumably claims rendered the victim knife a way on Jammie and lmife not the night in not call Iris the credibility of the actions s Smith grab S M Sneeze hair and or After her against the victim hearing and her Toyomi Johnson testimony all witnessed testify that the defendant did physically s not abuse her in any other The jury also heard Dmnell Sneeze state that he did question to Kimber by the its decision the jury all of the evidence that the defendant testimony unbelievable s jury also heard Darnell did reaching In that Darnell Sneeze Jammie Smith and the incident the have considered of the defendant description indicating considering weighing the evidence the jury accepted the testimony of the victim had before it and detailed reflects that after case s house The jury was privy to the testimony Toyomi wherein the girls indicated that the defendant did despite having previously stated and signed written statements not of both have a indicating that he did As the trier of fact the the testimony of jury any witness free to was Moreover of the witnesses the sufficiency State v Houston matter is 98 2658 one p 5 9 or reject where there is about factual matters the resolution of which credibility accept depends of the La upon weight App in whole or in part conflicting testimony a determination of the of the evidence 1 Cir 9 24 99 not its 754 So 2d 256 State 259 So 2d 217 223 So 2d 706 717 fact not State 99 0385 Duncan v to 98 1730 appellate review of witnesses determination of 9 10 pp A determination of the subject credibility Johnson v La 18 p La guilt State Thus MussaH v 1 Cir 6 25 99 App 745 738 weight of the evidence is a reviewing reweigh the evidence or 1 Cir 11 5 99 App 523 to So 2d court will overturn p 4 La 18 99 to the 725 So 2d 1291 of the Jackson review reviewing weight of the evidence comi to 1293 State curiam per or the finder s reviewing whether the Juluke 98 0341 Given this limited purpose the Jackson standard does not second guess the rational v assess fact T he court is not called upon to decide whether it believes the witnesses conviction is contrary not a at 1311 question of a serve as credibility a vehicle for determinations a of the factfinder at trial Herein the victim testified that the defendant and forced her from the kitchen of Kimber from the bathroom to the s residence yard and from the yard fmiher testified that the defendant continued threatened blues to her at placed to to her the knife to her throat to the bathroom own residence hold the knife the victim alone is sufficient to prove the elements of the offense 97 1839 p La 5 the victim argues testimony of App s 1 Cir 6 29 98 testimony other witnesses was 716 2d So contradicted and he fails to Toyomi and Jammie these witnesses their stories by 427 at Kimber Toyomi for s State of Forbes v defendant impeached by the trial was highly questionable the time of the trial Iris Smith Although specifically something was going Both Iris Smith and Officer Abbott testified that residence and Jammie both testimony Although testified that Darnell Sneeze contacted her and advised that on throat and acknowledge that the credibility of the other witnesses Sneeze changed 424 again The victim to her It is well settled that the her residence then provided aggravated kidnapping The information that led girls 10 even to the defendant described the s weapon an est used Considering the conflicting credence accounts to witnesses unammous of the her version of the detenninations will the events including the verdict guilty jury not be disturbed on jury apparently found the other be to clear that when faced with found the victim credible and gave The events defendant it is incredible These appeal Accordingly after carefully reviewing the evidence person in this case the jury the prosecution could have concluded the state proved beyond simple kidnapping This believe we viewing the evidence in the light all of the essential elements of credibility most a a rational favorable to reasonable doubt assignment of error lacks merit COUNSELED ASSIGNMENT OF ERROR 2 ADMISSIBILITY OF WITNESS STATEMENTS In his second erred in allowing into evidence assignment of the written statements of Specifically he asserts foundation for the introduction of the recorded the defendant contends the trial comi en or recollections He also Toyomi the state statements argues that as the and Jammie to be introduced failed to provide impeachment state evidence and oneously used en statements for their substance and not for the limited purpose of credibility the proper impeaching or the the of the witnesses Louisiana Code of Evidence article 607 inconsistent statement purpose of attacking the even permits the introduction of a prior though it is inadmissible hearsay for the limited credibility of a witness The miicle provides in peliinent pmi credibility The credibility of a witness attacked by any party including the pmiy calling him A Who may attack D Attacking credibility provided by legislation extrinsically 11 Except as may be otherwise 2 Other evidence extrinsic including pnor inconsistent testimony is admissible when offered solely to attack the credibility of a witness unless the court detennines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time confusion of the issues or unfair prejudice and evidence statements When seeking to the witness contradicting introduce evidence of proper foundation must be established a prior inconsistent statement a Louisiana Code of Evidence Article 613 provides Except as the interests of justice otherwise prior inconsistent statements conviction of crime or defects of capacity is admissible after the proponent has first fairly directed the witness attention to the statement act or matter alleged and the witness has been given the opportunity to admit the fact and has failed distinctly to do so Emphasis added of bias Initially interest extrinsic evidence require we or that contrary note record reflects that counsel Article 613 both as to night in armed with a indicating to the written statements in question knife what prepared for not have Instead them after a knife Toyomi a allowed to introduce residence knife When to written her throat was statements both girls questioned regarding testified that they did not the actually they only signed the documents that had been telling family over s were asked if the defendant were members what could remember who wrote the statements for them was Toyomi observed at Kimber they Despite having previously signed both Jammie and statements Jammie and question that the defendant threatened S M with written statements assertions in his brief the s with the foundational mandates of Specifically both girls testified that the defendant did draft the the defendant adequately complied questioned extensively regarding the on corruption defendant s into evidence 12 happened Neither child The State then offered objection both of the written and statements Once the foundation statements Evid admissible was 607 D art for her accomplished 2 her prepared attack the to Each which girl admission to s At impeachment this prior Article 607 under the 801 D 1 However which is the a hearsay and thus they proof of the at that the trial or a prior hearing by 2004 La statement and is by a subject Acts No witness is not to to accused s matter had already the Code Evid statements impeach but also the of penalty perjury at art were not substantive as 1 was s Article 801 D 1 a hearsay if the declarant testifies concenling and testimony the accused and the witness prior trial 694 examination cross and the statement is inconsistent with his subject to only testimony inadmissible under were version of La cunent not state statement offense Prior to its revision provided inconsistent statements admissible the trial Code through their trial testimony the controlling law in this were with her since point La the written signing inconsistent of the witnesses written documents of the the witnesses credibility of clearly was accomplished the impeachment evidence of the pnor inconsistent established was was preliminary subject to cross a now the statement under oath given examination examination or the by the accused Following the statement and is in a first by a subj ect criminal 2004 revision Aliicle 801 D witness is not to cross case hearsay examination given the evidence opportunity to most that concerning or a prior hearing the statement and the statement is testimony provided that the proponent has attention to the statement and the witness has been admit the fact and where there exists any additional conoborate the The amended renders to s provides if the declarant testifies at the trial inconsistent with his fairly directed the witness 1 matter asserted provision which prior inconsistent is by the prior inconsistent statement substantially broader than its predecessor statements 13 admissible in criminal cases provided the proper foundation is established Thus while the in this case were admissible to the 2004 revision to to attack on as a well such See 1 George Louisiana Evidence Law 471 472 authors Therefore contrary to the admission of the written inconsistent statements 607 D credibility under Article AIiicle 80 1 D admissible for their asse1iive value prior note all of the defendant statements no W hearsay Pugh pursuant statements et are aI Handbook 9 to Article 607 2006 various assertions in his brief s not was non 2 This error assignment of error lacks merit COUNSELED ASSIGNMENTS OF ERROR 3 EXCESSIVE SENTENCE 4 INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO FILE A MOTION TO RECONSIDER SENTENCE In his third and fourth erred in comi erred in failing guidelines set support the failing argued to excessive articulate sufficient to the to sentence file a at the sentence although reasons the to justify the sentence to sentencing judge case articulate real to reconsider sentencing sentence Specifically urging seven year sentence which is all of the was was penalized defendant urges this court to for punishment for review the defendant notes that while his trial sentence he did over three times longer so generally and argues that than the two year exercising his constitutional right to indicate that to a trial The consider his claim Article I Section 20 of the Louisiana Constitution of excessive to ineffective in grounds previously offered during pretrial plea negotiations tends the defendant sentencing sentencing factors The defendant also argues his trial counsel motion imposed should be remanded particular grounds for the request On appeal the defendant no sentence He fmiher asselis the trial court the trial comi mentioned the counsel did in fact ask for reconsideration of the stated the defendant contends the trial forth in La Code Crim P Art 894 1 the directive a an he asselis that Specifically with imposing assignments of error Even a sentence 14 prohibits the imposition within statutory limits may violate a defendant appellate is constitutional s review State constitutionally offense or is suffering Sepulvado v excessive if it is nothing State right against excessive punishment and more than 767 La So 2d 1276 1280 La to society So 2d 288 La 1985 4 199 of 291 734 So 2d 89 sentences within set aside as it shocks the State v sense Lanieu A trial court is 97 the are A sentence State of justice 98 1260 sentence A sentence is considered in 12 p given wide discretion statutory limits and the 751 light Hogan v La 480 1 Cir App in the imposition it should not be imposed by excessive in the absence of manifest abuse of discretion Lobato 603 So 2d 739 to severity of the 1993 grossly disproportionate if when the crime and punislunent of the hann done to grossly disproportionate 1979 subject purposeless and needless infliction of pain and 623 Dorthey v a 367 So 2d 762 is State v La 1992 The Louisiana Code of Criminal Procedure sets forth items that must be considered 894 1 by the trial court before Code Crim P The trial court need not recite the entire checklist of Article 894 1 record must reflect that it So 2d 1 894 1 La sentence imposing a 11 La App considered the criteria 1 Cir 1990 In State of the criteria light but the Herrin v expressed by 562 Article review for individual excessiveness should consider the circumstances of the crime and the trial decision adequately Art State Remand for full v court s Watkins stated 532 So 2d compliance with article factual basis for the sentence is shown and factual basis for its reasons 1182 1186 La App 1 Cir 1988 894 1 is unnecessary when State v Lanclos sentencing a sufficient 419 So 2d 475 478 La 1982 A claim of ineffective assistance of counsel is test under developed by the United States Supreme Court in Strickland 466 U S 668 trial analyzed counsel 104 S Ct 2052 80 LEd 2d 674 was ineffective a defendant 15 1984 must v a two pronged Washington In order to establish that his first show that counsel s performance was deficient which reqmres serious that he did not function Secondly the defendant defense This element defendant was enol must had some a fair trial conceivable effect the outcome the of the on the him if the defendant makes unprofessional s proceeding As third a maximum conviction La R S of ten 45 14 sentenced the defendant to sentence imposed In this was case mitigating factor sentencing the trial criteria and In aggravation comi seven well within the to there is reasonable App on one sentence of the prejudice to components on the was exposed to a simple kidnapping 1 b i Thus it is clear that the The trial not list every court that imposed aggravating and imposed the was or the comi considered the Prior to imposing facts of the offense and the defendant weapon dangerous and It is 1 Cir 1992 15 529 1 A find the record indicates supports the a statutory limits that s Rather he performance years at hard labor sentence the defendant cruelty La R S support of the a s imprisonment years B court reviewed the history prejudice would have been different although the trial judge did we serious that the show actual felony habitual offender the defendant sentence the proceeding errors inadequate showing 610 So 2d 857 859 60 La Serigny v an of the outcome unnecessary to address the issues of both counsel State performance prejudiced must so the Sixth Amendment enolS were so Defendant errors It is not sufficient for the defendant to show that the granted show that but for counsel probability guaranteed by showing that a made showing that he that the deficient must prove deprived of before relief will be counsel as requires a comi s sentence criminal specifically noted in used in the commission of the offense conduct in the commission of the offense manifested deliberate the victim and the defendant had concluded that the defendant was 16 two prior felony convictions in need of treatment in a The custodial enviromnent The reasoned that any lesser comi would sentence deprecate the seriousness of the defendant s crime Upon review of the record considering the the trial court the effect the offense had and will continue to have circumstances in this crime to as shock the and thus is suffering assertions the trial defendant in the sentence case and is not of sense justice court not was to proceed discretion in this case even not clearly suffered excessive and was to no to abuse of no severity of the impose the be to and the defendant sentence offered rejected the imposed pain was s to the two year left entirely judge abused his not in any way bound clearly supports the sentence iInposed The trial s court failure sentence was to file a the record fully supported by must more constituted deficient resulting prejudice since the ineffective assistance of counsel claim find the We do not find that the trial if trial counsel motion for reconsideration of the defendant we and the year sentence under the facts and Once the defendant the previously offered sentence The record Accordingly the victim to trial the sentence to judge provided by is it needless infliction of nor obligated pretrial negotiations opted seven on grossly disproportionate so sentence unconstitutionally excessive Contrary not up to the discretion of the trial sentencing The case for circumstances of the instant offense extremely violent sentencing discretion in this reasons fall These detailed written performance the sentence Thus by imposed was the defendant s assignments of enor lack merit PRO SE ASSIGNMENT OF ERROR 1 By this assignment of error the defendant again challenges the admissibility of the written that the statements statements counseled were assignment 359 So 2d 586 La of and Jalllinie In addition to his claim hearsay evidence which is addressed in provided by Toyomi inadmissible enor cert 2 the defendant cites State in the Interest of Dino denied 439 U S 17 1047 99 S Ct 722 58 L Ed 2d 706 and further 1978 without the that the asselis requisite showing made might be used consult with counsel before pro se not have been allowed that the children and their parents intelligently comprehended that he statement should statements in or a sic couli need make not proceeding informed were that any statement a and that he sic had during the making of a a right to Defendant statement s brief p 6 The defendant custodial governed by the custodial First Dino misplaced 96 2719 or More 10 p Couli reinstated the applied impoliantly La 4 14 98 totality statements guardian the statement This are concelned there is be present with must a were not not were 712 So 2d 485 490 the of the circumstances standard no absolute juvenile suspect assignment of error lacks to the Dino has been overruled determining the admissibility of juvenile confessions confessions as and thus their interrogation mandates of Dino Supreme the basis for attorney to Fernandez v Louisiana insofar Dino is on interrogation of juvenile suspects The eyewitnesses in question suspects subjected In State reliance s Thus requirement at as even that an the time he makes merit PRO SE ASSIGNMENT OF ERROR 2 In his second pro se assignment the defendant contends he process when the trial couli denied Toyomi s and lammie allowing the jury Initially consideration Contrary ever to on his pro take written evidence into the jury we that note of evidence the during to defendant s deliberations examine any evidence reflect that the immediately prior to jury was se denied due motion to suppress He fuliher asserts that the trial cOUli erred in statements room claim is regarding not to 18 11 jury s 377 was The minutes and the view the evidence in open R pp closing arguments the reflect that the jury during deliberations allowed during deliberations unsuppolied by the record the defendant s asseliions the record does allowed transcript to s hearing a was In fact the couli transcript reflects that while the sent in the Insofar as viewing the evidence was that if specifically advised evidence jury deliberations during motion se sought to the defendant argues the trial suppress the it to suppress a ruling on eyewitness was assertions s prior on to the defendant to proceeding that the motion has been abandoned La failing one we to the as have move hear his to note that the only wherein the defendant R the defendant appeal FurthelIDore statements incumbent his motion erred in court to R p 377 physical evidence on the trial court jury requested Toyomi and Jalllinie all confessions and suppress this time sent mentioned in the record is to suppress to the defendant Contrary the documentary evidence could not be motion to suppress the statements of pro at 85 86 pp moved never to proponent of the motion for a hearing and to obtain trial Otherwise it may be considered See State v Wagster 361 So 2d 849 856 1978 This assigmnent of error lacks merit PRO SE ASSIGNMENT OF ERROR 3 In his final pro counsel was se ineffective in assigmnent of failing to plea agreement and of his ability error the defendant contends his trial infonn him of the to withdraw full consequences of the Defendant plea s se pro brief p 4 In his brief the defendant notes and the record reflects that this matter the state simple kidnapping signed a on agreed the to Boykin plea form agreeing defendant and his counsel to a plea of guilty of the reduced original aggravated kidnapping charge indicated that it still intended pursuant accept to accept this plea to pursue the aggravated apparently believed would advice of his counsel 19 However rape guilty plea trial of charge of The defendant once charge be dismissed withdrew the to prior the state which the the defendant R p 85 Defendant s counsel dilemma of appeal offered in the defendant good faith Defendant guilt was to the court I couldn t subject him to that possible R p 85 On was explained s now or was se pro it raises the just a question of whether the plea bargain deceitful brief p 8 proposal The defendant prior plea tried and convicted was discussions and of the plea agreement had In his briefed also appears to of error 1 This or by agreements absolutely no coerced a was jury not The This a to argue that he assignment of error result of jury a guilty plea was unaware Thus the defendant bearing on the signature outcome s of any prior acceptance of his trial argument in support of this assignment of error the defendant challenge This argument has conviction s a The defendant appears prejudiced by initially accepting the plea agreement lacks merit because the defendant to the already assignment sufficiency of the evidence to been considered and rejected of error support his conviction in counseled assigrunent lacks merit DECREE For the offender foregoing reasons adjudication and CONVICTION we affirm the defendant s conviction habitual sentence HABITUAL OFFENDER SENTENCE AFFIRMED 20 ADJUDICATION AND STATE OF LOUISIANA NUMBER 2007KA 0299 VERSUS COURTOF APPEAL HENRY JAMES HARPER JR FIRST CIRCUIT STATE OF LOUISIANA PETTIGREW DOWNING AND HUGHES JJ BEFORE ETTIGREW J 11 V J CONCURSWITH THE RESULTS AND ASSIGNS REASONS cOnCurring PETtIGREW I agree adjudication and I with the majority that defendant s conviction habitual offender sentence should be affirmed disagree with the majority that the statementsof ToyomiJohnsonandJammie admissible into evidence LouisianaCodeofEvidencearticle80Lrequires Smith were that proper foundation be established before a statement may be admissible a Code Evid art 613 In my humble opinion the State did foundation to admitinto evidence these statements error doctrine of this State defendant should be affirmed lam of the See La not establish a proper Despite this under the harmless opinion the conviction and sentence of the STATE OF LOmSIANA COURT OF APPEAL FIRST CIRCUIT A 2007 I 0299 STATE OF LOUISIANA VERSUS f HENRY JAMES HARPER JR HUGHES J I dissenting respectfully dissent statements into evidence is unknown of Toyomi I agree with Johnson and Jammie Smith The drafter of these statements Given the Judge Pettigrew that the were not adnrissible signed by the minor contradictOlY testimony of the witnesses say with any confidence that the issue was harmless error children I cannot
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