State Of Louisiana VS Terry Jerome Malbrough
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 KA 0931 STATE OF LOUISIANA VERSUS TERRY JEROME MALBROUGH Judgment i rR Ii On Appeal rendered from the November 2 2007 32nd Judicial District Court Parish of Terrebonne State of Louisiana j Number 438 332 The Honorable Joseph District L Waitz Jr C Ellender Judge Presiding Counsel for Appellee State of Louisiana Attorney Carlos E Ellen E Timothy 438 612 Lazarus Jr Doskey Assistant District Attorney Houma LA Bertha M Hillman Counsel for Appellant Thibodaux Terry Jerome Malbrough LA KkIIJJ J 2 OtfJ BEFORE tlf ct S P ARRO KUHN AND DOWNING JJ DOWNING J The defendant Jerome Terry Malbrough indictment with four counts of first violations of La R S 14 30 The defendant indictment counts of 438 612 with four violations of La R S plea of not guilty as charged to determine the issue the death not be subjected to hearing the trial of death motion to suppress his confession guilty of the responsive number 438 332 under case COUlt 438 332 the defendant the benefit of probation that these the defendant without the benefit of The trial court consecutively court to counts s sentenced parole or was trial a court motion for served sentenced probation parole each other and sentence to to all degree on on new each on years imprisonment under count of one case 2 sentence two R S case case 14 27 number on The trial number hard labor at each count and three be served number 438 332 four be served s case each count count Under consecutively found hard labor without of sentence The trial court denied the defendant sentence Under at counts on s also found was murder trial was count under 14 30 1 and La suspension counts imposed the defendant imprisonment fifty or sentences denied the defendant The defendant second life pretrial ruled that the defendant could by jury 14 30 1 to motion for a degree murder on each suspension sentences be The defendant entered a mental retardation and to exclude in violation of La R S ordered that the ordered that the all other was s number case number 438 332 the State filed court attempted denied the defendant The trial 438 612 offense of second number 438 612 court ordered After offense of murder The trial in violation of La R S guilty of the responsive degree 14 27 case of the defendant sentence a charged by grand jury The defendant filed penalty a After penalty In counts number 438 332 case fulther was first attempted all notice of intent to seek the death hearing degree murder 14 30 and La R S on charged by grand jury was The trial concurrently with motion to reconsider The defendant motion suppress his to In sentence erred in now a confession and in supplemental accepting non we court the denying erred in motion denying unanimous verdicts second court degree murder For the improperly joined were affirm the convictions and the to as the reconsider to brief the defendant further argues that the trial convictions and that the offenses reasons that the trial appeals assertng following sentences FACTS On July 14 2004 at approximately the Terrebonne Parish Sheriffs Office home located Louis Adams Velma daughter and at scene that the fire specifically were Antoinette a bmned Ernest Touro and John also residents of the home investigated the incident along with the Office and the local fire s of scene depmiment Brian expert witness of the Louisiana State Fire Marshall s Office arrived at approximately originated 1 30 in the a m laundry Farm Insurance dryer Mervin Company and Alcohol Tobacco Firearms and Agent Davenport room A room at Stringer not or near an Agent Donald floor level investigators near the middle expert witness retained by State R Davenport of the Bureau of Explosives also investigated the fire Stringer and where the washer and investigators did The fire of the home also concluded that the fire that the washer and investigators determined Fontenot and other determined that the fire started of the washer and laundry the Residents of the home Tammy Myron Thibodaux Louisiana State Fire Marshall the to of the defendant and Antoinette Several officers of the Sheriffs Office an Detective Charles Jackson of dispatched was and Lawrence Darlene the three year old Fontenot a m Idlewild Drive in Houma Louisiana at 240 included the defendant Freeman 1 00 dryer dryer malfunctioned originated were or located were release infonnation regarding the 3 the on the west side of the There cause origin was no evidence of the fire of the fire The Donald Carter Fire Marshall s Office also with Detective Jackson investigated 20 July on starting the fire According fire with his on cigarette lighter laundry scene to the defendant Velma were s confession he asleep at the time Adams were Thibodaux present but they escaped from the burning home was was arson the fire was not in the S 14 Tammy Antoinette and Darlene and Louis The defendant Lawrence Touro Ernest Touro John Freeman Touro set paper against the washer and threw the paper in the fire perished and interviewed the defendant During the interview the defendant The other residents of the home room Four individuals fire the 2004 to admitted of the Louisiana State supervisor and expert witness arson Apparently Myron present Fontenot and Carter concluded that the cause of the by the defendant Stringer and Agent Davenport also concluded that intentionally set ASSIGNMENT OF ERROR NUMBER ONE In his first erred in assignment of denying the motion his mild retardation is to suppress that the Miranda the instant case he was from State asserts that his naIve and was test were no explained Green 94 0887 suddenly injected attempt results indicated that he did into to The defendant defendant further not unfamiliarity with further states that he made that v rights his confession The undisputed undisputed defendant the defendant contends that the trial court error La to him 5 22 95 the criminal a foreign distinguishing 655 So 2d 272 environment completely is the justice system shows that exculpate himself not that that it asserts In notes The defendant The defendant states understand his right to an attorney F or State a must confession or statement to be inculpatory affirmatively show that it influence of fear duress intimidation La R S 15 451 Additionally the was admissible into evidence the freely and voluntarily given without menaces threats inducements State must show that 4 an or promises accused who makes a statement Miranda confession or admissibility of Its State rights conclusions during custodial interrogation 563 So 2d 449 King v 453 confession is in the first instance a La unless appeal on 563 So 2d 1171 Daughtery 1177 voluntariness has been made is App analyzed facts and circumstances of each State case whether statement a 350 352 La or totality of the confession is admissible Whether basis with case Supreme capacity does waive constitutional So 2d at 131 State see not rights Comi has knowledgeable from 1 Cir a free and not he 94 was voluntarily 1053 home July 20 2004 The defendant they arrived free and voluntary a able gave 633 So 2d 925 Detective Jackson to When showing regard voluntary confession 576 So 2d 1048 Young v giving defendant or According questioning v to 131 of the La deciding to 931 Young at s testimony and asked him was twenty 5 1 Cir App mental defect did confession with rights explained State v a are to him Stewart 93 0708 La 576 So 2d at 1053 at the suppression hearing he and Cmier went to the defendant to come two years the Sheriffs Office s La Benoit 440 The critical factors understand the statement a or ability to knowingly and intelligently Detective Jackson and Donald Carter testified on not be Hernandez 432 So 2d v intelligent waiver of his rights 11 3 and whether App and not the or the that diminished mental explained itself vitiate the and make also State him preclude whether a circumstances in The State has the burden of proving that the defendant 1991 to State 440 So 2d 129 Benoit v court App 1 Cir 1983 The Louisiana intellectual by for the trial the evidence 1st Cir 1990 on a case The trial court must consider the 1983 not not The admissibility will supported by are La they 1 Cir 1990 App testimony relating voluntariness of the confession for the purpose of oveliurned first advised of his question a of credibility and weight the on was old the Sheriffs Office for to at the time the defendant s s rights of the interview were read to him before any questioning A waiver of 10 21 Specifically the defendant a m You have the right Anything you say to rights form was was executed informed of the at approximately following rights remain silent can and will be used against you in comi right to talk to a lawyer for advice before we ask questions and to have with you during questioning You have the you any If you cannot afford a lawyer before questioning if you wish one will be appointed for you questions now without a lawyer present you will still have the right to stop answering at any time You will also have the right to stop answering at any time until you talk to a lawyer If you decide to answer Detective Jackson read each to right to the defendant and ask the defendant if he understood the the written right understood his on the form not rights understand his took him a The defendant or little coercion During executed at him As to each his initials adjacent to that he signed the waiver indicating longer than normal in this were give any indication that he that case were because he wanted to make read to him No force threats used pre interview concerning the approximately rights conducted after the fire 12 20 p WaIver They activated m the s rights form and obtained the confession provided rights were explained within 6 an During explanation According one minute to was specific recording devices audio rights and for the waiver section of the form Jackson all of the defendant of Carter determined the defendant had examination Detective Jackson confirmed that he of the to Detective Jackson stated that the recitation of the rights Detective Jackson and infonnation video a read placed The defendant did not so the defendant understood the promises was Detective Jackson told the defendant that he did not have to rights talk if he did not want to do sure that the defendant indicated that he understood and right did right paused between each right and cross for each Detective Carter recalled Detective Jackson reading each from the form to do so time of 10 22 and stated that it Regarding the initiation time understood his took of 10 21 him the defendant to on directly minutes the form and the signature acknowledging s Carter stated that the time frame could be rights of couple a expressed a m stated below the defendant a m right real close he to 2 minutes State witness defendant in the defendant s Dr verbal LQ was use in this significant language 65 at that time is at issue Dr statement was According LQ an to Dr IQ was Dr compromised 68 and his index s ability to understand Bergeron perfonned which examines score rights would have 74 was to determine the stated that the test is The rights and he to as was a stated on instructed The defendant can to say hurt me speak in the that the scores As to his He the defendant behavioral that in your s ability mostly apmi Bergeron stated sample that consisted of of Miranda the form and outlined above to and psychological difficulty understanding his rights explained a verbal rights highly controversial by and large because you don t have to what I say Dr comprehension completed for each right separately stated be Bergeron further conducted designed solely LQ conclude that the voluntariness of the to reason indicated that the defendant would have Dr an Bergeron viewed the videotaped confession and stated from attention and concentration added that the The of 63 Bergeron evaluation of the defendant after the incident and confession verbal tested the Bergeron explained that verbal LQ Dr because the defendant case that he did not observe any defendant s retarded mentally had expert in psychology an past At the age of eighteen the defendant had below 70 is considered scores are Bergeron own right were test Bergeron it is difficult to pass read to the defendant words to Dr a This process was remain silent the defendant As to self incrimination the defendant stated long run 7 As to his right to an attorney the defendant stated I defendant did complete not can see one this response If you attorney the defendant stated to you to give scale from lawyer me a zero to two with can t the being two Dr to his pay for one highest right to court a the Court will score a was appointed appoint graded one on a response could receive of a score gave the defendant Bergeron The starts gave the defendant Bergeron F or his second and third responses Dr two a score of one Miranda rights each Dr Bergeron also conducted recognition wherein the defendant same or was first four different rights were defendant classification with the court exposure to Miranda as recognize his rights defendant would have performed by be able Jackson does not to Dr Dr on not with the test scores in a example Dr the were and the determining include slightly impaired fashion at fourth a to an paraphrase and grade level difficulty understanding the Miranda rights Friedberg Dr as Thus expert in psychology also testified upon the noting that the defendant understanding of his s and the tests rights 8 would not explanation given by Detective chronic spend ample time explaining the written Friedberg concluded that the defendant rights based or Bergeron confirmed Friedberg reviewed the defendant s school records his The possible points Those named factors rights television for ability in Bergeron preclude officers did and the other statement right The defendant reads understand his While with other statements mildly retarded should be considered Defense witness Dr Frank hearing on system comfort with examiners and basic education rights that the defendant has the the compared Bergeron several factors along whether the defendant understood his experience sample The defendant scored eleven out of twelve to Dr s behavioral a asked to state whether the According at As questioning As to each response the defendant On his first and fourth response on when the lawyer Dr the history of mental retardation Friedberg concluded that rights to the defendant the Dr the defendant Friedberg also explained acquiesce or agree tendency s as a mentally retarded and say he understands when he Dr Friedberg agreed with the testing perfonned by not review the defendant the following portion of the defendant s s statement During cross Bergeron Dr not Friedberg did Dr examination the State quoted statement Okay Terry is there Cmier does actually person to any other statements sic that you want to make Defendant Yes Carter What do you want to say I want to I want to say that God forgive me for what I have done and I don t know what I didn t do so God forgive me Defendant please Thank you Dr Friedberg agreed that the In denying the defendant expressed that the rights Cmier s line of confession seemed s at the rights were and still understood them speak without an read simple language s rights to him were read done defendant s confession On anything from high school s Cmier s at the time willingness to Carter pressured adding the The trial court observed the absence to you concerning the defendant or noted The defendant attorney and the defendant confirmed such willingness simplistic language graduated him Carter also reiterated the defendant repeatedly if he had been coerced that he to comi interview and that he understood them asked the defendant of testimony The trial beginning of the recorded asselied that all of the defendant confirmed that the this context to suppress the statement the trial court motion form included very questioning voluntary in education except the defendant s indication The trial court especially considered the body language during the interview and concluded that the defendant s was voluntary appeal the testimony adduced in light of the entire record at the Green 94 0887 9 suppression hearing at p 11 will be viewed 655 So 2d at 280 81 During the trial the suppression hearing witnesses presented testimony consistent with testimony presented at the the interviewers made it clear the defendant did not Dr hearing to Bergeron placed emphasis the defendant that he had the any indication of give examined the defendant s school records that he attended the age of defendant s At the time of the trial Dr courts State are to leave and Dr Friedberg right so school records indicated s reading at third a Friedberg still had vested with great discretion when 03 2592 p 5 Long v La 9 9 04 to the credibility and weight of testimony relating the purpose of reversed was do the fact that grade level not at viewed the recorded confession Trial suppress to The defendant special education classes and eighteen desire a on the on admissibility are at issue in the absence of appeal 486 So 2d 876 878 1061 a ruling on a 884 So 2d 1176 motion 1179 to When voluntariness of a confession for the trial comi s determination will not be clear abuse of discretion Brown v 464 So 2d 1 Cir 1985 La In retarded App Young by a the defendant had case damage and the defendant App psychologist testifying defendant in that brain La 1 Cir 1986 State a was a confessed to a an as concluded persecution the defendant that might confess case and the reports of the was No competent to as an of to Brumfield was classified a found a as poor education There also was mildly The possible evidence that expeli medical testimony The defendant relied hearings because medical experts in that the defendant He had paranoid schizophrenic psychologist schizophrenic 67 and v expeli witness for the defense an murder testimony of a psychologist who testified s LQ of possible personality disorder offered at the motion to suppress the State citing State on the trial The expert witness for the defense delusions crime he did no of not was grandiosity and or commit However evidence that the defendant was sanity commission members concluded that stand trial and able 10 to assist in his defense After all of the evidence and considering court found that the State did in fact proved In the matter before the motion to suppress the entire record we knowing and a a consisted of and the defendant him from preclude and intelligent simplistic phrasing he was provided not made s capacity to and freely and voluntarily the testimony adduced audiotaped comprehensible account in the trial s of the The State giving waiver statement in at light of appeared calm and very intelligent his to suppress rights were form read to the During to the confess to the offense no videotaped and questions We find of the facts of the offense denial of the motion rights own to The rights willing answers s voluntary and free confession a Since the on the defendant proved that of his rights to read them required responsive court were carefully reviewing voluntary confession interview the defendant He the confessions after us hearing knowledgeable defendant that the defendant had the mental find that the State met its burden of proving that the defendant mental defect did not with confessions this s knowingly and intelligently waive his constitutional rights before making his confessions and that gave the defendant reviewing a gave abuse of discretion the confession This assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER SUPPLEMENTAL BRIEF THREE In assigmnent of error number three raised brief the defendant contends that verdicts on verdicts of the second the trial court erred in murder convictions accepting Ten art 782A the death supplemental non unanimous murder penalty was charged with first in the Citing the defendant argues that unanimous verdicts because the defendant punishable by s jurors concurred guilty of the responsive offense of second degree Code Crim P required degree in the defendant degree murder a La were crime The defendant concludes that the acceptance of 11 the second reversible In of first degree murder convictions with enor case number 438 332 herein the defendant degree murder According time of the offenses and trial first imprisonment to was degree murder was provides as follows shall be tried before as an Green Therefore art on the requirements for an acquittal La 184 78 S Ct 221 verdict on on the La case 1981 must be Gooodley The v may be capital to render Code Crim P 2 L Ed 2d 199 on a a Goodley art 1957 the lesser included capital charge the greater offense State suspension must conform to unanimous verdict a verdict 398 So 2d 1068 in a 1070 1 the facts in the instant However 1 by a unanimous jury life Const art I concur Any other conclusion would violate the constitutional mandate that capital or or lesser included offense on a it is clear that the vote lawful verdict a punishment greater charged offense in view of the above as La jury death In addition to these express 782A conviction a United States 355 U S acts in which the probation of twelve persons all of whom must Code Crim P acquittal v offense which the case it has been determined that provisions 598A jury See also La verdict operates a A criminal counts 14 30 in effect at the punishable by hard labor without the benefit of parole at charged with four the version of La R S of sentence in accordance with the determination of the 17 A verdicts constitutes non unammous We note that in Atkins penalty provision La Acts No 125 gI for first to degree provide as v case Virginia murder La R S 14 30C are distinguishable 536 U S 304 was from those in 122 S Ct 2242 amended in the 2007 legislative 153 session 2007 follows 1 If the district attorney seeks a capital verdict the offender shall be punished by death or life imprisonment at hard labor without benefit of parole probation or suspension of sentence in accordance with the detennination ofthe jury The provisions ofCCLP Art 782 relative to cases in which punishment may be capital shall apply If the district attorney does not seek a capital verdict the offender shall be punished by life imprisonment at hard labor without benefit of parole probation or suspension of sentence The of C CLP Art 782 relative to cases in which punishment is necessarily confinement at 2 provisions hard labor shall apply It appears from this amendment that the Legislature intended to overrule the applicable law involved in Goodley This amendment was not in effect either at the time the offenses in this case were committed or at the time oftrial conviction and sentencing 12 L Ed 2d 335 retarded persons constitutes mentally the Eighth Amendment Enacted in art 90S S 1A a the United States 2002 subject to the Accordingly death a conviction 398 Goodley the was jury since the to reach This a verdict in this assignment brief a of assignment offense prejudicial enor and defendant en or charged we en as a labor Cf trial court members of the jury 10 a in must to any count as ASSIGNMENT OF ERROR NUMBER FOUR number four raised in the defendant joinder of the offenses could be tried not convictions and observe degree murder thus joinder is not at proceeding Additional simultaneously t longer a of first non same supplemental degree murder capital offense cases were by the s was improperly joined mode of trial The should be reversed and the sentences separate trials At the outset first follows finding the to not was imposed at hard imprisonment attempted first degree murder asserts that the remanded for attempted life was no that could be only penalty The defendant contends that the because the offenses cases case the defendant contends that capital Therefore there case subjected ruled that the defendant Pursuant to this as shall be of enor lacks merit SUPPLEMENTAL BRIEF In court punishment by peliinent part instructed the jury concur the trial So 2d at 1071 nA and thus violates punishment 2003 in response to Atkins La Code Crim P penalty in the instant capital verdict before result of excessive provides that no person who is mentally retarded of death sentence an Supreme Court held that execution of that the defendant offenses issue herein were not Arraigmnent pretrial proceedings No formal consolidation s first charged in on in all counts both degree murder the was cases same indictment held in the were same conducted request is reflected in the record 13 and See La Code Crim P charges do tried were offenses and 706 mi by in together a denial of due process a failure to timely object by of offenses for trial may be waived 495 La see 1978 Code Crim P by 706 art trial until after the trial commenced he waived the Code Crim P for the following criminal disposition was no all of the need to the to the 2d So 1105 art 1109 La consolidation of the offenses for contemporaneously to find that any we harmless beyond a to 1059 La herein as or on hostility on in which he these offenses 1986 arose out nor they was the part of the was prejudiced were be used by the jury to infer The of a nature jury hostile same single evidence event of the State was v used Thus there there any risk of confusion jury and we The defendant has find surely unattributable 14 the by presenting his especially considering the 1 Cir App results prejudice segregate the various charges charged would whether 5 the to as would be confused jury jury would be able error reasonable doubt The determine whether whether the segregate the evidence manner guilty verdicts and charges improper inference specified may be La Code Crim P object of several crimes would make the 489 So 2d 1055 to prove was 4 whether the crimes charges the charging Lewis to whether the defendant could be confounded in 3 various defenses a defects and misjoinder of offenses Mallett 357 reasons applied l whether the 2 and evidence may be consolidation counts of argument of improper consolidation of offenses for trial La following considerations various jurisdictional As the defendant failed to consolidation of the offenses for trial improper object misjoinder 841 art Moreover from v not since the quash and improper consolidation to the failure State Herein the defendant did not object motion a are Thus occur Nonetheless single proceeding improper consolidation of offenses not constitute waived It is clear however that consolidation did no prejudice to any enol not The as to consolidation of the offenses S Ct 2078 2081 See Sullivan 124 L Ed 2d 182 Louisiana 508 U S 275 v 279 113 1993 ASSIGNMENT OF ERROR NUMBER TWO In his second erred in the denying trial was only twenty mildly retarded was to reconsider sentence The defendant and sentences The defendant contends that the trial consecutively he his motion the defendant asserts that the trial court error imposed maximum court fact that he assignment of failed court old when the crimes two years and that he had all but ran criminal no were points out that sentence one consider the to committed that history Louisiana Code of Criminal Procedure article 894 1 sets forth items that must be considered by the trial court before imposing need not recite the entire checklist of Article 894 1 it adequately considered the criteria State Cir 17 12 2 23 04 04 897 So 2d 736 873 So 2d 690 sentence punishment In punishment consider the whether the is nothing Guzman reviewing penalty no more is so a a defendant s constitutional 1 1 Cir App and the crime in disproportionate than the needless court has a light of as 16 5 sense of pain and suffering 769 So 2d 1158 00 wide discretion in imposing will aside sentence of manifest abuse of discretion State not v 15 excessive court must society and of justice the or gauge that the acceptable penal goals and therefore imposition 15 La revewing the harm to shock its to to explicitly prohibits right against for excessiveness the reasonable contribution statutory limits and such La App La is within the statutory limits sentence sentence 99 1753 99 1528 p The trial a Although punishment sentence makes 4 Faul 03 1423 p v 10 692 still violate may State Leblanc 04 1032 p v comi but the record must reflect that section 20 of the Louisiana Constitution Aliicle I excessive 743 The trial sentence be set Loston as a See State v 1167 sentence within the excessive in the absence 03 0977 pp 19 20 La App 1 Cir 2 23 04 adequate 874 197 210 factual basis for the where there has v So 2d not been full Holmes 99 0631 p 4 La compliance defendant without However are of a poses Crocker 551 So 2d 707 v At the course a sentencing hearing a an single victim the are other must For instance La App impact to She kill his just about raised own She daughter to make a P be least for mi a 883 consecutive taken into the of the safety public 1 Cir 1989 statement was made Touro by Charlene was like your explained that the deceased victims suffered the defendant forgive a horrible The defendant declined statement The trial court labor without imposed La R S convictions imprisonment fifty suspension that it had not seen committing another or 14 30 1B La RS crime of life As to each of the at The trial court 16 at hard each second degree second degree on attempted maximum term of hard labor without probation parole or 14 30 1B crimes and imprisomnent sentenced to the was imposed the trial worse sentence suspension of sentence imprisonment years sentences mandatory defendant the of sentence the maximum the probation parole murder conviction murder at for Chatagnier asked the defendant how he could you She stated that she could not death State consecutive sentences Chatagnier Chatagnier noted that one of the victims Velma mom even rule general of conduct factors an 1135 Code Crim course unusual risk 715 art 894 1 of criminal conduct See La this detennination making justified when the offender See State single criminal record prior unnecessary 754 So 2d 1132 00 sentences necessarily excessive not consideration in are out 18 2 if convictions arise out of even sentences a 1 Cir shows clearly with La Code Crim P consecutive Concurrent rather than multiple convictions arising imposed remand is sentence App where the record Thus La R S court 14 l 27D a Regarding reviewed Article 894 1 and stated recognized the risk of the defendant concluded that the defendant is in need of custodial a commitment environment to conduct manifested deliberate due to the or a the to The victims multiple The defendant filed a counsel mental retardation attempt The great bodily harm for at least eight people The Finally objected as to s some significant economic or dangerous a fire weapon in the the trial court reiterated that the offenses a to the imposed sentences circumstance mitigating adequately the noting The defendant also extinguish the fire when he started fire and smoke began consecutive Considering considered the facts of the background including his mental Instead the defendant exited the to spread sentences the victims room does and it status or to ultimately exited render these suffering the defendant s or imposed herein The trial denying the we find that the record court did not abuse its no the house when the the imposition of excessive lack of remorse and the facts of dispropOliionate Thus and occupants sentences eight imposition of the mandatory and maximum shocking any of the warn Under these circumstances not case The defendant made the offenses the in patiicularly vulnerable were written motion to reconsider sentence the defendant err the of the other victims defendant used We find that the trial comi seven s victims defense s or comi observed that The significant permanent injury commission of the offenses involved victims to the effectively by his most further found that the defendant court and the disabilities of risk of death offenses resulted in death loss cruelty provided should have known that the victims youth of his child defendant created be can The trial institution an defendant knew that sentences herein is not suppOlis the discretion in motion to reconsider sentence Thus imposing sentences sentence assigmnent of or elTor number two lacks merit 2The grounds error for the written motion to reconsider sentence will be discussed in section 17 our review for REVIEW FOR ERROR The defendant asks that this Code Crim P art whether such or 920 2 mi not we are request is made by a defendant contends that count murder of first error on elaborated found that the defendant guilty of second degree the convictions in the other and sentencing While trial court proceeded degree murder Touro in the benefit of an the other three to recite the on indefinite then counts imposed labeling each count Prior to sentences as As mentioned sentenced was guilty of second degree imposing the sentences first court counts in counts degree case first imprisomnent on the or out rise for murder and four at the second as three As to imprisomnent at hard on life hard labor without count suspension of sentence attempted was degree murder of Antoinette court stated probation to number 438 332 two one suspension of sentence or pointed instructed the defendant the four of murder but The State also for second on degree was The State responded negatively penalty in 438 332 the trial second degree The trial murder counts such The defendant filed error 11 all four counts sentence labor without the benefit of parole comi on The trial case parole probation inspection original appeal brief the s found However the trial comi stated imposing a mere of the evidence charged with crime of conviction repeated the by number 438 332 he counsel was murder sentences imposing error and defense counsel whether the defendant The defense charged noting discoverable was original appeal brief p the trial court asked the State as case murder when he degree Defendant s convicted errors section of the defendant count three in under La Under La Code Crim P defendant proceedings without inspection In the review for a a error reviews the record for such routinely comi limited in our review to of the pleadings and to This 920 2 examine the record for court a motion to by the defendant reconsider in his 18 sentence appeal brief noting the trial court s the trial court amended the sentence on count three in labor without the benefit of case number 438 332 parole probation defendant remarks that in amending the the defendant murder as first was However convicted of second we degree observe that the trial murder did court not did not opposed as hard at of sentence suspension the trial court imprisonment The indicate that to first again mislabel degree the count degree murder It is clear that the trial court number 438 332 life sentence or to life in second as first imposing this murder and degree term of initially inadvertently labeled of the record it is clear the trial sentenced the defendant sentence sufficient have found no Cir 12 28 06 reversible a case court accordingly After initially inadvertently omitted the imprisomnent The defendant degree murder on each count in count three in number 438 332 fully was aware We find the was Based See State 952 So 2d 112 v foregoing court s we proceedings Price 05 2514 pp 18 22 La affirm the convictions and sentences CONVICTIONS AND SENTENCES AFFIRMED 19 review amendment of the 123 25 reasons of guilty on our DECREE F or the word of such convictions and careful review of the record in these enors found case we App 1
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