State Of Louisiana VS Eric Derrail Harrison
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 1248 STATE OF LOUISIANA VERSUS ERIC DERRAIL HARRISON Judgment Rendered Appealed from December 21 2007 the 21st Judicial District Court In and for the Parish of Livingston Case No Louisiana 18861 The Honorable Robert H Morrison III Judge Presiding Scott M Perrilloux Counsel for District State of Louisiana Attorney Appellee Patrick Walsh Dunn Assistant District Attorney Amite Louisiana Keith Couture Counsel for Defendant Samuel Eric Derrail Harrison Beardsley Appellant Mandeville Louisiana BEFORE GAIDRY McDONALD AND McCLENDON JJ GAIDRY J The defendant information with and 14 60 in a convicted on of hard labor for fifteen years sentences be served assignments of error not each RS was count first jury trial ended s by jury defendant sentenced to was imprisorunent at The trial court ordered that the Defendant conculTently of RS second trial He counts on a bill of La Defendant guilty Following both charged by was rape in violation of La attempted forcible his motion on HalTison aggravated burglary in violation pleaded He charged as count of one 1 42 14 mistrial Derrail count one 14 27 and Eric urging four appeals now follows as 1 The jury elTed in finding defendant guilty based on the sufficiency of evidence as defined in Jackson v Virginia 443 U S 307 1979 2 The t rial comi q uash based 3 on elTed in double The trial court elTed in by defendant 4 Defendant to d efendant denying a m otion to jeopardy pennitting statement a Detective Ardoin to be heard requests s allegedly by the jury review of the record for all elTors made patent which may exist herein Finding no merit in any of the assigned elTors we affirm defendant s convictions and sentences FACTS Around driving in the midday Springfield listening to her vehicle enjoying a free on day s July TelTace stereo I 2004 twenty four year old M F neighborhood system MF a of Springfield stay a while M F returned As she turned into the In accordance with La R S 46 l844 W driveway we 2 was at home mother was After to her Center Street M F observed that refer to the victim 1 Louisiana while her two small children visited with relatives cruising her neighborhood for residence 2 only by a maroon her initials traveling behind her turned and parked in colored truck that had been vacant adjacent He to man man was a land in the surveying the until the MF observed the driver neatly dressed and held was be MF lot actually working and needed She told the inside her residence to to man retrieve the to wait in the then struck M F MF over back into the residence pleas He repeatedly The attacker pulled down with his down attacker s yard while she the to her despite specific her onto the telephone Unexpectedly the s man He then continued to beat to fall with the to beat M F stop the attack but he ignored her began seeing MF ultimately forced MF went into a stars kneeling position body pressed onto the MF the From behind he couch pants and underwear and started penis against her buttocks on moving was unsure up and whether the penis was exposed screamed and fled man struck M F until she Some minutes later MF he claimed as actually followed had Inside the attacker continued floor with her face and upper then boss she realized that man begged the attacker MF his pmis of her body with the telephone causing her various telephone to contact in her vehicle Believing that the telephone her face with his fist across sitting appeared telephone yard the Startled M F handed the porch he to M F her use wait there in the When M F exited her residence instruction remained MF approached and asked to agreed black male exit the truck a clipboard According area an MF There s the door of the residence my mother The attacker immediately picked up the telephone cracked open and dropped the telephone and called 911 to report the incident Meanwhile M F another s neighbor in the neighbor Rusty Hollingsworth area when he heard 3 screams was for visiting with help Upon determining that the Hollingsworth to ran away from M F s screams were He observed investigate Parish Sheriff s Office and residence of bruising neatly dispatched Consistent with M F noted as a red M F over dressed black male his vehicle on was residence s Dodge truck drive a maroon residence s that M F she account When he mTived was extremely upset to relate the details attempted of the incident several areas M F described her attacker body She further described six feet tall work truck as a possibly Dodge with a rack a it vehicle fit the advised before pick up potential had as they to were 10 00 a m thereafter unable Hollingsworth Detective Robert Ardoin defendant s neighborhood to on after the gave the previously given also of the telephone number listed on to his M F work question to several the to drop weather him off at home unaware investigating of where officers a him Livingston Parish Sheriff s the business card to obtain Tangipahoa Parish residential address 4 in TelTace work due was day some traveling Springfield Hollingsworth business card that the defendant had used the the Hollingsworth defendant dropped defendant went afterwards Office and neighborhood the day the defendant with defendant returned to According approximately to to assist ShOlily HollingswOlih Hollingsworth off defendant in the met agreed Defendant returned work sites conditions defendant descriptions of the attacker and his vehicle provided by Hollingsworth out of town that Deputy Glascock HollingswOlih explained that he at s s as approximately or maroon Hollingsworth to to M F Deputy Glascock observed were MF Deputy Jessie Glascock of the Livingston hysterical She cried uncontrollably of the attack from residence In response to the 911 call at the commg Detective Ardoin and several Tangipahoa Parish Sheriffs deputies then traveled residence burgundy but defendant or maroon As vehicle prepared he at the residence in that Detective Ardoin July he as s sister pass truck outside by wanant on M F from his s defendant newspaper route that testified that he was behind his sister presented a porch s on MF photographic a immediately identified s from M F street the brother testified that day anest and employment acquainted that defendant noon on the defense focused on defense of misidentification through testimony from defendant s over was the day driving was a maroon Ford Gateway family from the person he the lack of he familiar with fifteen years in the time he observed his with defendant s Granger worked for vehicle around at at explained that question when in Granger testified that he previous s was positive He He then observed defendant vehicle Granger also claimed he At trial M F with issued for defendant s was MF Joseph Granger in her vehicle following defendant presence in s Defendant admitted that day provided photograph of the offenses he lived down the sitting a turned himself in to authorities At the trial was initiated but he denied any involvement day 6 2004 Detective Ardoin her attacker A eventually a question lineup containing defendant defendant approached and He asked about the defendant earlier that neighborhood in the offenses in On a leave the residence to Tenace subdivision earlier that Springfield was they discovered they departed defendant and several other individuals anived in conversation with defendant the However there s Dodge pickup truck behind the residence The officers the vehicle and photographed not was defendant to a Granger saw driving question physical The defense also evidence and urged an alibi girlfriend and his sister The girlfriend 5 April Warren testified that she was She claimed that defendant picked and that for 8 00 a m they went with defendant and 11 00 a m mother s their mother sister s was She claimed that someone residence at 1 30 p approximately Defendant did not attempted to testified that she home between 12 00 and 12 30 p s she and defendant traveled to North Oaks to visit a m and between going to his house Veronica Warner defendant at brought her home Defendant then told WalTen he a m question WalTen claimed that ride in his vehicle a the date in her up sometime between 7 45 she and defendant visited several stores before he 10 45 on was and to have attacked her around defendant to Warner in Hammond Louisiana then returned to their mother s m at the trial testify establish that it they According m Hospital saw for him impossible noon on his alibi witnesses he Through to have followed M F at issue the date FIRST ASSIGNMENT OF ERROR In his first of the state s assignment of elTor defendant challenges evidence in suppOli of his convictions that the state failed to prove his identity as the was the most light not The truthful favorable to state asserts the prosecution perpetrator of the offenses conviction is whether viewing sufficiency s identity as of the the perpetrator of the evidence light most to uphold favorable a to only alleged the state failed to prove he was the perpetrator of the sufficiency ofthe evidence with respect to the statutory of attempted forcible rape and aggravated burglary we elements of his alibi amply suppOlis all the evidence in the Since defendant has crimes testimony any reasonable doubt The standard of review for the 2 asserts the evidence when viewed in essential elements of the crimes and defendant beyond sufficiency Specifically he He fmiher argues that the state failed to prove that the witnesses the need not address the 6 the prosecution any rational trier of fact could conclude that the state the essential elements of the crime 443 U S 307 Virginia See also La C CrP La 319 State of an offense La R S 15 438 reasonable Cir 10 29 99 not a 2 19 99 748 So 2d 1157 separate basis of to satisfy reasonable doubt 930 cert be test to conviction a sufficient 922 730 So 2d 485 00 0895 applied rational State denied that 1979 1308 09 cormnission every fact to be 98 0601 writs denied La 11 17 00 proved p 2 La 99 0802 La 773 So 2d 732 This is when circumstantial evidence forms the both direct and circumstantial juror that 524 U S Wright v 486 the defendant is Ortiz 96 1609 p v to prove the assuming See State all evidence a 61 L Ed 2d 560 v in order to convict it must exclude every of innocence hypothesis Jackson Mussall 523 So 2d 1305 v requires that the evidence tends to prove 1st 2789 When circumstantial evidence is used 1988 App reasonable doubt a 99 S Ct 2781 821 B art beyond proved 943 12 118 S Ct guilty beyond 10 21 97 La 2352 must be 141 a 701 So 2d L Ed 2d 722 1998 When the meet its to a case is the defendant s identity the is negate any reasonable probability of misidentification in order to burden of proof See State 845 So 2d 506 509 witness may be sufficient Coates 00 1013 p 3 In the instant La App case commission of the offenses defendant does to Millien 02 1006 pp 2 3 v However support a and defendant only challenges the identification 7 conviction circumstances offenses of him s 774 So 2d 1223 essentially undisputed not contest that the as La App 1st positive identification by only 1st Cir 12 22 00 the facts are committed was the as state Cir 2 14 03 one in rather than whether the crime perpetrator required key issue were the As State v 1225 surrounding the previously noted committed Rather he perpetrator The thrust of defendant s sufficiency argument given weight MF more his alibi witnesses and should to identification of him s At trial on as the issue of identity the defendant in the approached at her use home in the placed defendant maroon MF trial at of testimony Granger MF returning s vehicle he as the one immediately after he heard the The observed testimony presented defendant s screams at consistently identified defendant for as in positively identified would never forget two the lineup MF physical jury found or the residence moment she MF promptly never wavered in her At trial when asked how celiain she replied thousand percent that she sure of the jury to was a and was in hundred and She claimed that she determine which witnesses It is obvious from the verdicts rendered that any s that face It is the function credible MF leaving help her attacker her identification of the defendant M F ninety nine point ninety driving the Hollingsworth the trial showed that from the photograph identification of the defendant observed was she drove around as to her residence defendant Granger before and after the only hours earlier truck and Hollingsworth who had been with defendant s identified the individual who testified that defendant following before testimony of the positively as neighborhood immediately truck that he observed neighborhood shortly presented telephone and then attacked and attempted her The commission of the offenses the state photographic lineup and her asked to her to rape have believed not her attacker Rusty HollingswOlih and Joseph Granger MF jury should have appears to be that the scientific evidence state s witnesses identifications of defendant as despite the connecting defendant to be credible the perpetrator 8 to and Despite are absence of the crimes the accepted their the alibi evidence the jury apparently rejected defendant of M F s unequivocal theory of mistaken identity in favor s identification of the defendant well settled that the testimony of the victim alone the elements of sexual offense a medical scientific offense State 574 581 v or Thus where the even physical evidence James 02 2079 p contrary 8 La App be sufficient does state not 03 9 1st Cir 5 assertions s to It is establish introduce the commission of the to prove defendant to can her attacker as even 849 So 2d without any supporting physical evidence the testimonial evidence accepted by the jury tlue provided sufficient proof will not overturn La App the assess jury a s s determination of State guilt 822 So 2d 764 the evidence in the On identity credibility of witnesses 1st Cir 6 21 02 Viewing of defendant or v appeal reweigh the evidence probability was 768 sufficient to This first rape and we are beyond a negate any reasonable of misidentification and to prove that defendant attempted forcible to Williams 02 0065 pp 6 7 convinced that any rational trier of fact could have concluded reasonable doubt that the evidence this court most favorable to the state light as was guilty of aggravated burglary assignment of error lacks merit SECOND ASSIGNMENT OF ERROR In his second erred in double denying jeopardy his motion to Defendant first argues that the on the assigmnent of error defendant claims that the trial double evidence rape offense is the He argues that aggravated burglary charge jeopardy information based upon jeopardy argument attempted forcible crimes violated double same s quash the bill of 9 is twofold He underlying felony being in that both offenses Secondly defendant court were tried for both based on the argues the trial comi violated the prohibition against double jeopardy when it erroneously to another section of the The federal and twice be court put in jeopardy of life amend V accused La Const art I S or liberty provide for the The Double 15 against multiple punishments for that no offense same person shall U S Const Jeopardy Clause protects the the same offense subsequent prosecution for the same offense after acquittal In case after jeopardy attached in the original section constitutions both state alloted his re or as well as conviction detennining whether or not the double jeopardy prohibition has been violated the Louisiana Supreme Court has the test established in Blockburger S Ct 180 182 76 L Ed 306 309 The Blockburger test is as recognized United States 284 U S 299 v 1932 and the constitutes a same evidence 304 e 52 test follows applicable lule is that where the The two different tests i violation of two distinct act same transaction or statutory provisions the test applied to detennine whether there are two offenses or only is whether each provision requires proof of an additional fact to be one which the other does not Blockburger 284 U S at 304 In addition to this same evidence evidence necessary to support a secure finding another crime the more than Cir 1993 one same test when test focuses a of 52 S Ct at 182 on elements the actual of Under this if the test crime would also one See State v Louisiana Revised Leblanc 618 Statutes 14 60 follows 10 utilize the The same proof required to support conviction of prohibition against double jeopardy bars crime as courts also physical and testimonial evidence writ denied 95 2216 La 10 4 96 pertinent pmi Louisiana evaluating double jeopardy claims conviction guilt test a conviction for App 1st aggravated burglary III 2d So 949 957 La 679 So 2d 1372 defines Aggravated burglary is the unauthorized entering of any inhabited dwelling where a person is present with the intent to commit a felony or any theft therein if the offender Is armed with 1 2 After entering Commits 3 or or himself with arms a dangerous in such battery upon any person while entering or leaving such place in Louisiana pertinent part dangerous weapon or weapon place a a 42 l4 Revised Statutes l A defines forcible rape III as rape committed when the anal oral or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under anyone following circumstances 1 When the victim is by force not prevented from or more of the resisting the act physical violence under circumstances where the victim reasonably believes that such resistance would prevent the rape or threats of Louisiana Revised l4 27 A Statutes which defines attempt an provides person who having a specific intent to cOlmnit a crime does or omits an act for the purpose of and tending directly Any toward the accomplishing of his object is guilty of an attempt commit the offense intended to and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose The according crimes to of their statutory definitions they do not requires the element of not test need an clearly rape requires not However of defendant s double same offense as aggravated burglary an attempt under the same at jeopardy to sexual evidence jeopardy argument be identical in elements in order for double 11 not the rape entry attempted forcible rape does attempted forcible crux attempted forcible and The crime of unauthorized aggravated burglary does which fonns the not are contain identical elements The offense of intercourse aggravated burglary apply crimes State v Hayes 412 So 2d 1323 1325 La 1982 whether the evidence necessary for the same evidence necessary for In the instant a defendant argues that case We charge Steele 387 So 2d 1175 conviction of disagree 1177 In this committed forcibly case La aggravated burglary in not support of the attempted As the supreme court held in State 1980 the not defendant to contrary was aggravated burglary could presented the evidence necessary for the conviction trial aggravated burglary conviction of attempted forcible rape a have been proven without the acts forcible rape Thus the critical determination is did not same on s evidence test depends all the evidence introduced assertion to prove that he require proof that attempted v on at he to rape M F The evidence at trial reflects that the presented occurred separate and apart from the committed a battery upon M F with his fist and with the without her forcible rape attempted telephone as he forced his way into the residence pennission These circumstances clearly indicated that defendant great bodily harm upon the victim a Defendant by repeatedly striking and severely beating her entered the residence with the intent to at the least commit aggravated burglary felony aggravated burglary and the were severely beat and inflict Thus the unauthorized entry intent aggravating circumstance required established the moment to to prove defendant entered into the residence The then testimony established that after beating M F for a while defendant attempted the sexual act during which he committed another battery MF MF stluck her testified that while he again act her fi om behind Defendant also used force in covering her mouth with his hand sexual hunched These actions were to holding MF upon defendant down and prevent her from screaming during the sufficient 12 to show that defendant specifically intended to intended rape M F and he committed forcibly Cir 1984 support his to conclude that the present the second circuit court the defendant a of evidence same case is Lockhart 457 So 2d 176 La v appeal sustained first convicted of was a necessary felony the actual not establish to burglary Thus the charges In this the same case aggravated burglary the same conviction evidence and 3 E in Lockhart the as that the state prove the intent to But in Lockhart rape as the do was us was aggravating necessary for convictions aggravated both on circumstance element of under the facts of this beating of act aggravated particular case requiring separate and distinct applying not it both the same find that defendant crimes violated double elements s and prosecution This jeopardy assignment of error is without merit no appropriate The record before Section we sentencing for both second to the Therefore tests We likewise find case Here element of the crime of aggravated separate and distinct offenses portion of the his and the state later it is clear that the crimes of forcible rape evidence for conviction the In Lockhart with evidence of defendant s brutal foregoing burglary and attempted two rape forcible battery however the We plea of double jeopardy where felony itself evidence was proven from Lockhart aggravated burglary attempted App 2nd claim jeopardy entering the residence and prior to the attempted sexual Considering were a prosecution for attempted forcible circumstance the cOlmnission of a M F while double distinguishable aggravated burglary charge required only commit act in fUliherance of his goal Defendant relies upon State initiated an merit in defendant s claim that the reallotment of section of the trial court violated double reflects that defendant s case was of the 21st Judicial District Comi trial commenced in Section E originally improperly a 3 allotted to On October 18 2005 defendant After defendant s successful motion for 13 jeopardy s first mistrial the It is undisputed that the mistrial in this defendant his claim that Despite mistrial is ordered with the express I S does jeopardy consent attach when not of the defendant La Const a art 15 La C Cr P art 591 although defendant claims prejudice resulted from the Moreover transfer of the reflects that his claim is case in fairness personally ruled on all exclude evidence of a Thus admissible been his the motion of on O eopardy attached in the fonner it is well settled that double section granted case was second all Morrison reconsidered and parties Judge pretrial motions prior In fact conviction that the it is difficult to prejudiced by the case to The record the record unsupported by Judge original Morrison ruled to trial judge comprehend how defendant reallotment Defendant does not have could have right a This retried in the wrong section of the trial court had ruled to have portion of the of error also lacks merit assignment THIRD ASSIGNMENT OF ERROR In his third erred in by constitutionality of the statement in statement in was to custodial state contends enor was interrogation discovered Parish under instant be allotted to the case case was was s testimony regarding advised of his Miranda was required way of Because defendant could not under defendant 14 the not object to to the arrest and was on had not been apply felony probation in required that the actively serving probation III the allotment rules COO under Rules for District Courts Rule 14 1 challenge the state argues that at the time of division wherein he then transfened to Section to a rights pretrial motion a thus Miranda did not Judge Robeli Monison same Ardoin question by question defendant Tangipahoa The to Detective during the trial Alternatively statement subjected defendant argues that the trial court defendant before he Otherwise the suppress error the state asselis that defendant In response allotment of ovenuling his objection statement made the assignment was Judge MOlTison See Louisiana The relevant to his explain testimony at his residence a presented with defendant encounter prosecutor posed was defendant s counsel Ardoin Once the to rights prior an was Counsel objection inadmissible in previous testimony indicating objection by defendant lodged statement of his Miranda his residence at attempted question regarding what defendant told Detective Ardoin that any s Detective Ardoin as argued light of Detective that defendant had not been advised the statement making Detective Ardoin was allowed to testify to the Over defense a following Springfield and he said yes he was He had picked up this white guy Rusty HollingswOlih to go to work They went to those three places It was too wet to work and he brought him back home Detective Ardoin appeal defendant contends On allowed this I asked him about We note as the state argument before the trial statement And defendant this cOlTectly testimony should moved not have been that defendant did asserts court at any time never in being prior to suppress Louisiana Code of Criminal Procedure to the not make introduction of the statement provides article 703 F as follows A suppress ruling prior is binding to trial on the merits upon at the trial Failure to file a motion to motion a to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits ground assertable by Emphasis supplied On on a procedural basis defendant forfeited introduction of the statement in question a pretrial motion to suppress Moreover obligation to we find on the no grounds his at trial he suppress to right through now to object he has been taken of his freedom of action in any 15 a asserts provide Miranda warnings attaches only when deprived the to his failure to file substantive merit in the argument questioned by law enforcement after otherwise motion a into a The person is custody significant or way Miranda 1966 State is decided of the circumstances a 293 conduct to arrest scene public 1982 967 24 pre custodial and evaluation of how 511 U S 318 was pmi of not custodial La 04 19 10 with reasonable person in the 161 L Ed 2d 612 inquiry v a at the home of Thus s A s questioning scene was statements cert responses to v out in 03 Manning denied 544 U S general investigatory and not La require Miranda 1977 statements not in and cert denied outside his home questioning requiring custody Thus no Detective Ardoin the trial court admitting Detective into evidence assignment of elTor also lacks merit 16 s v 1978 warnings objection to State when calTied State defendant does pre custodial Miranda defense required when not individual 1073 voluntary provide testimony regarding defendant an warnings 2005 a obliged ovenuling the 128 L Ed 2d unless the accused is 349 So 2d 250 257 Hodges general inquiry and to are the on 885 So 2d 1044 Because defendant This degree associated questioning particularly warnings correct in determine whether to warnings 1074 98 S Ct 1262 55 L Ed 2d 779 Miranda 934 assessment restraint short of formal alTest La 1984 We conclude that defendant were a objective 114 S Ct 1526 custodial non significant 651 52 non See State 434 U S an freedom of the As such Miranda or a 125 S Ct 1745 warnings on 833 So 2d 927 intelTogation admissible without Miranda are p the inquiries crime has been committed a Davis 448 So 2d 645 the an preliminary determine whether on distinct restraint California v per curiam 1994 subjected or second Stansbury officers two 12 4 02 La the interviewee would gauge the breadth of his freedom of position of action and by 7 p sUlTounding formal arrest formal arrest 01 3196 Payne v Custody there is 16 L Ed 2d 694 Arizona 384 U S 436 444 86 S Ct 1602 1612 v was Ardoin s FOURTH ASSIGNMENT OF ERROR In his fourth and final examine the record for error review the record for such discoverable without these inspection proceedings 05 2514 pp bane 18 22 by under La C CrP error Under La C CrP defendant errors assigmnent of error defendant asks this a mere whether art we have found La App 920 2 inspection of the evidence or such we are of the After no not art a 920 2 a sentences all are of the limited in pleadings reversible reasons and review to proceedings See State errors 952 So 2d 112 defendant v Price 123 25 en 07 2007 K 130 s affirmed CONVICTIONS AND SENTENCES AFFIRMED 17 our a careful review of the record in 1st Cir 12 28 06 foregoing routinely request is made by petition for cert filed in La Supreme Court on 124 For We court to convictions and
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