State Of Louisiana VS Stephen H. McMillan
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 2094 STATE OF LOUISIANA VERSUS STEPHEN H McMILLAN Judgment Rendered JUL 1 2010 APPEALED FROM THE TWENTY FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST HELENA STATE OF LOUISIANA f DOCKET NUMBERS 15172 AND 15712 DIVISION G 10 P SAN THE HONORABLE ERNEST G DRAKE JR JUDGE Scott M Perrilloux Attorneys for Appellee District Attorney State of Louisiana and Patricia Parker Assistant District Attorney Amite Louisiana W Robert Gill Yigal Bander Baton Rouge Louisiana Attorneys for DefendantAppellant Stephen H McMillan BEFORE PARRO KUHN AND McDONALD J McDonald J The defendant Stephen H McMillan was charged by bill of information with one count of vehicular homicide a violation of La R 14 S 32 A 1 2 and pled not guilty Following a jury trial he was found guilty as charged He was fined 15 and sentenced to twentyfive years at hard labor with twenty years 000 of the sentence without benefit of probation parole or suspension of sentence He moved for reconsideration of sentence but the motion was denied He now appeals designating the following assignments of error 1 The record allows a definitive determination that the defendant trial s counsel rendered ineffective assistance in that he 1 failed to object to the s State key opinion witnesses who provided the only evidence that the defendant was at fault in the fatal accident 2 failed according to the trial court to lay a proper foundation for his own key exculpatory witness whose testimony was largely excluded and 3 failed to offer the testimony of a qualified accident reconstructionist which the record shows would probably have exculpated the defendant 2 The trial court abused its discretion and committed prejudicial legal error in excluding the reliable and highly relevant testimony of the key witness the defendant counsel did offer s 3 The trial court committed legal error in sentencing by failing to weigh the aggravating and mitigating factors in accordance with La Code Crim P art 894 1 In accordance with La R 14 the trial court also ordered the defendant to participate S 32 B 1 in a court approved substance abuse program and a court approved driver improvement program including instruction on railroad grade crossing safety R 29 1048 49 2 4 A twentyfive year sentence for vehicular homicide with one victim no prior felonies and almost no La Code Crim P art 894 aggravating 1 circumstances is grossly disproportionate and unconstitutionally excessive For the following reasons we affirm the conviction and sentence FACTS On the night of January 17 2007 Amber Pike Foreman the victim died as a result of blunt trauma from a motor vehicle accident on La Highway 16 in St Helena Parish She suffered a large laceration to her forehead a laceration to her left arm a laceration to her right leg and multiple rib fractures At the time of her death she was married and had two sons ages one and eight She was a teacher at Park Forest Middle School in Baton Rouge Louisiana State Police Trooper William D Parson was dispatched to the scene of the accident at 12 a Upon arriving at the scene Louisiana State 45 m Police procedure required that Trooper Parson first make sure that any injured people were treated and then map out the physical evidence and determine the point of impact Two vehicles had been involved in the accident a Saturn car driven by the victim in the westbound lane and a three quarterton Dodge pickup truck registered to the defendant driven in the eastbound lane Trooper Parson first spoke to the defendant approximately two or three hours after the accident The defendant initially denied driving the Dodge but subsequently admitted he was the driver Trooper Parson smelled alcohol on the s defendant breath Thereafter the defendant began but refused to complete field sobriety tests He claimed he had hit the Saturn because it was across the road facing south Trooper Parson asked the defendant if he was sure the Saturn had been facing south and the defendant stated he was sure 3 At 4 a the 14 m defendant submitted to a breathalyzer test which indicated his blood alcohol level was 147 Trooper Parson believed that the physical evidence of the crash scene and the marks on the road were inconsistent with the Saturn facing south at the time of the collision The preponderance of the debris was located in the westbound lane There were also fresh gouge and scrape marks near the fog line in the westbound lane Trooper Parson indicated that when vehicles collide they have a tendency to bow down and hit the roadway leaving gouge marks as they moved According to Trooper Parson the victim vehicle could not have been across the road facing s south at the time of the collision because in that case the vehicle would have been damaged on the right passenger side but the vehicle had been sheered on its left driver side He indicated that even if the defendant had confused north and south the damage to his vehicle which was on the leftfront side did not indicate that the collision occurred with the victim vehicle across the highway Ifthe collision had s occurred with the victim vehicle across the highway the damage to the s s defendant vehicle would have been across the entire front of his vehicle Trooper Parson investigation indicated that the Dodge crossed the s centerline into the victim slane of travel and she attempted to turn away toward the westbound shoulder at the last second but was impacted near the driver sside door with the Dodge digging into the leftrear compartment of the Saturn causing the Dodge to spin around George Ache testified that in January of2007 he was leaving a gas station on the north side of La Highway 16 in St Helena Parish when a Dodge or Chevy truck passed him headed east at a high rate of speed Ache looked to his left down the eastbound lane and saw the truck swerving go off the road come back onto the El road overcorrecting and then go down into a small dip in the road He described what happened next as boom dust lights spinning all of that He indicated that the gas station was approximately three hundred feet from the crash scene Louisiana State Trooper Lieutenant Robert M Mills investigated the accident scene one week after the accident He determined that the collision had not been a fullfrontal collision or a fullimpact collision On the basis of before or after collision marks five to seven feet in the westbound lane he determined that the point ofimpact had been in the westbound lane Trooper Mills did not attempt to estimate the speeds of the Saturn and Dodge at the time of collision and indicated the speeds of the vehicles would not have changed his opinion of how the accident happened According to Trooper Mills the Dodge hit the Saturn behind the sside door encroaching into the vehicle between one and onehalf feet to driver two and onehalf feet rotating the vehicles into each other and then separated from the Saturn The defendant claimed that during the early hours of January 18 2007 he pulled out of the Endofthe Line store after purchasing some Copenhagen tobacco and drove down the road He claimed that when he looked up there was a car in his lane and he hit the vehicle He conceded that he had been to Smoking Joe bar s earlier that evening and claimed that he drank five beers He claimed he arrived at the bar at approximately 10 p 30 m INEFFECTIVE ASSISTANCE OF COUNSEL In assignment of error number one the defendant argues that his trial defense counsel rendered ineffective assistance because he failed to object to the testimony of Trooper Parson which he claims was prohibited under State v Self 353 So 1282 La 1977 and State v Rogers 324 So 358 La 1975 He 2d 2d 5 also argues that trial defense counsel rendered ineffective assistance because he failed to object to the testimony of Trooper Mills arguing that Trooper Mills failed to take into account the objective data from the black box of the victim s car He also argues that trial defense counsel rendered ineffective assistance because he failed to lay a proper foundation for the testimony of John Sledge Lastly he argues that trial defense counsel rendered ineffective assistance because he failed to present testimony from an accident reconstructionist A claim of ineffective assistance of counsel is generally relegated to post conviction proceedings unless the record permits definitive resolution on appeal State v Miller 990192 p 24 La 9 776 So 396 411 cert denied 531 00 6 2d S U 1194 121 S 1196 149 L 111 2001 A claim of ineffectiveness of Ct 2d Ed counsel is analyzed under the two pronged test developed by the United States Supreme Court in Strickland v Washington 466 U 668 104 S 2052 80 S Ct 2d Ed L 674 1984 In order to establish that his trial attorney was ineffective the defendant must first show that the attorney sperformance was deficient which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment Secondly the defendant must prove that the deficient performance prejudiced the defense This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial the defendant must prove actual prejudice before relief will be granted It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding Rather he must show that but for the counsel s unprofessional errors there is a reasonable probability the outcome of the trial would have been different Further it is unnecessary to address the issues of both s counsel performance and prejudice to the defendant if the defendant makes an 0 inadequate showing on one of the components State v Serigny 610 So 857 2d 859 60 La App 1st Cir 1992 writ denied 614 So 1263 La 1993 2d TROOPER PARSON If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise La Code Evid art 702 Sele involved an appeal from a conviction for negligent homicide the killing of a human being by criminal negligence a violation of La R 14 S 32 following a headon collision after a vehicle driven by the defendant crossed the highway dividing line and struck a vehicle driven by Sergeant C Miller of the J Louisiana State Police Self 353 So at 128283 In an effort to prove beyond a 2d reasonable doubt that the defendant conduct was a gross deviation below the s standard of care expected to be maintained by a reasonably careful man under like i circumstances the State tendered a state police officer as an expert in the field of determining the speed of motor vehicles involved in collisions and the court allowed him to testify in that capacity over defense objection Self 353 So at 2d 1283 The officer had learned to calculate vehicular speed by use of a template or nomograph Id He conceded however that he was not an expert at estimating the speed of vehicles from collision damage and that he did not understand the derivation of the speed calculation formulae upon which the template was based 2 At the time Self was decided the charge of vehicular homicide La R 14 R S 14 had not been S 1 32 enacted See 3 La R 14 S 12 7 Id The court in Self referencing its decision in Rogers also a negligent homicide case noted In the Rogers case we held that it was manifest error for the trial court to qualify as an expert in determining speed by use of a template a witness who had only superficial knowledge of how the template works and no comprehension of the theory behind its use and who had simply been taught how to use the template which given the necessary input and correct application purports to express minimum vehicle velocity prior to skidding caused by brake application Although the state police officer in the instant case certainly had superior credentials in terms of schooling and experience it is apparent from his testimony as he freely admitted that his knowledge of the template and the scientific correlations it expresses was equally as superficial as that of the Rogers case witness Self 353 So at 1283 2d The court in Self found that the officer lacked sufficient knowledge to qualify as an expert in speed calculations that the trial court had erroneously qualified him as an expert that the trial court had improperly allowed him to express opinion testimony and that the improper admission of the testimony which supported an inference that the defendant was driving at an excessive rate of speed immediately prior to the accident amounted to a substantial violation of the defendant sstatutory rights and constituted reversible error Self 353 So 2d at 1283 and 1285 Self and Rogers are distinguishable from the instant case In those cases the expert testimony on the issue of speed was critical to the State burden In s this case however criminal negligence was not an element of the offense Indeed Trooper Parson specifically testified that he was not an expert on gauging speeds The key issue in this case was whether the killing of the victim was caused proximately or caused directly by the defendant operation of his vehicle while s E3 intoxicated The State tendered Trooper Parson as an expert in the field of automobile crash investigations He had received approximately four weeks of training in crash investigation at the police academy He also had an undergraduate degree in aerodynamics and had taken physics courses in high school and college He had nine years of experience as a State policeman and had investigated hundreds of crashes including at least sixteen fatalities His work was reviewed by a sergeant and a shift lieutenant each of whom had twelve to twentyfive years experience He had never qualified as an expert but he had also never been offered as an expert Trial defense counsel did not perform deficiently in failing to object under Self and Rogers to Trooper Parson being offered as an expert in the field of automobile crash investigations This portion of assignment of error number one is without merit TROOPER MILLS The defendant also argues that trial defense counsel rendered ineffective assistance by failing to object to Trooper Mills on the basis that he had failed to take into account the objective data from the black box of the victim car The s defendant claims that the objective data from the air bag control module or black box indicates the deceased vehicle was almost motionless at the time of s the collision thus suggesting that the deceased was engaged in some kind of turning maneuver which put her into the defendant lane s The State tendered Trooper Mills as an expert in the field of accident reconstruction and investigation He had been a Louisiana State Trooper for fifteen and onehalf years He had received training in accident reconstruction and investigation He had attended and successfully completed an eighty hour See La R 14 prior to its amendment by 2008 La Acts No 451 S 32 A 1 W 2 course on basic traffic accident investigation as well as courses on accident investigation focusing on tires vehicle dynamics traffic accident reconstruction and traffic reconstruction focusing on motorcycles and 18wheelers He had also reconstructed accidents while working as a State Trooper He had never been qualified as an expert in court but he had also never been denied qualification as an expert in court Trial defense counsel accepted Trooper Mills as an expert in the field tendered Thereafter on cross examination Trooper Mills indicated he had not checked the victim vehicle to see if it contained an air bag control s module and he was not certified to download such a device Initially we note that the fact that the victim may have slowed her vehicle prior to the defendant colliding with her does not prove that she turned in front of the defendant Trooper Parson testified that the victim may have seen the s defendant vehicle coming toward her possibly weaving and slowed because she did not know what to do and then turned away immediately prior to the crash in an effort to avoid the collision Thus the fact that the victim may have slowed her vehicle prior to the accident was not necessarily helpful to the defense Further the fact that Trooper Mills had not examined the black box in the victim s vehicle did not prevent him from being an expert in the field of accident reconstruction and investigation Accordingly trial defense counsel did not perform deficiently in failing to object to Trooper Mills being offered as an expert in the field of accident reconstruction and investigation This portion of assignment of error number one is without merit JOHN SLEDGE The defendant also argues that trial defense counsel rendered ineffective assistance because he failed to lay a proper foundation for the testimony of John 10 Sledge The defendant claims in his brief that 1 proffered testimony ater strongly suggests that testimony based on the objective data from the black box would have had a huge impact on the jury At trial the defense presented testimony from John Sledge Sledge was a service and parts manager for a Subaru dealership He indicated he was also certified as a crash data retrieval specialist by the collision safety institute He indicated that a car air bag control module constantly recorded information from s other modules in the car and on General Motors vehicles after the air bags deployed the module would go back approximately five seconds and record vehicle speed engine speed throttle position brake switch activation and whether the occupants were wearing seatbelts He indicated that the victim vehicle had s an air bag control module However when asked if he had received the device to examine and to use to make his report he indicated he had received a download report from the device On cross examination Sledge conceded he had no training in physics and had not taken any classes in accident reconstruction He also conceded that his certificate was issued in 2003 and the victim vehicle was a 2005 model but s claimed that his certificate was still valid He restated that he had not downloaded the data from the victim vehicle air bag control module but claimed that the s s data would not have been different had he personally downloaded it from the module The State objected to Sledge testifying arguing that the report was hearsay and objected to him being accepted as an expert The court accepted Sledge as a crash data retrieval specialist On redirect examination Sledge indicated that the air bag control module had been sent outofstate to Logan Diagnostics L and he had interpreted the C 11 information after receiving an email of the report they obtained from the module The trial court sustained the hearsay objection In a side bar conference the court stated The court has just ruled on an objection by this witness who has been recognized specifically as a crash data retrieval specialist The defense is attempting to get in a report Let me just get more basic This module was taken out of the vehicle the automobile involved in this crash and sent off out of state A report was generated The court is fully aware that according to this witness s testimony the data is burned into it This witness is asserting that the VIN numbers are all the same but the actual operation was conducted by persons unknown in some state other than Louisiana at some point in time To this s court introduction of the understanding and appreciation that either the results itself or the report itself or the specific words on the report would be rank hearsay For whatever it s worth I would if he had downloaded it into a computer I wouldn t have a problem with it And I trust that the information would be the same but it is to my way of thinking rank hearsay I was want to point out in arguing the hearsay objection defense counsel had relayed or somehow indicated to the court that he was going to ask this witness to interpret the report as to what the vehicle had been doing And to my way of thinking that would be and I didn tsay it I didn twant to say too much in front of the jury but that would be getting into accident reconstruction He would say the engine was turning over and whatever else is recorded he would be saying it being recorded but he couldn s tsay what you had suggested he was going to say The defense objected to the court ruling arguing that once Sledge was s qualified as an expert he could use information from whatever source to render an opinion The State pointed out that under La Code Evid art 705 Binadmissible evidence could only be referenced by an expert on cross examination The defendant fails to prove that the deficient performance if any in failing to lay a proper foundation for the testimony of John Sledge prejudiced the defense According to the proffered testimony the black box data would have established that the victim vehicle was travelling at zero miles per hour five s 12 seconds before the collision This evidence did nothing however to counter the fact that the defendant blood alcohol level four hours after the collision was s 147 that the physical evidence indicated that the collision occurred in the s victim lane and that the defendant crossed into that lane one to three feet prior to the collision Even if this evidence had been presented it would have had no bearing on the case The relevant elements of vehicular homicide are whether the killing was caused proximately or directly by the operator of the vehicle who was either under the influence of alcoholic beverages or had a blood alcohol concentration of 0 percent or more Whether the victim vehicle was moving or 08 s not would not change the relevant evidence of the defendant guilt in directly or s proximately causing the death of the victim This portion ofassignment of error number one is without merit FAILURE TO PRESENT TESTIMONY FROM AN ACCIDENT The defendant also argues trial counsel rendered ineffective assistance because he failed to present testimony from an accident reconstructionist Approximately ten months after the conviction the defense moved for a new trial on the basis of new and material evidence The motion was denied At the hearing on the motion the defense proffered testimony from Kelley Adamson Adamson indicated he had a bachelor degree and a master degree in civil s s engineering was a licensed professional engineer in Louisiana Mississippi and Texas and had qualified as an expert in the field of accident reconstruction approximately fifty times Adamson claimed that he had determined effectively See S La Code Crim P art 851 3 13 that the victim vehicle was across the roadway at the time of the collision that s the defendant vehicle crossed the centerline and that the victim vehicle was s s travelling at zero miles per hour five seconds before the collision He claimed that the victim vehicle speed was consistent with her making some kind of a U s s turn type of maneuver and her being across the roadway was consistent with and agreeable to the SDM data that she was making a U turn On cross examination Adamson conceded that there was evidence that the collision occurred in the westbound lane and that the defendant had crossed the centerline at least by one foot and possibly by as much as three feet at the time of the collision He argues that examination of the proffered testimony establishes that a qualified accident reconstructionist testifying at trial on behalf of the defendant would have made a huge difference in the case The decision of which witnesses to present at trial if any was a strategy decision Allegations of ineffectiveness relating to the choice made by counsel to pursue one line of defense as opposed to another constitute an attack upon a strategy decision made by trial counsel State v Allen 941941 p 8 La App 1st Cir 11 664 So 1264 1271 writ denied 95 2946 La 3 669 95 9 2d 96 15 2d So 433 The investigation of strategy decisions requires an evidentiary hearing and therefore cannot possibly be reviewed on appeal Further under our adversary system once a defendant has the assistance of counsel the vast array of trial decisions strategic and tactical which must be made before and during trial rest with an accused and his attorney The fact that a particular strategy is The defendant would have to satisfy the requirements of La Code Crim P art 924 et seq in order to receive such a hearing 14 unsuccessful does not establish ineffective assistance of counsel State v Folse 623 So 59 71 La App 1 st Cir 1993 2d This portion of assignment of error number one is without merit or otherwise not subject to appellate review ADMISSIBILITY OF SLEDGE TESTIMONY ON BLACK BOX DATA S In assignment of error number two the defendant argues that the trial court erred in sustaining the hearsay objection against John Sledge because his testimony was admissible under La Code Evid art 703 under State v Armstead 432 So 2d 837 838 40 La 1983 telephone company records generated solely by the electrical and mechanical operations of the computer and telephone equipment and not dependent upon the observations and reporting of a human declarant are not hearsay or under the defendant constitutional right to present a defense s The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject the facts or data need not be admissible in evidence La Code Evid art 703 In a criminal case every expert witness must state the facts upon which his opinion is based provided however that with respect to evidence which would otherwise be inadmissible such basis shall only be elicited on cross examination La Code Evid art 705 B The defense qualified Sledge as a crash data retrieval specialist but he conceded he had not in fact retrieved the data from the module in the victim car s Accordingly Sledge was not permitted on direct examination to restate facts or E data obtained by Logan Diagnostics L See La Code Evid art 705 State C B v Langley 95 1489 p 13 La 4711 So 651 66263 98 14 2d A criminal defendant has the constitutional right to present a defense S U Const Amend VI La Const Art I 16 Washington v Texas 388 U S 14 87 S 1920 18 L 1019 1967 State v Van Winkle 940947 p 5 Ct 2d Ed La 6 658 So 198 201 It is difficult to imagine rights more 95 30 2d inextricably linked to our concept of a fair trial than the right to present a defense Van Winkle 94 0947 at p 5 658 So at 202 Evidentiary rules may 2d not supersede a defendant fundamental right to present a defense Id State v s Thompson 2008 0874 p 4 La 4 Cir 4 10 So 851 853 writ App 09 8 3d denied 2009 1044 La 1 25 So 827 10 29 3d Nevertheless confrontation errors are subject to harmless error analysis Thompson 2008 0874 at p 10 So at 853 citing State v Broadway 96 4 3d 2659 p 24 La 10 753 So 801 817 cert denied 529 U 1056 120 99 19 2d S Ct S 1562 146 L 466 2000 In a harmless error review the question is 2d Ed not whether in a trial that occurred without error a guilty verdict would surely have been rendered but whether the guilty verdict actually rendered in this trial was surely unattributable to the error State v Vance 2003 1946 p 10 La App 4 Cir 6 879 So 862 869 writ denied 20061071 La 11 941 04 30 2d 06 9 2d So 34 citing State v Truvia 20090504 La 4 Cir 1 29 So App 10 13 3d 669 678 A crash data retrieval specialist would arguably not only be qualified to retrieve the data from the computer module but also to interpret it Since Sledge was qualified as an expert in crash data retrieval it was error for the trial court to disallow his testimony concerning the report prepared by Logan Diagnostics L C As previously noted however even if this evidence had been presented indicating 16 the victim vehicle was stopped at the time of the collision it would have had no s bearing on the issue of guilt and the guilty verdict cannot be attributable to this error Moreover we note the jury learned of the results of the black box when the defendant testified tblack box that we wasn able to read the reading would hat t tell you she was doing 05 seconds before the crash and let off brakes and went 3 J and the defense was not prevented from presenting its theory that the victim caused the collision by blocking the road This assignment of error is without merit LA CODE CRIM P ART 894 EXCESSIVE SENTENCE 1 In assignment of error number three the defendant argues the trial court failed to comply with La Code Crim P art 894 in imposing sentence In assignment of 1 error number 4 the defendant argues the disproportionate and unconstitutionally excessive sentence imposed is grossly He cites numerous cases in which he claims the defendants received less severe sentences for conduct more reprehensible than his conduct or for conduct which caused greater harm than he caused Initially we note there is little value in making sentencing comparisons It is well settled that sentences must be individualized to the particular offender and to the particular offense committed State v Batiste 594 So 1 3 La App 1st 2d Cir 1991 The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence See La Code Crim P art 1 894 The trial court need not recite the entire checklist of Article 894 1 but the record must reflect that it adequately considered the criteria In light of the criteria 17 expressed by Article 894 1 a review for individual excessiveness should consider the circumstances of the crime and the trial court stated reasons and factual basis s for its sentencing decision State v Hurst 99 2868 p 10 La App 1st Cir 00 3 10 797 So 75 83 writ denied 20003053 La 1015101 798 So 962 2d 2d Article I section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against excessive punishment and is s subject to appellate review Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm to society it is so disproportionate as to shock one sense ofjustice A trial s judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion Hurst 99 2868 at pp 1011 797 So 2d at 83 Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years At least three years of the sentence of imprisonment shall be imposed without benefit of probation parole or suspension of sentence If the offender was previously convicted of a violation of La R 14 then at least five years S 98 of the sentence of imprisonment shall be imposed without benefit of probation parole or suspension of sentence The court shall require the offender to participate in a courtapproved substance abuse program and may require the 18 offender to participate in a courtapproved driver improvement program All such driver improvement courses shall include instruction on railroad grade crossing safety La R 14 S 32 B 1 Following a sentencing hearing the defendant was fined 15 and 000 sentenced to twentyfive years at hard labor with twenty years of the sentence without benefit of probation parole or suspension of sentence Prior to imposing sentence the court listened to testimony from James Foreman the victim shusband Ashley Pike Ballo the victim sister Teddy Pike s the victim mother and Greg Pike the victim father s s James Foreman testified he was present to represent himself and his two sons He indicated that due to the victim actions his sons had no mother to kiss s or hug them during their times of need no mother to go to their Little League games and no mother to go to their school functions The closest his children had been to their mother over the previous two years was to touch a slab of marble at the cemetery His oldest son had to have professional help because the defendant had killed the victim His youngest son had problems even remembering his mother James Foreman testified he had lost his wife of eight years a wife with whom he had built a life a wife who had been a wonderful mother to his children and a wife who had been his best friend He stated that part of his heart had been torn out and would never be replaced He also testified that the victim death had s resulted in a financial strain on his family because the family had lost half of its income and he had to give up any extracurricular activities He indicated that it was almost inevitable that he would have to sell the family home and find a new place to live 19 James Foreman asked the court to consider the defendant past including s the fact that his bond had been revoked and that he had ignored the court order s not to drive a vehicle James Foreman also asked the court to consider the consequences of the defendant not being held accountable for his actions James Foreman asked the court to show no mercy to the defendant In imposing sentence the trial court indicated it had secured a presentence investigation in the matter which included the defendant statement The court s noted that the defendant claimed he left home at approximately 9 p on the 00 m night of the offense to go to Smoking Joe Bar where he was dating the s bartender The defendant claimed he normally gave his keys to his girlfriend so that she could drive him home but he had an argument with her and she told him to leave The defendant claimed he went to the End of the Line store purchased a can of Copenhagen and went three tenths of a mile down the road before he hit the victim car which he claimed was backing out of a yard s The court noted that the defendant criminal history began on March 12 s 1999 when he was charged with underage operation of a vehicle while intoxicated failure to dim his headlights and improper lane usage The defendant pled guilty to an amended charge of reckless operation and paid a 344 fine Thereafter on June 24 2001 he was charged with reckless driving in Virginia and convicted on that charge on July 9 2001 He was fined 250 and his license was suspended for thirty days Following that offense on October 30 2003 he was arrested in Kentucky for operating a motor vehicle while under the influence of alcohol or drugs with an aggravator leaving the scene of an accident and failure to render aid or assistance He was fined 250 and sentenced to thirty days in the county jail with the sentence suspended except for four days The court 20 noted that an arrest warrant was later issued after the defendant failed to arrive at the county jail and another warrant was issued after he failed to pay the fine On June 6 2003 in St Helena Parish the defendant was charged with aggravated battery He subsequently pled guilty to an amended charge of simple battery and was sentenced to a fine six months parish jail suspended and one year bench probation On January 17 2004 the defendant was arrested in Kentucky for operating a motor vehicle while under the influence of alcohol or drugs A subsequent arrest warrant issued for failure to appear On November 10 2005 the defendant was ticketed in Mississippi for speeding No disposition information was available for the ticket On February 23 2006 the defendant was charged with hit andrun in Louisiana No disposition information was available for the charge On August 12 2008 the defendant was arrested in Mississippi for simple assault aggravated assault and domestic assault No disposition information was available on the first two charges and the third charge was remanded to the file for two years Additionally the court noted that following conviction of the instant offense the court allowed the defendant to remain out on bond so that he would not have to close down his business and within two weeks the defendant roll ed over his truck The trial court did not formally state for the record the Article 894 1 considerations which it took into account and the factual basis therefor See La Code Crim P art 894 C 1 However the record reflects that the court considered the Article 894 criteria and thus remand for formal compliance with 1 Article 894 is not warranted See La Code Crim P art 921 Moreover the C 1 record supports the sentence imposed See La Code Crim P art 881 D 4 21 A thorough review of the record reveals the trial court adequately considered the criteria of Article 894 and did not manifestly abuse its discretion in imposing 1 sentence See La Code Crim P art 894 A A and 13 A 12 3 12 Further the sentence imposed was not grossly disproportionate to the severity of the offense and thus was not unconstitutionally excessive These assignments oferror are without merit DECREE For these reasons we affirm the conviction and sentence of defendant Stephen H McMillan 22
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