State Of Louisiana VS Michael S. Nelson
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NOT DESIGNATED FOR PUBLICATION E L STA OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0997 STATE OF LOUISIANA VERSUS MICHAEL S NELSON DATE OF JUDGMENT DEC 2 2010 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 458757 DIV F PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE MARTIN E COADY JUDGE Walter P Reed Counsel for Plaintiff Appellee District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Baton Rouge Louisiana Jane L Beebe Counsel for Defendant Appellant New Orleans Louisiana Michael S Nelson BEFORE KUHN PETTIGREW AND KLINE J 1 Disposition CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED The Honorable William F Kline Jr is serving jvo eny by special appointment of the ore Louisiana Supreme Court 1 A r lilLIM The defendant Michael S Nelson was charged by bill of information with one count of simple burglary a violation of La R 1 fie pled not guilty S 4 A 62 Following a jury trial he was found guilty as charged Thereafter the State filed a habitual offender bill of information against him alleging he was a tenth felony habitual offender Following a hearing he was adjudged a fourth felony habitual offender Prior to sentencing the defendant as a habitual offender the trial court sentenced him to ten years at hard labor Thereafter the trial court vacated the previously imposed sentence and sentenced the defendant to life imprisonment at hard labor without parole probation or suspension of sentence He now appeals contending the trial court erred in denying the motion for mistrial and erred in 2 Predicate 1 was set forth as the defendant conviction under Ninth Judicial District Court s Docket 4269186 for unauthorized use of a movable a violation of La K 14 The S 68 4 documentation introduced in support of predicate fl however indicated the defendant was charged with and pled guilty to unauthorized use of a motor vehicle Predicate 2 was set forth as the defendant conviction under Twenty Second Judicial District Court Docket 4319244 for s ontraband c a violation of La R 14 S 402 Predicate 3 was set forth as the defendant s convictions under Twenty Second Judicial District Court Docket 319244 for simple burglary 29 counts violations of La R 14 S 62 Predicate 4 was set forth as the defendant s convictions under Twenty Second Judicial District Court Docket 319243 for theft 2 counts violations of La R 14 The documentation introduced in support of predicate 4 indicated S 67 the defendant was charged with and pled guilty to two counts of theft of property valued over 500 Predicate 5 was set forth as the def conviction under Twenty Sccond Judicial s endant District Court Docket 260949 for possession of stolen property a violation of I R 14 a S 69 The documentation introduced in support of predicate 5 indicated the defendant was charged with and pled guilty to illegal possession of stolen things valued between 100 and 500 Predicate 6 was set forth as the defendant conviction under Twenty Judicial District s Second Court Docket 258770 for possession of stolen property a violation of La K 14 The S 69 documentation introduced in support of predicate 6 indicated the defendant was charged with and pled guilty to illegal possession of stolen things valued over 500 Predicate 7 was set forth as the defendant convictions under Twenty Second Judicial District Court Docket s 4258770 for simple burglary 3 counts violations of La R 14 Predicate 8 was set forth S 62 as the defendant conviction under Orleans Parish Criminal District Court Docket 346754 for s simple burglary a violation of Ia R 14 S 62 Predicate 9 was set forth as the defendant s conviction under Twenty Second Judicial District Court Docket of La R 14 S 67 170208 for theft a violation The documentation introduced in support of predicate 9 indicated the defendant was charged with and pled guilty to theft of property valued more than 1 but less 00 than 500 2 imposing an excessive sentence We affirm the conviction habitual offender adjudication and sentence FACTS On October 27 2008 Sharon Shea went to a 4 p medical appointment 00 m at Northshore Regional Medical Center Northshore in her 2003 Honda CRV which was equipped with a car alarm She had a bag containing her lunch as well as other items in the vehicle When she returned to her vehicle the passengerside door had been damaged and the window had been shattered She subsequently spent approximately 210 to repair the damages Shea testified that she did not give the defendant permission to break into her car Also on October 27 2008 David J Delahoussey traveled to Northshore for out patient surgery As he exited the facility following his surgery he heard a vehicle alarm and glass breaking Thereafter he saw a man pull his arm out of the broken window of a Honda SUV get into another vehicle and drive away with a female passenger Delahoussey memorized the license plate number of the fleeing vehicle RGJ 711 and subsequently provided it to the police Candie Thomas was involved in a relationship with the defendant On October 27 2008 they traveled together in the defendant vehicle license plate s number RGJ 711 to her doctor appointment at Northshore The defendant had s a long screwdriver and white gloves in the vehicle Thomas indicated the defendant used the gloves for tree work approximately five days per month Following Thomas appointment she returned to the defendant vehicle and s s argued with him because the defendant was attempting or wanting to break into a vehicle Thomas demanded the defendant take her home but he refused to do 3 so and broke into a vehicle After breaking the front passenger side window of a vehicle the defendant returned to his vehicle and Thomas with a make up bag containing a lunch He put his long screwdriver on the floorboard The defendant subsequently drove off and threw the bag out of the window Thomas had a college degree in secondary education had attended LPN school and had worked in nursing and the home health industry She had been diagnosed with schizophrenia with paranoid manic and delusional episodes She indicated her illness was manageable however as long as she took her medicine and that on the day of the incident she was taking her medicine Thomas conceded she has seizures that result in memory lapses before during and sometimes after She admitted that she had a seizure on the morning of October 27 2008 but explained that her seizure had finished prior to the argument she had with defendant about him breaking into cars Thomas remembered everything about that to which she had testified testified that she Before the time of trial the defendant telephoned and wrote letters to Thomas encouraging her either not to testify against him or to claim she could not remember what had happened on the day of the incident MOTION FOR MISTRIAL Defendant first contends the trial court erred in denying the motion for mistrial after the State played a DVD of the defendant statement which included s statements he suggests were evidence of other crimes Upon motion of a defendant a mistrial shall be ordered and in a jury case the jury dismissed when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by La C P Cr 4 arts 770 or 771 La C art 775 P Cr The detennination as to whether a mistrial should be granted under La C art 775 is within the sound discretion of the P Cr trial court and a denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion State v Young 569 So 570 583 La App 1 st Cir 2d 1990 writ denied 575 So 386 La 1991 2d Article 770 provides for a mandatory mistrial when a remark within the 2 hearing of the jury is made by the judge the district attorney or a court official and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible However remarks by witnesses fall under the discretionary mistrial provisions of Article 771 Article 771 provides in pertinent part 2 In the following cases upon the request of the defendant or the state the court shall promptly admonish the jury to disregard a remark or comment made during the trial or in argument within the hearing of the jury when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant or the state in the mind of the jury hen w the remark or comment is made by a witness or person other than the judge district attorney or a court official regardless of whether the remark or comment is within the scope of Article 770 In such cases on motion of the defendant the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial A mistrial pursuant to the provisions of Article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a 1 trial See State v Dixon 620 air 2d So 904 911 La App 1 st Cir 1993 At trial the State moved to play a DVD of the defendant October 31 2008 s statement in which he admitted he had committed the offense 5 Following the playing of a portion of the statement wherein the defendant indicated he had not done anything in the last eighteen months the defense moved for mistrial The trial court denied the motion and noted the defendant objection The defense also s objected after the playing of a portion of the defendant statement wherein lie s indicated he was backing up six years The trial court did not grant a mistrial but cautioned the State that it would send the jury home if the State slip again ed The trial court did not abuse its discretion in refusing to grant a mistrial on the basis of the challenged portions of the defendant statement s The references at issue did not provide a basis for a mandatory mistrial under Article 770 because 2 they were not remarks attributable to the State that refer to red nother a crime committed or alleged to have been committed by the defendant as to which evidence was not admissible Rather the references implicated the discretionary mistrial provisions of La C art 771 l as irrelevant or immaterial and of such a nature P Cr that they might create prejudice against the defendant in the mind of the jury Further although defense counsel objected he failed to ask the trial court to admonish the jury to disregard the references Article 771 mandates a request for an admonishment State v Jack 554 So 1292 1296 La App 1st Cir 1989 writ 2d denied 560 So 20 La 1990 2d Moreover any error that occurred was hannless Even the introduction of inadmissible other crimes evidence is subject to harmless error analysis See State v Johnson 94 1379 p 17 La 11 664 So 94 102 See al La C 95 27 2d so P Cr art 921 The proper analysis for determining harmless error is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered but whether the guilty verdict actually rendered in this trial was surely 6 unattributable to the error Sullivan v Louisiana 508 U 275 279 113 S S Ct 2078 2081 124 L 182 1993 The verdict returned in this case was surely 2d Ed unattributable to the error if any The defendant confessed to committing the offense Thomas testified he committed the offense in her presence and another eyewitness Delahoussey memorized the license plate number of the getaway vehicle which matched the license plate number of the defendant vehicle s This assignment of error is without merit EXCESSIVE SENTENCE The defendant next contends the trial court erred in failing to deviate from the mandatory sentence because the defendant cooperated with the police he was trying to cover for his mentally ill girlfriend who received probation and because the crime was a snatch and grab of a lunch bag from a parked and unattended vehicle La Const art I 20 prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant s constitutional right against excessive punishment and is 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 A suffering 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 of justice 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 State v Hurst 992868 pp 1011 La 7 App 1st Cir 10 797 So 75 83 writ denied 2000 3053 La 1015101 00 3 2d 798 So 962 2d In State v Dorthey 623 So 1276 128081 La 1993 the Louisiana 2d Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime he is duty bound to reduce the sentence to one that would not be constitutionally excessive But the holding in Dorthey was made only after and in light of express recognition by the court that the determination and definition of acts which are punishable as crimes is purely a legislative function It is the Legislature s prerogative to determine the length of the sentence imposed for crimes classified as felonies Moreover courts are charged with applying these punishments unless they are found to be unconstitutional Citations omitted Dorthey 623 So at 2d 1278 In State v Johnson 971906 La 3 709 So 672 the Louisiana 98 4 2d Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law The court noted A trial judge may not rely solely upon the non violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality While the classification of a defendant instant or prior offenses as nonviolent s should not be discounted this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders La R 15 529 provides that persons adjudicated as S 1 third or fourth offenders may receive a longer sentence if their instant 8 or prior offense is defined as a crime of violence under La R S 13 2 14 Thus the Legislature with its power to define crimes and punishments has already made a distinction in sentences between those who commit crimes of violence and those who do not Under the Habitual Offender Law those third and ourth offenders who have a history of violent crime get longer sentences while those who do not are allowed lesser sentences So while a defendant record of s non violent offenses may play a role in a sentencing judge s determination that a minimum sentence is too long it cannot be the only reason or even the major reason for declaring such a sentence excessive Johnson 97 1906 at pp 7 8 709 So at 676 2d The court held that to rebut the presumption that the mandatory minimum sentence was constitutional the defendant had to clearly and convincingly show that he is exceptional which in this context means that because of unusual circumstances this defendant is a victim of the legislature s failure to assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case Citation omitted Johnson 97 1906 at p 8 709 So at 676 2d Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars imprisoned with or without hard labor for not more than twelve years or both La R 14 S 62 B Prior to amendment by 2010 La Acts Nos 911 and 973 La R 15 S 529 1 in pertinent part provided A 1 Any person who after having been convicted within this state of a felony thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows c If the fourth or subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then ii If the fourth felony and two of the prior felonies are punishable by imprisonment for twelve years or more the person 9 shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence In this case the instant offense and predicates s 3 7 and 8 were punishable by imprisonment for twelve years At the beginning of the sentencing hearing the defendant filed a pro se motion to deviate from the mandatory minimum sentence citing Dorthey The motion set forth The defendant is exceptional in this context because of unusual circumstances The defendant is a victim of Legislature failure to assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case Prior to sentencing the defendant as a habitual offender the trial court sentenced him to ten years at hard labor The trial court noted it had ordered a pre sentence investigation PSI which indicated the defendant had conducted a documented life of crime The trial court judge also stated any lesser sentence would deprecate the seriousness of the offense According to the PSI The defendant is a 40 year old male presently awaiting sentencing for the offense of s b According to his imple urglary FBI and Louisiana State P rap sheets he is classified as a olice fifth offender It appears the defendant has made a career of criminal activity through burglaries and thefts He listed his first arrest occurring before his sixteenth birthday At age 17 he began Since then any lapses in entries on his rap sheet can be attributed to his incarceration More than likely J the his adult criminal career subject will continue his criminal enterprise whenever out of prison The best Louisiana residents can hope for is a reprieve during his incarceration Thereafter on the basis of a earlier habitual offender hearing the trial court found the defendant was the same person previously convicted in predicate s 1 2 3 4 5 7 and 9 and adjudged him a fourth felony offender 10 The trial court vacated the previously imposed sentence and sentenced the defendant to life imprisonment at hard labor without parole probation or suspension of sentence The defense moved for reconsideration of sentence and the trial court denied that motion as well as the motion under Dorthey In the instant case the defendant failed to clearly and convincingly show that because of unusual circumstances he was a victim of the legislature failure s to assign sentences that were meaningfully tailored to his culpability the gravity of the offense and the circumstances of the case reason for the trial court to deviate From the Accordingly there was no provisions of La S R ii c A 1 529 15 in sentencing the defendant This assignment of error is without merit REVIEW FOR ERROR The defendant requests that this court examine the record for error under La P Cr C art 920 2 This court routinely reviews the record for such errors regardless of whether such a request is made by a defendant Under Article 2 920 we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found no reversible errors See State v Price 2005 2514 pp 1822 La App 1 st Cir 12 952 So 112 06 28 2d 123 25 en banc writ denied 20070130 La 2 976 So 1277 08 22 2d 11 DECREE For all these reasons we affirm the conviction habitual adjudication and sentence unposed against defendant appellant Michael S Nelson CONVICTION HABITUAL OFFENDER SENTENCE AFFIRMED 12 ADJUDICATION AND
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