State Of Louisiana VS Kathy Guilliams
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 KA 2246 STATE OF LO ISIANA VERSUS KATHY GUILLIAMS Judgment Rendered June 7 2013 Appealed from the First Twenty Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 502 480 Honorable Elizabeth Wolfe Judge Presiding Scott M Perrilloux Counsel for Plaintiff Appellee District Attorney State of Louisiana Patricia Amos Assistant District Attorney Amite LA Frank Sloan Counsel far DefendantlAppellant Appellate Project Mandeville LA Kathy Guilliams Louisiana BEFORE GUIDRY CRAIN AND THERIOT JJ GUIDRY J Defendant Kathy Guilliams was charged by bill of information with vehicular homicide a violation of La R 1432 S 1 She pled not guilty and waived her right to a jury trial After a bench trial defendant was found guilty as charged The trial court denied defendant motion for a new trial and sentenced s her to five years at hard labor without benefit of parole probation or suspension of sentence Defendant now appeals alleging two assignments of error For the following reasons we affirm defendant conviction and sentence s FACTS On the evening of May 15 2005 Louisiana State Trooper Herman H Newell III was dispatched to an accident on La Hwy 440 in the area of Crow s Foot Tangipahoa Parish He arrived to find a red Buick LeSabre facing west and resting against the guardrail of the river bridge He also observed a black Dodge Neon facing east and resting in the wood line on the opposite side of the road Kenneth Robinson the driver of the Buick LeSabre was taken to Hood Hospital s in Amite with extensive injuries to his shoulder face and head Robinson later died of those injuries During his on investigation Trooper Newell spoke with defendant scene who was the driver of the Dodge Neon Trooper Newell observed that she appeared confused and smelled of alcohol as she spoke Defendant was placed under arrest and transported by Trooper Kenneth Giacone to the Tangipahoa Parish Jail where after being read her Miranda rights she admitted to consuming four or five beers earlier that evening Defendant subsequently submitted to breath intoxilyzer testing the results of which indicated that defendant blood alcohol s content BAC was 0 grams percent 16 Miranda v Arizona 384 U 436 86 S 1602 16 L 694 1966 S Ct 2d Ed 2 While defendant was being transported to the parish jail Trooper Newell remained at the scene to reconstruct the accid He testified at trial as an expert nt in accident reconstruction Based on his reconstructi Trooper Newell testified in that defendant was tra eastbound on La Hwy 440 when the accident eling occurred and the victim was traveling westbound Trooper Newell stated that the skid marks he observed combined with the location of the accident debris field s led him to conclude that the accident occurred when defendant crossed the center line into the westbound lane and struck the victim vehicle At the time ofimpact s the door skin from defendant vehicle detached and became lodged into the s s victim vehicle As a result a support beam from the inside of defendant sdoor also detached and made its way through the victim doar lacerating his shoulder s and face and impaling his head Defendant did not testify at trial but she presented two witnesses who testified that the accident scene was filled with people other than law enforcement and emergency personnel supporting her argument that the area may have been contaminated before a proper investigation could occur Further defendant own s accident reconstruction expert Michael Gillen testified at trial He theorized that based upon the lack of damage to the front end of defendant vehicle the accident s did not result from a true sideswipe but from a sideswipe with an angular component of attack from the victim vehicle into the driver door of s s s defendant vehicle However Mr Gillen stated that while he could determine the approximate angle of impact one cou13 not reliably tell where on the roadway the point of impact occurred He did admit on cross that there was at examination least one scenario where defendant might have crossed the center line and due to an overcorrection the victim vehicle could have struck defendant vehicle at his s s approximated attack angle After hearing al1 of the evidence the trial judge 3 found defendant guilty of vehicular homicide uvith the specific finding that her BAC was above 0 grams percent at the time of the accident 15 ASSIGNMENT OF ERROR 1 In her first assignment of error defendant argues that the transcript of her final day of trial is grossly incomplete and th she had been denied her refore constiturional right to a judicial review f all zvidence The Louisiana Constitution guarantees that no person shall be subjected to imprisonment without the right of judicial review based upon a complete record of all evidence upon which the judgment is based La Const art I 19 In felony cases the court reporter is required to record all of the proceedings including the examination of prospective jurars the testimony of witnesses statements rulings orders and charges by the court and objections questions statements and arguments of counsel La C Cr P art 843 A criminal defendant has a right to a com transcript of the trial plete proceedings particularly where counsel on appeal was not counsel at trial State v Landrv 97 p 3 6 751 So 2d 214 215 Without a complete 0499 La 29 99 record from which a transcript far appeal may be prepared a defendant right of s appellate review is rendered meaningless A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal does not result in reversal of the conviction But where a defendant s attorney is unable tl no fault of his own to review a substantial portion of rough the trial record for errors so that he may properly parform his duty as appellate counsel the interests of justice require that the defendant be afforded a new fWly recorded trial State v Ford 338 So 2d 107 110 La 1976 See also State v Brumfield 96 pp 15 La 10 737 So 2d 660 669 cert 2667 16 98 20 70 denied 526 U 1025 119 S 1267 143 L362 1999 S Ct 2d Ed 4 In the instant case defendant appellate counsel did not represent her at s trial On January 30 2012 defendant appellate counsel filed a motion to suspend s briefing and supplement the record on appeaL In this motion defense counsel alleged that the record did not contain any of the transcripts of defendant bench s trial which was held on 10 February 8 20ll and May 19 2011 We granted defense counsePs motion and ordered the record to be supplemented The record in this case was supplemented four times Notices of these supplementations were sent out to all parties on June 12 2012 July 20 2012 December 20 2012 and February 6 2013 Defense counsel filed his only brief in this case on August 31 2012 In that brief he urged the assignments of error considered in the instant appeaL The February 6 2013 supplementation of the recard contained the full and complete transcript of the May 19 2011 proceedings as well as the relevant exhibits introduced on that day On February 19 2013 in light ofthe final supplementation of the record we issued a supplemental briefing order allowing defendant to file a supplemental brief on or before March 5 2013 and allowing the state to file a supplemental brief on or before March 15 2013 Neither party elected to file a supplemental brief Since the time defendant filed her initial brief raising the issue of an incomplete transcript rom the May 19 2011 continuation of her trial the record has been supplemented two more times The February 6 2013 supplementation of z On appeal defense counsel admits that the record contained an incomplete transcript of the May 19 2011 proceedings which did not include any of Mr Gillen testimony but did not s contain transcripts of the trial proceedings from February 8 2011 however the record was 10 supplemented with the transcript of the Februazy 8 2011 trial proceedings in July 2012 10 3 DefendanYs bench trial was recessed on February 10 2011 to allow her to call her own expert Mr Gillen at a later date because on that day he was testifying in federal court in an unrelated matter Defendant entered four exlubits into evidence at trial one joint exhibit with the state and three exhibits marked D D and D Exhibits D and D an accident reconsriuction 2 3 4 3 4 diagram and Mr Gillen curriculum vitae were provided to this court at the time the record was s supplemented Cathy McElveen a deputy clerk with the Tangipahoa Pazish Clerk of Court s Office filed a notarized affidavit stating that Exhibit D a dash camera recording from Trooper 2 svehicle had been lost or misplaced This affidavit further stated that all counsel had Newell been notified of this fact and that they agreed to submit tlus appeal without said exhibit 5 the record cured the defect complained of in defendanYs first assignment of error and defendant has not filed a supplemental brief raising any additional assignments of error This assignment of error is moot ASSIGNMENT OF EI2ROR 2 In her second assignment of error defendant alleges that the record does not adequately reflect that she validly waived her constitutional right to a trial by jury A defendant in a non case may waive her right to a jury trial and capital elect to be tried by the judge La Const art I A 17 La C Cr P art 780 A Generally the waiver is entered at arraignment See La G Cr P art 780 A A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly See State v Kahev 436 So 2d 475 486 La 1983 A waiver of this right is never presumed State v Brooks 01 p 5 App lst Cir 3 1138 La 02 28 814 So 2d 72 76 writ denied 02 La 11 829 So 2d 1037 1215 02 22 However no special form is required for a defendant to waive her right to a jury trial State v Coleman 09 p 4 App lst Cir 2 35 So 3d 1096 1388 La 10 12 1098 writ denied 10 La 4 62 So 3d 103 Counsel may waive the 0894 11 29 right on the defendant behalf provided that the defendant decision to do so was s s made knowingly and intelligently State v Pierre 02 La 3 842 So 2665 03 28 2d 321 322 per curiam In the instant case the minutes reflect that defendant was advised of her rights at her arraignment on July 21 2005 s Defendant trial counsel filed a motion to waive trial by jury on September 23 2010 This motion stated that defense counsel and defendant considered the case and consulted together about the waiver and that defendant fully understood her right to trial by jury and waived that right knowingly voluntarily and intelligently 6 s Defendant trial counsel confirmed this waiver in open court in the presence of his client on February 7 2011 the first day oftrial Despite the fact that there is no colloquy between the trial judge and defendant to highlight her understanding of the right to a jurX trial and her knowing and voluntary waiver of thrs right there is adequate evidence to demonstrate a valid jury trial waiver First defendant trial counsel filed a written motion s waiving her right to a jury trial The motion itself stated that defendant understood that right and knowingly voluntarily and intelligently waived it Second defense counsel confirmed that waiver in defendant spresence prior to the beginning of triaL Therefore under these circumstances we disagree with defendant claim on s appeal that she did not validly waive her right to trial by jury This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 7
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