State Of Louisiana VS Carl Dean Boswell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 1568 STATE OF LOUISIANA VERSUS CARL DEAN BOSWELL Judgment Rendered APR r 2 6 2013 G On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court No 572 577 1i Honorable Randall L Bethancourt Judge Presiding Joseph L Waitz District Attorney Jr Attorneys for Plaintiff Appellee State of Louisiana Houma LA Ellen Daigle Doskey Assistant District Attorney Houma LA Bertha M Hillman Thibodaux LA Attorney for Defendant Appellant Carl Dean Boswell x BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM 7J J I HIGGINBOTHAM J The defendant Carl Dean Boswell was charged by grand jury indictment with sexual battery a violation of La R 14 He pled not guilty and S 43 1 following a jury trial was found guilty as charged The defendant was sentenced to fifty years imprisonment at hard labor without benefit of parole probation or suspension of sentence Following sentencing the defendant objected to the sentence as being excessive and made an oral motion to reconsider sentence The trial court denied the motion The defendant now appeals designating one counseled assignment of error and two pro se assignments of error We affirm the conviction and sentence FACTS The defendant wife had a daughter seven A from a previous s old year relationship Between January 3 and January 9 of 2010 while the defendant swife was in the hospital giving birth to her and the defendant schild the defendant was taking care of A his stepdaughter at their home in Houma At some point during his wife absence the defendant while sitting in a recliner in the living s room had A stroke his penis until he ejaculated A few weeks later A recounted the incident to her mother who went to the police the following day COUNSELED ASSIGNMENT OF ERROR In his counseled assignment of error the defendant argues the trial court erred in denying his motion to reconsider sentence which he asserts is excessive The Eighth Amendment to the United States Constitution and Article I 20 of the Louisiana Constitution prohibit the imposition of cruel ar excessive punishment Although a sentence falls within statutory limits it may be excessive State v 5epulvado 367 So 762 767 La 1979 A sentence is considered 2d constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and 2 suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the hann done to society it shocks the sense of justice State v Andrews 94 La App lst Cir 5 655 So 448 0842 95 2d 454 The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion See State v Holts 525 So 1241 1245 La App 2d lst Cir 1988 Louisiana Code of Criminal Procedure article 894 sets forth the 1 factors for the trial court to consider when imposing sentence While the entire checklist of La Code of Crim P art 894 need not be recited the record must 1 reflect the trial court adequately considered the criteria State v Brown 2002 2231 La App 1 st Cir 5 849 So 566 569 03 9 2d The articulation of the factual basis for a sentence is the goal of La Code Crim P art 894 not rigid or mechanical compliance with its provisions Where 1 the record clearly shows an adequate factual basis for the sentence imposed remand is unnecessary even where there has not been full compliance with La Code Crim P art 894 State v Lanclos 419 So 475 478 La 1982 The 1 2d trial judge should review the defendant spersonal history his priar criminal record the seriousness of the offense the likelihood that he will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v Jones 398 So 1049 1051 La 1981 2d 52 On appellate review of a sentence the relevant question is whether the trial court abused its broad sentencing discretion not whether another sentence might have been more appropriate State v Thomas 98 La 10 7Z9 So 49 50 1144 98 9 2d per curiam In the instant matter the defendant facing a maximum sentence of ninety nine years at hard labor was sentenced to fifty years at hard labor See La R S 2 C 1 43 14 The defendant argues in his brief there were not sufficient 3 aggravatuig circumstances to warrant imposition of such a harsh sentence and further argues the trial court failed to give adequate consideration to the mitigating circumstances of his age thirty years old and the lack of evidence of a prior three criminal history While the trial judge did not refer to La Code Crim P art 894 by name it 1 is clear he considered aggravating and itigating circumstances In sentencing the defendant the trial judge noted his familiarity with the case and further stated that he had reviewed the record and his notes Moreover even had there not been full compliance with Article 894 remand would be unnecessary because the record 1 before us clearly established an adequate factual basis for the sentence imposed on the defendant for the sexual battery of his seven stepdaughter the one old year person he was supposed to protect from such evils but instead exploited his position of trust See State v Kirsch 2002 La App lst Cir 12 836 0993 02 20 2d So 390 395 writ denied 2003 La 9852 So 1024 96 0238 03 5 2d Considering the trial court x of the circumstances the nature of the s evi w crime and the fact the defendant was sentenced to about half of the maximum sentence allowable under the lav we find no abuse of discretion by the trial court Accardingly the sentence imposed by the trial court is not grossl disproportionate to the severity of the offense and therefare is not unconstitutionally excessive The trial court did not err in denying he motion to reconsider sentence The assignment of error is without merit PRO SE ASSIGNMENTS OF EI2ROR NOS 1 and 2 In these related pro se assignments of error the defendant argues respectively ineffective assistance of counsel and the trial court erred in not informing him of and granting him the right to waive trial by jury Alexander poyle was the defendant first counsel s Later Robert Pastor took over as defense counsel and tried the defendant case In his first pro se s 4 assignment of error the defendant lists specific alleged instances of ineffective assistance of counsei namely both Dc and Pastor misinformed and misled yle or the defendant regarding the requirement of a jury trial Pastor did not request a recess to further investigate Luuisiar l Article I Section 17 a onstitutional A which requires a deifendant to w his right to a jury trial at leasi forty days ive five before trial and Doyle failed to provide the State with an alibi defense In his second assignment of error the defendant argues the trial court erred in not informing him at anaignment of his right to waive trial by jury the trial court erred in denying the defendant smotion to waive trial by ury and the trial court erred in denying his pro se motion for new trial which made the same argument that the trial court erred in denying his motion to waive trial by jury We address the second pro se assignment of error first A review of the transcript and the minutes indicate the trial court did not comply with the La Code Crim P art 780 requirement that it inrorm the defendant of his right to waive trial by jury However in State v Sharp 338 So 654 6h0 La 1976 the Louisiana 2d Supreme Court held that when a defendant is not informed by the trial jndge at arraignment of his option to waive his riglht to a jury trial as required by Article 780 the defendant conviction will nat be reversed absent a showing of prejudice s See State v appel S25 So 335 336 La App 1st Cir w 531 2d 2d So 468 La 19 8 Just prior to the prospective jurors being called to begin the voir dire process Pastor had the defendanf take the stand to testify that he had declined the plea bargain offered by the State Following this brief testimony the following exchange took place The Court All right And you choosing to have a trial by jurv re Defendani Yes sir The Court Do you understand that you have the right to waive a trial by jury do you understand that t Defendant No I didn know it I 5 thought it was a mandatory trial i by jury I wasn aware of it I thought because it was a capital t offense it had to be a jury trial Mr Pastor It not a capital offense and my notes indicate that we s discussed that Do you want to have a few minutes to discuss that some more Defendant Yes The trial court then allowed Pastor to discuss the issue with his client During this interlude the prosecutar infarmed the trial court that the defendant wished to waive a trial by jury The prosecutor pointed out to the trial court that the Louisiana Constitution had been recently amended to provide that a jury trial waiver had to be made no later than forty days priar to the trial date five Accordingly the prosecutar objected to the waiver of jury trial Pastor informed the trial court that he had read the codal arficle and asked the trial court to note his objection The trial court then read the applicable law and noted the following No 1 This matter has been set far trial good Lord a long time ago No 2 To the Court knowledge from having pretrial conferences s there was never ever a mention of any possibility that this might even be a trial by a judge without a jury That wasn even mentioned by t the defendant or his lawyer at any stage ofthis case Next a jury panel was summoned to come to the courthouse today We have approximately 50 or 100 people downstairs who have taken time off from work school family etcetera to serve as jurors Next the DA and indeed I would suppose Defense Counsel is ready to have a trial by jury and a trial by jury necessitates certain strategies planning witness calling the arrangements of witnesses the various strategies in getting evidence in and in what order evidence would be presented And to have a defendant on the morning of a trial say oh no no I going to waive a trial by jury m and go with a judge certainly is inappropriate untimely unconstitutional and there are probably two or three other things I could mention because I don twant to get too upset So for those reasons Pm denying the defendant motion to have this matter tried s by a judge without a jury in other words the defendant motion to s waive a trial by jury as being woefully too late so there We see no reason to disturb the trial court denial of the defendant motion s s to waive jury trial Although it remains the preferred method for the trial court to advise a defendant of the right to a jury trial in open court before obtaining a waiver that practice is not statutorily required further it is preferred but not necessary for the defendant to waive the right to a jury trial personally See State 6 v McCloud 2004 La App Sth Cir 3 901 So 498 503 writ 1112 OS 29 2d denied 2005 La 1 920 So 235 State v Quest 2000 La 1450 06 13 2d 205 App Sth Cir 10 772 So 772 784 writ denied 2000 La 11 00 18 2d 3137 O1 2 800 So 866 As the trial court pointed out there had been no oral or written 2d motions by the defendant to waive his right to a jury triaL It appeared to be a dilatory tactic by the defendant to wait until the day of trial to suggest that he lrnew nothing of his right to waive a jury tria1 and that he desired a bench trial Moreover it appears from the record that Pastor in refemng to his notes discussed the issue of jury trial waiver with the defendant See State v Weeks 345 So 2d 26 27 La 1977 See also State v Buchanan 439 So 576 584 La App 2d 85 1 st Cir 1983 In any event the record does not reflect the defendant has been sufficiently prejudiced in this case to warrant reversal of his conviction See Sharp 338 So at 660 2d We address now the defendant claims of ineffective assistance of counsel s In Strickland v Washington 466 U 668 687 104 S 2052 2064 80 S Ct 2d Ed L 674 1984 the United States Supreme Court enunciated the test for evaluating the competence of trial counsel First the defendant must show that counsel performance was s deficient This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment Second the defendant must show that the deficient performance prejudiced the defense This requires showing that counsel errors were so serious as to deprive s the defendant of a fair trial a trial whose result is reliable Unless a defendant makes both showings it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable In evaluating the performance of counsel the inquiry must be whether s counsel assistance was reasonable considering all the circumstances Morgan 472 So 934 937 La App lst Cir 1985 2d State v Failure to make the required showing of either deficient performance or sufficient prejudice defeats the 7 ineffectiveness claim State v Robinson 471 So 1035 1038 La App lst 2d 39 Cir writ denied 476 So 350 La 1985 2d A claim of ineffective assistance of counsel is more properly raised by an application for post relief in the district court where a full evidentiary conviction hearing may be conducted However where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial economy State v Carter 96 La App lst Cir 11 684 So 432 0337 96 8 2d 43 8 In the instant matter the allegations of ineffective assistance of counsel at trial cannot be sufficiently investigated from an inspection of the record alone As noted the defendant maintains that he was misinformed by both Doyle and Pastor regarding the requirement of a jury trial According to the defendant he was advised that the crime he was being charged with was a capital offense and as such a trial by jury was mandated The defendant further alleges Pastor was ineffective far not requesting a recess to further investigate Louisiana Constitutional Articie I Section 17 after the trial court denied his motion to A waive a jury trial Finally the defendant alleges Doyle failed to provide the State with an alibi defense According to the defendant if Doyle had subpoenaed the security video from Terrebonne Parish Medical Center then it could have been shown that he was at the medical center instead of at home during the time of the alleged offense Decisions relating to investigation preparation and strategy cannot possibly be reviewed on appeal Only in an evidentiary hearing in the district court where the defendant could present evidence beyond what is contained in the instant 8 record could these allegations be sufficiently investigated Accordingly the allegations are not subject to appeilate rev See State v Albert 96 La ew 1991 App lst Cir 6 69 2d 1355 1363 To the extent the defendant is 97 20l lSo 64 alleging ineffective assistance of counsel for Pastor failure to inform him of his s right to waive a jury tr and ihaY had he exercised this right the outcome of his ial trial would have been different he may raise this claim as we11 at the evidentiary hearing for post relief That is the defendant must show that but for the conviction s counsel unprofessional errors there is a reasonable probability the outcome of the trial would have been different State v Serigny 610 So 857 859 La App 2d 60 1 st Cir 1992 writ denied 614 So 1263 La 1993 2d These assignments of error are meritless or otherwise not subject to appellate review For the above and foregoing reasons the defendant conviction and s sentence are affirmed CONVICTION AND SEl AFFIRMED rTENCE The defendant would have to satisfy the requirements of La Code Crim P art 92 et seq in order to receive such a hearing 9
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