State of Louisiana VS Francis E. Reed, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0571 STATE OF LOUISIANA VERSUS FRANCIS E REED JR DATE OF JUDGMENT OCT 2 9 2010 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 428741 DIV D PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE PETER J GARCIA JUDGE Walter P Reed Counsel for Plaintiff Appellee District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Baton Rouge Louisiana Frank Sloan Counsel for Defendant Appellant Mandeville Louisiana Francis E Reed Jr BEFORE KUHN PETTIGREW AND KLINE JJ Disposition CONVICTIONS AFFIRMED SENTENCES AMENDED TO PROVIDE THAT THEY BE SERVED AT HARD LABOR AND AS AMENDED AFFIRMED 1 The Honorable William F Kline Jr is serving pro tempore by special appointment of the Louisiana Supreme Court KUHN J Defendant Francis E Reed Jr was charged by grand jury indictment with aggravated rape of K on or between July 25 2000 and May 6 2005 a violation P of La R 14 Count 1 and aggravated rape of K on or between November S 42 P 26 2000 and November 26 2004 a violation of La R 14 Count 2 S 42 Defendant pled not guilty and following a jury trial was found guilty as charged on both counts For each count defendant was sentenced to life imprisonment without benefit of parole probation or suspension of sentence with the sentences to run concurrently Defendant now appeals designating one assignment of error We affirm the convictions amend the sentences and affirm as amended FACTS Defendant and his wife Sonja Reed were married in 1998 Sonja had two daughters from a previous marriage K hereinafter K P 1 P 26 1991 and her younger sister K hereinafter K P 2 P born November born July 25 1993 The family lived in Covington In 2005 K wrote to her friend a note that 2 P suggested defendant was sexually abusing K and her sister K 1 K 2 P P s 2 P friend gave the note to her mother fianc6 who in turn contacted the Office of s Community Services OCS Luanne Mayfield with the OCS in St Tammany Parish and Detective Rachel Smith with the St Tammany Parish Sheriffs Office investigated the allegations of abuse Mayfield testified at trial that K told her she and her 2 P sister had been sexually abused by defendant Defendant orally and I 2 the indictment Count 1 refers to K and Count 2 refers to K 1 2 P P 2 vaginally raped both girls and they were forced to perform oral sex on defendant According to K the abuse lasted for about four years 2 P Detective Smith testified at trial that K gave her essentially the same account of sexual abuse 2 P that she had given to Mayfield A month after the initial allegations of abuse the girls were taken to s Children Hospital in New Orleans where they underwent full physical examinations The results of the examinations were normal Given the time between the initial report of abuse and the medical examinations Dr Adriana Jamis with the Children Hospital testified at trial that she would expect to see a s normal examination Subsequently both girls were interviewed at the Children s Advocacy Center CAC in Covington The information the girls provided at these interviews regarding defendant sexual abuse of them was consistent with s the testimony they provided at trial 2 P K testified at trial that when she was seven or eight years old defendant forced her to perform oral sex on him On other occasions defendant engaged in vaginal intercourse with K and performed oral sex on her K testified that 2 P 2 P for four or five years some sexual act occurred between her and defendant at least three times a week K also remembered on one occasion seeing defendant rape 2 P her sister 1 P K testified at trial that when she was in the third grade defendant performed oral sex on her Subsequently defendant began engaging in vaginal intercourse with K She also performed oral sex on defendant K testified 1 P I P defendant performed some sexual act on her about three times a week When asked about the first time she realized defendant was also abusing her sister K I P 3 testified It was the first and only time I said no to him to the abuse and he said well if I not going to get it from you I get it from somebody else and he m ll went to my sister room On one occasion defendant forced K to perform s 1 P oral sex on K 2 P Ps P K sexual abuse by defendant continued until the end of s 1 P K seventhgrade year Defendant testified at trial He denied all of the allegations of sexual abuse Defendant had two convictions for distribution of cocaine and spent three and one half years in prison ASSIGNMENT OF ERROR In his sole assignment of error defendant asserts the trial court erred in holding defense counsel in contempt of court in the presence of the jury Specifically defendant contends that pursuant to La C art 22 the trial court P Cr failed to provide defense counsel with an opportunity to be heard orally by way of defense or mitigation and failed to render an order reciting the facts constituting the contempt and that the trial court error adversely affected his right to a fair s trial During the prosecutor redirect examination of Stephi King the trial court s found defense counsel in contempt Following is the relevant colloquy Q Now had you decided because K had a tear in her eye and a 1 P big shirt that sexual abuse was going on A I wasn sure t BY MR EDWARD LARVADAIN defense counsel m I going to object to that question She leading the witness s now BY THE COURT 4 Sustained BY MR EDWARD LARVADAIN At least I got one BY THE COURT Counsel look at me Mr Larvadain if you make another comment like that again I going to hold you in contempt Do you m understand BY MR EDWARD LARVADAIN Yes sir but I want you to know Judge BY THE COURT No I want you to be quiet and have a seat BY MR EDWARD LARVADAIN m I going to take my seat but I see something I don like t BY THE COURT Now you in contempt and I fine you 50 Sit down re BY MS KNIGHT prosecutor Thank you Your Honor EXAMINATION BY MS KNIGHT Q Ms King let go back a little bit You said you were in 6th s grade when this went on A court has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done A court has the power to punish for contempt La C art 17 A direct contempt of court is one committed in the P Cr immediate view and presence of the court and of which it has personal knowledge 5 A direct contempt includes contumacious insolent or disorderly behavior toward the judge tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority La C art 21 P Cr 5 La C art 22 provides P Cr A person who has committed a direct contempt of court may be found guilty and punished therefor by the court without any trial after affording him an opportunity to be heard orally by way of defense or mitigation The court shall render an order reciting the facts constituting the contempt adjudging the person guilty thereof and specifying the punishment imposed We find that the trial court did not err in immediately addressing defense s counsel recalcitrance and finding him in contempt Such contempt directed at the trial court in its presence rendered any defense by defense counsel unnecessary Direct contempt is decided summarily without trial The summary procedure allows immediate vindication of the court authority State v Watson s 465 So 685 687 La 1985 2d In Watson 465 So at 687 the Louisiana 2d Supreme Court stated In re Oliver 333 U 257 275 68 S 499 508 09 92 L S Ct Ed 682 1948 discusses the due process limitations on summary contempt procedures Except for a narrowly limited category of contempts due process of law as explained in Cooke v United States 267 U 517 S 45 S 390 69 L 767 1925 requires that one charged with Ct Ed contempt of court be advised of the charges against him have a reasonable opportunity to meet them by way of defense or explanation have the right to be represented by counsel and have a chance to testify and call other witnesses in his behalf either by way of defense or explanation The narrow exception to these due process requirements includes only charges of misconduct in open court in the presence of the judge which disturbs the court business where s all of the essential elements of the misconduct are under the eye of the court and where immediate punishment is essential to prevent demoralization of the court authority before the public s 6 Moreover even had it been error for the trial court to have failed to afford defense counsel an opportunity to be heard by way of defense or mitigation or to render an order reciting the facts constituting the contempt such error would have had no effect on defendant guilty verdicts In his brief defendant suggests the s trial court remarks to defense counsel in front of the jury predisposed the jury to s voting guilty Defendant asserts that the issue is whether the trial court s summarily holding defense counsel in contempt and punishing him in front of the jury could have denied him a fair trial by leading the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor Further according to defendant had the trial court adhered to the procedures mandated by Article 22 the mandated hearing may have made it apparent to the trial court that it ought not to have been conducted in front of the jury Essential to the concept of a fair trial is the requirement of complete neutrality on the part of the presiding judge A trial judge disparaging remarks s or intemperate criticism of defense counsel may constitute reversible error when such remarks adversely influence and prejudice the jury against the defendant In order to constitute reversible error however the effect of the improper comments must be such as to have influenced the jury and contributed to the verdict State v Johnson 438 So 1091 1101 02 La 1983 2d In this case defendant has not shown and nothing in the record suggests how the trial court contempt finding of defense counsel in any way influenced s the jury verdicts The trial court comments to defense counsel or handling of s s the situation in the presence of the jury did not rise to such a level as to endanger the defendant right to a fair and impartial trial See State v Glynn 94 0332 p s 7 24 La App 1st Cir 4 653 So 1288 1306 writ denied 95 1153 La 95 7 2d 95 6 10 661 So 464 see also Johnson 438 So at 1102 2d 2d Accordingly the assignment of error is without merit SENTENCING ERROR Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole probation or suspension of sentence La R 14 In sentencing defendant the trial court failed to S 42 1 D provide that the sentences were to be served at hard labor Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence La C art 920 authorizes consideration of such CrR 2 an error on appeal Further La C art 882 authorizes correction by the CrR A appellate court We find that correction of these illegally lenient sentences does not involve the exercise of sentencing discretion and as such there is no reason why this court should not simply amend the sentences See State v Price 05 2514 p 22 La App l st Cir 12 952 So 112 12425 en banc writ 06 28 2d denied 070130 La 2 976 So 1277 Accordingly since sentences at 08 22 2d hard labor were the only sentences that could be imposed we correct the sentences by providing that they be served at hard labor 3 The minutes reflect the trial court sentenced defendant to hard labor for both the aggravated rape convictions When there is a discrepancy between the minutes and the transcript the transcript prevails State v Lynch 441 So 732 734 La 1983 2d 4 An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review La C art 882 P Cr A 9 DECREE For these reasons the convictions are affirmed We amend the sentences to provide that they be served at hard labor As amended the sentences imposed against Francis E Reed Jr are affirmed CONVICTIONS AFFIRMED SENTENCES AMENDED TO PROVIDE THAT THEY BE SERVED AT HARD LABOR AND AS AMENDED AFFIRMED 9
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