State Of Louisiana VS Damon David Caliste
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT I 2010 KA 0650 STATE OF LOUISIANA VERSUS DAMON DAVID CALISTE Judgment Rendered October 29 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court Number 460590 Division G Honorable William J Crain Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington LA State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge LA Robert Glass Counsel for Defendant Appellant New Orleans LA Damon David Caliste BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES I The defendant Damon David Caliste was charged by bill of information with theft of things having a value over 500 a violation of LSAR 14 00 S 67A and B The defendant entered a plea of not guilty was tried before a jury and 1 was found guilty as charged The State filed a habitual offender bill of information and defendant was adjudicated a fourth felony habitual offender The trial court denied the defendant motion for new trial and sentenced the defendant to life s imprisonment at hard labor without the benefit of probation or suspension of sentence The trial court denied the defendant motion to reconsider sentence s The defendant now appeals challenging the denial of his motion for new trial and the constitutionality of the enhanced sentence For the following reasons we affirm the conviction habitual offender adjudication and sentence STATEMENT OF FACTS On November 18 2008 around 10 p the defendant and codefendant 00 m Hinkel entered a WalMart Supercenter in Slidell Louisiana and stole several digital photo cameras The cameras were stored on a locked peg in the photography department of the store and were discovered missing when a store manager recovered several empty camera packages placed throughout the store The manager reported the missing cameras to the store loss prevention manager s Brown determined that the defendants stole fourteen cameras valued at an approximate combined total of 1 00 377 The Brandon Brown the next day The defendant was charged and tried with codefendant Darien P Hinkel Hinkel is not a party to the instant appeal Z The defendant predicate offenses used for enhancement include a 1996 conviction of possession of s contraband in prison a violation of LSAR 14 a 1994 conviction of armed robbery a violation S 40213 of LSAR 14 a 1993 conviction of distribution of cocaine a violation of LSAR 40 and a S 64 S 967 1993 conviction of two counts of forgery a violation of LSAR 14 S 72 The minutes reflect that the sentence contained a parole restriction However the sentencing transcript and the reasons for judgment indicate that the sentence was not imposed with a parole restriction When there is a discrepancy between the minutes and the transcript the transcript prevails State v Lynch 441 2d So 732 734 La 1983 2 defendants returned to the store around 3 p the following day November 19 00 m 2008 and were identified and apprehended by the Slidell Police Department R 145 ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant contends that the trial court erred in denying his motion and supplemental motion for a new trial The defendant argues that the trial court violated its duty to advise him of his right to individual conflictfree representation contending that the trial court was on notice of problems with the representation The defendant contends that the defense hypothesis at trial that the fingerprint evidence did not support the finding that the value of the items stolen was more than 500 since his fingerprints were only 00 lifted from one of the camera boxes would have been stronger if the defendants had been tried separately The defendant notes that in portions of the surveillance footage he and Hinkel were not together or were passing each other in the camera aisle The defendant argues that a lawyer dedicated to his interests only would have been in a position to cross examine the witnesses about the specific occasions the defendant could be tied to a camera theft and otherwise could point the finger at Hinkel The defendant contends that he was only responsible for a few of the stolen cameras amounting to 300 of the total value of the items stolen The 00 defendant further notes that the jury insisted on viewing the security video a second time after deliberations had begun arguing that this strengthens a finding of separate distinct and individual culpability between the codefendants that one attorney representing both could not present The defendant also notes that the trial judge was on notice of several problems with the assistant public defender First the defendant notes a substitution in public defender representation Second the defendant notes that substitute defense counsel informed the trial court on Monday the day before the R1 trial that he had only been provided with the security videotapes on July 23 with the trial scheduled to begin on July 28th The defendant also argues that fingerprint evidence presented on the day before the trial raised a defense based on the value of the items specifically connected to the defendants separately The defendant argues that the public defender was illprepared to show that his individual responsibility even at the expense of his codefendant amounted only to a misdemeanor The defendant notes that the stakes were enormous since the felony conviction resulted in an enhanced life sentence The defendant contends that the substitution of counsel may have led to the trial court denial of the right s to hear a motion to suppress the scissors recovered noting that because of a lack of preparedness and knowledge about the case a motion to suppress was not filed The defendant also notes that no other pretrial motions were filed The defendant further contends that this case is distinguishable from others in that counsel was appointed to represent both defendants as opposed to chosen The defendant argues that the appointment of a single public defender to represent codefendants implicates the court directly and involves it in the provision and supervision of counsel under the Sixth Amendment to the United States Constitution and Article I Section 13 of the Louisiana Constitution The defendant suggests that under LSAC art 517 when counsel is appointed to P Cr represent codefendants the court obligation should be enhanced and where the s requirements of the Article are not followed reversal should follow without examination for actual conflict At any rate the defendant concludes that there was an actual conflict of interest in the instant case based on the public defender s inability to aggressively represent him while ignoring Hinkel interest s The defendant contends that the State did not disclose fingerprint evidence until the day before the trial and that the State in support thereof maintained there was overwhelming other evidence against the defendant so that the fingerprint evidence could be introduced despite the untimely disclosure We note that harmless error is not a proper argument in support of the introduction of evidence at trial El The Sixth Amendment to the United States Constitution and Louisiana Constitution Article I Section 13 guarantee that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense See State v Cisco 2001 2732 pp 1617 La 12 861 So 118 129 cert 03 3 2d denied 541 U 1005 124 S 2023 158 L 522 2004 S Ct 2d Ed The right to counsel secured under the Sixth Amendment includes the right to conflictfree representation See Holloway v Arkansas 435 U 475 482 98 S 1173 S Ct 1177 55 L 426 1978 An actual conflict of interest is defined as follows 2d Ed If a defense attorney owes duties to a party whose interests are adverse to those of the defendant then an actual conflict exists The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client Zuck v State of Alabama 588 F 436 439 5th Cir cert denied 444 U 2d S 833 100 S 63 62 L 42 1979 Generally Louisiana courts have held Ct 2d Ed that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant she is representing Cisco 2001 2732 at p 17 861 So at 129 2d Louisiana Code of Criminal Procedure article 517 provides A Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation B Unless it appears that there is good cause to believe that no conflict of interest is likely to arise the court shall take such measures as may be appropriate to protect each s defendant right to counsel Article 517 is a procedural vehicle to lessen the possibility that after conviction a jointly represented defendant will assert a claim that his counsel was 5 not conflictfree and thus was ineffective Joint representation is not per se illegal and does not violate the right to assistance of counsel under the Sixth Amendment to the U Constitution or Article I Section 13 of the Louisiana Constitution S unless it gives rise to an actual conflict of interest State v Kahey 436 So 475 2d 484 La 1983 citing State v Ross 410 So 1388 1390 La 1982 2d Accordingly the failure of the trial court to inquire into the joint representation on the record does not rise to the level of a denial of a constitutional right and is subject to a harmless error review State v Miller 20000218 p 14 La App 4th Cir 7 792 So 104 11415 writ denied 2001 2420 La 6 818 01 25 2d 02 21 2d So 791 see also State v Castaneda 941118 p 5 La App 1st Cir 6 95 23 658 So 297 301 2d Holloway creates an automatic reversal rule only where defense counsel is forced to represent codefendants over his timely objection unless the trial court has determined that there is no conflict Mickens v Taylor 535 U 162 168 S 122 S 1237 1241 42 152 L 291 2002 In Holloway prior to trial the Ct 2d Ed defense counsel moved for the appointment of separate counsel for each of the three defendants on the basis of conflict of interest and the motion was denied Holloway 435 U at 477 98 S at 1175 Prior to the empanelling of the jury S Ct the motion was renewed but was again denied Holloway 435 U at 478 98 S Ct S at 1175 At trial the court refused to permit defense counsel to cross examine any of the defendants on behalf of the other defendants Holloway 435 S U at 479 98 S at 1176 Ct The United States Supreme Court in Holloway reversed the defendants convictions holding whenever a trial court improperly requires joint representation over timely objection reversal is automatic Holloway 435 U at 488 98 S at 1181 S Ct In Cuyler v Sullivan 446 U 335 33738 100 S 1708 171213 64 S Ct 2d Ed L 333 1980 no objection was made against multiple representation of 0 three defendants until post conviction The defendants were tried separately and represented by the same two attorneys Sullivan was tried first and convicted without his defense presenting any evidence The other defendants were acquitted in their trials Cuyler v Sullivan 446 U at 338 100 S at 1713 In a post S Ct conviction hearing one of the defense attorneys testified that he remembered he had been concerned about exposing defense witnesses for the other trials Cuyler v Sullivan 446 U at 338 39 100 S at 1713 S Ct The U Court of Appeals for the Third Circuit reversed Sullivan S s conviction holding a defendant was entitled to reversal of his conviction whenever he made some showing of a possible conflict of interest or prejudice however remote United States ex rel Sullivan v Cuyler 593 F 512 519 21 3d Cir 2d 1979 But that decision was subsequently vacated by the U Supreme Court S holding that the possibility of conflict is insufficient to impugn a criminal conviction In order to demonstrate a violation of his Sixth Amendment rights a defendant must establish that an actual conflict of interest adversely affected his s lawyer performance Cuyler v Sullivan 446 U at 350 100 S at 1719 S Ct The court in Cuyler additionally held that unless the trial court knows or reasonably should know that a particular conflict exists the court need not initiate an inquiry into the propriety of a multiple representation Cuyler v Sullivan 446 S U at 347 100 S at 1717 Even where an actual conflict of interest exists and Ct the trial judge fails to make a Cuyler inquiry reversal is not automatic absent a showing that the conflict adversely affected the adequacy of counsel s performance See Mickens 535 U at 171 74 122 S at 1243 45 S Ct When a defendant raises a pretrial objection because of a possible conflict of interest Holloway requires the trial court to appoint separate counsel or take adequate steps to determine if the claimed risk is too remote Failure to take either action warrants automatic reversal even in the absence of specific prejudice 7 However should the objection to multiple representation be made after trial Cuyler is controlling and the defendant must show an actual prejudice in support of his claim State v Marshall 414 So 684 687 88 La cert denied 459 2d S U 1048 103 S 468 74 L 617 1982 Ct 2d Ed Courts of appeal applying Cuyler traditionally ask two questions 1 whether there was an actual conflict of interest as opposed to a merely potential or hypothetical conflict and 2 whether the actual conflict adversely affected s counsel representation If a conflict does not adversely affect counsel s performance no actual conflict exists An actual conflict exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client If a defendant establishes an actual conflict that adversely affected counsel performance prejudice is presumed without any s further inquiry into the effect of the actual conflict on the outcome of the s defendant trial See United States v Infante 404 F 376 391 93 5th Cir 3d 2005 While we agree with learned defense counsel that the better practice is for the trial court to advise codefendants of their right to separate representation especially when counsel is courtappointed Code of Criminal Procedure article 517 does not distinguish between retained or appointed counsel And in the instant case because the defendant first raised the conflict issue post trial an actual prejudice in support of his claim must be shown The defendant claims that had he had his own individual counsel he could have argued that he was only liable for the monetary value of the cameras that he actually touched This claim however assumes that defendant and Hinkel were not working together To the contrary the trial court noted that the evidence overwhelmingly showed that both of the defendants worked together to steal the cameras 3 Specifically the surveillance camera footage showed both men walking together in the store side byside pulling camera boxes from the aisle and placing them into the same buggy They are again shown one walking behind the other removing items from the camera aisle One places a camera on a shelf and the other grabs it One drops a camera on the floor and the other picks it up Both men remained together in the electronics department in close proximity for more than thirty minutes As the trial court instructed the jury all persons concerned in the of a crime are principals and are guilty of the crime charged if whether present or absent they directly commit the act constituting the offense aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime LSAR 14 S 24 The jurisprudence is clear that the mere allegation that one codefendant intends to point an accusing finger at the other is not sufficient to support a claim of actual conflict of interest Kahey 436 So at 2d 485 State v Murphy 463 So 812 825 La App 2d Cir writ denied 468 2d 2d So 570 La 1985 The evidence shows that the defendant was a principal to the theft of the cameras taken by the codefendant and equally culpable in those thefts The theft of the cameras was a joint concerted effort by Caliste and Hinkel Since the defendant did not urge the existence of a conflict of interest before the trial and has failed to demonstrate the existence of an actual conflict of interest or prejudice this assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant contends that the enhanced sentence is excessive As in his motion to reconsider sentence in support of this assignment the defendant considers the nature of his offenses The defendant notes that the total loss for the thefts in the instant offense was under 1 00 400 He further notes that the forgery conviction involved two checks each in the amount of 25 75 The defendant also notes that the contraband on prison grounds conviction was based on a small amount of marijuana and that the cocaine distribution conviction was for a single rock The defendant further notes that the armed robbery offense involved the use of a knife in a business where the defendant waited outside of the building with another of the codefendants The defendant concludes that in the grand perspective of things he should not receive a sentence in excess of the minimum twenty years Article 1 Section 20 of the Louisiana Constitution explicitly prohibits excessive sentences Although a sentence is within the statutory limits the sentence may still violate a defendant constitutional right against excessive s punishment In reviewing a sentence for excessiveness the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense ofjustice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore is nothing more than the needless imposition of pain and suffering See State v Guzman 99 1528 99 1753 p 15 La 5 769 So 1158 1167 00 16 2d The trial court has wide 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 State v Loston 2003 0977 pp 1920 La App 1st Cir 2 874 So 197 210 writ denied 20040792 La 9 882 So 04 23 2d 04 24 2d 1167 Louisiana Code of Criminal Procedure article 894 sets forth items that 1 must be considered by the trial court before imposing sentence The trial court need not recite the entire checklist of Article 894 1 but the record must reflect that it adequately considered the criteria State v Leblanc 20041032 p 10 La App 1 st Cir 12 897 So 736 743 writ denied 2005 0150 La 4 901 04 17 2d 05 29 2d So 1063 cert denied 546 U 905 126 S 254 163 L 231 2005 S Ct 2d Ed State v Faul 2003 1423 p 4 La App 1st Cir 2 873 So 690 692 04 23 2d 10 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 However the holding in Dorthey was made only after and in light of express recognition by the court that the determination and definition of acts that are punishable as crimes are purely a legislative function It is the legislature prerogative to determine the length of the sentence s imposed for crimes classified as felonies Moreover courts are charged with applying these punishments unless they are found to be unconstitutional Dorthey 623 So at 1278 2d A maximum sentence under the habitual offender law is reserved for the worst offender State v Telsee 425 So 1251 1253 La 1983 2d Particularly a maximum sentence may be imposed under the habitual offender law where the defendant criminal record is extensive State v Ballay 99906 pp s 2930 La App 5th Cir 2 757 So 115 134 writ denied 20000908 00 29 2d La 4 790 So 13 State v Tran 97640 p 14 La App 5th Cir 01 20 2d 98 11 3 709 So 311 318 State v Conners 577 So 273 274 La App 3rd 2d 2d Cir 1991 We note that the sentencing comparisons made by the defendant in his appeal brief are of little value It is well settled that sentences must be individualized to the particular offender and to the particular offense committed State v Albarado 2003 2504 p 6 La App 1st Cir 6 878 So 849 04 25 2d 852 writ denied 2004 2231 La 1 893 So 70 State v Bands 612 05 28 2d 2d So 822 828 La App 1st Cir 1992 writ denied 614 So 1254 La 1993 2d 11 Pursuant to LSAR 14 for the underlying offense of theft where S 67B 1 the value amounts to 500 or more the defendant was subject to a sentence of 00 not more than ten years imprisonment with or without hard labor and a fine of not more than three thousand dollars or both As a fourth felony offender the defendant was subject under LSAR 15 to a minimum of S 529 i c 1 1A twenty years imprisonment and not more than life imprisonment See also LSA S 402G R 14 LSAR 14 LSAR 40 and LSAR 14 S 64B S 967B b 4 S 721 As previously stated the defendant was sentenced to life imprisonment at hard labor In imposing sentence the trial court considered the facts of the instant offense and the defendant lengthy criminal record s The trial court concluded that the defendant would continue to commit crimes during any period of not being incarcerated The trial court further noted that the defendant had committed violent crimes in the past and noted its obligation to protect the community The trial court was aware of the nature of the crime for which defendant was convicted and was aware of the fact that defendant was a career criminal Based on the record before us we do not find that the trial court abused its discretion in imposing the maximum sentence Considering the facts of the instant offense combined with the defendant criminal history the sentence is not shocking or s grossly disproportionate to the defendant behavior Assignment of error number s two is without merit CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 12
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