State Of Louisiana VS William D. Hines

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 1118 STATE OF LOUISIANA VERSUS WILLIAM D HINES MEN Judgment Rendered December 22 2010 ALED FROM THE THIRTY SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERRE BONNE STATE OF LOUISIANA DOCKET NUMBER 497 318 THE HONORABLE TIMOTHY C ELLENDER JUDGE EMMMMMM3 Joseph L Waitz Jr District Attorney Attorneys for Appellee State of Louisiana and Ellen Daigle Doskey Assistant District Attorney Houma Louisiana Bertha M Hillman Attorney for DefendantAppellant Thibodaux Louisiana William D Hines BEFORE WHIPPLE McDONALD AND McCLENDON JJ McDONALD J The defendant William D Hines was charged by amended bill of information with one count of aggravated burglary a violation of La R 14 S 60 and pled not guilty Following a jury trial he was found guilty as charged by unanimous verdict He was sentenced to twenty two years at hard labor enhanced by three years for the fact that the victim was over 65 See La R S 2 50 14 The court ordered that the sentences be served consecutively to each other The defendant moved for reconsideration of sentence but the motion was denied He now appeals contending the trial court erred in denying the motion for mistrial or request for admonishment of the jury For the following reasons we affirm the conviction and affirm the sentence imposed under La R 14 but vacate the S 60 sentence imposed under La R 14 S 50 2 FACTS During the morning of October 15 2007 the victim Virginia Watson answered a knock on the front door of her home in Bayou Black s Watson daughter and soninlaw also lived at the residence but were not present during the incident Watson asked who was there and opened the door to see if it was her daughter or granddaughter She was confronted by a man with a gun and another man who was wearing a scarf over his face The victim tried to close the door but the men forced their way into the home stating where the money The man with the gun tied the victim hands together with plastic straps and told her to sit down s and be quiet The other man kicked doors open and ransacked the house After The anietided bill charged burglary in violation of La R 14 aggravated burglary The S 60 defendant was arraigned on aggravated burglary 2 Dennis Len Livings was also charged by the same bill of information with the same offense He was not tried with the defendant 2 the man searching the house did not find what he was looking for he asked the victim where the money that Mike had here The victim replied she was not s aware that any money was in the house and the men left without taking anything After the men left the victim used the automatic dialing feature on her cellular telephone to call for help Approximately fifteen minutes later the defendant Dennis Livings and a woman were apprehended and brought to Bayou Black Recreation Center for possible identification by the victim The victim identified Livings as the man with the gun The defendant did not testify at trial but the State played an audiotape of a statement he gave on October 15 2007 At the beginning of his statement the defendant indicated he had been advised of his Miranda rights and had waived those rights He denied he was being forced to make a statement He claimed he his wife Donna Hines and Livings had traveled from Texas to the victim home s to recover between 500 and 1 supposedly in the victim 00 000 00 000 000 s home He claimed lie and Livings were surprised when the victim answered the knock on her door and their original plan had been to go in the house look for the money find it and burn off ransacked the house The defendant claimed lie was the man who He claimed he did not know that Livings had a gun or that he tied up the victim At the end of his statement the defendant again denied he was being forced to make a statement and indicated his statement was the truth He then stated tlhe only thing I have to add is that my wife don have anything t to do with this The 3 victim testified her grandson name is Michael Crawford s Miranda 4 v Arizona 384 U 436 86 S 1 16 L 694 1966 S Ct 602 Ed 2d 3 MOTION FOR MISTRIAL In his sole assignment of error the defendant argues the trial court erred in denying the motion for mistrial or request for admonishment of the jury because during rebuttal closing argument three on occasions the State improperly commented on the defendant failure to present evidence s Louisiana Code of Criminal Procedure article 770 in pertinent part provides Upon motion of a defendant a mistrial shall be ordered when a remark or comment made within the hearing of the jury by the district attorney during the trial or in argument refers directly or indirectly to 3 The failure of the defendant to testify in his own defense An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial If the defendant however requests that only an admonition be given the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial Louisiana Code of Criminal Procedure article 770 prohibits both direct and 3 indirect references to the def failure to testify Even without these statutory s endant prohibitions the United States Supreme Court has held that a prosecutor is not free to comment upon a defendant failure to take the stand since such a comment s violates the self incrimination clause of the Fifth Amendment made applicable to 2d the states through the Fourteenth Amendment State v Moser 588 So 1243 1247 La App 1st Cir 1991 writ denied 594 So 1314 La 1992 citing 2d Griffin v California 380 U 609 612 13 85 S 1229 1232 14 L 106 S Ct 2d Ed 1965 When the prosecutor makes a direct reference to the defendant failure to s take the stand a mistrial should be declared In the case of such a direct reference a 4 reviewing court will not attempt to determine the effect that the remark had on the jury Moser 588 So at 1247 2d Where the reference to the defendant failure to testify is not direct the s reviewing court will inquire into the remark intended effect upon the jury in order s to distinguish indirect references to the defendant failure to testify which are s impermissible from general statements that the prosecution case is unrebutted s which are permissible Moser 588 So at 1247 2d According to the Louisiana Supreme Court when the jurisprudence speaks of the need to ascertain the intention of a prosecutor reference to the unrebutted s nature of the state case the jurisprudence does not envision the impossible task of s reading what was actually in the prosecutor mind at the time the reference was s made Instead the test to be employed for determining the intent of such a reference set forth in Moser 588 So at 1247 is as follows 2d In cases where the prosecutor simply emphasized that the state evidence was s unrebutted and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so the Louisiana Supreme Court has concluded that the prosecutor argument does not constitute an indirect reference to s the defendant failure to testify On the other hand where the defendant is the only s witness who could have rebutted the state evidence a reference to the testimony as s uncontroverted or unrebutted focuses the jury attention on the defendant failure s s to testify and mandates a mistrial Moser 588 So at 1 referencing State v 2d 247 Johnson 541 So 818 822 La 1 In order to support the granting of a 2d 989 mistrial the inference must be plain that the remark was intended to focus the jury s attention on the defendant not testifying State v Mitchell 2000 1 p 5 La s 399 01 21 2 779 So 698 701 2d 5 The defendant in Johnson was convicted of two counts of first degree murder Johnson 541 So at 82021 He did not testify at trial Johnson 541 2d 2d So at 822 During guiltphase rebuttal closing argument the State referenced the fact that the defendant had made statements to several people implicating himself in the deaths of the victims and argued I will submit to you that there can be no better evidence in a criminal proceeding but that evidence from the defendant own mouth s not contradicted by anybody Nobody came here and contradicted anything that was attributed to him not one single person Nobody took the stand Johnson 541 So at 822 emphasis in original 2d The court in Johnson found the State had indirectly referred to the s defendant failure to take the stand in violation of La CUR art 770 because 3 the only person who could have contradicted the testimony of the witnesses who said the defendant told them he committed the crimes about what the defendant told them was the defendant himself Johnson 541 So at 823 2d In the instant case the State played a portion of the defendant audiotaped s statement during closing argument and argued the defendant had admitted he went into the victim house and doors were kicked open The State also argued there s was not one bit of evidence that was introduced that said that this was not an unauthorized entry of an inhabited dwelling and t was no evidence here introduced that there was no battery that occurred that there was no intentional use of force or violence upon the victim During its closing argument the defense argued the defendant audiotaped s statement should be disregarded because it was not freely and voluntarily made The defense argued that during the interrogation of the defendant Detective Brunet told the defendant that his wife Donna Hines Donna had already given a statement and brought her into the interrogation room to show the defendant that 6 Donna was in custody The defense claimed Donna was released because the defendant made a deal with Brunet Okay I will talk to you if you let my wife go On rebuttal closing argument the State argued But what is real important and I have told you earlier what 1 say is not evidence what defense counsel argues is not evidence it is what comes from the witness stand And I just want to touch bases on several things that were mentioned by defense counsel One is about the a of r They are trying to make it a big deal that the dvice ights statement was not voluntary and that he made a deal with the police officers that if he gave a statement that they were going to let the wife Where is that evidence coming from There was no evidence about that whatsoever That is something that was said in c losing rguments a but there is no evidence to prove it go But there is no evidence whatsoever that his statement was under coercion force or any promises or threats were being made He had ample opportunity to 1 not to speak to the police He signed a form agreeing lie would speak And then you heard in his own words at the beginning of the statement and at the end of the recorded statement that he was not promised anything nothing was threatened and that he gave a statement freely and voluntarily Also mentioned that they went there and you should not find the defendant guilty because they went in there to get that sic belonged to them I didn hear any evidence presented from the witness stand t that anything in that house belonged to the defendant nothing in that house belonged to Dennis Livings nothing as a matter of fact in the losing c they were talking about the cocaine that somebody had that Michael Crawford had and they were trying to get cocaine back That was in c That is not the evidence losing After the completion of the rebuttal closing argument the defense moved for a mistrial or in the alternative for an admonishment The defense argued the State had referred to the defendant not taking the witness stand by arguing there was not one piece of evidence introduced that this was not an unauthorized entry of an inhabited dwelling The defense added f the State also said that there urther was no evidence introduced that was not a simple battery 7 The Court denied the motion for mistrial and also refused to admonish the jury The defense objected to the court ruling s Initially we note the defense failed to object to the particular portions of rebuttal closing argument quoted above he challenges on appeal Accordingly he failed to preserve review of the closing argument for error if any See La C P Cr art 841 An irregularity or error cannot be availed of after verdict unless it was A objected to at the time of occurrence Moreover the trial court correctly denied the motion for mistrial and request for admonishment The State did not directly or indirectly refer to the defendant s failure to testify Rather the State pointed out to the jury that the defense closing argument was merely that argument and not evidence The State had the right to answer the argument of the defendant shall be confined See La C art 774 P Cr to the lack of evidence confined to answering the argument of the defendant The argument The state rebuttal shall be s Further the defendant was not the only witness that could have rebutted the State evidence concerning the s voluntariness of his audiotaped statement Detective Brunet and Captain Wolfe were present during the entire interview with the defendant Indeed the defense thoroughly cross examined Detective Brunet concerning whether or not the s defendant statement was given in exchange for the release of his wife In regard to the argument that the defendant or his accomplice had some legitimate claim to items in the victim house the defense cross examined the victim concerning s whether or not her grandson had drugs or money in her house See State v Steele 2001 1414 pp 11 La App 5th Cir 9 829 So 541 54950 writ 14 02 30 2d denied 20022992 La 9 853 So 632 The remarks by the prosecutor in 03 19 2d closing were not made to suggest that the defendant failed to testify at trial but to counter the defense suggestion that the shooting was in self defense Moreover a 8 review of the full text of the argument indicates that the intent of the prosecutor was to inform the jury of the lack of evidence to support defendant position s Stated another way the prosecutor argument illustrated for the jury that its case s was unrebutted Such an argument is permissible within the parameters of La C P Cr art 774 This assignment of error is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to La C art 920 P Cr which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence La C art 920 P Cr 2 The sentencing minutes in this case indicate the trial court sentenced the defendant to twentytwo years at hard labor enhanced by 3 years for the fact that the victim was over 65 At sentencing the State advised the trial court the defendant went to trial on a charge of aggravated burglary against a person over the age of sixtyfive and he was found guilty of that matter At the hearing on the motion to reconsider sentence defense counsel set forth the defendant had been sentenced under La R 14 and La R 14 S 60 S 50 2 The court in its discretion may sentence in addition to any other penalty provided by law any person who is convicted of a crime of violence or an attempt to commit any of the crimes as defined in R 14 2 with the exception of first S B degree murder R 14 second degree murder R 14 30 aggravated S 30 S 1 assault R 1 aggravated rape R 14 and aggravated kidnapping S 4 37 S 42 S 44 R 14 to an additional three years imprisonment when the victim of such crime is sixtyfive years of age or older at the time the crime is committed 9 La S 4 R 1 2 50 Aggravated burglary is a crime of violence as defined in La R S 0 2 14 See La R 14 S 2 20 B Any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment submitted to a jury and proven beyond a reasonable doubt Apprendi v New Jersey 530 U 466 476 120 S Ct S 2348 2355 147 L 435 2000 Jones v United States 526 U 227 2d Ed S 243 n 6 119 S 1215 1224 n 6 143 L 311 1999 Additional elements Ct 2d Ed of an offense must be charged in the indictment submitted to a jury and proven by S Ct the government beyond a reasonable doubt Jones 526 U at 232 119 S at 1219 The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant Blakely v Washington 542 U 296 303 124 S S Ct 2531 2537 159 L 403 2004 State v Hardeman 2004 0760 p 1 La 2d Ed 0 App lst Cir 2 906 So 616 626 05 8 1 2d The sentence imposed under La S R 2 50 14 in this matter was unsupported by facts reflected in the jury verdict or admitted by the defendant The bill of information originally charged the defendant with burglary of the victim s residence and set forth the victim was over the age of sixty five The original bill also included citation to both La R 14 and La R 1 S 60 S 4 2 50 The State however amended the bill prior to trial to delete reference to the victim age and s to La R 14 Further the court did not charge the jury on La R 14 50 S 50 2 S 2 and the responsive verdicts submitted to the jury for consideration did not reference the age of the victim Additionally contrary to the position of the State at sentencing the jury returned a verdict of Guilty of aggravated b urglary and made no finding on whether or not the victim was sixty five years of age or older at the time the crime was committed 10 We are aware of State v Armour 2003 1882 La App 4th Cir 4 04 28 874 So 304 wherein the court affirmed a sentence of eighteen years at hard labor 2d under La S R 6 65 4 1 purse snatching enhanced under La S R A 1 529 15 I a second felony habitual offender which expressly included an additional sentence of three years under La R 14 Armour however was S 50 2 rendered prior to Blakely which we find controlling in this case Accordingly the enhanced sentence of three years imposed under La R 14 is hereby S 50 2 vacated CONVICTION AFFIRMED SENTENCE IMPOSED UNDER LA R S 60 14 AFFIRMED SENTENCE LMPOSED UNDER LA R 14 50 2 S VACATED

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