State Of Louisiana VS Christopher M. Spiehler
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0129 STATE OF LOUISIANA VERSUS CHRISTOPHER M SPIEHLER 1 iJ On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 491 Division D 497 Honorable Peter J Garcia Judge Presiding PO Walter P Reed Attorneys for Appellee District Attorney State of Louisiana Covington LA and Kathryn Landry Special Appeals Counsel Baton Rouge LA Frederick Kroenke Attorney for Louisiana Appellate Project Defendant Appellant Baton Rouge LA Christopher M Spiehler Christopher M Spiehler Angola LA In Proper Person BEFORE PARRO HUGHES AND WELCH JJ Judgment rendered EP S 2 1 2012 PARRO J The defendant Christopher M Spiehler was charged by grand jury indictment with aggravated rape count one aggravated kidnapping of a child count two and multiple counts of pornography involving juveniles counts three through twentytwo violations of LSARS 14 LSAR 14 and LSA R 14 The defendant 42 S 44 2 S 81 1 entered a plea of not guilty After a trial by jury the defendant was found guilty as charged on counts one and three through twentytwo and found guilty of the lesser and included offense of simple kidnapping on count two a violation of LSA R 14 S 45 The trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence on count one five years of imprisonment at hard labor on count two and five years of imprisonment at hard labor without the benefit of probation parole or suspension of sentence on counts three through twenty two The trial court ordered that counts one and three through twenty two be served consecutively to each other and that count two be served concurrently with count one The trial court denied the defendant motion to reconsider sentence s The defendant now appeals challenging in his counseled brief the constitutionality of the aggravated rape sentence and the non unanimous verdicts In a supplemental pro se brief the defendant further assigns error to the trial court failure s to rule on his pro se motions to quash the indictment For the following reasons we affirm the convictions and sentences STATEMENT OF FACTS When the victim K was eleven years old she began communicating with the A defendant while visiting a website called vampirefreaks a website described by the com victim as a Facebook for outcasts The defendant told the victim that he was eighteen years old and the victim represented her age as fourteen on her profile page At some 1 The indictment includes additional counts of pornography involving juveniles counts twentythree through one hundred twentythree that were severed from the above noted charges for purposes of trial 2 The victim date of birth is August 22 1998 In this opinion the victim will be referenced by initials s only See LSA R 45 S 1844 W 2 point while the victim was still eleven years old the defendant and the victim made arrangements to meet in person As planned during the middle of the night the victim met the defendant down the block from her home in Abita Springs Louisiana and got into his vehicle The defendant had sexual intercourse with the victim when he parked at a recreational vehicle RV park The victim did not remember consenting to the act and testified that it made her feel awkward and uncomfortable The victim asked the defendant to take her home and he complied The victim continued to interact with the defendant on the website and in April of 2010 texted the defendant to inform him that she wanted to go to Orlando Florida to visit another male with whom she had been interacting on the website The defendant told the victim that he would take her to Florida and agreed to meet the victim in the middle of the night The victim packed a bag of her belongings and accompanied by her nephew of the same age the son of the victim much older s sister met the defendant near her home The victim nephew did not want the victim s to leave with the defendant and tried to talk her out of it When the defendant arrived the victim nephew informed him that the victim was only eleven years old and could s not make decisions on her own While the defendant still drove away with the victim her nephew partially memorized the license plate of the vehicle in which they were travelling and went back to his grandmother home to alert his family s The defendant took the victim to Mississippi and while pulled over in a strip mall parking lot had sexual intercourse with her again The defendant then drove to a gas station gave the victim some money and instructed her to go in and buy a bag of chips and a soda The victim complied and when she came out of the store the defendant was gone She ultimately contacted her father and her parents took her to the police station The victim was also taken to the hospital and to the Children Advocacy Center where she was s interviewed The police were able to identify the defendant svehicle with the partial license 3 plate information used the vehicle Onstar system to disable it and located the s defendant in Slidell Louisiana The defendant slaptop computer and hard drive were seized and searched during the execution of search warrants by the police During the trial the defense stipulated that images obtained from the computer contained child pornography COUNSELED ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant argues that the trial court erred in imposing an unconstitutionally excessive sentence thirtyyearold college graduate The defendant notes that he is a He contends that he has no adverse criminal history The defendant concludes that it is an injustice to impose a life sentence on him The defendant does not contest the remaining sentences The Eighth Amendment to the United States Constitution and Article I Section 20 of the Louisiana punishment Constitution prohibit the imposition of excessive or cruel Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 2d A sentence is considered 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 suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks one sense of s justice State v Andrews 940842 La App 1st Cir 5 655 So 448 454 95 2d Louisiana Code of Criminal Procedure article 894 sets forth the factors for the 1 trial court to consider when imposing sentence While the entire checklist of LSA P Cr C art 894 need not be recited the record must reflect the trial court adequately 1 considered the criteria State v Brown 02 2231 La App 1st Cir 5 849 So 03 9 2d 566 569 Under LSA R 14 a person convicted of aggravated rape shall be S 42 1 D punished by life imprisonment at hard labor without benefit of parole probation or 3 The motion to reconsider sentence also notes that the trial court imposed consecutive sentences on counts three through twenty two On appeal the defendant only challenges one sentence the mandatory life sentence imposed on count one citing State v Johnson 97 1906 La 3 709 98 4 2d So 672 51 suspension of sentence The failure to articulate reasons for the sentence as set forth in Article 894 when imposing a mandatory life sentence is not an error as articulating 1 reasons or factors would be an exercise in futility since the court has no discretion State v Felder 00 2887 La App 1st Cir 9 809 So 360 371 writ denied 01 28 2d 01 3027 La 10 827 So 1173 02 25 2d 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 is purely a legislative function It is the legislature s prerogative to determine the length of the sentence 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 In State v Johnson 971906 La 3 709 So 672 the Louisiana 98 4 2d Supreme Court reexamined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence albeit in the context of the Habitual Offender Law The court held that to rebut the presumption that the mandatory minimum sentence was constitutional the defendant had to clearly and convincingly show that he is exceptional which in this context means that because of unusual circumstances this defendant is a victim of the legislature failure to s assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case State v Johnson 709 So at 676 While both Dorthey and Johnson involve the 2d mandatory minimum sentences imposed under the Habitual Offender Law the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the penalties provided by LSAR S 0 1 529 15 See State v Fobbs 991024 La 9 744 So 1274 per curiam 99 24 2d State v Henderson 99 1945 La App 1st Or 6 762 So 747 760 n 00 23 2d 5 writ denied 002223 La 6 793 So 1235 State v Davis 942332 La 01 15 2d App 1st Cir 12 666 So 400 408 writ denied 960127 La 4 671 95 15 2d 96 19 2d So 925 After imposing the mandatory life sentence on count one the trial court noted that the eleven yearold victim in this case had to undergo the strenuous task of testifying and further suffering due to the defendant actions The defendant has not s presented any particular facts regarding his family history or special circumstances that would support a deviation from the mandatory sentence provided in LSA R S 1 D 42 14 Based on the record before us we find that the defendant has failed to show that he is exceptional or that the mandatory life sentence is not meaningfully tailored to his culpability the gravity of the offense and the circumstances of the case Thus we find that a downward departure from the mandatory life sentence was not required in this case The mandated life sentence imposed is not excessive and assignment of error number one lacks merit COUNSELED ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant contends that the trial court erred in not finding that LSAC art 782 and LSA Const art I P Cr 17 violate the Fourteenth Amendment Equal Protection Clause and in failing to instruct the jury that s they had to render unanimous verdicts The defendant notes that the Louisiana Supreme Court has cited the United States Supreme Court plurality decision in s Apodaca v Oregon 406 U 404 92 S 1628 32 L 184 1972 in S Ct 2d Ed determining that the non unanimous verdicts allowed in Louisiana meet constitutional muster and do not offend the United States Constitution See State v Bertrand 08 2215 082311 La 3 6 So 738 The defendant further notes that since a 09 17 3d majority of the United States Supreme Court has not definitively ruled on the constitutional validity of non unanimous verdicts he is raising the issue on appeal to 2 preserve it in the event that reconsideration presents a different result than was reached in Apodaca v Oregon Louisiana Constitution article I A 17 and Louisiana Code of Criminal Procedure article 782 provide that in cases in which punishment is necessarily confinement at A hard labor the case shall be tried by a jury composed of twelve jurors ten of whom must concur to render a verdict Under both state and federal jurisprudence a criminal conviction by a less than unanimous jury does not violate a defendant right to trial by s jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment See Apodaca v Oregon 406 U at 406 92 S at 1630 S Ct State v Belgard 410 So 720 726 27 La 1982 State v Shanks 971885 La 2d App 1st Cir 6 715 So 157 16465 98 29 2d In Andres v United States 333 U 740 748 68 S 880 884 92 L S Ct Ed 1055 1948 the United States Supreme Court recognized that the Sixth Amendment guarantees a right to a unanimous jury verdict in federal criminal trials However in its subsequent pronouncement on the unanimous jury question in the companion cases of Johnson v Louisiana 406 U 356 358 60 92 S 1620 162324 32 L 152 S Ct 2d Ed 1972 and Apodaca v Oregon 406 U at 406 92 S at 1630 the Supreme S Ct Court specifically held that while the Sixth Amendment requires a unanimous verdict in a federal criminal trial the Sixth Amendment applicable to the states through the Fourteenth Amendment under Duncan v Louisiana 391 U 145 88 S 1444 20 S Ct 2d Ed L 491 1968 does not impose a similar requirement on state criminal proceedings In this case the guilty verdicts on counts one and two were non unanimous with a concurrence of ten jurors out of twelve on count one and a concurrence of eleven jurors out of twelve on count two the remaining verdicts were unanimous As conceded by the defendant this court and our Louisiana Supreme Court have previously rejected the argument raised in this assignment of error See State v Bertrand 6 So at 742 43 State v Smith 060820 La App 1st Cir 12 3d 06 28 7 952 So 1 16 writ denied 070211 La 9 964 So 352 2d 07 28 2d As explained in Bertrand although the Apodaca decision was indeed a plurality decision rather than a majority one the United States Supreme Court has cited or discussed the opinion various times since its issuance and on each of these occasions it is apparent that the Supreme Court considered that Apodaca holding as to non unanimous jury verdicts s represents well settled law Bertrand 6 So at 742 3d The Bertrand court specifically found that a non unanimous twelve person jury verdict is constitutional and that Article 782 does not violate the Fifth Sixth and Fourteenth Amendments Accordingly LSAConst art I A 17 and LSAC P Cr art A 782 are not unconstitutional and hence not in violation of the defendant federal constitutional s rights Assignment of error number two is without merit PRO SE ASSIGNMENT OF ERROR In his sole pro se assignment of error the defendant argues that the trial court erred in failing to rule on his pro se motions to quash the indictment The defendant notes that as opposed to ruling on his motions to quash the trial court indicated that no action was necessary the defendant was represented by counsel and no order was attached to the motions In arguing that the trial court should have ruled on his motions the defendant notes that pro se filings are held to less stringent standards The defendant further contends that it was not established at trial that any element of aggravated rape took place in St Tammany Parish In his pro se brief he contends that the sexual encounter happened in Mississippi The defendant argues that the indictment failed to establish where the aggravated rape took place and that the bill of particulars did not cure the defective indictment In essence the defendant argues that the trial was held in a court of improper venue At the outset we note that although the defendant now contends that he raised the issue of improper venue in the trial court the motions to quash in the record before us do not raise that issue Improper venue shall be raised in advance of trial by a motion to quash and shall be tried by the judge alone Venue shall not be considered u1 an essential element to be proven by the state at trial rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial LSA C art 615 P Cr If the defendant fails to properly raise the issue prior to trial the issue of venue is considered waived State v Westmoreland 101408 La App 3rd Cir 5 63 SO 373 382 writ denied 11 4 3d 111660 La 1 78 So 140 See also State v Amato 96 0606 La App 1st 12 20 3d Cir 6 698 So 972 989 writs denied 972626 and 972644 La 2 97 30 2d 98 20 709 So 772 State v Matthews 632 So 294 296 La App 1st Cir 1993 2d 2d While the defendant argues that the indictment did not establish the location of the aggravated rape offense and that the bill of particulars did not cure the defect the s state answer to the motions for discovery indicates that open file discovery was provided Police affidavits in the record include the details and locations of the offenses On September 15 2011 the parties agreed that several motions including the motion for discovery were satisfied Omission of essential facts from an indictment or bill of information is not necessarily prejudicial error since the defendant right to s learn before the trial of the particulars of the offense for which he is to be tried can be adequately protected by the bill of particulars and other discovery devices See State v Pichler 355 So 1302 1304 La 1978 State v Benedict 607 So 817 821 2d 2d La App 1st Cir 1992 Moreover the indictment specifically alleged the aggravated rape occurred between the first and twentyeighth days of February 2010 in the Parish of St Tammany We note that lower courts must accept and consider pro se filings from represented defendants in a pre verdict context whenever doing so will not lead to confusion at trial State v Melon 952209 La 9 660 So 466 467 95 22 2d Nonetheless if the defendant proceeds to trial without complaining about the lack of a ruling on the pro se motions the motions are waived State v Gaddis 36 La 661 App 2nd Cir 3 839 So 1258 1267 writ denied 03 1275 La 5 872 03 14 2d 04 14 4 The Mellon court also reaffirmed the rule that courts are required to accept and consider post verdict pro se filings from represented defendants Melon 660 So at 466 67 2d E 2d So 519 cert denied 544 U 926 125 S 1649 161 L 487 2005 Thus S Ct 2d Ed because the record shows that the defendant permitted the trial to proceed without raising the issue of the lack of a ruling on the pending motions they are waived spro se assignment of error is without merit defendant CONVICTIONS AND SENTENCES AFFIRMED 10 The
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