State Of Louisiana VS Corey Odom
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NOT DESIGNATED FOR PUBLICATION STATE O LOUISIANA COURT OF APPEAL FIRST CIR iJIT NtJMBER 2012 KA 1163 TATE S OF LOIIISIf1NA VERSUS COREY ODOM Judgment Rendered March 22 2013 aled App from the Third Twenty Judicial District Court In and for the Parbsh of Ascension State of Louisiana Docket Number 26478 Honorable Guy Holdridge Judge Presidi g Ricky Counsel for I Appellee aintiff L Babin District State of Lonisiana Attorney Donaldsonville LA Donald D Candell Assistant District E ttorney Gonzales LA Lieu T Vo Clark Louisiana Appellate Project Counsel for Defendant Appellant Corey Odom Mandeville LA BEFORE GUIDRY CRAIN AND THERIOT JJ G o s t Gv L GUIDRY J The defendant Corey G Odom was charged by bi11 of information with one count of possession of 400 grams or more o cocaine a violation of La R S c 1 F 967 40 and pled not guilty Following a jury trial he was found guilty as charged He was sentenced to hrteen years at hard labor He now appeals contending the trial court erred in excluding evidence of the co s defendant inculpatory statement which exonerated the defendant Far the following reasons we affirm the conviction and sentence FACTS On January 29 2010 at approximately 10 p Gonzales City Police 51 m Department Corporal Dwayne Carpenter and Officer Aaron Picou noticed a vehicle occupied by two black males travelling at 42 miles per hour in a 25 mile per hour speed zone with its high beams on northbound on Louisiana Highway 44 near the East Ascension High School football field in Gonzales Sergeant Carpenter activated his police lights and siren and the suspect vehicle slowed down and appeared to be pulling into a parking lot However the vehicle then quickly accelerated southbound down Louisiana Highway 44 at 80 miles per hour Sergeant Carpenter and Officer Picou chased the vehicle The suspect vehicle eventually pulled into a private residence and the defendant jumped out of the passenger side of the vehicle and fell into a puddle of mud He then attempted to flee from the scene on foot He was apprehended approximately one to one and half one minutes later after throwing a white bag over a fence The bag contained a Ziploc bag with 1 lb 2 oz of cocaine The defendant had 51 on his person Sergeant Carpenter stayed with the driver of the vehicle Jamar Howard 1 No codefendants were listed on the bill of inf charging the defendant and no ormation one was jointly tried with him In his brief the defendant references the alleged inculpatory statement of Mr Howard Jamar Howazd was called to the stand at trial but he exercised his right to remain silent 2 Howard claimed he had not seen ihe police lights or heard the police siren Thereafter he stated he did not kr the defexidant and had seen him walking and ow had given him a ride Howard had 3 in his front pocket 558 The defendant testified at triaL He conceded he had previously pled guilty to possession of cocaine He d being a cocaine dealer He stated he was nied related to Howard The defendar ciaimed he ran from the police during the t incident because he was scared and because Howard threw the bag of cocaine in his lap and told him If you don tget out here Pm going to kill you you better get out here with that STATEMENTS OF JAMAR HOWARD In his sole assignment of error the defendant argues the trial court erroneously excluded the alleged out statements of Jamar Howard which court of were corroborated by testimony and evidence at trial Louisiana Code ofEvidence article 804 in pertinent part provides A Definition of unavailability Except as otherwise provided by this Code a declarant is unavailable as a witness when the declarant cannot or will not appear in coun and testify to the substance of his statement made outside of court This includes situations in which the declarant 1 Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement Hearsay exceptions The following sre not excluded by the hearsay rule if the declarant is unavailable as a witness B Statement against interest A statement which was at the time of its making so far contrary to the declarant specuniary or 3 proprietary interest or so far tended to subject him to civil ar criminal liabiiity or to render invalid a claim by him against another that a reasonable man in his position would not have made the statement unless he believed it to be true A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement 3 In State v Hammons 597 So 2d 990 995 La 1992 the supreme court recognized that La C art 804 was closely patterned after Fed R Evid E 3 B 804 and thus the history of the federal rule was pertinent to application of the state rule At common law only statements against pecuniary or proprietary interest were originally admissible as hearsay exceptions because of the fear that statements against penal interest would be fabricated Hammons 597 So 2d at 96 995 When the statement is one against the declarant penal interest the s circumstances surrounding the making of the statement may be significant in determining its trustworthiness If a declarant admits sole responsibility for a serious crime the statement is generally prima facie against interest so as to satisfy this requirement of the rule However if the statement is clearly self as serving when the declarant is seeking favorable treatment for himself in return far cooperation the statement may be deemed not against his interest and thus may fall outside the exception Hammons 597 So 2d at 996 When the statement tending to expose the declarant to criminal liability is offered to exculpate the accused La C art 804 expressly requires corroborating circumstances E 3 B indicating trustworthiness The burden of satisfying the corroboration requirement is on the accused Hammons 597 So 2d at 996 That burden may be satisfied 97 by evidence independent of the statement which tends either directly or circumstantially to establish a matter asserted by the statement Circumstantial evidence of the veracity of the declarant as to the portion of the statement exonerating the accused is generally sufficient Typical corroborating circumstances include statements against the declarant interest to an unusual or s devastating degree or the declarant repeating of consistent statements or the fact s that the declarant was not likely motivated to falsify for the benefit of the accused Hammons 597 So 2d at 997 4 Prior to the presentation of the defendant scase at trial the defense indicated it wanted to present testimony from Nioka McKinney the defendant smother that she spoke to Jamar Howard after the defendant was arrested and Howard told her s It my fault It was my stuf I threw the stuff at the defendant and told him get out of the car The trial court asked the defense if it could corroborate the alleged statement The defense replied She went to the jail and here another situation She went to s jail to bond him out Mr Howard had already posted a bond for him If I could have got the other witness here he also said that he was told by Mr Howard that I t t can corroborate that I can the trustworthiness of the mother s It not great The trial court ruled that Nioka McKinney statement would be insufficient s to allow admission of the alleged statement of Howard noting If every mother would testify and we have every mother on the E coming in and saying no d arth somebody else did it Thereafter the defense proffered the testimony of Nioka McKinney to wit Jamar Howard was on the line I said What going on s Man He said that they had been in jail all night I said What happened He said Man we got busted last night He said t Iwas all my fault the defendant had nothing to do with it He said I lost 20 He said Igoing to Ralph Stassi that 000 m you need to find two people to get him out because I done paid the money already and I needed to find two people to sign for him with a job He said You need to find two people to get him out because I done paid the money already And I said Well what went on He said that the police done run up on us he said Iwent by e H told me it was his girlfriend house He said that where s they caught me He said but man the defendant lgot out ad the car running with the stuf I told him to go and the defendant fell and tripped He said they chasing him Man when they came back at the time the police was even talking about it that time came back He said they had done come I was shocked to see them come back with the drugs But man Pm going to take the full then after he responsibility and the full wrap of that He said talking about and if not Man he just gonna have to take his charge stuff like that And he hung up the phone on me That was the end of that conversation at that time The trial court correctly excluded the proffered testimony Jamar Howard s alleged statement against interest as related by Nioka McKinney was unsupported 5 by corroborating circumstances clearly i trustworthiness of the ndicating the statement Nioka McKinney was the defendant smother and thus was motivated to be less than truChful in order t prevent his conviction See State v Dabney 91 o 2051 La App 4th Cir 3633 So 2d 1 1379 writ denied 94 La 94 15 369 0974 94 2 9 643 So 2d 139 Additionally Howard never repeated the alleged statement against penai interest O the night of the incident he told the police he r did not know the defendant and had seen him walking and picked him up to give him a ride At trial Howard refused to testify This assignment of errar is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to La C Cr P art 920 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 Cr P art 20 2 The trial court failed to impose the mandatory fine of not less than two hundred fifty thousand dollars nor more than six hundred thousand dollars 5ee La S 967 R 40 Although the failure to impose the fine is error under La C c 1 F Cr P art 920 it certainly is noi ini prejudieial to the defendant 2 erently Beoause the trial court failure to impose the fine as not raised by the State in s either the trial court or on appeal we are not required to take any action As such we decline to correct the illegally lenient sentence See State v Price OS 2514 La App 1st Cir 12 952 So 2d 112 123 en banc writ denied 07 06 28 25 0130 La 2976 So 2d 1277 08 22 CONVICTION AND SENTENCE AFFIRME D 6 FIRST CIRCUIT STATE OF LOUISIANA COURT OF APPEAL VERSUS STATE OF LOUISIANA 2012 KA 1163 COREY ODOM j CRAIN J dissents in part I agree with that portion of the majority opinion that affirms the conviction and the exclusion of the proffered testimony of Nioka McKinney However for the reasons assigned in dissent in State v Hollingsworth 12 La App 1 Cir 1035 13 15 2 unpublished I respectfully dissent from that portion of the majority opinion that declines to correct the sentencing error by remanding the matter to the trial court for re sentencing The need for remand is further supported by the recent enactment of Louisiana Code of Criminal Procedure article 890 which provides in pertinent 1 part Notwithstanding any other provision of law to the contrary if a felony ar misdemeanor offense specifies a sentence with a minimum term of confinement or a minimum fine or that the sentence shall be served without benefit of parole probation or suspension of sentence the court upon conviction in sentencing the offender shall impose the sentence as provided in the penalty provisions far that offense Section 8901A and A permit only two exceptions to this mandate a plea 1 2 agreement and a post agreement although those exceptions are not conviction applicable to a crime of violence or a sex offense under Section 890 1D Neither ofthe exceptions applies in the present case By enacting Article 890 the Louisiana Legislature expressly declared that 1 the courts shall impose the sentence provided in the penalty provision of the applicable criminal statute This mandatory language does not permit this court to allow an illegally lenient sentence to stand 1 Louisiana Revised Statute 40 provides for a fine of not less than c 1 967F two hundred and fifty thousand dollars and not more than six hundred thousand dollars Because the amount of the fine lies in the trial court discretion the s amendment of the sentence entails more than a ministerial correction of a sentencing error Under these circumstances this court cannot sua sponte correct the sentence and should remand the case to the trial court for re State sentencing v Haynes 04 La 12 889 So 2d 224 per curiam 1893 04 10 2
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