State Of Louisiana VS Carl J. Davis, Jr.

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NOT DESIGNATED FOR PUBLICA"I' ION S"I'ATE 01= LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 2044 STf1TE OF LOUISIANA VERSUS CARL J. DAVIS, JR. ' DEC Judgment Rendered: 2 7 2013 x A EALED FROM THE TWENTY- SECOND JUDIC[ AL DISTRICT COUR"C IN AND FOR THE PAR[ SH OF WASt INGTON STATE OF LOUISIANA DOCKET NUMBER 10- CRS- 107597 HONORABLE AUGUST J. HAND, JUDGE Walter P. Reed Attorneys for Appellee District Attornev State of Louisiana Covington, Louisiana and Kathryn I, andry Special Appeals Counsel Baton Rougc, Louisiana Mary E. Roper Attarney for Defendant/ Appellant Louisiana AppelLate Project Carl J. Davis, Jr. Baton Rougc, Louisiana Cacl Davis Pro Se Angola, Louisiana BEFORE: PETTIGREW, McDONALD, AND McCI.ENDON, JJ. McDONALD, J. 1' he defei dant, Carl J. llavis, Jr., was charged bv grand jury indictment with second degrec murclet, a violation of La. R. S. 14: 30. 1 and entered a plea of not guilty. Following a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant' s motion for post- verdict judgment of acquittal and for motioi tria(. new The defendant received the mandatory sentence of life imprisonment at hard labor, without the benefit of pai-ole, of sentence, defendant' s the trial court denied his and counseled appeal assigns to reconsider sentence. motion en-ar to: ( robation, or suspension I) ' l he the trial court' s failure to observe tl e twenty- four houe delay beriveen the sentencing and the denia] of the motioti for new trial, and ( 2) the constitutionality ofi tl e sentence. The defendant has filed a pro se brief assigning en-or to the sufficiency of the evidence to support the conviction, and reassigning error, without additional arguinent, to the constitulionalily of the For the following reasons, we affirm the entence. deCendant' s conviction and sentence. 5TATEMENT OF FACTS On the night of Decembec 12, 2009, the twenry- ttivo- year old victim, Brossi Hogan, went to Lem' s Bar in Washington Parish. The bar closed about 3: 00 a. m. the next morning, and the roadway leading away from the bar became congested as patrons attempted to leave the area. According to witnesses, one vehicle was blocking t11e road and some pah ons from the bai- were in the roadway dancing. Dueing thc traffic jam, the defendant was observed arguing with Ariamia Magee who, according to witnesses, looked more like a male than a female and was in one of the vehicles that was blocking the defendant from leaving. Thc victim, Ms. Magee' s cousin, stepped out of liis friend, Stephanie Gaudy' s, vehicle to inform the defendant, who was not from the area, that Ms. Magee was not a tnan and that the defendant was actually arguing with a female. ACter the victim got back in the 2 vehicle, the defendant was observed Iiring Several gunshots into the vehicle, stt-iking the victim multiple times. Detective Anthony Stubbs of the Wasl ington Parish Sherift' s Office ( WPSO) was dispatched to the scene while other detectives went to Riverside Medical Center and met potential witncsses. The victiin suffe red three gunshots to the head and died instantly. PRO SE ASSIGNMENT OF ERROR NUMBF.R ONE In pro se assignment of error number one, the defendant challenges the evidence presented in support of his conviction. He specifically attacks the photogr iphic identifications as suggestive and unreliable and argues that the use of a suggestive proceduie led to a substantial likelihood of misidentification.' On that basis, the defendant argues that the evidence was insufficient to establish his identity as thc perpetrator beyond a reasonable doubt. The defendant notes that a period of eighteen months elapsed between the inurder and lhe witnesses' confirontation wilh him on the day of the h ial. The defendant argues the witnesses' i-ecollection tnay l ave been derived fi ¢om the suggestive identification procedure and photograph rather than from the brief nighttime encounter during the crime. he constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U. S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 1979), requires that a conviction be based on proof sufficient foi- any rational trier of facl, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt 821 ; State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d La. GCr.P. arY. 654, 660. In conducting this review, we also must be expressly mindful of Louisiana' s circumstantial evidence test, i. e., " assuming every fact to be proved that the We nutc H at the defendant challenged the prctriat identifications in a motion to suppress before the tri al. Atter a heariug that included testimony regarding the identitication procedure, the trial courE deiiied d c dcfendant' s motion to suppress. Thc defendant has not challenged that r' uling on appeal. 3 evidei cc tends to prove," in order to convicl, it must exclude evety reasoiiable hypothesis of innocence. La. R. S. 15: 438; see StaYe v. Wright, 98- 0601 ( La. App. 1 Cir-. 2/ l9/ 99), 730 So. 2d 485, 486, writs deuicd, 99- 0802 ( La. 10/ 29/ 99), 748 So. 2d 1 I S7 and 2000- 0895 ( La. 11/ 17/ 00), 773 So. 2d 732. When a case involves circumstantial evidence and the trier of fact reasonably rejects the ) y othesis of innocence presented by the defense, that hypothesis fails, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 ,( La. App. 1 Cir.), writ denied, 514 So. 2d 126 ( La. ( 987}. Furtherinore, wl en the key issue is the defenda lt's identity as the peipetrator, rathcr than whether the crime was committed, the State is required to negate any reasonable probability witness is su of misidentification. Positive identitication by only one cient to support a convicrion. It is the fact fiinder who weighs the respective credibilities of the witnesses, and this court will generally not secondguess th, se determinations. See State v. Hughes, 2005- 0992 ( La. 11/ 29/ 06), 943 So2d 1047, 1051 . An identification procedure is sugges ive if, during the procedure, the witness' atteotion is unduly focused on the defendant State v. Thibodeaux, 981673 ( La. 9/ Ri99), 750 So. 2d 916, 932, cert. denied, 529 U.S. 1969, 146 l,. F,d. 2d 800 ( 2000). 1112, 120 S. Ct. In determining the likelillood of misidentification of a suspect, a couit must look to the " totality of the circumstances" in light of the five factors set forth by tlie United States Supreme Court in Neil v. Biggers, 409 U. S. 188, 199- 200, 93 S. Ct. 375, 382, 34 L.Ed. 2d 40] ( 1972). These factors include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior desci-iption of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length ofi time betwcen tlle crime and the confron ation. Any corrupting effect of a suggestive identification is to be weighed against these 4 Manson v. Brathwaite, 432 U. S. 9g, 114, 97 S. Ct. 2243, 2253, 53 factor. SYrict identity of physical characteristics among the persons L.I: 2d l40 ( 1977). d. depicted in a photographic array is not required; however, there must be sufficient rescmblance to reasonably test the identification. See State v. Smith, 4i0 So. 2d 3 (, 43 ( La. I y83). Even if the identification could be considered suggcstive, that alone does not indicate a violation of the accused' s ight to due process. It is the likelihood of misidentification that violates due process, not mei-ely the suggestive identitication procedure. State v. Johnson, 2000- 0680 ( La. App. 1 Cir. 12/ 22/ 00), 775 So. 2d 670, 677, writ denied, 2002- 1368 ( La. 5/ 30/ 03), 845 So. 2d 1066; State v. Reed, 97- 0812 ( La. App. 1 Cir. 4/ 8/ 98), 7l2 So. 2d 572, 576, writ denied, 981266 ( La. ] there v. is l/ 25/ 98), 729 So. 2d 572. In- court identifcation nay be permissible if not a " very substantial likelihood of Martin, 595 So. 2d 592, 595 ( La. 1992), iireparable misidentification." State oling, Simmons v. U. S., 390 U. S. 377, 384, 88 S. Ct 967, 971, 19 L. F_, 2d 1247 ( 1968); see also State v. Jones, 94d. 1098 ( La. f1p. 1 Cir. 6/ 23/ 95), 658 So. 2d 307, 31 l, writ denied, 95? 280 ( La. 1/ 12/ 96}, 6C6 So? d 320. Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R_S. 14: 0. (( A)( 1). Specific criminal intent is that " state of mind which exists when the circumstances indicate that the offender actively desired the prescribed crirninal consequences Though intei t is to follow his a question of act fact, it or necd failure to not be act." proven La. R. S. as a fact. 14: 10(] ). It may be inferrcd 1 rom the circumstances of the transaction. Tlius, specifiic intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantia] evidence, such as a defendant' s actions or facts depicting the circun istance5. Specific intent is an ulti nate legal conclusion to be resoived by the fact finder. State v. 6uchanon, 95- 0625 ( La. App. 1 Cir. 5/ 10/ 96), 673 So.2d 663, 5 665, it denied, 96- 1411 ( La. 12/ 6/ 96), 684 So. 2d 923. wt ¢ Specitic intent to kill may be ii ierred from a defendant' s act of poi ting a gun and firi ig at a person. State . Delco, 2006- 0504 ( La. App. 1 Cir. 9/ 15/ 06), 943 So. 2d 1143, I 146, writ denicd, 2006- 2636 ( La. 8/ 15/ 07), 961 So2d 1160. In this case, the defendant is not cout sting the apparent evidence in support of the elements of a second degree murder charge. Thus, the remaining issue is whether the State can-ied its burden of negating any reasonable probability oCmisidentiricatioii. 1' he tcial took place approximately two years after the shooting. WPSO Detectives ( iuy Magee, Jim Miller, atid Anthony Romano testified at the trial. The detectives went to tbe hospital after the shooting. Detective Magee ret ained at the hospital vith the victim' s friend, Stephanie Gaudy, while other witnes es, including Arianna Magee, Takedra Crumedy, and Jamie Marie, were tcansported to the slieriff' s office in Franklinton by Detective Miller. Detective Miiler testified that the wihlesses did not show any signs of impairment due to alcohol or dr igs. l3ased uE on statements by the witnesses and a photogi-aph that the police oblained froin one of'the witnesses who was taking photographs wllile in the bar that night, the police identified tlie defendant as a suspect. The witnesses informed the police that thc defendant lived in Mississippi. The police determined that the defendant came to the bar ttlat night with fellow Mississippi residents Aaron Conerly and Conerly' s girlfriend, Mamie Watts. The police located and met with khe defendant in Marion County, Mississippi, on December 14, 2009, ai d he executed a signed aiver of ri hts form. The defendant posirivcly identified himself ir1 the photograph taken in the bar by one of the witnesscs. However ¢, thc defendant was not arrestc:d at that time. 6 lletectives Magee and Miller fully described the photographic identification in this case. develop a procediue used The detectives used six separate color pholographs of individutils to individual hotographs were shown to each witness in a randorn and varied order photograpllic lineup that included the defcndant. The and they wcre not labeled with numbers. The witnesses were required to view atl six photographs, one at a tiit e, and the lineups were conducted with each witness separately. DeLective Magee described this pr-ocedure as the most up- to- date method according to his research and training. While one potential witness was not able to identify the shooter, on December 14, 2009, Ms. Gaudy came to the slleriffi' s oftice December and positively identi fied the defendant as the shooter. On 5, 2009, Detectives Magee and Miller weot to the residence of Ms. Marie and Ms. Crumedy in Hammond, at d hey individually positively identifiied the defeudant as the shooter. The defendant was arrested o 1 January 4, 2010. A few months later, the police were able to contact Arianna Magee who was living in Mississippi at the time. On March 17, 2010, lhe day of the grand juiy indictment, Ms. Magee viewed the lineup and also identified the defendai7t as the shooter. Regarding the positive identificatious, Detectives Magee and Miller further testified that none of the witnesses who identificd the defendant asked to see thc pllotographti more than once and that they all " immediately" or " pretty quickly" picked the defendant as the perpetrator. Detective Mi(ler inteiviewed the defendant who denied involvement in the shooting and denied having a gun that night. Detectivc Romano photographed the exterior and interior of Stephanic Gaudy' s vehicle. There was a bullet entry in the rear passenger door. Detective Romano could not recall whether the front windshield was broken, but noted that, Thc detectiacs presented consistent testimony regarding the identification proccdurc and results at the} retri. il hearing on the motion to suppress the identitications. 7 had there been an obvious projectile hole in the glass, he would have taken pict n es and documented it. 1' akedia Crumedy, a cousin of the victim aild of Ms. Gaudy, was at the bar on the night in questiou with her friend, Jarnie Marie. Ms. Crumedy was taking photograpl s foilows, " He because he in the bar when she saw the defendant. Ms. Crumedy testified as was in the club, and he was like he had an attitude or whatever, got in my know the defendant picture and put and had his hand in my tacc." nevec seen him before the Ms. Crumedy did not night in question. Ms. Crumedy furthet- testitied, " He happened to be in my picture because he wouldn' t moec." ti1s. Crumedy saw the defendant again when she was in the parking lot after the bar closcd. She further that 1 was She testified that the defendant was walking aro md with a gun. And stated, " in, and I vas when I saw scared.'° the gun, [ had all the windows up in my car In an attempt to quickly leave the area, Ms. Crumedy drove uup to her grandmother' s yard ( located seconds away from the bar) to turn arourid but ended up back in the traffic. Just cior to the shooting the defendant' s vehicle was in fi ¢ont of the vehicle occupied by Ms. Crumedy and Ms. Marie. s several vehicles were in the roadway, Ms. Crumedy saw the defendant ar uing uilh nrianna Magee and Travis Guy, passengers in another stop ed vehicle. Ms. Crumedy noted that Ms. Magee looked like a male even though she was a female, and further uoted that the victim ste ped into the roadway to infonn the defendant that he was arguing with a female. According to Ms. Crumedy, the defendan( still had an attil ude and continued to arg ie with Ms. Magce. When Ms. Crumedy heard gunshots, she observed th defendant walking away from Ms. iaudy' s vchicle. Ms. Crumedy further confu-med that the victim was in Ms. Gaudy°s vehicle at the time. Ms. Crumedy saw Ms. Gaudy as she was crying and screaining. Ms. Crumedy testified that she was positive that it was the defendant 8 who did Ihe shooting, reca( led that he was wearing a yellow and green jacket that night, and Ms. (' a nfim ed her photo- aphic identification of him. After the shooting, rui7icdy gave thc photograph showing the defe dant in the bar that night to Detective Magee, and the defendant later confirmed his idcntity as the person shown iu the photograph. Dw ing ct-oss examination, Ms. Crumedy testified that she had not been drii king that night and noted that she was under the legal drinking age at the ti ne. Ms. Crtm edy was looking at her cell phone seconds befor-e she heard the gunshots. She further exp1ained that the vehicle that she was clriving was about two cars behiild the dei endant' s vehicle. On redirect examination, Ms. Crumedy further explained that thcrc were two lanes of vehicles and testified that she Ilad a clear vie v of the vchicle occupied by Ms. Gaady and the ictim, and tl at the defendant was the only person by the vehicle when the shot5 were fired. Stephanie Gaudy, the victim' s friend, also testifiecl duting the h iaL Ms. audy testi f ied that she was with the victim at the bar that night. After the bar closed, scveral people were sitting outside listcning to music and talking. After obsei ving an int ividual with a gun, whom she identified as the defendant, she tried to leave but other vehicles were in front of her. At that time, the dcfendant' s vellicle was slightly ahead of and on the side oC het- vehicle. She fuirther testified that the delcndant started " fussing" with the occupants of lhe vehicle in front of him and triect to make them move their vehicle out of the way. She furil er statec, So tl at' s when Brossi [ the victim] got out of the car to calm them down. And the passen cr side got out, a ld Carl [ the defendant] tried to figl t the passeager side, Ariai but na." shc When asked to describe Arianna, Ms. Gaudy stated, " Well, she' s a girl, looks like fight her." a boy." She added, "[ Brossi] told him that was just a girl. Don' t Tlle del'endant and the victi u exchanged turther vords belore the defie ldant walked to his car and the victim got back in Ms. Gaudy' s vehicle. Ms. y Uaudv thcn obsetved the defendant walk to the front of her vehicle and shoot the victim while I e was sitting in the drivei' s seat. Ms. Gaudy confirmed that she saw the defendant as 11e shot the victinl and further confirmed tliat, a few days later, stae participatcd in a photographic lineup and selected a photograph of thc defendant as the person who s11ot the victim. Ms. Gaudy testified on cross exar ination that she had not been taking drugs or drinking alcohol that night though she had just turned twentv- one. Arianna Magee teslitied that she was " hanging out" with Travis Guy on tlie uight in yueslion. The victim was her cousin and ( iiend. Ms. Magee, who was twenty-one years old at the time of the trial, testified that she consumed a lot of alcohol that night She testified that the argument began whiJe she was sitting in her- vehicle and the defendant staited tclling people to move their vehicles. She got out of hcr vehicle and the defendai t pushed her, and she got back in her vehicle. At tllat point, the victim got out of Ms. Gaudy' s vehicle and told the defendant not to hit Ms. Magee because she was a female. The defiendant then went back to his vehicic the as victim went back to Ms. Gaudy' s vehicle. Ms. Magee further testificd, " 1 was sitting in iny car, and when I see [ the defendant] running back around, ta ¢ y to put the window turned [ around [ the defendant] down was and there tell [the and victim]. But by the time I it happened." She speciftcally contim ed that she saw the defendant shoot tler cousin and confirmed subsequent identification of the defendant in a photographic lineup. her On cross examination, Ms. Magee indicated that the vehicle that Ms. Gaudy and the victim occupied was beside her vehicle and the defendant' s vehicle was right behind her. She saw the defendant when he approached the vehicle occupicd by the victi n and when asked if she saw the actual shooting she stated, " I seen him when he shot the gun, you know. He shot the gun through the glass? ... Yeah. I seen that." She furthcr taled, " He missed the first titne. The barrel was hitting the car and missed 10 him. He must have puslied out." On redirect examination, Ms. Magee testi1ied that there was no doubt in her mind and she was cerlain tllat the defendant was the shooter. The defendant did not testify at the h ¢ial. The sole defeilse witness, Sherian Medius, thc defendant' s older sister, testified that she called WPSO on her brother' s behalf after the shooting to inform them thal her broLher was prescnt at the scene but did not commit the shooting. On cross examination, Ms. Medius conlirmed that she was not at the bar that night. We have reviewed the color photographs used in the photographic lineup in this case. The witnesses were required to look at all of the photographs before naking a selection. All of the photographs depict African American males who appear t o sharc a similarity of skin coinplexion, have short hair, and nonc have beards. We tiud that there is no indication that the identification procedure was sugges[ ive in this case and there was no substantial likelihood of misidentification. Several witnesses had an ample opportunity to observe the peipetrator and they posihvely idei titied the defendant identifications took place shortly as the shooter. after the Most of the photogi ¢ aphic shooting. Furtller, the defendant confirmed that he was the subject of the photograph taken by one of the witnesses in the bai-. teslimony given The trier of fact is free to accept or reject, in whole or in part, the of anv wilness. evidence is not " Che trier of fact' s determination of the weight to be to appeflale subject review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt State v. Taylor, 97- 2261 We ( La. 1 Ap. Cir. 9/ 25/ 98), 721 So. 2d 929, 932. are constit ulionally pcecluded fi-om acring as a " thirtecnth juror" in assessing what weight to 10/ 17/ 00}, give evidence in 772 So. 2d 7R, conflicts with the testimony iminal cl- 83. cases. See State v. Mitchell, 99- 3342 ( La. ' I'he fact that the record contains evidence that accepted by a trier of fact does not render the avidence by accepled the trier of' facl insufl iciei t. State . Quinu, 479 So. 2d 592, 596 ( La. App. I Cir. 1985). Accordingly, we cannot say that the jury's detennination was irrationa] under thc liicts and circumstances presented to it See Ordodi, 946 So. 2d at 662. E urthenn ire, an appellate court crr-s by substituting its appreciation of the evidencc and credibility of witnesses for that of the fact nder and thereby overturning a verdicL on the basis of an exculpatory hypothesis oC innocence presented to, and rationally jected rc; So. 3d 417, 41 g ( by, the jury. er curia n). State v. Callowav, 2007- 23Q6 ( La. I/ 21%09), 1 We are convinced l} at any rational trier of fact, viewing thc evidence ps-esented at tria] iri thc light most favorablc to the State, coultl liave found the evidence proved beyond a reasonable doubt, and to the exclusion second if cvery reasonable hypothesis of innocence, all of the elements of degrec murder and lhe defendant' s identity as the perpetrator. For the foregoiug reasoils, defenciant' s pro se assignment of error number one lacks merit. COCJNSELED ASSIGNMENTS OF ERROR NUMBERS ONF ANll TWO AND PRO S ASSIGNMENT OF ERROR NUNtBER TW'O ln I is fiist counseled assignment of error, the defiet dant argues that the trial couct eri-ed in imposing tl e sentence immediately after its denial of his motion for new trial. The dcfendant notes that the seiitence vas imposed after " heart- wrenching" impact statements and argues that the delay in sentencing was not waived. I inally, the defenclant argues that the failure to observe the delay was not harmless error since he is challenging the constiwtionality of the sentence. In assignment of et-ror number t vo of the counseled bricf, the defendant argues that the trial cotart abused its discretion in sentencing him, specifically noting that tl e court did not consider his pei sonal history, order a pi-esentence investigation ( PSI), or ask him if he wanted to make a statement before imposing s ntence. ' I' he pro se brief relists this assignment of etror without additional argument. t? Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessi e punishment. Although a sentence may Call withi statutory ] imits, it may ne ertheless violate a defeildant's constitutional right against excessive is punishmcilt and subject to 762, 767 ( I_ a. 1979). ap ellate review. State . Sepulvado, 3fi7 So. 2d Ger erally, a scntence is coiisidered excessivc iti it is grossly clisproportioi7ate to the severity of the crime or is riothing more than the needless imposition of pain and A sentence is considered gcossly suffering. disproportionate if, when lhe crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. See State v. Reed, 409 So. 2d 266, 267 ( La. 1982). A trial cowt is given wide discretion in the imposition of sentences within statutory limits, and the sentenc imposed shoald not be set aside as excessive in the absence of a manifest abuse of' discretion. State v. Lanclos, 419 So. 2d 475, 478 ( La. ] 982); State v. Fairley, 97- 1026 ( La. npp. 1 Cir. 4/ 8/ 98), 7l I So. 2d 349, 352- 53. Louisiana Code of Criminal Procedw e article 894. 1 sets foith factors that the trial couit roust consider before imposing sentence. Generally, the trial court need not recite the entire checklist of factors, but the rccord must retlect that the trial court adcquately considered the criteria. Fairley, 71l So. 2d at 352. However, when imposing a mandatory life sentence, the trial court' s failw e to articulate reasons for the sentence as set forth in La. C. Cr. P. art. 894 is not an error; articulatiug reasons or factors would be an exercise in futility since the court has lo discretion. State v. Felder, 2000- 2887 ( La. App. 1 Cir. 9/ 28/ 01), 809 So2d 360, 371 , writ denied, 2001- 3027 ( La. 10/ 25IO2), 427 So? d 1173. llnder La. R. S. 14: 30. 1( B), a person convicted of second degree murder shall be punisiled by life imprisonment at hard labor, without benefit of parole, probation, statutvrily or suspension of sentence. mandated punishment unless Couits are charged with applying a it is 13 unconstitutional. State v. Dorthey, 623 Sci2d 1 ? 76, 1278 ( La. 1993). In State v. Johnson, 97- 1906 ( La. 3/ l/98), 709 Sa2d 672, 67fi; the Louisiana Supreme Court re- examined the issue of when Dorthey permits a downward departure froin a mandatory ininimum sentence, albeit in the context of thc Habitual Offender Law. The Court held that to rebut the presumption tliat th mandatory minimum sentence was constitutional, the defendant had to " cleat-ly 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' s failure to assign sentences that are meaningfiully tailored to the culpability of the offender, the gravity of the offense, and the circumstanees of the case. Johnson, 709 So. 2d at 676. While both Dorthey and Johnson nvobc the mandatory minimum sentences imposed under the Habitua] Offe lder Law, the Louisiana Supreme Cow t has held that the sentencing review principles espoused in Dorthe 3re not restricted in application to the penahies provided by La. R. S. 15: 529. 1 . See State v. Fobbs, 99- 1024 ( La. 9/ 24/ 99), 744 So. 2d 1274 ( per see State v. Henderson, 99- 1945 ( La. App. 1 Cir. 6/ 23/ 00), 762 So. 2d curiam); 747, 760 n. 5, weit denied, 2000- 2223 ( La. 6/ 15/ O]), 793 So. 2d 1235, and State v. Davis, 94- 2332 ( La. App. 1 Cir. 12/ 15/ 95), 666 So2d 400, 40H, writ denied, 960127 ( La. 4/ 19/ 96), 671 So. 2d 925. At the outset, we note the defendant did not object to being sentenced witl out tl e trial court first ordering a PSI. Further, in his motion to reconsider senterice, thc defendant did not raise the issue of the trial couit's failure to order a PSL I hus, I, a. C. Cr.P. arts. 841 and 881. 1( E) precludc the defendant from raising this issuc on appeal. Moreover, as the defendant acknowledges in his brief, the trial cout-t has discretion in ordering a PSI; there is no rnandate that a PSI be ordered. Sec La. C. Cr. P. art 875( A)( 1). Such an investigation is an aid to the couri and not a right of the accused. The trial cow t' s failure to order a PSI will i ot 14 be re La. rscd ah,sent an abuse of discretion. State v. Wimberly. 618 Sa2d 90R, 9l4 App. 1 (' ir.), writ denied, 624 So. 2d 1229 ( La. 1993). In tl is case, the trial court imposed the matidatory seutence for a second degrce murder conviction. We tind that the defendant failed to rebut the presumplion that the mandatory life senteilce is constitutional. l he defe dant has not presented at the tria] level or on appeal any particular or special circumstances that woulcl suppori a deviation frotn the mandatoty life sentence provided in La. R. S. 14: 30. I . Based on the record before us, we find that the defendant has failed to show U at he is exceptional or that the mandatory life senlence is not meaningfially tailored to his culpability, the gravity of the offense, and the circumstances of inandatory lifc the case. Thus, we find that a downward departui-e from the entence was not required in this case. The mandated life sentence imp ised is not excessive and counseled and pro se as5ignments af error number two tack merit. Kegardiug the first counseled assigmnent of en or, the defendant correctly notes that the trial court did not wait twenty- four hours aflcr the denial of his posttrial mutioi s before iTnF osing sentence. The defendant was convicted on Deccn ber R, 20( I, and on that date, the triaL couit set the sentencing date of December 20, 2011 . ( R. 19- 20). The defendant filed his motion for post- verdict judgment of acquittal and motion for new trial on December I l, 2011 , and the heariug was set for tlle sentencing date. Louisiana Code of Criminal Procedure articie 873 requires a twenry- four hour delay in sentencing after denia] of a motion for new trial or in ai-rest of judgment, unless the defen lant waives said delays.; After tlie parties presented their argument on the motions, the trial court denied Articic R73 i ics not explicitly require a iwenty-four hour dclay in senlencing aHer a motion for a post-= crdict ju, lgment of acquittu] has been denied. Ilo viceer, this Court has applied Article 73' s twenlv- four how' dclay to nlotions for post- verdict judgment of acquittal. Sec State v. Coates, 2000- 1013 ( La. App. 1 Cir. l2,'22! 00), 774 So. 2d 1223, 1226; State v. Jones, 97- 2521 La. App. I Cir. )% 25/ 98), 720 So. 2d 52, 53. 15 boti niu ioris < u1d tllen allowed the victim' s parent; and sister to give victim impact statemenis. After the impact statements, the State indicated that it was ready to proceed. The trial court then asked the defense attorney if there was "[ a] nythiug further°' and, after the defense attorney responded negatively, the trial court then imposed sentence. ( R. 143- 44). T' lle defendant did not object to the sentencing. "['hus, it appear5 that the defendant implicitly waived the twenty-four hour delay for sentencing by failing to enter a contemporaneous objection when the trial court indicated it vould sentence hitn and by indicating a readine, s for sentencing. See State v. Telder, 809 So. 2d at 372; State 3/ 31 i00), 7( i4 So. 2d 1027, 1038, writ v. Hilton, 99- 1239 ( La. denied, 2000- 0958 ( La. 3/ 9i01), pp. I Cir. 768 So. 2d 113; State v. RoberYs, 9R- 1706 ( La. App. 1 Cir. Si14/ 99), 739 So. 2d 821 , 829; State v. Linclse, So. 2d 58 ( 583 5. 2d 1200, 1206 ( La. A p. I Cir. 1991), wril denied, 590 La. 1992). Moreover, we find no prejudice resulting from the trial court' s failure to delay s r tcncing. In State v. Augustine, 555 So? d 1331, 1333- 35 ( L,a. 1990), the I: ouisiaua Supreme Court held that the trial court' s failure to observe tlle twentyfour hour dclay did not constitutc hartnless error, even if the defendaut did not raise that issue as error on appeal, but where the defendant challenged his sentence on appeal. In State v. Seals, 95- 0305 ( La. 1 U25/ 96), 6 4 So. 2d 368, cerl. denied, 520 U. S. I 199, I17 S. Ct. 1558, l37 L. Ed2d 705 ( 1997), the Louisiana Supreme Court distinguished Augustine because oF the iYiandato y nature of the death sentencc in the tirst degree murder cas;, and the fact that no prejudice could be shown for the failure to wait twenty- four hours before sentencing. Therein, the Court hcld: " Absent a showing that prejudice resulted fl-om the failure to afford the tatutory delay, reversal of the prematur-ely impotied scntence is not required." Seals. (i84 So? d at 380. i6 n thc ii stant case, the Irial c.ow t lacked seritencing discretion givett U e ma datory sentence applicable to second degree murcler. As noted herein, a person a victed of second degree murder-°`shall be punishcd by life imprisonment at hard labor[,] without benefit of parole, probation, or suspension of sentence.°' La. R. S. 14: 30. 1( B). The defendant receivcd this sentencc. ' fhc required sentence would have been Lhe same with or without the iwenty- four hour delay. Accordingly, even assuming the defendant had not impliciily waived the delay, aily error in the trial court's failure to observe the lwenty- Cour hour delay is harmless l eyond resentcncin. at 372; and a i-easonable doubt and does not require a remand for See La. C. Cr.P. art. 921 ; Seals, 684 So? d at 3R0; Felder, 809 So. 2d State v. Bilbo, 97- 2189 ( La. App. 1 Cir. 9/ 25/ 98), 719 So. 2d 1134, 114 L, writ denied, 98- 2722 ( La. 2/ 5/ 99), 737 So. 2d 747. Counseled assignment of error number one lacks merit. CONV[ CTION ANll SEN"I' ENCE AFFIKMED. 7

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