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STATE of Louisiana, Appellee, v. Spencer Newton GREEN, Appellant.
This appeal by Spencer Green of his conviction of four counts of indecent behavior with a juvenile has produced a disagreement between the majority of the three-judge panel and the third panelist who was initially assigned to write the opinion of the panel for the court. One of Green's complaints on appeal is that the evidence was legally insufficient to convict.
The disagreement arises because the sufficiency issue is presented to us “merely by assignment of error [La.C.Cr.P. arts. 920, 921] rather than by motion for post-verdict judgment of acquittal [La.C.Cr.P. art. 821],” to use the words of the third panelist. Brackets supplied by panel majority.
The third panelist wrote that when not raised by the Art. 821 post-verdict motion, but only by the Art. 920 assignment of error, “this [sufficiency] issue is not properly before us ․ [but] we opt to address the assignment,” citing authorities. Italics supplied. The panel majority disagreed with the third panelist's statement that this court could choose whether or not to address the sufficiency assignment, an issue of constitutional proportion. Simultaneously, other judges on this court called this panel's attention to apparent inconsistencies in opinions of this and other circuits as to when and how the sufficiency issue is properly raised and resolved, either or both in the trial court and the appellate court. Compare Arts. 821 and 920.
The panel majority holds that the correct pronouncement of our appellate responsibility is that this court has the obligation, and may not opt or choose whether, to review the sufficiency issue when that issue is raised solely by an assignment of error. The panel majority desires to state its reasons for this holding, believing that the criminal bench and bar may benefit from this attempt to state precisely our appellate responsibility and to not further contribute to the inconsistencies in the cases that have addressed this particular issue.1
After resolving the issue—obligation v. option—the majority affirms Green's convictions and sentences, adopting, as an unpublished appendix to this opinion, the discussion of the evidence and applicable authorities originally written by the third panelist that resolves Green's assignments.
Appellate Review of Sufficiency Issue; Arts. 920, 921 Obligation or Art. 821 Option?
Before the Supreme Court decided Jackson v. Virginia in 1979, sufficiency of the evidence to convict was reviewable on appeal in Louisiana when it was raised in the trial court, either by a motion for a new trial, a motion for directed verdict, or by post-conviction habeas corpus. See La.C.Cr.P. arts. 778, 851, 920, 921, as originally enacted in 1966 Code of Criminal Procedure and Official Revision Comments.
Comments (c) and (d) to Art. 851 in the original code observed that when the issue was raised by defendant's motion for a new trial in the trial court, the trial judge had the duty to pass on the sufficiency of the evidence under Art. 851(1) and to determine whether the verdict was “contrary to the law and the evidence.” We shall discuss infra, in the light of Jackson, the amendments of some of those articles and the adoption of other articles that occurred after the Code of Criminal Procedure was enacted in 1966.
As the concurrences in Jackson v. Virginia emphasized, the sufficiency standard to test a jury verdict of guilty, pre-Jackson, was the “no evidence” rule applicable in the trial and the appellate court. Appellate review was of the trial court's ruling on a post-verdict motion, usually one for a new trial. This prior standard began with post-verdict motions in the trial court, such as the Louisiana motions mentioned above, the rulings on which were subject to more limited appellate review than under the post-Jackson v. Virginia standard.2
After Jackson v. Virginia and amendments to the Code of Criminal Procedure that corresponded with Jackson and the current Louisiana constitution, the applicable standard and procedure for resolving, on appeal, the sufficiency issue no longer requires the foundation for the issue to be laid in the trial court. When and how the sufficiency issue may be raised, and at what court level, either or both trial and appellate, the issue shall or may be resolved, is controlled by post-Jackson law and criminal procedure in Louisiana:
— A trial judge is not authorized to entertain a motion for a directed verdict of acquittal in a criminal jury trial. See La.C.Cr.P. art. 778 as amended in 1975; State v. Brooks, 452 So.2d 149, 154, fn. 2 (La.1984) (on rehearing).
— An issue “designated in the assignment of errors shall be considered on appeal.” Art. 920(1), as amended in 1974. The sufficiency issue pre-Jackson was properly raised in the trial court by defendant's motion for new trial. The Official Revision Comment to the amended Art. 920 explained: “It is now clear that a defendant does not have to apply for a new trial [in the trial court] in order to urge an issue on appeal. Clause (1) [of Art. 920] only requires that the error ․ be urged ․ in the written assignment of errors.” Emphasis and brackets supplied.
— The adoption of Art. 821 in 1982 facilitated resolution of the sufficiency issue in the trial court under the Jackson standard: “The defendant may move for a post verdict judgment of acquittal ․ [which] must be made and disposed of before sentence.” Emphasis supplied. Art. 821 “clearly manifests an intent to adopt the Jackson standard as the proper degree of deference which both the trial and appellate courts owe to the jury's verdict.” Cheney C. Joseph, Jr., Developments in the Law—Postconviction Procedure, 44 La.L.Rev. 477, 480 (1983). Italics supplied.
The official revision comment of Art. 821 explains:
Since the abolition of the directed verdict in jury cases, the Supreme Court has recognized its authority to reverse convictions and dismiss the charges if the evidence does not support the conviction.
The test on appeal to determine the “sufficiency” of evidence is no longer the “total lack of evidence” test. The test now is whether a reasonable fact finder must have a reasonable doubt. The test incorporated as the standard for judgments of acquittal defers to the jury's finding by requiring that the evidence be viewed in a light most favorable to the state. However, if the evidence is legally insufficient the verdict must be set aside and either a modified verdict or a judgment of acquittal must be entered.
The trial court or appellate court may modify the jury's verdict if the verdict is not supported by the evidence but a lesser included responsive verdict would be supported.
The district attorney may seek review of a post verdict judgment of acquittal or a judgment modifying a verdict. Such review does not violate double jeopardy because if the appellate court merely reinstates the jury's verdict no new trial is necessary.
The appropriate appellate court and mode of seeking review are, of course, determined by reference to La. Const. art. 5, §§ 5 and 10 (1974).
Citations omitted. Emphasis supplied. Shortly after Jackson, our supreme court, recognizing the Art. 920 alternative, summarized the developments in the law regarding raising and resolving the sufficiency issue:
In State v. Peoples, 383 So.2d 1006 (La.1980), this court abandoned the rule that a defendant must file a motion for new trial in order to preserve the issue of sufficiency of evidence for appellate review. As a matter of due process, the court concluded that the issue could be considered when raised “upon formal assignment of error,” notwithstanding the defendant's failure to move for new trial. 383 So.2d at 1007.
State v. Temple, 394 So.2d 259, 261 (La.1981); see also State v. Raymo, 419 So.2d 858 (La.1982). Emphasis supplied.
Peoples, cited above, discussing the sufficiency issue, stated: “[It] would be ․ a substantial denial of due process to deny a defendant the right to obtain review by this court ․ simply because he did not file a motion for a new trial ․ Hence, whether or not a defendant raises a claim ․ in a motion for a new trial, upon formal assignment of error, we will review whether the defendant's claim ․ has merit.” 383 So.2d at 1007.
After being given the responsibility of exercising, except in capital appeals, criminal appellate jurisdiction, this court, albeit on only a few occasions, has said that sufficiency errors must be reviewed on appeal regardless of how the error is brought to the attention of the court. See, e.g., State v. Otis, 586 So.2d 595, 604 (La.App. 2d Cir.1991), writ granted in part on other grounds; State v. Wesley, 28,941 (La.App. 2d Cir. 12/13/96) 685 So.2d 1169. More often perhaps, this and the other appellate circuits, we believe, have inconsistently and too frequently misstated that the proper method is only by the Art. 821 motion in the trial court. See e.g., State v. Johnson, 584 So.2d 1216, 1218 (La.App. 2d Cir.1991), writ denied, and dozens of cases cited under La.C.Cr.P. art. 821, West Pub. Co., vol. 2A. We shall attempt to trace the source of the inconsistencies:
Jurisprudential adoption of the Jackson standard in Louisiana was initially criticized. See C.J. Summers' dissent in State v. Mathews, 375 So.2d 1165 (La.1979); State v. Ruple, 426 So.2d 249 (La.App. 1st Cir.1983); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Korman raised the sufficiency issue in the trial court by a then improper motion for new trial.
Korman was cited in a footnote in State v. Marshall, 479 So.2d 598, 601 (La.App. 1st Cir.1985), as authority for the statement: “The proper method to raise the [sufficiency] issue is by motion ․ under ․ art. 821.” That statement was made because Marshall, like Korman, had filed in the trial court a motion for a new trial. Again we add that the motion for a new trial, after the adoption of Art. 821, is an improper way to raise the sufficiency issue in the trial court. The Marshall court noted in its first paragraph that the sufficiency issue was among the five assignments of error, without discussing Art. 920, and without suggesting that it was improper to raise the sufficiency issue on appeal by assigning the sufficiency issue as an error. Marshall held that the sufficiency issue was improperly raised by the motion for a new trial in the trial court, but considered the sufficiency issue as an assigned error.
Korman and Marshall and their progeny apparently sowed the seeds that produced the inconsistencies in the case law about the proper way to raise and resolve the sufficiency issue.
In our earlier case, State v. Seay, 521 So.2d 1206 (La.App. 2d Cir.1988), the sufficiency issue was also raised as it was in Marshall in a motion for a new trial in the trial court, the denial of which was made an assignment of error on appeal. Citing and following Korman and Marshall, we said the sufficiency issue “should be raised by motion ․ [under] art. 821,” when we should have been more precise and said the sufficiency issue “may properly be raised in the trial court under art. 821.” 521 So.2d at 1214; emphasis supplied. Having signed Seay, the author of this majority opinion apologizes for his contribution to the inconsistencies of which he now complains.
After reviewing the current authorities, including the case law post-Jackson, the majority reaches two conclusions: It is proper, but not mandatory, for the sufficiency issue to be raised in the trial court by an Art. 821 motion. It is also proper to raise the issue solely by an Art. 920 assignment of error to the appellate court without the necessity of any foundation motion, under Art. 821 or otherwise, in the trial court.
As explained by its comment, Art. 821 contemplates that either or both the trial court and the appellate court shall review the sufficiency of the evidence to convict in a criminal jury trial when that issue is “properly” raised in either court. The trial court review of the sufficiency is authorized only before sentence under Art. 821 A. Appellate review of a conviction raising the insufficiency issue is authorized only after sentence is imposed. Otherwise the appeal of the sufficiency error or any assigned error is premature. State v. London, 316 So.2d 743 (La.1975), citing La.C.Cr.P. arts. 912, 912.1; State v. Chapman, 471 So.2d 716 (La.1985).
Art. 821 expressly provides two options: “The state may seek review” if the trial court ruling on the Art. 821 motion acquits the defendant either wholly or partly. Art. 821 D. A defendant is not required to, but “may move for a post verdict judgment of acquittal” in the trial court before sentence. Art. 821 A. Our emphasis. Nothing in Art. 821 or its revision comment impliedly or expressly prohibits a defendant from seeking the due process sufficiency review “merely” by an assignment of error in the appellate court if he does not exercise his option in the trial court to file the Art. 821 motion. The sufficiency issue may be properly raised either by the Art. 821 motion in the trial court or by the Art. 920 formally assigned error in the appellate court. Appellate review of the issue is available in either instance, notwithstanding the defendant's failure to exercise his option to file the Art. 821 motion in the trial court. Neither method is the only proper method.
An assigned error “shall be considered on appeal.” Art. 920. Art. 5 of the Code of Criminal Procedure tells us that the word “shall” is mandatory and that “may” is permissive.
While the Code of Criminal Procedure recognizes that the “option” to review may exist as to insubstantial or non-constitutional assigned errors, we simply are not allowed to choose not to review the constitutional due process sufficiency when it is assigned as an error. Arts. 920, 921. The panel majority takes this opportunity to state its holding in a published opinion.
ON THE MERITS
Notwithstanding the testimony of character witnesses called by Green, the victim's testimony is legally sufficient to convict beyond a reasonable doubt because it was believed by the jury and not internally contradictory or in conflict with physical evidence. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied. Similarly, the sentences [consecutive 31/212 years at hard labor, with execution suspended during supervised probation on special conditions for like periods, and fines totaling $2,000 on the third and fourth counts] are not found constitutionally excessive.
DECREE
We affirm the convictions and sentences for reasons given in the unpublished appendix to this published opinion.
AFFIRMED.
In a wordy discourse apparently repenting from their previous “inconsistent statements,” the other two panel members ultimately declare that a defendant's evidence-sufficiency contentions, although never presented in the trial court, must be addressed on appeal. Their apparent explanation: to do otherwise would be a denial of constitutional due process. Simply put, however, they are simply wrong.
Even in a federal forum, a defendant's failure to follow consistently-applied state procedural rules for raising constitutional claims will usually not be excused in either direct review or habeas proceedings.1 Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989) (mentioning the interest of state courts in enforcing their procedural rules); Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Accord Bates v. Blackburn, 805 F.2d 569 (5th Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987) (specifically concerning a sufficiency-of-evidence claim).
Thus, no constitutional barrier precludes a strict application of Louisiana's procedural requirement that sufficiency challenges be raised in the district court through a post-trial motion for acquittal. Indeed, the U.S. circuit courts apply a similar standard in examining federal convictions. When a defendant fails to move for a judgment of acquittal at the close of all the evidence, the appellate court's review is limited to the prevention of clear and gross injustice. See, e.g., U.S. v. Devoll, 39 F.3d 575 (5th Cir.1994), cert. denied, 514 U.S. 1067, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995); U.S. v. Santiago, 83 F.3d 20 (1st Cir.1996); U.S. v. Muniz, 60 F.3d 65 (2d Cir.1995); U.S. v. Vizcarra–Martinez, 66 F.3d 1006 (9th Cir.1995) 2 ; U.S. v. Wright, 63 F.3d 1067 (11th Cir.1995).
Not oddly then, other states with mandatory procedures for raising sufficiency challenges first in the trial court apply their rule at the appellate level by declining to address the assignment, by considering only instances of “plain error,” or by “electing” to discuss the evidence very briefly. See, e.g., Hornsby v. State, 680 So.2d 598 (Fla. 2d DCA 1996) (motion for acquittal failed to articulate adequately its legal grounds); State v. Wakefield, 473 S.E.2d 831 (S.C.App.1996); Tapscott v. State, 106 Md.App. 109, 664 A.2d 42 (1995), affirmed, 343 Md. 650, 684 A.2d 439 (1996); People v. Easton, 216 A.D.2d 220, 629 N.Y.S.2d 15 (1995); McQuinn v. Commonwealth, 20 Va.App. 753, 460 S.E.2d 624 (1995); State v. Johnson 257 Mont. 157, 848 P.2d 496 (1993); Farbotnik v. State, 850 P.2d 594 (Wyo.1993); Commonwealth v. Dion, 31 Mass.App.Ct. 168, 575 N.E.2d 759 (1991), review denied, 411 Mass. 1102, 579 N.E.2d 1360 (1991); State v. McAdams, 134 N.H. 445, 594 A.2d 1273 (1991); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989); State v. Cole, 150 Vt. 453, 554 A.2d 253 (1988); Noaks v. United States, D.C.App., 486 A.2d 1177 (1985); State v. Larocco, Utah, 665 P.2d 1272 (1983); State v. Heidebrink, 334 N.W.2d 344 (Iowa 1983); State v. Hill, 49 Or.App. 297, 619 P.2d 671 (1980).
The rationale embraced by the Supreme Court of New Hampshire, concerning the demand that sufficiency claims be presented to the trial court, is particularly impressive. After observing that the requirement constitutes a rule “founded in common sense and judicial economy,” the court continued:
The requirement that trial counsel object to insufficiency of the evidence in order to properly preserve the issue for appeal ensures that: “First, appellate courts will not be required to expend time and energy ․ [where] no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the [objection] requirement ․ remove[s] [any] advantage [to] the unprepared trial lawyer who [would look] to the appellate court to compensate for his trial omissions.”
State v. McAdams, supra, at 440–449, 594 A.2d 1273, quoting Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). (Brackets in original.) See also McAdams's well-reasoned rejection of the argument that permitting sufficiency to be raised for the first time on direct appeal, rather than through a collateral attack scrutinizing effectiveness of counsel, conserves judicial resources.
As conceded by the other two members of the present panel, Louisiana's appellate courts have repeatedly held that a challenge to the sufficiency of the evidence must be raised though a motion for post-judgment acquittal per La.C.Cr.P. art. 821. Yet, after acknowledging that our court has only rarely “said that sufficiency errors must be reviewed on appeal regardless of how the error is brought to the attention of the court,” these two panelists proceed to rely upon those “few occasions.” Their reliance is misplaced, however. In one of the two cited examples of such infrequent departures, State v. Otis, supra, the defendant indeed filed a motion for judgment of acquittal which the trial court denied. Thus, any other statement there concerning the present issue is plainly dicta. Nor can I subscribe to the reasoning of State v. Wesley, supra, where another member of the instant panel, relying on Otis, recently made the initial announcement that this court had an obligation to review such errors.
Likewise, in quoting from State v. Peoples, supra, the author for the other two panelists twice omits the wording “(claim) of no evidence.” (Emphasis added.) The Peoples decision, of course, predated by more than two years the Legislature's enactment of Article 821 as the instrument for addressing sufficiency issues. Similarly, both State v. Temple, supra, and State v. Raymo, supra, cited by the other two panelists, preceded that same legislation. Quite interestingly, too, the Temple court actually found itself unable to reach the sufficiency question but still—and here, again, is that word—opted to discuss the evidence extensively in deciding what otherwise would have been the result.
Understandably, if the appellate courts of Louisiana routinely ignore procedural defaults as to sufficiency-of-evidence claims, then the legislatively adopted mechanism, Article 821, will be relegated into desuetude by both the trial bench and bar. As a result, our trial courts will not be accorded the opportunity to serve their proper function. Obviously, as McAdams alluded, if a reversal is necessary because the evidence does not support the conviction, the trial court stands in the sole position for granting that relief without the cost and delays of an appeal. Conversely, if the defendant can require the preparation of a full record transcript by merely assigning insufficiency for the first time on appeal, the public fisc will suffer needless expense in numerous cases.
Neither can such a policy be supported upon the suggestion that, by addressing the unpreserved complaint on direct appeal, post-conviction petitions alleging ineffective counsel are somehow forestalled. To the contrary, by establishing the obligation to address sufficiency issues irrespective of any proper initiative in the district court, defendants are simply invited to challenge additionally the effectiveness of their appellate counsel who fails to raise sufficiency in the reviewing court. This approach, logically extended, merely exchanges a one-headed PCR demon for a two-headed monster of the same breed. Moreover, the broadened post-conviction complaints (aimed at counsel's actions before the appellate court) must not only be filed in the district courts, see La.C.Cr.P. art. 925, but also paradoxically will require trial judges to declare what would have transpired in the superior court if the sufficiency issue had originally been presented there.
As stated, the Legislature's 1982 enactment of Article 821 established the procedural vehicle for processing sufficiency complaints. That measure sets forth the standard to be utilized—the evidence will be “viewed in a light most favorable to the state”—and states that the motion “must be made and disposed of before sentence.” (Emphasis added.) If Louisiana's courts are to superimpose an “obligation” to address sufficiency issues without regard for Article 821, then that departure should come from our supreme court in a broadly articulated analysis designed unequivocably to govern all future cases. Until then, I cannot be a party to fostering the “obligation” advocated by the other two members of this panel.
Having so indicated, my concurrence here extends only to the result.
Evidence of other crimes or acts may be admissible to prove motive, intent, knowledge, identity, and the absence of mistake or accident. La.C.E. art. 404B(1). The rationale behind excluding other crimes evidence is to ensure that the defendant will not be presumed guilty of the instant charge because of past offenses or because he is of a general criminal character. State v. Sturdivant, [27, 680 (La.App. 2d Cir. 2/28/96) 669 So.2d 654] supra; State v. Driggers, 554 So.2d 720 (La.App. 2d Cir.1989). For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence that the defendant committed the other acts or crimes, demonstrate that the other acts satisfy one of the requirements listed in Art. 404B(1), and show that the probative value of the evidence outweighs its prejudicial effect. State v. Sturdivant, supra. Further, such evidence must have some independent relevance, other than showing that the defendant is a person of bad character and must tend to prove a material fact at issue. Id.; State v. Driggers, supra. A trial court's admissibility ruling in that regard will not be overturned absent an abuse of discretion.
Now, he comes now for sentencing, and I have—of course, this is a highly emotional, emotion-charged case. There are people out there who want to hang Mr. Green, and there are people who want a mere pat on the wrist and say “naughty boy, don't do it again.” I have fashioned a sentence that I think will do what a sentence is supposed to do, punish Mr. Green for what he has done and attempt to see that safeguards are set up where he will not do it again. The code article 894.1 states that when a defendant has been convicted of a felony or misdemeanor, the Court should impose a sentence of imprisonment if any of the following occurs: one, there is an undue risk that during the period of a suspended sentence or probation or, I might add, a shorter sentence because I think that is implied, the defendant will commit another crime; two, the defendant is in need of correctional treatment and a custodial environment that can be provided most effectively by his commitment to an institution; and three, a lesser sentence would deprecate, and that's the word the statute uses, “deprecate,” the serious of the offense, of the defendant's crime. And I find all three of those situations present. Subsequent to the trial and while the Court had the matter under advisement, Mr. Green was charged with another offense. I believe it was while I had it under the advisement, or at least it was just before the verdict. He was
The following grounds, while not controlling the discretion of the Court, shall be accorded weight in its determination of suspension of sentence or probation. The first ones that are listed are the aggravating circumstances. One, the offender's conduct during the commission of the offense manifests deliberate cruelty to the victim. That is really not exactly in point. There was no cruelty as such where physical pain was issued or was caused, but there was mental pain and so it does apply in that respect. The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability or ill health. In this case, the victim was a guest in his house, a guest in his automobile or in the swimming pool. It was almost as if she were in a capacity as someone who is under the trust and care of another, and he violated that trust. Three, the offender offered or has been offered or has given or received anything of value. Well, that's not applicable. Number four, the offender used his or her position or status to facilitate the commission of the offense, and I think that is applicable because here he was the father of her best friend and he used that position to get her in a situation where he could do these things. Number five is not applicable. Number six is not applicable. Number seven. Number seven merely
states that subsequent to the offense the offender used or caused others to use violence, force or threats with the intent to influence the institution, conduct or outcome of the criminal proceedings. Now, I cannot say that that is applicable. Although the juvenile did receive threats, I cannot say that Mr. Green occasioned those or that—or whether they may have just been merely spontaneous on the part of the ones making threats. Number eight, I don't believe that is applicable so much in this case. Number nine, the offense resulted in a significant permanent injury or significant economic loss to the victim or his family. Well, as I said, the juvenile has had to seek counseling and treatment for the traumatic condition she has undergone. Number ten is not applicable. Number eleven is not applicable. Number twelve. The offender was persistently involved in similar offenses not already considered as criminal history or as a part of a multiple-offender adjudication. Well, there was the one incident that was never prosecuted that I spoke of, Ms. Sangid's case. I don't suppose that could be considered in light of twelve because I have already discussed that. Number thirteen applies only to multiple participants. Number fourteen is not—well, it is partially applicable. It's caused economic distress, I'm sure, on the victim's family because they've had to pay for her counseling. Number fifteen is not applicable. Sixteen is not applicable. Seventeen is not applicable.
And now the mitigating circumstances that I need to consider. Number twenty-two, the defendant's criminal conduct neither caused nor threatened serious harm. Well, it did. As I said, it created great psychological harm with the victim. Number twenty-three, the defendant did not contemplate that his criminal conduct would cause or threaten serious harm. Well, give him the benefit of the doubt there, that he might not have intended to harm her. The defendant acted under strong provocation, other than the provocation of his own possible obsessive-compulsive actions. There were, number twenty-five, substantial grounds tending to excuse or justify the defendant's criminal conduct. Well, they don't—that doesn't exist; that's not applicable. The defendant's—the victim of the defendant's criminal conduct either induced or facilitated its commission. The only thing is that the girl continued to come to his house, but she had compelling reasons, she felt, to do so. I don't think she came there voluntarily to submit to molestation. Number twenty-seven, the defendant has compensated or will compensate the victim. There is no indication that he has done so. Number twenty-eight, the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime. Now, he has, according to the
pre-sentence report, no prior record of criminal charges or convictions. The only thing that I know of is the incident that Mrs. Sangid testified to 20 years prior, or that occurred 20 years prior, but—and that, of course, I consider that, but I don't consider any criminal conduct as such because he has no criminal record. I considered that only in assisting me in concluding that he was guilty of the charge, but there was no formal accusation made and so his record does not have that as a prior criminal activity, so he is a first-felony offender. Twenty-nine, the defendant's criminal conduct was the result of circumstances unlikely to recur. I cannot say that that is applicable because other circumstances could come about and the conduct could be repeated as often as he was in the company of a young female in such a situation as these. Number thirty, the defendant in particularly—is particularly likely to respond affirmatively to probationary treatment. I am not sure that that is applicable. If Mr. Green is a pedophile—and I'm not saying that he is because I'm not a psychiatrist. If he is, though, then that conduct or that way of life is hard to change, according to all the experts. Thirty-one, the imprisonment of the defendant would entail excessive hardship to himself or to his dependents. Now, in this case—there always is hardship in case of any imprisonment, and that hardship is usually on the family of the defendant, the accused, as well as the victim. The victim has had hardship,
On count one, the defendant is hereby sentenced to be imprisoned in the parish jail subject to public works for a period of four years, and pay the costs of his prosecution. On count two, the defendant is hereby sentenced to be imprisoned at hard labor for a term of three and one-half years and pay the costs of his prosecution. On count three, the defendant is hereby sentenced to be imprisoned at hard labor for a term of three and one-half years and pay the costs of his prosecution and a fine of $1,000. On count four, he is sentenced to be imprisoned at hard labor for a term of three and one-half years and pay the costs of his prosecution and a fine of $1,000. Now, the sentence in counts two, three and four—well, first of all, the sentences are to run consecutive to each other. Inasmuch as this was not something that happened as a—as one short transaction but occurred over a continuing period of time for a year or more and was actually a betrayal by the defendant of the trust that the victim and her family had placed in him, I think the sentences should appropriately run consecutive. And I'm going to suspend the sentences in counts two, three and four and place the defendant on supervised probation on each of those counts for a period of three and one-half years, and the probationary period will run consecutive to each other, just as the sentences if they were served, so that this defendant, if
Now, the probation conditions. I will hit the highlights. I will file a written list of conditions. They contain the general conditions of probation of Article 895. They further provide for the payment of $250 to the Indigent Defender program, $2,000 to the Criminal Court Fund, in lieu of the fines which were imposed and suspended. He will pay all court costs of these proceedings. He'll pay $300 to the Crime Victims Reparation Fund. He will pay $20 per month to the supervising agency, the Louisiana Department of Corrections, for the supervision of his probation. He'll pay a hundred dollars to the Judicial Clerk's Fund of this Court to assist in the handling of the probation matters. He'll pay three dollars to the Crimestoppers organization of this parish. He will—subsequent to his release from the parish jail, he will have a period of two years of home incarceration. He will perform 90 eight-hour days of community service activity. He will avoid all contact with female juveniles, including all school activities and other events where contact can be made with female juveniles. He will submit to counseling at his expense by a psychologist or psychiatrist and to any treatment the same may deem necessary and proper, and to attend therapy groups or other groups for those who have compulsive-obsessive behavior disorders. He will also submit to a complete and thorough psychiatric and/or
UNPUBLISHED APPENDIX
NO. 28,994–KASTATE OF LOUISIANAv.SPENCER NEWTON GREENTestimony of the Police Officers
Defendant acknowledges that he freely and voluntarily made statements to the police and did so after being properly apprised of his Miranda rights. Similarly, he does not deny receiving notice of the state's intent to use these pronouncements at trial. Nevertheless, he attacks the admissibility of the interviewing officers' testimony on grounds that the entirety of his declarations cannot be utilized because the talks were not recorded. La.R.S. 15:450 provides:
Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.
Officers Steven Beard, James Kavanaugh, and Tommy Doss participated in the discussions with defendant. Although unable to recount the conversations verbatim, these witnesses testified to the substance of the statements given, including both the inculpatory and exculpatory aspects.
In the absence of contrary proof, the fact that the purported statement of the accused does not consist of a verbatim reiteration of the conversation between him and the interviewing officer (due to the witness's inability to recall or some other valid explanation) does not violate the rights of the accused under La.R.S. 15:450. State v. Marmillion, 339 So.2d 788 (La.1976); State v. Wiley, 513 So.2d 849 (La.App. 2d Cir.1987), writ denied, 522 So.2d 1092 (La.1988). The law requires only that the substance of the statement be given. Id.
Each officer stated that his testimony, to the best of his knowledge, reflected the entire substantive conversation between him and Green. The mere fact that exculpatory statements may “possibly” have been made will not suffice to exclude evidence of the confession or inculpatory statement in the absence of showing prejudice resulting from the officer's inability to recall “everything” said. State v. Wiley, supra.
Defendant, during his testimony, had ample opportunity to set forth any omissions or mistakes made in the recounting of his pre-trial statements. This assignment is without merit.
Testimony of J.S.
J.S., called on behalf of the prosecution, related an incident that transpired approximately 20 years earlier. As a young teenager, she spent time at the home of her best friend, Lois Neal, defendant's stepdaughter. On three separate occasions, Green entered the room where the two girls slept in the same bed, groped J.S.'s breasts, and placed his tongue in her mouth. Defense counsel objected to this testimony as irrelevant and now assigns its admission as error.
Evidence of other crimes or acts may be admissible to prove motive, intent, knowledge, identity, and the absence of mistake or accident. La.C.E. art. 404B(1). The rationale behind excluding other crimes evidence is to ensure that the defendant will not be presumed guilty of the instant charge because of past offenses or because he is of a general criminal character. State v. Sturdivant, [27, 680 (La.App. 2d Cir. 2/28/96) 669 So.2d 654] supra; State v. Driggers, 554 So.2d 720 (La.App. 2d Cir.1989). For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence that the defendant committed the other acts or crimes, demonstrate that the other acts satisfy one of the requirements listed in Art. 404B(1), and show that the probative value of the evidence outweighs its prejudicial effect. State v. Sturdivant, supra. Further, such evidence must have some independent relevance, other than showing that the defendant is a person of bad character and must tend to prove a material fact at issue. Id.; State v. Driggers, supra. A trial court's admissibility ruling in that regard will not be overturned absent an abuse of discretion. State v. Sturdivant, supra; State v. Lee, 25,917 (La.App. 2d Cir. 05/04/94), 637 So.2d 656, writ denied, 94–1451 (La. 10/07/94), 644 So.2d 631.
The prosecution clearly demonstrated that Green had committed these acts upon J.S. During rebuttal, Neal testified she had been awake one night and watched her stepfather fondle her friend's breasts and place his tongue in her mouth. The evidence thus shows both the accused's intent to molest, fondle, or touch young girls and that his actions did not transpire by accident. Such proof, additionally and as a whole, tended to confirm the testimony of the victim in the present case. Indeed, Green even used similar excuses, viz., hearing a noise or prowler, to gain entrance into the young girls' sleeping quarters. Thus, the probative value of J.S.'s testimony is obvious and certainly outweighs any perceived prejudicial effect. Moreover, with the trial judge seated as the trier of fact, the risk of prejudice is minimized. See La.C.E. art. 403, Comment (d); State v. Wilcoxon, 26,126 (La.App. 2d Cir. 06/22/94), 639 So.2d 385, writ denied, 94–1961 (La. 12/16/94), 648 So.2d 386; State v. Jones, 95–1457 (La.App. 3d Cir. 05/08/96), 677 So.2d 493.
Finally, even though the other crimes evidence may appear to be remote in time, we note that the incidents occurred at about the same point in the lives of the two victims in that Green molested both J.S. and A.A. when they were approximately age 13. Under the circumstances of this case, the mere lapse of time, without more, did not require that the challenged evidence be excluded. Cf. State v. Driggers, supra. This assignment of error lacks merit.
Testimony of Andrea Swift
During cross-examination, the victim revealed the name of a friend, Andrea Swift, to whom she had generally mentioned the occasions of abuse by Green. Thereafter, over defense objection, the prosecution presented the testimony of this individual. In his brief, although not technically assigning this issue as error, defendant argues that the trial court erred in allowing this witness to appear when her name had not been disclosed prior to trial. The state counters that it did not know of her existence until the name had been elicited by defense counsel.
Defendant cites no authority in support of his argument. The trial court noted that this evidence, already presented through A.A., would be merely corroborative. Certainly too, the hearsay aspect of the testimony could be weighed and evaluated by the district judge. The complaint is thus meritless.
Rebuttal Testimony
Green next maintains that the trial court erred in allowing Patty Foster and Lois Neal to testify on rebuttal. By calling these witnesses at that stage of the trial, he argues, the state precluded him from demonstrating the state of mind of these individuals and from refuting their statements.
The state has the right to rebut evidence adduced by the defense. La.C.E. art. 611(E). Rebuttal evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party. In criminal cases, such evidence may actually strengthen the state's original case. State v. McLemore, 26,106 (La.App. 2d Cir. 06/24/94), 640 So.2d 847, writ denied, 94–1908 (La. 12/09/94), 647 So.2d 1107, cert. denied, 514 U.S. 1116, 115 S.Ct. 1974, 131 L.Ed.2d 863 (1995). Control of evidence presented by the state on rebuttal is within the sound discretion of the trial court and will not be disturbed except in extreme cases, such as when the evidence has been kept back deliberately for the purpose of deceiving and obtaining an undue advantage. State v. Williams, 445 So.2d 1171 (La.1984).
The state's case-in-chief disclosed how Foster ferreted out defendant's actions and, also, that Neal (accompanied by J.S.) informed her mother, Green's present wife, about at least one of his episodes with J.S. During the defense case, the accused denied the asserted incidents and, on cross, disputed making any inculpatory statements when Foster confronted him with the accusations. Beyond that, Mrs. Green denied that her daughter or J.S. ever approached her about the matter in question.
The subsequent rebuttal testimony, by Foster and Neal, served to disprove the indicated denials by defendant and his wife. The state raised no new issues through these witnesses, and the defense did not request an opportunity for surrebuttal anent their credibility. This assignment of error lacks merit.
Excessive Sentence
Both in his motion for reconsideration and in brief, defendant argues that his sentences should be deemed excessive and thus reduced. Specifically, it is stated that he had no prior convictions (felonies or misdemeanors), that he is in poor health, that home incarceration would be more appropriate, that there is no likelihood he will commit the crime again, and that he is financially unable to meet the imposed fines.
Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate when the crime and punishment, considered in light of the harm done to society, shocks the sense of justice. State v. Thompson, 25,583 (La.App. 2d Cir. 01/19/94), 631 So.2d 555. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Thompson, supra.
Closely following the provisions of La.C.Cr.P. art. 894.1, the trial judge extensively discussed the reasons for the sentences imposed. The sentencing transcript, which is appended, demonstrates more than sufficient justification for Green's incarceration and probation. Considering the harm defendant caused to A.A. and to society in general, the sentence imposed is not purposeless or needless and does not shock our sense of justice. The sentence is not found excessive.
Defendant's convictions and sentences are affirmed.
AFFIRMED.
SENTENCING APPENDIX FOLLOWS
SENTENCING APPENDIXState of LouisianaversusNO. 38,900Spencer Newton GREEN.Third Judicial District CourtParish of LincolnState of Louisiana.No. 38,900
The defendant in the above entitled and numbered cause was present in Open Court at Ruston, Louisiana, on the 7th day of February, 1996, accompanied by counsel, Mr. R.H. Madden, III, before the Honorable James M. Dozier, Jr., Judge of the Third Judicial District Court, State of Louisiana, and appeared for sentence. The State of Louisiana was represented by Mr. Scott Killen, Assistant District Attorney.
In accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the Court stated for the record the factual basis and the reasons for the sentence imposed as follows:
THE COURT: Are we ready to proceed?
MR. KILLEN: Yes, sir.
MR. MADDEN: Yes, Your Honor.
THE COURT: The matter before the Court this date for sentencing is the case of State of Louisiana Versus Spencer Newton Green, bearing docket Number 38,900. Mr. Madden, you represent this defendant. Have you had the opportunity to review the pre-sentence report which the Court has made available to you prior to sentencing?
MR. MADDEN: Yes, Your Honor, we have.
THE COURT: Are there any matters in that report with which you or the defendant wish to take issue?
MR. MADDEN: No, Your Honor. I think we addressed all the items of concern in correspondence with the Court.
THE COURT: All right. And you have submitted statements from the clinic as to Mr. Green's physical condition, is that correct?
MR. MADDEN: Yes, Your Honor.
THE COURT: Do either of you have anything to say before sentence is imposed?
MR. MADDEN: No, Your Honor.
THE COURT: All right. Do you have the bill?
THE CLERK: Yes, sir.
THE COURT: The record.
(Clerk tenders the record.)
THE COURT: The defendant was charged by bill of information with the—with four counts of indecent behavior with a juvenile, and these incidents were alleged in the bill of information to have occurred over a period of approximately one year or longer. The juvenile involved was around 14 or 15 at the time the incidents occurred, and the juvenile complained that the defendant had touched her on her private area and on occasions had inserted his finger into her vagina. The defendant was tried and convicted by this Court, and he now appears for sentencing.
The Court states for the record the considerations taken into account and the factual basis for the sentence imposed in accordance with Article 894.1 of the Code of Criminal Procedure. It appears that this juvenile was a close friend of Mr. Green's daughter of approximately the same age. Mr. Green seemed to attract or be attracted to young people and—in the community and supported some of the civic works and projects for younger people. I made the statement when I rendered the verdict in this case that he was a pillar of the community. Now, that expression was taken as the gist of some of his character witnesses. In fact, I think maybe one of them actually used that expression. And the point that I was getting at was that child molesters are not limited to the stereotype of the degenerative, depraved person that we usually think of them, the stereotype picture of the degenerate who is seeking to prey on children. It can be from anyone. The molesters can be anyone in a community, even the pillars of the community. The testimony did show that Mr. Green had participated in a number of community activities. That does not excuse the kind of behavior that occurred in this case.
There were four separate incidents that were the subject of this prosecution. One occurred in the swimming pool across the street from the defendant's house in which the juvenile testified that he had reached between her legs and also touched her breasts. The other one occurred coming back from a football game from Shreveport in which she testified that she had gone to sleep and he had at that time inserted his finger in her vagina. The other two occasions that were the subject of this prosecution occurred in the Green household at night.
The juvenile was, as I said, closely associated with Mr. Green's daughter. They were both cheerleaders in junior high, I believe, and both sought to be cheerleaders, or cheerleaders in grammar school and sought to be cheerleaders in junior high. In any event, they were together a lot at school and outside of school, and according to the testimony, the young girl who is the victim of the offense spent a great deal of time at the Green household in company of Kelly Green. This was the reason it appeared that she did not report the incident sooner. She was a friend of Kelly, and she did not want to do anything to break that friendship.
Now, of course, I couldn't—and as an adult, an adult couldn't see what—why the juvenile continued to associate there in the Green household after this had started, but I'm not a 15–year–old girl, and I can imagine that that sort of thing caused her distress and it sort of tore her both—in both directions. She wanted to do something about it, which she finally did, and yet she didn't want to break the friendship between her and Kelly. Of course, those juvenile friendships don't—a lot of them don't last very long. They flourish, and then they fade. All of us, I know, have had associations in school that seemed to wither and go away; we don't continue those associations afterwards. But she didn't know that, and she thought that Kelly would be her friend always.
The complaint was made, and it was investigated by some of the officers of the city police. Now, according to their testimony, Mr. Green made statements that were admissions of facts that from which you might infer his guilt. One of the officers stated that he said he wouldn't want anything like that to happen to his daughter and that he had a problem and he needed counseling, and also that he said that he was a tease and giving the impression that he thought it was okay with her. Now, the officers are well-trained and have had a lot of experience in investigating and interviewing with persons who are suspected of crimes, and they didn't misinterpret Mr. Green. He said that. But now, of course, he has changed his statement of the case, and he denies all involvement, all guilt, whatever. He first said he didn't do anything, and then he admitted, when the officers were questioning him, that he might have touched her at night while he was looking for sign of a prowler in the house.
Now, he would have us to believe that the case was based upon the young girl's word against his, but there was a little more than that. There was the testimony of the young girl, her mother, the three police officers, Mrs. Jan Sangid, who related to the Court a very similar, strikingly similar incident that had happened to her as—from some 20 years ago in which Mr. Green did very similar to what he did to the girl in this case, and his stepdaughters, Mrs. Green's two daughters by a previous marriage, testified also to that effect. Mr. Green, in his letter to the Court, would have the Court believe that these two daughters have some anger at him because he married their mother and mentions the fact that they were both divorced and remarried, I suppose, to impugn the credibility of their testimony, but the record showed that Mr. Green had been—had two failed marriages before the one that presently exists between him and Mrs. Green. So all these people didn't just enter into a giant conspiracy against Mr. Green to charge him. The testimony of the young girl was clear. It was—impressed the Court as being sincere, as did Mrs. Sangid's testimony, and for that reason he was convicted.
Now, he comes now for sentencing, and I have—of course, this is a highly emotional, emotion-charged case. There are people out there who want to hang Mr. Green, and there are people who want a mere pat on the wrist and say “naughty boy, don't do it again.” I have fashioned a sentence that I think will do what a sentence is supposed to do, punish Mr. Green for what he has done and attempt to see that safeguards are set up where he will not do it again. The code article 894.1 states that when a defendant has been convicted of a felony or misdemeanor, the Court should impose a sentence of imprisonment if any of the following occurs: one, there is an undue risk that during the period of a suspended sentence or probation or, I might add, a shorter sentence because I think that is implied, the defendant will commit another crime; two, the defendant is in need of correctional treatment and a custodial environment that can be provided most effectively by his commitment to an institution; and three, a lesser sentence would deprecate, and that's the word the statute uses, “deprecate,” the serious of the offense, of the defendant's crime. And I find all three of those situations present. Subsequent to the trial and while the Court had the matter under advisement, Mr. Green was charged with another offense. I believe it was while I had it under the advisement, or at least it was just before the verdict. He was charged with simple battery. He slapped a woman at a station on I–20 or I–20 exit, I think, with a newspaper, slapped her on the buttocks, and he was charged in city court with that offense and was convicted of that offense. Now, that in itself is not a sexually-related offense, but it can be, and when we consider all the circumstances, it seems as though Mr. Green has not profited by these charges being brought. Most people, if they were under a charge or a bill of information for indecent behavior with a juvenile, would have been very careful not to put their hands on another woman. The report shows, and Mr. Green indicates, that he has—he still maintains that he did not do anything wrong, that the officers were mistaken or else lied and that any touching he made was unintentional. Well, the evidence did not bear his contentions out and—as I said, and he therefore has shown no remorse for his act, no repentance, nothing. He still maintains that he did not commit any offense. Additionally, the little girl has required a serious amount of counseling, a serious amount, and has been very much traumatized by these events. He has expressed no regret for her condition, and you would think that even if he was innocent, he would be very sorry that she was in the state that she's in. So I think that all three of these standards are present in this case.
The following grounds, while not controlling the discretion of the Court, shall be accorded weight in its determination of suspension of sentence or probation. The first ones that are listed are the aggravating circumstances. One, the offender's conduct during the commission of the offense manifests deliberate cruelty to the victim. That is really not exactly in point. There was no cruelty as such where physical pain was issued or was caused, but there was mental pain and so it does apply in that respect. The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability or ill health. In this case, the victim was a guest in his house, a guest in his automobile or in the swimming pool. It was almost as if she were in a capacity as someone who is under the trust and care of another, and he violated that trust. Three, the offender offered or has been offered or has given or received anything of value. Well, that's not applicable. Number four, the offender used his or her position or status to facilitate the commission of the offense, and I think that is applicable because here he was the father of her best friend and he used that position to get her in a situation where he could do these things. Number five is not applicable. Number six is not applicable. Number seven. Number seven merely states that subsequent to the offense the offender used or caused others to use violence, force or threats with the intent to influence the institution, conduct or outcome of the criminal proceedings. Now, I cannot say that that is applicable. Although the juvenile did receive threats, I cannot say that Mr. Green occasioned those or that—or whether they may have just been merely spontaneous on the part of the ones making threats. Number eight, I don't believe that is applicable so much in this case. Number nine, the offense resulted in a significant permanent injury or significant economic loss to the victim or his family. Well, as I said, the juvenile has had to seek counseling and treatment for the traumatic condition she has undergone. Number ten is not applicable. Number eleven is not applicable. Number twelve. The offender was persistently involved in similar offenses not already considered as criminal history or as a part of a multiple-offender adjudication. Well, there was the one incident that was never prosecuted that I spoke of, Ms. Sangid's case. I don't suppose that could be considered in light of twelve because I have already discussed that. Number thirteen applies only to multiple participants. Number fourteen is not—well, it is partially applicable. It's caused economic distress, I'm sure, on the victim's family because they've had to pay for her counseling. Number fifteen is not applicable. Sixteen is not applicable. Seventeen is not applicable. Eighteen is not applicable. Nineteen is not applicable. Twenty is not applicable. Those all deal with use of firearms.
And now the mitigating circumstances that I need to consider. Number twenty-two, the defendant's criminal conduct neither caused nor threatened serious harm. Well, it did. As I said, it created great psychological harm with the victim. Number twenty-three, the defendant did not contemplate that his criminal conduct would cause or threaten serious harm. Well, give him the benefit of the doubt there, that he might not have intended to harm her. The defendant acted under strong provocation, other than the provocation of his own possible obsessive-compulsive actions. There were, number twenty-five, substantial grounds tending to excuse or justify the defendant's criminal conduct. Well, they don't—that doesn't exist; that's not applicable. The defendant's—the victim of the defendant's criminal conduct either induced or facilitated its commission. The only thing is that the girl continued to come to his house, but she had compelling reasons, she felt, to do so. I don't think she came there voluntarily to submit to molestation. Number twenty-seven, the defendant has compensated or will compensate the victim. There is no indication that he has done so. Number twenty-eight, the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime. Now, he has, according to the pre-sentence report, no prior record of criminal charges or convictions. The only thing that I know of is the incident that Mrs. Sangid testified to 20 years prior, or that occurred 20 years prior, but—and that, of course, I consider that, but I don't consider any criminal conduct as such because he has no criminal record. I considered that only in assisting me in concluding that he was guilty of the charge, but there was no formal accusation made and so his record does not have that as a prior criminal activity, so he is a first-felony offender. Twenty-nine, the defendant's criminal conduct was the result of circumstances unlikely to recur. I cannot say that that is applicable because other circumstances could come about and the conduct could be repeated as often as he was in the company of a young female in such a situation as these. Number thirty, the defendant in particularly—is particularly likely to respond affirmatively to probationary treatment. I am not sure that that is applicable. If Mr. Green is a pedophile—and I'm not saying that he is because I'm not a psychiatrist. If he is, though, then that conduct or that way of life is hard to change, according to all the experts. Thirty-one, the imprisonment of the defendant would entail excessive hardship to himself or to his dependents. Now, in this case—there always is hardship in case of any imprisonment, and that hardship is usually on the family of the defendant, the accused, as well as the victim. The victim has had hardship, she and her family, and the defendant and his family will have hardships, too. The defendant has brought shame upon his family by this conduct. A lot of that is going to exist whether he goes to jail or not, so I don't believe that that provision is applicable in this case. Number thirty-two is not applicable. Number thirty-three, in connection with the defendant's physical condition, counsel has provided me with records showing that he has, I think, had about four years ago triple-bypass surgery, had heart problems and still is on medication.
I have two options here because the offense, each count of the offense is punishable by imprisonment with or without hard labor for up to seven years. I think that I can structure a sentence where—and I think I have done so, where Mr. Green will receive the punishment that he needs and yet not be overly punished. Now, some will think I am too lenient; some will think I'm too harsh, so I suppose, if that be the case, then that pretty well bears out the justness of the sentence. I think that some term of incarceration is necessary and appropriate and some time of probation is necessary and appropriate. There are certain things that can be required of the defendant in a probated sentence that would not be possible in case of a prison sentence, so I have structured the sentence as I will impose it now, and for these reasons that I have given.
On count one, the defendant is hereby sentenced to be imprisoned in the parish jail subject to public works for a period of four years, and pay the costs of his prosecution. On count two, the defendant is hereby sentenced to be imprisoned at hard labor for a term of three and one-half years and pay the costs of his prosecution. On count three, the defendant is hereby sentenced to be imprisoned at hard labor for a term of three and one-half years and pay the costs of his prosecution and a fine of $1,000. On count four, he is sentenced to be imprisoned at hard labor for a term of three and one-half years and pay the costs of his prosecution and a fine of $1,000. Now, the sentence in counts two, three and four—well, first of all, the sentences are to run consecutive to each other. Inasmuch as this was not something that happened as a—as one short transaction but occurred over a continuing period of time for a year or more and was actually a betrayal by the defendant of the trust that the victim and her family had placed in him, I think the sentences should appropriately run consecutive. And I'm going to suspend the sentences in counts two, three and four and place the defendant on supervised probation on each of those counts for a period of three and one-half years, and the probationary period will run consecutive to each other, just as the sentences if they were served, so that this defendant, if he should mess up, will have ten and one-half years of imprisonment to face and—as well as having to serve the imprisonment in the parish jail on count one.
Now, I'm not sending Mr. Green to the penitentiary, one reason, because of his health problems, and I know that life in the penitentiary for a person who is a known child molester is very dangerous and it could be a life sentence, or a death sentence in that case. But I think that when he serves the four years in the parish jail, then he will be on probation for about ten and a half years, and that should be sufficient to keep him, help him learn to keep his hands off other people, especially young females.
Now, the probation conditions. I will hit the highlights. I will file a written list of conditions. They contain the general conditions of probation of Article 895. They further provide for the payment of $250 to the Indigent Defender program, $2,000 to the Criminal Court Fund, in lieu of the fines which were imposed and suspended. He will pay all court costs of these proceedings. He'll pay $300 to the Crime Victims Reparation Fund. He will pay $20 per month to the supervising agency, the Louisiana Department of Corrections, for the supervision of his probation. He'll pay a hundred dollars to the Judicial Clerk's Fund of this Court to assist in the handling of the probation matters. He'll pay three dollars to the Crimestoppers organization of this parish. He will—subsequent to his release from the parish jail, he will have a period of two years of home incarceration. He will perform 90 eight-hour days of community service activity. He will avoid all contact with female juveniles, including all school activities and other events where contact can be made with female juveniles. He will submit to counseling at his expense by a psychologist or psychiatrist and to any treatment the same may deem necessary and proper, and to attend therapy groups or other groups for those who have compulsive-obsessive behavior disorders. He will also submit to a complete and thorough psychiatric and/or psychological examination and evaluation by Dr. Paul Ware, psychiatrist of Shreveport, Louisiana, and will abide by any recommendations made by Dr. Ware in his prescribed treatment or handling of the offender's case. And according to law, he will also register and comply with the provisions of the Sex Offenders Act and anything pertinent thereto. He will also, as a part of the restitution of paragraph eight, he will also pay for—that's 8–A. He will pay for, as a part of the medical expenses, all costs for psychiatric and psychological evaluation, treatment and counseling of the victim in this case.
Madam Clerk, file the conditions of probation, and the defendant will be furnished a copy of those conditions upon his complying signing them, and that will conclude the sentencing.
Now, Mr. Green, you are advised under the law that you have five days within which to lodge an appeal from your conviction and sentence in this case, and a period of three years from the time this judgment or conviction becomes final within which to apply for post-conviction relief.
MR. MADDEN: Your Honor, if it please the Court, at this time we would respectfully move for an appeal to the Second Circuit Court of Appeals.
THE COURT: All right. Let an appeal be granted to the defendant from the conviction and sentence in this case, returnable to the Court of Appeal, State of Louisiana, Second Circuit, sitting in Shreveport, Louisiana, returnable on or before April seventh—that's on Friday—of this year, and the defendant will have the time provided by law within which to file his assignments of error and designation of the portions of the record for the appeal. I would suggest that you make that designation within the next ten days, if you could, Mr. Madden.
MR. MADDEN: Yes, sir, certainly will.
THE COURT: And the State will have—how long do you need after that? Ten or—
MR. KILLEN: Yes, sir, that's fine.
THE COURT: Ten? Okay.
MR. KILLEN: Your Honor, also in connection with this matter, considering the fact that Mr. Green has now been sentenced to a sentence which is longer than five years, we would ask that the appeal bond be set at this time and that it be raised from the $6,000 that is currently standing.
THE COURT: Do you have any—
MR. MADDEN: Your Honor, of course, in response to that, we would submit the economic hardship that any additional bond would impose on Mr. Green, and given his approach to the matter, I would suggest—
THE COURT: He's not employed at this time, is he?
MR. MADDEN: Sir?
THE COURT: He's not employed at this time?
MR. MADDEN: No, sir. And—
MR. KILLEN: Your Honor, specifically, I would ask the Court to consider subsection D of Criminal Code Article 332, considering that this defendant has, and can, pose a danger to any other person or the community on determining that amount of bail.
MR. MADDEN: Your Honor, if it please, I think under the conditions that the Court had imposed on Mr. Green earlier after the rendition of the verdict that, in effect, to maintain his isolation and that he has in fact done so, and would suggest that his interest in pursuing the appeal would certainly outweigh any tendency to not follow the orders of the Court.
THE COURT: Well, I don't think he's going anywhere, as far as that's concerned. Now, as to any danger, I think the restrictions on the bond following conviction are such that they would prevent him from doing anything. Now, if he does—
If there's any indication, Mr. Green, that you are going to violate any of the conditions of your bond, I'll have it revoked and have you in jail right away. You understand that?
THE DEFENDANT: Right.
THE COURT: So I'm going to leave the bond as it is, subject to the approval of surety, and maybe they'll get—expedite the appeal and we'll get it over with right away.
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
MR. MADDEN: Thank Your Honor.
THE COURT: We'll be in recess to the other courtroom now for the jury trial.
CERTIFICATE
I, Sara Jo Hood, Certified Court Reporter, Certification No. 87336, State of Louisiana, do hereby certify that the above and foregoing 15 pages of typewritten matter constitute a true and correct report and transcript of the proceedings taken in the above entitled and numbered cause at the time and place hereinbefore set out on page one hereof.
In Witness Whereof, I hereto affix my signature at Homer, Louisiana, on this the 3rd day of April, 1996.
Filed in the Office of the Clerk of Court on this the 9th day of April, 1996.
/s/Sara Jo Hood
Sara Jo Hood
Certified Court Reporter
Certification No. 87336
State of Louisiana
FOOTNOTES
1. Each member of the panel majority acknowledges he is included among the appellate judges who have concurred in or signed opinions that contain inconsistent statements on the issue. See discussion, infra, p. 1277.
2. See, e.g., State v. May, 339 So.2d 764 (La.1976): Denial of defendant's motion for new trial grounded on verdict being contrary to law and evidence, “presents nothing for review unless no evidence appears in the record supporting one of the essential elements of the offense.”
1. If a federal habeas petitioner can demonstrate both “cause” for his failure to raise the issue properly and “prejudice,” his claim may be addressed.
2. Although noting that the defendant's procedural default in the trial court resulted in the availability of only a miscarriage-of-justice review, the appellate court “opted” to apply its ordinary standard of review in concluding that there was clearly adequate evidence to sustain the conviction.
MARVIN, Chief Judge.
HIGHTOWER, J., concurs as to the result only, with written reasons.
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Docket No: No. 28994–KA.
Decided: February 26, 1997
Court: Court of Appeal of Louisiana,Second Circuit.
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