STEPHEN J. WINDHORST, Judge.
Defendant, Lloyd Richard, was convicted of attempted second degree murder in violation of La. R.S. 14:27:30.1 (count one) and aggravated burglary in violation of La. R.S. 14:60 (count two). Defendant was sentenced on count one to 50 years at hard labor without benefit of parole, probation, or suspension of sentence, and on count two to a consecutive 30-year sentence at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appeals his convictions and sentences.
In the early morning hours of January 26, 2008, Ms. Alonda Dennis, the victim, had finished her night shift at St. James Hospital, where she worked from 6:00 p.m. to 6:00 a.m. After stopping at a grocery store, she arrived home at 7:04 a.m., and as she put her groceries away, she noticed that her kitchen knife was not in the kitchen, but thought nothing further. After eating a sandwich, she retired to bed and fell asleep, wrapped in her comforter. She was awakened by a black male standing over her. The intruder wore a black skull cap on his head, a red bandana over his face, and gloves. The intruder jumped on her back and began trying to stab her with a knife. The victim jumped up, throwing her assailant off of her and dislodging the knife from his hand. She screamed and attempted to run away. He threw her to the floor, jumped on her back, and began punching her in the head. While receiving blows upon her head and struggling with her assailant, the victim asked her assailant, "Why you want to kill me?" He did not respond and continued beating her. As the struggle ensued, the victim managed to turn and observe her assailant's face, by then uncovered, and she instantly recognized him.
The assailant grabbed a cord from a hairdryer nearby and attempted to place it around the victim's neck. In an effort to keep the cord off her neck, she squeezed her assailant's genitals, and he ran from the room. The victim then locked her bedroom door, jumped out the window, and called "9-1-1" for help.
At 8:24 a.m., Deputies Evans Joseph and Donald Hawthorne of the St. James Parish Sheriff's Office responded to the call and arrived on the scene at 9202 Central Project Street in Convent, Louisiana. They observed a female standing outside an opened window in just her bra and underwear with a bloody nose and cuts on her chin and lips. The female identified herself as Alonda Dennis and told the officers that she woke up to find Lloyd Richard in her bedroom with a knife. Deputy Joseph secured the victim in the backseat of his car while Deputy Hawthorne and he searched the premises for the suspect. In the rear of the residence, a sliding door was open, which appeared to be the suspect's entry and exit point. The officers requested medical assistance, and an ambulance soon arrived on the scene and transported the victim to the hospital.
Lieutenant Tyrone LaFarge arrived on the scene and learned that the suspect
Detective Claude Joseph Louis, Jr., obtained a taped statement from the victim and collected evidence from her residence which included one pair of white gloves with black dots, one black skull cap, one pair of red and white Nike shoes (size 9 1/2), and a 13-inch black-handled knife. The victim initially told Detective Louis that these items were not hers and did not belong in her residence. However, at trial the victim testified that the knife recovered from her bedroom was her kitchen knife.
Forensic DNA analysis was performed on several of these items. Ms. Deanna Lankford, an expert in the fields of forensic biology, DNA, and DNA analysis, testified that the DNA profile obtained from the black skull cap was consistent with defendant's DNA profile. She testified that the inside of the gloves contained genetic material from which the victim and defendant could not be excluded as possible donors. The outside of the gloves also contained genetic material which was consistent with the DNA profile of the victim and an unidentified male contributor. Lastly, Ms. Lankford testified that the genetic material found in two swabs from the knife contained a minimum of two genetic profiles. At least one of the profiles was that of an unidentified male, and the victim could not be excluded as a possible donor of this genetic material.
In defendant's first assignment of error, he argues that his right against double jeopardy was violated because the State utilized the same evidence to support both of his convictions. Defendant contends the evidence used to prove attempted second degree murder was the same evidence used to prove the aggravated burglary element of "with the intent to commit a felony or theft therein." He maintains that because the only felony which he was alleged to have committed in the home was attempted murder, his right against double jeopardy precludes using the evidence of the attempted murder to support the aggravated burglary intent element.
Louisiana courts utilize two tests in examining violations of double jeopardy. Garcia, supra at 27. The "distinct fact" or Blockburger
The other test, the "same evidence test," is primarily relied upon by Louisiana courts. Garcia, supra. The Louisiana Supreme Court explained the "same evidence test" as follows:
The "same evidence test" is slightly broader in concept than Blockburger, and centers on the idea that one should not be punished twice for the same course of conduct. Garcia, supra. Rather, if the evidence required to support a finding of guilt of one crime would also support a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329. Conversely, if one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses unless the gravamen of the second offense is essentially included within the offense for which he was first tried, in which case the second prosecution is barred because of former jeopardy. State v. Solomon, 379 So.2d 1078, 1079 (La.1980).
In this case, the defendant, Lloyd Richard, was charged with and convicted of aggravated burglary and attempted second degree murder. Although the bill of information does not specify whether defendant was charged with attempting a felony murder under La. R.S. 14:30.1(A)(2), or a specific intent killing under La. R.S. 14:30.1(A)(1), we conclude that defendant was charged with attempting a specific intent killing since there is no such crime as attempted second degree felony murder because attempted second degree murder requires a specific intent to kill, which is inconsistent with the felony murder theory of La. R.S. 14:30.1(A)(2). State v. Landfair, 07-751 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, 622, writ denied, 08-1143 (La.1/9/09), 998 So.2d 713.
Second degree murder is defined in La. R.S. 14:30.1(A)(1) as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. To prove an attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human
Aggravated burglary is defined in La. R.S. 14:60 as the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the
Defendant argues that his right against double jeopardy was violated because the same evidence was required to support both of defendant's convictions. He contends that the evidence supporting defendant's attempted murder conviction was the same evidence used to satisfy the aggravated burglary element of "with the intent to commit a felony or any theft therein." Defendant contends that because there was no evidence that a theft was committed since nothing was taken from the victim's home, defendant did not intend to commit a theft. Hence, the aggravated burglary must be supported by the intent to commit a felony. Since the evidence indicates defendant attempted to kill the victim, the only felony defendant must have intended was murder.
We disagree. Defendant's argument focuses on the lack of evidence of a theft, but the lack of evidence of an actual theft does not necessarily mean that defendant did not intend to commit a theft. In this case, the jury could have reasonably concluded from the evidence that defendant entered with the specific intent to commit a theft therein, but did not complete the intended theft, perhaps because the victim was home, or because of her vigorous resistance.
Specific intent is a state of mind, and as such, need not be proven as a fact but may be inferred from the circumstances and actions of the defendant. State v. Poupart, 11-710 (La.App. 5 Cir. 2/28/12), 88 So.3d 1132, 1138, writ denied, 12-705 (La. 10/8/12), 98 So.3d 867. The victim, Ms. Dennis, testified that in the days leading up to January 26, 2008, she had seen defendant riding a bicycle around her residence, appearing, in her opinion, to case it for a burglary.
There is also evidence from which the jury could have concluded that defendant entered with the specific intent to commit a felony other than the murder of the victim. The defendant entered the victim's home masked and wearing gloves. At this point, the jury could have reasonably concluded that defendant's intentional concealment of his face and fingerprints was evidence that defendant intended to commit some felony or theft once inside, without any evidence of the attempted murder which followed. The Louisiana Supreme Court has recognized that the crime of burglary is complete upon the unauthorized entry with the intent to commit the crime, whereas the intended crime does not occur until actually committed.
Considering the totality of evidence at trial, it would not be unreasonable for a jury to conclude that defendant intended to commit a theft. Furthermore, from defendant's actions in entering the victim's home masked and arming himself, it would not be unreasonable to conclude that defendant intended to commit any number of felonies other than murder, such as aggravated assault, aggravated battery, aggravated rape, other crimes of personal violence, or other felonies.
We do not find that the evidence used to prove defendant's attempted murder conviction was also required to prove the burglary element "with the intent to commit a felony or any theft therein." The Louisiana Supreme Court has recognized that specific criminal intent to commit a felony or theft may be inferred from the circumstances, as long as there is some evidence that the defendant actively desired to commit a felony or theft. See State v. Ricks, 428 So.2d 794, 796 (La.1983).
Garcia, supra, is completely distinguishable from the present case. In Garcia, the defendant was convicted of attempted first degree murder, which required proof of one of several aggravating circumstances. The aggravating circumstance which the State proved was that the attempted murder occurred while in the commission of an armed robbery. Thus, armed robbery and the complete evidence thereof was an element of the offense of attempted first degree murder. The same evidence and
In the present case, commission of an attempted second degree murder is not an element of the aggravated burglary; only the intent to commit a felony or theft is necessary. When the defendant entered the residence with the intent to commit a felony or theft (as the jury concluded), the crime of aggravated burglary was complete. Subsequent acts constituting attempted second degree murder were "distinct facts" constituting a separate crime not precluded by the double jeopardy prohibition. Further, because the element of intent to commit a felony is distinct from commission of the felony, evidence of defendant's intent to commit second degree murder, or the attempt thereof, could be used to satisfy that element of burglary without precluding prosecution of the attempted second degree murder itself. See also State v. Bridgewater, 98-658, 726 So.2d 987 (La.App. 5 Cir. 12/16/98), in which convictions for both aggravated burglary and for the armed robbery which occurred during the unauthorized entry did not constitute double jeopardy.
We therefore conclude that defendant's aggravated burglary and attempted second degree murder convictions are not based on the same conduct, but were two separate and distinct offenses committed during the same criminal episode. Evidence of the crime of aggravated burglary was sufficient when defendant entered the victim's home masked and armed himself with a knife. The attempted murder did not occur until defendant actually attacked the victim. These were two separate and distinct offenses, supported by corresponding separate and distinct facts. The evidence required to support defendant's attempted murder conviction, which was defendant's attempts to stab and strangle the victim, would not have been sufficient to convict defendant of aggravated burglary, where aggravated burglary requires additional elements such as an unauthorized entry. Likewise, the evidence required to support defendant's aggravated burglary conviction, which was defendant's unauthorized entry with a felonious intent, evidenced by his being masked and arming himself with a knife, would not have been sufficient to convict defendant of attempted murder, which requires a specific intent to kill. In this case, defendant could have been convicted of either offense without evidence of the other. Pursuant to the "same evidence test," we find that defendant was neither convicted nor punished twice for the same conduct. Compare State v. Archield, 09-1116 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, writ denied, 10-1146 (La.5/20/11), 63 So.3d 972.
Accordingly, we find that defendant's attempted second degree murder conviction does not bar a conviction of aggravated
In his second assignment of error, defendant argues that the trial court erred in imposing sentence on his aggravated burglary conviction without benefit of parole. We agree.
At the time of the offense, La. R.S. 14:60 provided: "Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years."
At sentencing, the court stated:
Since the trial court in this case restricted the benefits on defendant's aggravated burglary sentence in contravention of La. R.S. 14:60, we amend the sentence to delete the restrictions on benefits, and order the trial court to correct the commitment. La.C.Cr.P. art. 882; State v. Lipton, 02-162, (La.App. 5 Cir. 9/30/03), 857 So.2d 1162, 1163, writ denied, 03-3058 (La.2/20/04), 866 So.2d 818.
In defendant's third assignment of error, he argues that the trial court erred in imposing his sentences consecutively. This Court has held that the failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hunter, 10-552 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272; State v. Alvarez, 08-558 (La.App. 5 Cir. 8/31/10), 47 So.3d 1018, 1022; State v. Fuller, 07-319 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 50, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282. This Court has also held that when the consecutive nature of sentences is not specifically raised in the trial court, then the issue is not included in the bare constitutional excessive review, and the defendant is precluded from raising the issue on appeal. State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 593, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, Jacobs v. Louisiana, ___ U.S. ___, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012); State v. Williams, 10-265 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 103. The record in this case reflects that defendant failed to file a motion to reconsider sentence and failed to
To the extent defendant challenges the constitutional excessiveness of his sentences, we consider the following. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.
A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Dorsey, 07-67, (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. Pearson, Id. at 656.
Defendant's sentence is within the statutory limits. At the time of the offenses, La. R.S. 14:60 provided: "Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years." Defendant was sentenced to 30 years on his aggravated burglary conviction. La. R.S. 14:30.1 provided: "Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence." La. R.S. 14:27(D)(1)(a) provided: "If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence." Defendant was sentenced to 50 years on his attempted second degree murder conviction.
Considering the nature of the crime, the record reflects that defendant committed a premeditated act, as evidenced by his attempts to obscure his identity, and broke into the victim's home, armed himself, and violently attacked the victim.
The next factor is the nature and background of defendant and his criminal history. The pre-sentence investigation report indicates that the defendant's criminal history is extensive, dating back to 1979, including numerous crimes against the person and several crimes of violence.
Lastly, similar sentences have been upheld for similar crimes by this court and other courts. See for example State v. Williams, 11-0414 (La.App. 4 Cir. 2/29/12), 85 So.3d 759, 762, writ denied, 12-0708 (La.9/21/12), 98 So.3d 326 and State v. Robicheaux, 03-1063 (La.App. 5 Cir. 12/30/03), 865 So.2d 149, writ denied, 04-0381 (La.6/25/04), 876 So.2d 830.
We find that the record supports the sentences imposed and that the trial court
We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.
For the above discussed reasons, we affirm the defendant's convictions. We further affirm the defendant's sentence of 50 years without benefit of probation, parole or suspension of sentence for his conviction for attempted second degree murder. We amend his 30 year sentence for aggravated burglary to delete the restrictions on benefits, and as amended, affirm the sentence. We further remand this matter to order the trial court to transmit the original of the corrected commitment to the officer in charge of the institution to which defendant has been sentenced.
MURPHY, J., dissents with reasons.
I respectfully dissent; under the facts of this consolidated case, relating to the events of January 28, 2008, the State relied on the same evidence to support defendant Lloyd Richard's convictions of attempted second degree murder and aggravated burglary, thus violating double jeopardy protections of the United States and Louisiana constitutions. U.S. Const. Amend. 5; La. Const. Art. 1, § 15.
In State v. Garcia, 10-755 (La.App. 5 Cir. 5/10/11), 66 So.3d 24. this Court set forth two tests to be employed in analyzing violations of double jeopardy: the "distinct fact" or Blockburger test; or the "same evidence" test. State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895.
Here, the evidence presented to support the "intent to commit a felony or theft therein" element of aggravated burglary-defendant's attempts to kill the victim-was the same evidence presented to prove attempted second degree murder. Under these limited facts, the State concedes that the prohibition against double jeopardy precluded using the evidence of defendant's attempts to kill the victim to support both the attempted murder charge and aggravated burglary's intent to "commit a felony" element:
The majority contends that Garcia is distinguishable as it relates to a double jeopardy violation based on attempted first degree murder (defendant shot cashier in leg and then shot her two more times before taking cash) having the same underlying facts of armed robbery (defendant took cash from cashier while armed with a firearm), the other charge in that case. This case, the majority argues, has a distinct felony of aggravated burglary that was proven when the defendant broke into the house and armed himself before committing the crime of attempted second degree murder, the other charge in this case.
The majority correctly states that the underlying felony predicate for aggravated burglary need not be stated, but it certainly must exist and have been prosecutable as a distinct felony. Consider when the underlying offense is not stated but is distinct nonetheless. In State v. Coates, 27,287, (La.App. 2 Cir. 9/27/95), 661 So.2d 571, 576, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365, the Second Circuit affirmed defendant Coates's convictions for manslaughter and second degree kidnapping, holding that the conviction for second degree kidnapping, after the previous plea to manslaughter, did not violate double jeopardy as argued by the defense. The appellate court reasoned that the State was not confined to using second degree kidnapping as the underlying felony for the amended charge of manslaughter, but could have used armed robbery or aggravated battery.
In the instant matter, the State has made such a factual concession, specifying that it "adduced no evidence of any other felony ... other than attempted murder." After relying on this same evidence for both convictions, the State conceded in this case that it "failed to adduce sufficient evidence to convict the defendant of [the separate offense] of aggravated burglary."
The record demonstrates that the testimony, evidence, and argument focus on the single felony of attempted second degree murder.
Double jeopardy protects against multiple punishments for the same offense. U.S. Const. Amend. 5; La. Const. Art. 1 § 15; La. C.Cr. P. art. 591. It can be raised at any time, even on appeal. La. C.Cr.P. arts. 532(1), 591, 594; State v. Lefeure, 00-1142, p. 8 (La.App. 5 Cir. 1/30/01), 778 So.2d 744, 750, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669; and State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143 (a plea of double jeopardy had been considered first time on appeal).
As a general rule, "the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." La. C.Cr.P. art. 61. After conviction, the District Attorney is authorized to dismiss an
The Fifth Circuit holding in State v. Lefeure, supra, distinguishes between offenses relying on the same facts and thus violating double jeopardy protections and offenses relying on different facts which do not violate double jeopardy protections. In Lefeure, the defendant was charged with three offenses: armed robbery of the salesperson at a daiquiri shop; aggravated burglary of the store; and second degree kidnapping of the same armed robbery victim. This Court found that convictions of armed robbery and aggravated burglary did not violate double jeopardy as the aggravated burglary was completed (unauthorized entry into store, with intent to commit a felony therein, while armed with a gun), before the armed robbery (defendant forced employee at gunpoint to turn over money) was then committed. Id. at 751. This Court found, however, that as to the convictions for armed robbery and second degree kidnapping, the result was different, since the same evidence to support the conviction of armed robbery was used to support the conviction of second degree kidnapping. Id. at 752. The Fifth Circuit ruled that under the "same evidence" test, as set forth in Garcia, 66 So.3d at 27, the two were the same offense:
The instant case is on point with the finding of double jeopardy in Lefeure. The same evidence of defendant's entering Alonda Dennis's dwelling without authorization and arming himself with a dangerous weapon, with intent to commit murder — the felony intent element of aggravated burglary as stipulated by the State-supports convictions for both offenses, aggravated burglary and attempted second degree murder.
See also State v. Miller, 571 So.2d 603 (La.1990) (person acquitted of attempted rape could not subsequently be prosecuted for simple kidnapping where one element of the simple kidnapping allegation was the intent to commit the rape); State v. Burton, 649 So.2d 694 (La.App. 3 Cir.1994) (conviction of second degree kidnapping and attempted forcible rape impermissible); State v. Lockhart, 457 So.2d 176 (La. App. 2 Cir.1984) (under facts of the case a prosecution for attempted forcible rape was precluded by a previous prosecution for aggravated burglary); and State v. Powell, 598 So.2d 454 (La.App. 2 Cir.1992), writ denied, 605 So.2d 1089 (La.1992) (armed robbery conviction and aggravated battery conviction violated double jeopardy as evidence of the robbery also proved the battery).
