McDONALD, J.
The defendant, Dashain L. Moore, was charged by grand jury indictment with one count of armed robbery (count 1), a violation of La. R.S. 14:64; and one count of aggravated kidnapping (count II), a violation of La. R.S. 14:44; and pled not guilty on both counts. Following a jury trial, he was found guilty as charged on both counts. On count I, he was sentenced to ninety-nine years at hard labor. On count II, he was sentenced to life imprisonment to run consecutively with the sentence imposed on count I. He now appeals, filing a counseled brief challenging the sentences as excessive. He also files a pro se brief challenging the trial court's rulings denying his challenges for cause and claiming trial defense counsel refused to let him testify. For the following reasons, we affirm the convictions and sentences.
The victim, Gary Stafford, was twenty years old at the time of his testimony at trial.
The victim started his truck, but before he could leave, the man pointed a rusty revolver at the victim's face. The man ordered the victim to put the man's bicycle in the truck. After the victim loaded the bicycle into the back of the truck, the man ordered him to open the passenger door and get in. The man also got into the truck, continuing to point the gun at the victim. He asked the victim how much fuel the vehicle had, and the victim replied he had half a tank. The man told the victim, "Well, it looks like we're going to be riding for a while." He then ordered the victim to start driving in the direction of Springfield. During the drive, the man took the victim's cap off of his head. He told the victim, "Where [the victim] was going, [the victim] wouldn't be needing that cap." The man also stated he was not scared to kill anyone because he had killed someone in the area before. Additionally, he knocked a hole in the window with his gun.
The man directed the victim to a gravel road and told him to open the passenger door. Thereafter, the man exited the victim's truck and ordered him to exit and put his speakers and CD player in the back of the truck. The man then ordered the victim to get on the ground, and took all of his money from his wallet. The man became angry because the victim only had $25. He then put the revolver in the victim's mouth, and told him if he did not have more money, the man would, "blow [the victim's] brains out." The victim told the man he had $400 in the bank. After the man found the victim's ATM card, he told the victim they were going to the ATM machine.
The man directed the victim to a bank in Hammond. At the bank, the man told the victim he had thirty seconds to get all the money out, and then the man would "start shooting," The victim withdrew $400 from his savings account using the ATM and began walking back toward his truck and the man. When the victim noticed the man was not looking directly at him, he threw the money in the air and ran away.
The victim's truck was subsequently recovered after it had been "burned to the ground." During the approximately two hours the victim was held at gunpoint by the man, the victim noticed the man had "MAE" tattooed on his arm. The victim subsequently identified the defendant as his assailant in a lineup on May 11, 1998, and at trial. The defendant had "MAE" tattooed on his right arm.
In counseled assignment of error number 1, the defendant argues the trial court erred in imposing sentences which were unconstitutionally excessive. In counseled assignment of error number 2, he argues this court should consider the constitutionality of the sentences even though trial counsel failed to file a motion to reconsider sentence; and, in the event this court finds the failure of trial counsel to make or file a motion to reconsider sentence precludes consideration of the constitutionality of the sentences, then counsel's failure constitutes ineffective assistance of counsel.
We will address counseled assignment of error number 1, even in the absence of a timely motion to reconsider sentence or a contemporaneous objection, because it will be necessary to do so as part of the analysis of the ineffective assistance of counsel claim.
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La. C.Cr.P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision.
Louisiana Constitution Article I, Section 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion.
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C.Cr.P. art. 883. Thus, La. C.Cr.P. art. 883 specifically excludes from its scope sentences which the court expressly directs to be served consecutively. Furthermore, although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive.
A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in
Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B) (prior to amendment by 1999 La. Acts. No. 932, § 1). On count I, the defendant was sentenced to ninety-nine years at hard labor.
Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:44. On count II, the defendant was sentenced to life imprisonment to run consecutively with the sentence imposed on count I.
At sentencing, the court noted it was imposing sentence on the basis of the presentence investigation report and the evidence at trial. A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein.
Additionally, maximum sentences were warranted in this matter. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality.
In regard to the defendant's ineffective assistance of counsel claim, we note, even assuming, arguendo, defense counsel performed deficiently in failing to timely move for reconsideration of the sentences, the defendant suffered no prejudice from the deficient performance because this court considered the defendant's excessive sentences argument in connection with the ineffective assistance of counsel claim.
These assignments of error are without merit.
In pro se assignment of error number 1, the defendant argues the trial court abused its discretion by denying defense challenges for cause "without reason" against prospective jurors Tammie Oliphant, Tara Bennett, Andrew Childs, Denise Bennett Waddell, Beverly Rupnarain, and Jacqueline Strickland.
The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence. La. C.Cr.P. art. 797(2). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may be inferred. However, the trial court is vested with broad discretion in ruling on a challenge for cause; its ruling will not be disturbed on appeal absent a showing of an abuse of discretion.
In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. Prejudice is presumed when a defendant's challenge for cause is erroneously denied and the defendant exhausts all his peremptory challenges.
A trial judge's refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence.
Tammie Oliphant was on the first panel of prospective jurors. Her uncle worked for the gaming commission of Louisiana State Police Troop A. She indicated she could listen to the evidence presented, weigh that evidence, and give a fair and impartial judgment based on what was presented in court. She also promised to acquit the defendant if she was selected as a juror and found there was reasonable doubt he had committed the offenses.
The defense challenged Oliphant for cause on the basis that because her uncle was a State Trooper, her knowledge of criminal law would be "much heightened" compared to the ordinary person and "in a direction of law enforcement." The State replied Oliphant had stated she could be fair and impartial. The trial court denied the challenge for cause. The defense objected to the ruling of the court denying the challenge against Oliphant and also objected to any other rulings denying its challenges for cause.
Tara Bennett was also on the first panel of prospective jurors. She was a legal secretary and a paralegal. Her father was a St. Helena Parish Deputy Sheriff She indicated she could render a fair and impartial verdict based on the information presented in court and not "hold anything out" due to her father's employment. Additionally, she indicated she had gone to high school with counsel for the State. However, she stated that association would "not at all" affect her ability to be a fair and impartial juror. She also promised to acquit the defendant if she was selected as a juror and found there was reasonable doubt he had committed the offenses.
The defense challenged Bennett for cause on the basis that because she went to high school with counsel for the State and because her father was a Deputy Sheriff, her ability to be fair and impartial "would be compromised." The defense also argued that because Bennett was a paralegal, she "may have a prosecution persuasion." The State replied Bennett had stated she could be fair and impartial regardless of who she knows and regardless of her profession. The trial court denied the challenge for cause.
Andrew Childs was also on the first panel of prospective jurors. He was employed by the Department of Corrections. He indicated he could be a fair and impartial juror, sit and listen to the evidence presented in court, and render a decision based solely on that evidence. He also promised to acquit the defendant if he was selected as a juror and found there was reasonable doubt he had committed the offenses.
The defense challenged Childs for cause arguing his ability to be fair and impartial "would be compromised" because he was a law enforcement officer. The State replied Childs had stated he could be fair and impartial regardless of his profession. The trial court denied the challenge for cause.
Denise Bennett Waddell was also on the first panel of prospective jurors. The defense offered no argument challenging her for cause and stated it "got rid of her" with a peremptory challenge.
Beverly Rupnarain was also on the first panel of prospective jurors. She was a retired juvenile probation officer. When asked whether anything about her past experience as a juvenile officer would affect her ability to be fair and impartial, she replied, "I don't think so." She promised to acquit the defendant if she was selected as a juror and found there was reasonable doubt he had committed the offenses. When asked if she could vote not guilty if she was not convinced the person identified by the victim actually committed the crime, and therefore had reasonable doubt, she replied, "Yes, I believe that I could."
The defense challenged Rupnarain for cause on the basis that her capacity to be fair and impartial "would be compromised" because for many years she had supervised persons convicted of crimes or who had pled guilty to crimes. The State replied Rupnarain had stated she could be fair and impartial regardless of her occupation. The trial court denied the challenge for cause.
Jacqueline Strickland was also on the first panel of prospective jurors. Her husband and the father of counsel for the State practiced dentistry together at one time. When asked if the fact that she and counsel for the State had "this history" would affect her ability to be fair and impartial, she replied, "I don't think it would affect it." She also promised to acquit the defendant if she was selected as a juror and found there was reasonable doubt he had committed the offenses. When asked if she could vote not guilty if she was not convinced the person identified by the victim actually committed the crime, and therefore had reasonable doubt, she replied, "I think I could. I've never done anything like this before so I think I could, but I'm going to be perfectly honest, I don't know. I really don't know." She explained, "I mean, I would just have to hear the testimony. You're asking a hypothetical and I would have to hear what — I'm not going to sit here and promise, I just would have to hear everything before I could really say that I know that I could, and I'm just being perfectly honest."
The defense challenged Strickland for cause on the basis that her husband's association with the father of counsel for the State would cause her ability to be fair and impartial to be compromised. The State replied Strickland had stated she could be fair and impartial and even stated she would "have to hear everything," which indicated she was not biased one way or the other. The trial court denied the challenge for cause.
The trial court did not abuse its broad discretion in denying the challenges for cause at issue. The challenged prospective jurors demonstrated a willingness and ability to decide the case impartially according to the law and the evidence, and their responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred.
This assignment of error is without merit.
In pro se assignment of error number 2, the defendant argues he was denied "his right to testify by defense counsel's decision alone." The defendant claims although he wanted to testify, trial defense counsel refused to let him do so, warning him the district attorney would bring up the defendant's criminal history if he did so, and the defendant did not want the jury to hear that.
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal.
Whether the defendant would testify at trial was a matter of trial strategy. The investigation of strategy decisions requires an evidentiary hearing
This assignment of error is without merit or otherwise not subject to appellate review.
KUHN, J., concurring.
As noted by the majority, at the federal level, exhaustion of peremptory challenges does not automatically trigger a presumption of prejudice arising from a trial court's erroneous denial of a cause challenge in the empanelment of an impartial jury.
It appears that the better practice in Louisiana would be not to automatically presume prejudice when a defendant has exhausted his or her peremptory challenges arising from an erroneous denial of a cause challenge by the trial court. In such a situation, no constitutional rights are called into question merely because peremptory challenges have been used or exhausted. Because the majority has correctly concluded that the trial court in this case did not abuse its discretion in denying the challenges for cause, I concur.
