State v. Belvin

363 So.3d 320

STATE of Louisiana

v.Terrell M. BELVIN

State of Louisiana

v.Terrell Belvin

NO. 2018-KA-0421

NO. 2018-K-0696

Court of Appeal of Louisiana, Fourth Circuit.

April 3, 2019

Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, PARISH OF ORLEANS, Donna Andrieu, Irena Zajickova, Michael Danon, DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/RELATOR, STATE OF LOUISIANA

Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR APPELLANT/RESPONDENT

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown )

Judge Paula A. Brown

Defendant, Terrell Belvin, ("Defendant") appeals his conviction for second degree battery, arguing the evidence was insufficient to convict. Additionally, the State of Louisiana seeks supervisory review of the district court's denial of the State's motion to reconsider sentence and/or correct illegal sentence ("motion to reconsider sentence") and the denial of its motion to continue the hearing on Defendant's motion to reconsider sentence under La. R.S. 15:529.1¹ and/or motion to correct an illegal sentence ("motion to correct illegal sentence"). This Court granted the State's writ application for the limited purpose of considering it with Defendant's timely filed appeal. For the reasons that follow, we affirm Defendant's conviction; the State's writ application is granted in part and denied in part; and the Defendant's sentence is vacated and the matter is remanded for Defendant's resentencing consistent with this opinion.

PROCEDURAL HISTORY

On March 21, 2014, Defendant and Reeshawn Arnold were charged with one count of second degree battery of Douglas Potter (the "victim"), in violation of La. R.S. 14:34.1² and one count of criminal damage to property, in violation of La. R.S. 14:56(B)(2). Defendant pled not guilty to both charges.³

After the district court found probable cause only as to the second degree battery charge,⁴ Defendant was tried by a jury on that charge on December 9, 2014 and December 10, 2014, and convicted of second degree battery. On January 11, 2016, Defendant filed a motion for appeal.

The State filed a habitual offender bill on April 19, 2016, charging Defendant as a fourth felony offender based on three previous drug convictions. On August 12, 2016, the district court sentenced Defendant to five years at hard labor for his conviction of second degree battery. On September 30, 2016, the district court adjudicated Defendant a fourth felony offender and sentenced Defendant to life imprisonment at hard labor pursuant to La. R.S. 15:529.1(A)(4)(b).⁵

Defendant filed a motion to correct illegal sentence on July, 6, 2018, citing the 2017 Amendments to the Habitual Offender Law ("2017 Amendments") which will be discussed in more detail infra . The State moved to continue the hearing. On July 18, 2018, the district court denied the State's motion to continue and granted Defendant's motion to correct illegal sentence, resentencing Defendant to twenty years at hard labor as a fourth felony offender.

The State, on August 1, 2018, filed a motion to reconsider Defendant's sentence which the district court denied on August 7, 2018. The State noticed its intent to seek a writ of review.

ERRORS PATENT

This Court routinely reviews the record on appeal for errors patent. State v. Lewis , 2015-0773, p. 9 (La. App. 4 Cir. 2/3/16), 187 So.3d 24, 29. A review of the record reveals no errors patent.

FACTS

On January 21, 2014, Defendant and Mr. Arnold allegedly brutally beat the victim, causing him to suffer a coma and seizures that will necessitate medical treatment for the rest of his life.

At trial, Officer Jacob Lathrop of the New Orleans Police Department ("NOPD") testified that he was called to investigate a battery which occurred in the early morning hours of January 21, 2014 in front of the Last Call Bar, located in the 800 block of Conti Street. Officer Lathrop arrived on the scene with Officer Meghan Constantine, who was in training at the time. Upon his arrival, Officer Lathrop saw the victim on the ground, unresponsive and bleeding from an injury to the head. Officer Lathrop canvassed the area for surveillance video and witnesses. He said Officer Constantine obtained a statement from the bartender at The Last Call Bar, the only identifiable eyewitness to the incident. Neither he nor Officer Constantine was able to obtain a statement from the victim because the victim was in a coma. Officer Lathrop stated Defendant was arrested on February 27, 2014 after NOPD received notice Defendant was at a hotel. At the time of his arrest, Defendant was with Kayla Rogers. Officer Lathrop identified Defendant in court as the man he had arrested.

On cross-examination, Officer Lathrop acknowledged that he did not return to the crime scene to talk to any other persons about the battery. He also stated that outside of the bartender, no other witnesses said that they had seen the battery.

Thomas Perez, the detective assigned to investigate this case, spoke to the bartender, identified as Allison McDonald, less than twenty-four hours after the incident. Based on Ms. McDonald's description, Ms. McDonald and Detective Perez put together a composite sketch of Defendant. Detective Perez also obtained surveillance video from The Famous Door, a bar located next door to The Last Call. He said the surveillance video and the composite sketch were provided to the news media for assistance in identifying the suspects. Detective Perez identified the victim, Defendant, and Mr. Arnold from the surveillance video.

On cross-examination, Detective Perez acknowledged that he did not record or take written notes from his interview with Ms. McDonald.

Brian Jones, a former NOPD officer, assisted Detective Perez in the investigation. Detective Jones testified that on January 22, 2014, he received a Crime Stopper's tip which identified Defendant as one of the subjects/perpetrators seen in the media's broadcast of the surveillance video.⁶ Detective Jones located a photograph of Defendant after conducting a records check. A comparison of Defendant's photograph with the composite sketch previously provided by Ms. McDonald each depicted a tattoo in the center of Defendant's forehead. Detective Jones said Ms. McDonald identified Defendant in the photograph during the recorded interview he conducted with her on January 22, 2014 and signed the photograph. Detective Jones testified that Defendant was arrested about one month after the battery occurred.

Dr. Frank Culicchia, a neurosurgeon, testified that he and other members of his department operated on the victim. Dr. Culicchia identified the victim's medical records which were introduced into evidence.

Dr. Culicchia noted that the victim was comatose and diagnosed with traumatic intercerebral hemorrhage—a bleeding of the brain—upon his entry to the emergency room. Dr. Culicchia opined that the nature of the bruising to the brain showed the victim was struck hard, and there were multiple sources of trauma that caused the injuries. The doctor described the victim's recovery as remarkable. However, he cautioned that the victim would never be the same and could suffer seizures requiring medical treatment for the rest of his life.

Mrs. Potter, the victim's wife, reiterated that her husband's injuries required six brain surgeries in 2014, numerous hospital stays, and rehabilitation. When describing her husband's current condition, Mrs. Potter testified that "[h]e has seizures. He has to have 24-7 care. He doesn't remember things. He has trouble putting things in order of how to do things. He's not the same."

Jim Huey, a custodian of inmate telephone call records for the Orleans Parish Sheriff's Department, testified that he supplied a disc containing three jailhouse phone calls made by Defendant on the afternoon of the day following the attack on the victim.⁷ A call to Reeshawn "T-Roc" Arnold was played for the jury. In the call, Defendant tells Mr. Arnold: "Man, you got me f***ed up out here, son." Defendant goes on to say: "... people got me wanted for that s**t you did by the bar last night, say they got my picture all over the news and everything - you on Nola.com - you put that man in a coma son -" Mr. Arnold responds: "I did, son?" Defendant responds: "Yeah, - saying you got to clean that s**t up, son." Mr. Arnold responded either, "Why, son, I'm a do that son," or "Why son, I didn't do that."

Ms. McDonald, the bartender on duty at the Last Call on the evening of the battery, described Defendant as a regular at the bar. She said Defendant and Kayla Rogers, Defendant's girlfriend, had been eating in the bar. Another black male, later determined to be Mr. Arnold, entered the bar. Ms. McDonald believed she told Mr. Arnold to leave when he did not produce proof of identification. Ms. McDonald said that Defendant and Ms. Rogers stood in the doorway smoking after they had finished their food. She asked them to step out of the doorway after she noticed that they were blocking the entrance of other potential patrons who wanted to enter the bar. Ms. Rogers and Defendant stepped onto the sidewalk. At that point, the victim walked by carrying an upright bass and a brief case. She said the victim told Defendant and Ms. Rogers "to get the f***[*] out of his way." Words were exchanged, and Mr. Arnold, who was standing on the sidewalk next to Defendant, punched the victim in his face, causing blood to pour down his face. The victim dropped his bass instrument and took a "boxer" stance. Mr. Arnold hit the victim again and then Defendant hit him in the face. She described Defendant's blow as not a great hit. Ms. McDonald said the victim was hit again and fell to the ground. When the victim hit the ground, she called 911. She said Defendant, Ms. Rogers, Mr. Arnold, and another female stayed within fifty feet of the bar. The State introduced an audio of the 911 call, which was played...