State v. Boner

302 So.3d 131

STATE of Louisiana

v.Alan J. BONER, Jr.

NO. 2019-KA-0658

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 24, 2020

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

Leon Cannizzaro, District Attorney, Donna Andrieu, Scott G. Vincent, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano )

Judge Joy Cossich Lobrano

The defendant, Alan J. Boner, Jr. ("Defendant"), appeals his convictions of domestic abuse aggravated assault child endangerment and aggravated assault with a firearm. The crimes were committed against Defendant's girlfriend ("Victim"). On the night of the incident, March 4, 2017, Victim's statements to the police on the scene were captured on body-camera video. Victim recounted that, in the course of an argument, Defendant threatened her with a firearm. The surveillance video from the home they shared showed that Defendant slapped Victim three times, retrieved a firearm, placed it on a piece of furniture in plain view of Victim, and children were present in the home. Although Victim provided confusing testimony at trial, the jury had sufficient evidence to render its verdict.

Therefore, after reviewing the appellate record and applicable law, and for the following reasons, we affirm in part, vacate in part, and remand the case to the district court.

On March 9, 2017, the State filed a bill of information charging Defendant with the following incidents occurring on March 4, 2017: (1) domestic abuse aggravated assault child endangerment under La. R.S. 14:37.7(D) ;¹ (2) battery assault with a firearm under La. R.S. 14:37.4 ;² and (3) misdemeanor domestic abuse battery under La. R.S. 14:35.3.³

Within the same bill, Defendant was charged with second-degree battery under La. R.S. 14:34.1⁴ arising out of an incident that occurred on June 7, 2015. Victim reported that Defendant had beaten her and remembered waking up in a hospital but declined to make a police report despite encouragement from hospital staff. Body-camera video was recorded at a fire station near the residence shared by Victim and Defendant and showed Victim with blood on her face and a black eye.

At arraignment, Defendant entered not guilty pleas to all of the charged offenses.

Trial by jury began on March 13, 2018 and the State rested its case at the end of the first day of testimony. The district court was to allow Defendant's testimony that evening, but Defendant "absconded" and the district court issued an alias capias for his arrest. When Defendant failed to appear the following morning, the trial continued in Defendant's absence and the jury found him guilty of all charges. The jury returned unanimous guilty verdicts for domestic abuse aggravated assault child endangerment and second-degree battery. However, the jury returned a non-unanimous verdict (11-1) for the charge of aggravated assault with a firearm. After a bench trial, the district court found Defendant guilty of misdemeanor domestic abuse battery. Defendant appealed neither his conviction of second-degree battery nor his misdemeanor domestic abuse battery.

The district court denied Defendant's motion for new trial. Defendant was sentenced to serve: (1) five years in the custody of the Louisiana Department of Corrections ("DOC") for domestic abuse aggravated assault child endangerment; (2) five years in the custody of DOC for aggravated assault with a firearm; (3) two years in the custody of DOC for second-degree battery; and (4) six months in the custody of the Sheriff for the Parish of Orleans for misdemeanor domestic abuse battery. Defendant received credit for time served, with all sentences to run concurrently. No sentence was suspended nor any probation ordered.

TRIAL TESTIMONY

The State presented four witnesses, Victim's stepmother ("Stepmother"), Sergeant Matthew Morrison of the New Orleans Police Department ("NOPD"), Victim, and Jim Huey with the Communications Department of the Sheriff for the Parish of Orleans. The Defendant presented no witness in his defense.

On the evening of March 4, 2017, NOPD officers arrived at the residence shared by Defendant and Victim after receiving a 9-1-1 call from Stepmother. Stepmother told police that Victim contacted her asking her to call the police and pick her up, stating Defendant had beaten her in front of the children. Stepmother reported that children were in the home along with several firearms. Stepmother and Victim's father ("Father") drove to Victim's home, but did not enter the residence. Once the police arrived, Stepmother and Father returned to their home.

NOPD Sgt. Morrison was one of the first officers at the scene. He had responded to domestic violence calls on almost a nightly basis during his ten years on the force. After knocking on the door of the home, he heard people inside but Defendant did not immediately open the door. The officers then separated Victim from Defendant, in part because Stepmother said guns were in the house.

Upon entering the residence, police confiscated a .357 magnum, a shotgun, and a video-surveillance system. Sgt. Morrison interviewed Victim who was initially cooperative, however, later "shut down." Victim repeatedly said that everything was her fault, which Sgt. Morrison explained, "is pretty typical in a domestic violence dispute."

Sgt. Morrison testified that Victim displayed no visible injuries. However, Victim pointed to various scars on her face that were cause by previous actions by Defendant during an incident in 2015. The house's interior did not indicate that any violence had occurred. However, Sgt. Morrison confirmed that two young boys, ages eight and nine, as well as an infant, were present on the scene.

Victim and Defendant had been together for over three years at the time of trial and had one child. Victim lived with Defendant on June 7, 2015 and March 4, 2017.

At trial, Victim initially denied much of what she told police on the evening of March 4, 2017. Upon seeing the silent surveillance video, she remembered Defendant slapping her and telling the officers that Defendant was "crazy." She also stated that the incident was her fault because she was being "crazy." The surveillance video showed Defendant slapping Victim three times on her face; he then took a gun from a dresser drawer and placed it on a nearby ottoman. Later, Defendant picked up the gun and a young boy is seen running away while Defendant retrieved the weapon from his pants and placed it back in the drawer.

Victim watched the body-camera videos played for the jury. In one, Victim explained that an argument ensued after her sons' father dropped them off to attend a funeral. Defendant then threatened her with a .357 magnum. Victim told police, "He was threatening me with this stupid....357, and .... he keeps pulling this ... gun out on me."

Victim admitted on the body-camera video to texting Stepmother on March 4, 2017, stating Defendant had threatened to kill her. Victim told police Defendant threatened to kill her "all the time" and that he "scares her" with the gun. She was concerned with Defendant's possible quick release from jail. However, Victim repeatedly claimed that the incident was her fault and she never should have "opened her mouth" to her parents.

Finally, the State played Jail Call 4 in which Defendant told Victim that she had "thrown him under the bus." She replied that she never wanted "this" to happen and asked Defendant what statement to retract to get him out of jail. Victim denied making this statement during her testimony.

Victim could not remember many of the events that took place on March 4, 2017, but knew her children were in the house. She was also uncertain if Defendant was even at home during the time in question. When asked whether she remembered being afraid of Defendant that night, Victim responded, "I don't know." She stated that she did presently fear Defendant or fear having her children around him.

Jim Huey was custodian of records of all recorded inmate calls made at the Orleans Parish Jail. He authenticated the telephone calls played for the jury. In Jail Call 2, Defendant asked Victim what she was going to do to "fix this." Victim agreed to do anything she had to do to expedite his release from jail. In Jail Call 5 with his father, Defendant admitted that he "poked" Victim in the head on the night at issue. Finally, in Jail Call 6, Defendant admitted to his father that, on the night in question, Father and Stepmother were outside taking pictures of his vehicle and house, at which time, he "pulled out" his gun and threatened to "shoot them up" if they tampered with any of his property.

ERRORS PATENT

A review of the record reveals no error patent that requires action by this court.⁵

DISCUSSION

Defendant has assigned the following three errors for review:

1. The evidence was insufficient to uphold defendant's convictions for aggravated assault with a firearm and domestic abuse aggravated assault with a dangerous weapon with child endangerment.

2. The trial court erred in failing to grant defendant's motion to continue the trial.

3. The 11 to 1 jury verdict on the charge of aggravated assault with a firearm was unconstitutional.

Assignment of Error Number 3

In his third assignment of error, Defendant contends that his conviction for aggravated assault with a firearm by a non-unanimous vote of 11-1 is unconstitutional. This assignment of error has merit.

On April 20, 2020, in Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583 (2020), the United States Supreme Court held that jury verdicts in state felony trials must be unanimous. As we recently stated in State v. Myles, 19-0965 (La.App. 4 Cir. 4/29/20), 299 So.3d 643 in a review of an assignment of error: "Because Mr. Myles' case is pending on direct...