State v. Diaz

331 So.3d 500

STATE of Louisiana

v.Jared DIAZ

NO. 20-KA-381

Court of Appeal of Louisiana, Fifth Circuit.

November 17, 2021

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Brittany Beckner, Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT, JARED DIAZ, Lieu T. Vo Clark, Baton Rouge

COUNSEL FOR DEFENDANT/APPELLANT, JARED DIAZ, In Proper Person

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

CHEHARDY, C.J.

Defendant appeals his conviction and sentence for trafficking children for sexual purposes. For the following reasons, we affirm.

PROCEDURAL HISTORY

On May 2, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jared Diaz, with one count of trafficking of children for sexual purposes in violation of La. R.S. 14:46.3. At his arraignment on May 4, 2918, Mr. Diaz pled not guilty to the charge.

On October 2, 2018, Mr. Diaz filed a pro-se motion to waive his right to counsel and to represent himself. Following a Faretta¹ hearing held on October 18, 2018, the trial court granted his motion, but ordered defense counsel, Renee Bourg, to remain as shadow counsel. On February 27, 2019, the State filed its notice of intent to use other crimes evidence pursuant to La. C.E. art. 404(B) and, in the alternative, res gestae , and a notice of intent to call expert witnesses. On March 22, 2019, Mr. Diaz filed pro se motions for a private investigator and for preliminary examination.² A preliminary examination was held on April 25, 2019, and after hearing testimony, the court denied Mr. Diaz's motion and found probable cause for his arrest. Also at this hearing, the trial court granted the State's notice of intent to use other crimes evidence at trial.³

Mr. Diaz declined a plea offer on December 16, 2019, and indicated he wished to proceed to trial. On January 9, 2020, he was again informed of a plea deal. The matter proceeded to trial on February 10, 2020. At the conclusion of trial on February 12, 2020, the jury returned a unanimous verdict of guilty as charged.

Sentencing for Mr. Diaz was scheduled for March 2, 2020. On that date, Mr. Diaz made an oral motion for a new trial, which, after the matter was argued and submitted, the trial court denied. After a victim impact statement was read, the trial court sentenced Mr. Diaz to serve fifty years at hard labor in the Louisiana Department of Public Safety and Corrections, with credit for time served. The court issued a permanent Louisiana Uniform Abuse Prevention Order and a Firearms Transfer Order. Mr. Diaz was provided with the written notification of his sex offender registration obligations, and was informed of the time delays for appealing his conviction and sentence. Also, the State informed the trial court of its intent to file a multiple offender bill of information against Mr. Diaz.

On March 6, 2020, defendant filed a motion to reconsider sentence, which the trial court denied on March 9, 2020. Also on March 6, 2020, Mr. Diaz filed a motion for appeal, which was granted on March 9, 2020.

On July 14, 2020, following receipt of a handwritten letter from Mr. Diaz, the trial court, on its own motion, ordered the appointment of a sanity commission to evaluate Mr. Diaz's competency to proceed with the multiple bill proceedings. A competency hearing was originally set for August 19, 2020, and was repeatedly continued. At the close of a competency hearing held on March 17, 2021, having reviewed the commission's reports, hearing testimony from the commission's expert of forensic psychiatry, Dr. Richard Richoux, and expert of forensic psychology, Dr. Rafael Salcedo, and having considered the testimony and report of the State's expert in forensic psychiatry, Dr. Michael Blue, the trial court found Mr. Diaz competent to proceed.⁴

On April 12, 2021, the State filed a multiple offender bill of information alleging Mr. Diaz to be a second felony offender.⁵ A multiple offender hearing was conducted that same day and Mr. Diaz was adjudicated a second felony offender. The trial court vacated defendant's original 50-year sentence and, pursuant to La. R.S. 15:529.1, sentenced Mr. Diaz to a term of 65 years imprisonment at hard labor without benefit of probation or suspension of sentence.⁶ The trial court ordered that the sentence run concurrently with any and all other sentences Mr. Diaz may be serving, and it informed Mr. Diaz of his sex offender registration requirements. Mr. Diaz was given credit for time served and committed to the Louisiana Department of Public Safety and Corrections.

Mr. Diaz now appeals challenging the excessiveness of his sentence and raises five pro se assignments of error.

FACTUAL BACKGROUND

In this case, concurrent investigations conducted by the Jefferson Parish Sheriff's Office ("JPSO") and the Federal Bureau of Investigations ("FBI") led to the arrest of defendant, Jared Diaz, for trafficking of children for sexual purposes.

At trial, the State called the following witnesses to testify: Deputy Ismael Cornejo, Sergeant Michael Olivier, Detective Ian Donahue, Caitlyn Druckenmiller, Special Agent Jennifer Terry, Lieutenant William Hare, and the victim, M.B.

Deputy Ismael Cornejo

On December 14, 2017, Deputy Ismael Cornejo, who was working in the patrol division of the Kenner Police Department, responded to a 9-1-1 call regarding a robbery investigation involving Jared Diaz. Deputy Cornejo testified at trial that the initial dispatch indicated that two black males had robbed a female and her friend at gunpoint in a hotel parking lot located on Williams Boulevard, taking their money, an iPhone, and an Android phone. According to Deputy Cornejo, on the way to the scene, he spotted a vehicle matching the description of the robbery suspect's vehicle, a white Lincoln MKZ, parked in the lot of a Circle K gas station located a block away from the LaQuinta Hotel where the robbery had purportedly occurred. Deputy Cornejo stated that when he approached the vehicle, he observed two black males matching the description provided by the 9-1-1 caller. He testified that Mr. Diaz advised him that there was a BB gun underneath his seat. When Mr. Diaz and the passenger, Kenneth Patterson, exited the vehicle, Deputy Cornejo observed a BB gun, which looked like a handgun, underneath the seat, and several cell phones in the center console, one of which matched the description described by dispatch. Deputy Cornejo testified that he did not search Mr. Diaz, but only patted him down for weapons.

According to Deputy Cornejo, there were a total of five cell phones found in the vehicle, two of which Mr. Diaz and Mr. Patterson claimed ownership. Deputy Cornejo seized the remaining three phones, including a white iPhone with a "glittery" case, a purple phone matching the description provided to dispatch, and a black iPhone. He stated that while he was interrogating Mr. Diaz and Mr. Patterson at the Circle K, other officers responding to the 9-1-1 call were at the LaQuinta Hotel trying to find the 9-1-1 caller, who was never located.

Sergeant Michael Olivier

On January 23, 2018, the JPSO, Vice Crimes Division, was conducting an investigation into the illegal escort services providing prostitution at hotels on the East Bank of Jefferson Parish, and were looking for possible human trafficking victims. At trial, Sergeant Michael Olivier testified that during the investigation, he and his unit located a Backpage.com advertisement, which was admitted into evidence, containing multiple photographs of a female promoting an alluring encounter with a 21-year-old in Lakeview. According to Sergeant Olivier, the reason the advertisement caught the unit's attention was because it depicted a young female, who was later identified as 17-year-old M.B.,⁷ the victim herein. Using the contact number listed on the advertisement, via text messaging, Sergeant Olivier was able to set up a "date" at the Super 8 Motel in Metairie, Louisiana. Although Sergeant Olivier was texting to the contact number listed in M.B.’s advertisement on Backpage.com, he had no way of knowing whether he was actually communicating with M.B. or with someone else on her behalf. The text messages included pricing ($100–20 minutes, $150–30 minutes, $200–an hour), and queried whether the "date" would be for an in-call, out-call, or car "date," all of which confirmed for Sergeant Olivier that the "date" was one for prostitution.⁸

When Sergeant Olivier arrived at the Super 8 Motel, other detectives from the JPSO vice unit were in the area surveilling. He went to the designated room, 235, and was greeted by M.B., who matched the photographs in the Backpage.com advertisement. After M.B. agreed to exchange sex for money, Sergeant Olivier gave the pre-arranged signal for backup officers to come to the hotel room and effect the arrest. M.B. was arrested on the scene and officers seized a cell phone found in her possession. When the officers ran M.B.’s name, they learned that she was 17 years old. When asked if she was being forced to conduct prostitution dates, M.B. refused to answer and refused to cooperate with law enforcement. Officers then spoke with the hotel manager, who confirmed that Jared Diaz was the person who rented Room 235, and provided a photocopy of his driver's license, which Mr. Diaz used during check-in. Sergeant Olivier identified photographs of the Super 8 Motel room, of the bathroom where M.B. placed the money that was given to her for the prostitution date, and of condoms and petroleum jelly, which he explained where known "tools of the trade" for prostitutes.

Sergeant Olivier testified that after M.B.’s arrest, JPSO continued its investigation and were able to connect Mr. Diaz to M.B. through multiple motel room registrations and computer searches. On January 24, 2018, and January 25, 2018, a court order was obtained for M.B.’s advertisement on Backpage.com. The Backage.com return...