State v. Picard

316 So.3d 129

STATE of Louisiana

v.Joseph A. PICARD

NO. 19-KA-593

Court of Appeal of Louisiana, Fifth Circuit.

March 17, 2021

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Thomas J. Butler, Anne M. Wallis, Lindsay L. Truhe, Zachary P. Popovich

COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH A. PICARD, Lieu T. Vo Clark

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

WICKER, J.

On June 26, 2019, Defendant, Joseph Picard, was convicted for two counts of attempted second-degree kidnapping, in violation of La. R.S. 14:27 and La. R.S. 14:44.1. On July 22, 2019, the trial court sentenced Defendant to twenty (20) years at hard labor on each count, to be served consecutively. Defendant now appeals his sentences, alleging that the district court erred in denying his motion to reconsider sentence and that his sentences are unconstitutionally excessive.

For the following reasons, we find no error in the district court's denial of the motion and affirm Defendant's convictions and sentences; however, based on our review of this case for errors patent, we remand this matter to the district court to correct the State of Louisiana Uniform Sentencing Commitment Order (UCO).

PROCEDURAL HISTORY

On August 16, 2017, the Jefferson Parish District Attorney filed a bill of information charging Defendant with the attempted second-degree kidnapping of Christine Kimble, in violation of La. R.S. 14:27 and La. R.S. 14:44.1 (count one), and the attempted second-degree kidnapping of a known juvenile, C.T.,¹ in violation of La. R.S. 14:27 and La. R.S. 14:44.1 (count two). Defendant was arraigned on August 17, 2017, and pled not guilty.²

Thereafter, on August 31, 2017, Defendant filed various omnibus motions, including a motion to suppress the statements, a motion to suppress the evidence, and a motion to suppress the identification.

On May 31, 2018, the State filed a motion for protective order along with various "Notice[s] of Additional Information," one of which was filed under seal. The trial court granted the protective order motion.

On February 14, 2019, the trial court considered and denied Defendant's motions to suppress evidence, identification, and statements. Thereafter, on February 25, 2019, the State filed a Notice of Intent to Introduce Evidence of Similar Crimes, Wrongs, and/or Acts Pursuant to Louisiana Code of Evidence Article 404(B) /Res Gestae Evidence, which the trial court granted on February 28, 2019, following a hearing. On June 21, 2019, the State also filed a Notice of Intention to Use Confession or Statement Pursuant to Code of Criminal Procedure Articles 767 and 768.

Trial began before a twelve-person jury on June 25, 2019, concluding on June 26, 2019. The jury unanimously found Defendant guilty as charged as to both counts. On July 22, 2019, after a victim impact statement was presented,³ the trial court sentenced Defendant to twenty (20) years imprisonment at hard labor on each count to be served consecutively, with the first ten (10) years of each sentence to be served without the benefit of parole, probation, or suspension of sentence.⁴ Also on July 22, 2019, Defendant filed a pro se motion to reconsider sentence, which the trial court denied. That same date, Defendant made an oral motion for appeal followed by a written appeal motion, which the trial court granted on July 23, 2019.

Defendant now appeals, challenging the trial court's denial of his motion to reconsider sentence and the excessiveness of his maximum consecutive sentences.

FACTS

On June 15, 2017, Jefferson Parish Sheriff's Deputy John Walsdorf responded to a 9-1-1 call at Mike Miley Playground around 2:30 p.m. Deputy Walsdorf testified at trial that the caller was concerned about a suspicious person in the nearby parking lot who had offered a young girl, L.C.,⁵ one hundred dollars ($100.00) to meet him outside.⁶

L.C. testified at trial that, on June 15, 2017, she was eleven (11) years old and was attending a cooking camp at the building by Mike Miley Park. She testified that on the day in question, her group had just returned to her classroom from the playground when there was a knock on the side door leading outside. Another child opened the door and then approached her, telling her that there was someone at the door looking for her. She walked up to the door, but did not know the man standing there. L.C. described him as a slim, white man with tattoos and wearing a "mechanic's outfit." She testified that the man offered her one hundred dollars ($100.00) to meet him in the parking lot by his truck after camp. L.C. stated that she found the interaction "kind of suspicious;" so, she notified a camp counselor, who then contacted the police.

Deputy Walsdorf testified that, upon arriving at the scene, he spoke to L.C. and camp staff and obtained a description of the man and his vehicle. Going outside, he quickly found a person matching that description sitting alone in the parking lot in a silver BMW SUV, directly facing the side exit of the building. He approached the vehicle and the individual inside readily identified himself as Joseph Picard, Defendant.⁷ Deputy Walsdorf testified that Defendant denied any interaction with the children and stated he was just there to use the park,⁸ at which point Deputy Walsdorf spoke to the director of the park, who asked Defendant to leave, and Deputy Walsdorf escorted him away from the park.

Later that same evening, at 8:19 p.m., Detective Nick Vega responded to a call regarding an attempted kidnapping near the 2200 block of Judith Street in Metairie, Louisiana. Upon arriving at Sunrise Country Club⁹ about thirty (30) minutes after the 9-1-1 call, Detective Vega spoke to the victim, C.T. Detective Vega testified that C.T. was "visibly shaken, nervous, scared, clearly upset, [and] tearful."

C.T. testified she was fourteen (14) years old on June 15, 2017. That day her mother dropped her off at the country club around 3:00 p.m. to meet some friends. She testified that at about 7:30 p.m. that evening, she and a large group of friends decided to walk to nearby Lafreniere Park. After approximately fifteen (15) minutes at the park, she decided to return to Sunrise Country Club. She stated that as she walked back alone to the country club, she noticed a silver or light gray "truck." Upon safely making it back to Sunrise Country Club, she went in the pool for a bit and then stepped back outside to call her friends and see when they would be returning.

C.T. testified that while she was outside trying to contact her friends, a man approached, questioning her about a little girl named "Angie." She told the man that she did not know "Angie," and began to walk away when he grabbed her by the arm, started asking more questions, and then used his other hand to try and grab her by the neck. C.T. testified that the man had something orange,¹⁰ which she thought was a knife, in the hand he was holding up against her neck.¹¹ She testified that she managed to pull away and run down a side alleyway. The man chased her down the alley, telling her approximately three (3) or four (4) times to "get in the f***ing truck."

C.T. testified the man chased her all the way down the alley and around the corner, but she got away. She testified that she did not stop running even when she got back into the country club; she ran past the front desk receptionist to a nearby table where she froze in shock. After a minute, she began having a panic attack, at which point a lifeguard approached her, to whom she could only say, "He tried to take me." She testified that, once she calmed down, she spoke to an employee at the country club, Ms. Landry, and that the police were called.¹²

C.T. concluded her trial testimony by informing the court how the attempted kidnapping had impacted her life. She testified that since the attack, she suffers from severe anxiety attacks and cannot be alone for more than a few hours. She cannot walk anywhere alone "without freaking out," and that she "always [has] to have a pepper spray or something to protect [her]self."

Detective Vega testified that C.T. gave him an on-scene description of the man who attempted to kidnap her.¹³ He testified that she described her attacker as "a white male, approximately five-eight, five-nine, about 140 pounds, tattoos on his neck," and armed with what she thought was a knife, but that C.T. could not provide a complete description of the weapon "because it was placed up to her neck, below her chin." He further testified that, during the on-scene investigation, he was able to obtain surveillance footage from a home three hundred (300) feet away from Sunrise Country Club, which showed a silver and/or gray SUV driving around at the time of the incident.¹⁴

Detective Vega testified that while he was responding to the incident at Sunrise Country Club, the police received another call regarding another nearby attempted kidnapping with escalated violence, "where the victim was physically cut with an object, potentially a knife." He testified that he stayed at the country club with C.T., but kept in contact with the officers responding to the other scene, which was how he discovered that the description of the perpetrator provided by the other victim, Christine Kimble, matched C.T.’s description of her attacker.

Ms. Kimble testified that on June 15, 2017, she was twenty-eight (28) years old living on Buras Avenue in Metairie, Louisiana. Around 8:00 p.m. that evening, she was outside walking near the intersection of Jade Avenue and Buras Avenue when she saw a man in "a silver BMW-like truck-ish" vehicle. The man first drove past her on the street and did not say anything, but once she turned the corner, the man got out of his car and asked her for "a light." She walked up to where he was standing, near his car, lit his cigarette, and turned around to leave, at which point he grabbed her ponytail, pressed something cold¹⁵ to the back of her...