State v. Record

266 So.3d 592

STATE of Louisiana

v.Prince RECORD

18-614

Court of Appeal of Louisiana, Third Circuit.

February 27, 2019

Paula C. Marx, Louisiana Appellate Project, P.O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Prince Record

Herbert Todd Nesom, District Attorney, Joe Green, Assistant District Attorney, Thirty-Third District Court, P.O. Box 839, Oberlin, LA 70655, (337) 639-2641, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Billy H. Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.

KYZAR, Judge.

Defendant, Prince Record, appeals his convictions and sentences for simple escape and transactions involving proceeds from drug offenses. For the reasons herein assigned, we affirm the convictions but vacate the sentences imposed and remand to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

Defendant, Prince Record, was convicted by a unanimous jury verdict on May 11, 2017, of simple escape, a violation of La.R.S. 14:110, and transactions involving proceeds of drug offenses, a violation of La.R.S. 40:1041. Defendant was originally charged by way of a bill of information with seven counts. He proceeded to trial on only four of the original seven, being one count of distribution of cocaine, one count of possession with the intent to distribute marijuana, one count of simple escape, and one count of transactions involving proceeds from drug offenses. The State voluntarily dismissed the remaining three offenses prior to trial. Defendant was acquitted of the charges of possession of marijuana with the intent to distribute and distribution of cocaine.

The facts leading to his convictions were detailed in his jury trial through multiple witnesses. The Allen Parish Narcotics Team sent an informant to the residence of Defendant on February 19, 2014, to make an illegal narcotics buy from Defendant in an undercover sting operation. The informant was given $ 15.00 in marked bills, a $ 10 bill and a $ 5 bill. The transaction was recorded via audio and video recording devices. Once completed, agents secured the cocaine purchased by the informant and secured a search warrant for the residence in which Defendant was known to stay and an arrest warrant for his arrest. The following day, on February 20, 2014, the agents executed the warrants. At the residence designated in the warrant, they apprehended Defendant and searched the residence. There, they found him in possession of $ 1,300 in cash, including the marked $ 10 bill used in the undercover buy operation. They also found marijuana, drug paraphernalia, and other indicia of involvement in illegal drug sales. Defendant was arrested and handcuffed during the search, but at some point, with handcuffs on, Defendant escaped and fled the scene. Officers could not catch him at the time. He was not apprehended until a year and a half later.

Following the convictions but prior to sentencing, the State filed a multiple offender bill of information charging that Defendant was a third felony offender, having been previously convicted of two separate narcotics offenses. Defendant was adjudicated a third felony offender on September 13, 2017, and written reasons in support of the finding were signed on September 26, 2017, as per the provisions of La.R.S. 15:529.1(D)(3), as follows:

The Court finds that the State proved beyond a reasonable doubt that Prince Record was convicted in this Court on August 22, 2011 in the matter of State of Louisiana vs. Prince Record, criminal docket number 2008-3126, for the offenses of Possession with the Intent to Distribute Schedule II, to wit: Cocaine, La. R.S. 40:967(A)(1) and Obstruction of Justice, La. R.S. 14:130.1. Further, defendant was convicted on September 14, 20112 [sic] on September 14, 2012[sic], in this Court in the matter entitled State of Louisiana vs. Prince Record, criminal docket number 2012-1434, for Possession with Intent to Distribute a Schedule II Controlled Dangerous Substance, to wit: Cocaine, La. R.S. 40:967(A)(1).

On September 13, 2017, after finding Defendant a third felony offender, the trial court sentenced Defendant to two and a half years for simple escape and to ten years for transactions involving proceeds from drug offenses, with the sentences to run consecutively to each other and consecutively to any other sentences Defendant was serving at the time. Defendant thereafter filed a pro se notice of appeal in docket number 18-85. This court issued an order on February 6, 2018, remanding the matter for an evidentiary hearing to determine whether Defendant was entitled to court-appointed counsel or whether he had made an intelligent and voluntary waiver of counsel after an affirmative showing on the record that the trial court had informed him of the dangers and disadvantages of self-representation. The trial court found Defendant indigent and appointed counsel at a hearing on April 5, 2018. Defendant has now filed the present appeal, seeking to have his convictions vacated, a new trial ordered, or a remand for the purpose of reconsidering his sentences.

Defendant asserts on appeal three assignments of error, the first two of which are intertwined. Defendant first urges that the trial court erred in denying his challenge for cause of a prospective juror, and alternatively, if the error was not preserved for appeal by objection of trial counsel, Defendant asserts that his convictions should be reversed for ineffective assistance of counsel. He also asserts that the trial court erred in denying his motion to reconsider his sentences as being untimely filed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are errors patent, one involving the jury deliberation process that we will address first and the other involving sentencing.

Replacement of Primary Juror with Alternate

After the jury retired to deliberate, one of the principal jurors, David Briscoe, became ill and requested to be excused. Because of the nature of the illness, the trial judge granted the request and designated the first alternate juror, Beverly Thomas, to replace Mr. Briscoe. The record does not reflect that the entire jury was brought back to the courtroom during the time of the release of juror Briscoe and the swearing and appointment of alternate juror Thomas to replace him, such that the jury could be instructed to begin its deliberations anew, as prescribed by La.Code Crim.P. art. 789, which states the following regarding the selection and use of alternate jurors:

A. The court may direct that not more than six jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. If the court determines that alternate jurors are desirable in the case, the court shall determine the number to be chosen. The regular peremptory challenges allowed by law shall not be used against the alternate jurors. The court shall determine how many additional peremptory challenges shall be allowed, and each defendant shall have an equal number of such challenges. The state shall have as many peremptory challenges as the defense. The additional peremptory challenges may be used only against alternate jurors. Except in capital cases, an alternate juror who does not replace a principal juror may be discharged when the jury retires to consider its verdict.

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C. If the court, as provided in Paragraph A, replaces a principal juror with an alternate juror after deliberations have begun, the court shall order the jury to begin deliberations anew.

The record supports the trial court's finding that juror Briscoe was unable to serve after the jury retired to deliberate and thus the trial court was authorized by La.Code Crim.P. art. 789 to replace juror Briscoe with alternate juror Thomas. See State v. Spencer , 446 So.2d 1197 (La.1984). There is, however, no indication in the record that the trial court instructed the jury to begin deliberations anew as required by La.Code Crim.P. art. 789(C). Although it appears the alternate juror was appointed near the beginning of the deliberation process, the record is unclear as to whether the jury had already begun deliberating as reflected by the trial courts' following statements:

Let the record reflect we will go back into criminal session. We'll continue with the trial in State of Louisiana versus Prince Record, CR-2015-3272. The Court has been advised from the bailiff that Mr. Briscoe, juror number 31, when he was leaving the Courtroom he fell ill and this is just for the record and he was vomiting and was escorted. He tried to continue with deliberations or I guess to begin deliberation and so he was escorted to the restroom by one of the bailiffs. He has continued to throw up, he has soiled his clothes and he's feeling very faint and ill and he does not think that he can continue with deliberations although he tried. So he is requested [sic] from the COURT that he be excused and the COURT will grant that request and order that Alternate # 1, Beverly Thomas, be seated and so we will go ahead and bring Ms. Thomas in and swear her in as a juror and then send her to the jury room for deliberations. Could you bring Ms. Thomas in? ... Okay, Ms. Thomas, please come over here. And you were previously sworn in as an alternate juror. Now we have to swear you in as a juror because you're going to have to go in and participate in deliberations because that other gentlemen [sic] is not able to continue. So please raise your right

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