State v. Williams

329 So.3d 938

STATE of Louisiana

v.Freddy Lee WILLIAMS

20-605

Court of Appeal of Louisiana, Third Circuit.

November 3, 2021

Mary Constance Hanes, Louisiana Appellate Project, P.O. Box 4015, New Orleans, LA 70178-4015, (504) 866-6652, COUNSEL FOR DEFENDANT/APPELLANT: Freddy Lee Williams

Don M. Burkett, Eleventh Judicial District Attorney, Anna L. Garcie, Assistant District Attorney, P. O. Box 1557, Many, LA 71449, (318) 256-6246, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon D. Wilson, Judges.

GREMILLION, Judge.

On May 28, 2018, the victim, Garrick Gosey, suffered a broken neck and paralysis after Defendant, Freddy Lee Williams, chased him, grabbed him, and then fell on top of him. On March 22, 2019, Defendant was charged by bill of information with one count of second degree battery, a violation of La.R.S. 14:34.1.¹ After a two-day jury trial, Defendant was found guilty as charged of second degree battery. Subsequently, the trial court denied Defendant's "Motion for Post-Verdict Judgment of Acquittal or Alternatively Motion for New Trial" and sentenced Defendant to six years at hard labor. Thereafter, the trial court denied a motion to reconsider sentence filed by Defendant.

Defendant now appeals alleging three assignments of error:

1. There is insufficient evidence to support Freddy Lee Williams's conviction for second degree battery; the State failed to prove that Mr. Williams had the intent to inflict serious bodily injury on Garrick Gosey, as the injury occurred when Mr. Williams accidentally fell on top of him;

2. The trial court abused its discretion in denying the defense's motion for mistrial after the police detective, a prosecution witness, commented that Mr. Williams's girlfriend had a case against him; and

3. The prosecutor, in closing argument, relied on facts not in evidence, i.e. , information the jury heard during voir dire from a prospective juror regarding the safety policy at the defendant's place of employment; the improper comments and argument influenced the jury and contributed to the verdict, resulting in the denial of a fair trial.

Defendant challenges the sufficiency of the evidence as to his intent to inflict serious bodily injury on the victim and challenges the trial court's rulings on two objections made during trial. For the following reasons, Defendant's conviction and sentence are affirmed.

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 there is one error patent.

Louisiana Code of Criminal Procedure Article 873 requires a minimum twenty-four-hour delay between the denial of a motion for new trial or motion in arrest of judgment and sentencing unless there is an express waiver of the delay. Defendant's Motion for Post-Verdict Judgment of Acquittal or Alternative Motion for New Trial was denied immediately prior to the commencement of sentencing:

In State v. Dawson , 19-1612, pp. 17-19 (La.App. 1 Cir. 11/17/20), 316 So.3d 77, 89-91, writ denied , 21-217 (La. 5/4/21), 315 So.3d 222, the first circuit held:

This court has conducted an independent review of the entire record in this matter, including a review for error under La. C.Cr.P. art. 920(2). Our review has revealed the existence of a patent sentencing error in this case.

Defendant filed a motion for new trial, and the trial court denied it on the day of sentencing, just prior to the imposition of sentence. Louisiana Code of Criminal Procedure article 873 mandates, in pertinent part, that "[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled, ... [unless] the defendant expressly waives a delay[.]" There is no indication in the record defendant waived the twenty-four hour delay for sentencing. Herein, the trial court erred by sentencing defendant immediately after ruling on the motion for new trial. While defense counsel did not contest moving on to sentencing immediately following the denials of his motion for new trial, in State v. Kisack , 2016-0797 (La. 10/18/17), 236 So. 3d 1201, 1205 (per curiam ), cert. denied , ––– U.S. ––––, 138 S. Ct. 1175, 200 L.Ed. 2d 322 (2018), the supreme court found the defense counsel's participation in the sentencing hearing was insufficient to constitute a waiver of the delay required by Article 873. As observed by the court, "[a]n implicit waiver ... runs afoul of the plain language of Art. 873 that requires that the waiver be expressly made." Id.

Nevertheless, in State v. Augustine , 555 So.2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court indicated that a failure to observe the twenty-four hour delay provided in Article 873 will be considered harmless error where defendant cannot show that he suffered prejudice from the violation, and sentencing is not challenged on appeal. SeeState v. White, 404 So. 2d 1202, 1204-05 (La. 1981). See alsoState v. Carter, 2014-0742 (La. App. 1st Cir. 3/25/15), 167 So. 3d 970, 979 (observing that "[a]s a general rule, when a defendant challenges a non-mandatory sentence, and the delay is not waived, the defendant's sentence must be vacated and the matter remanded for resentencing"). Defendant has raised no challenge to the sentences imposed on appeal.

....

... [D]efendant does not raise his sentencing as an issue on appeal, and, therefore, does not show any prejudice by his procedurally improper sentencing. Accordingly, any error in the trial court's failure to observe the twenty-four hour delay is harmless beyond a reasonable doubt and does not require a remand for resentencing. State v. McIntosh, 2018-0768 (La. App. 1st Cir. 2/28/19), 275 So.3d 1, 8, writ denied , 2019-00734 (La. 10/21/19), 280 So. 3d 1175.

As in Dawson , Defendant does not challenge his sentence on appeal and thus does not show prejudice by the failure to observe the mandatory time delay. Accordingly, the error is harmless.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant claims the evidence was insufficient to prove he specifically intended to inflict serious bodily injury on the victim. Defendant contends that a rational jury would have found him not guilty or guilty of the lesser offense of simple battery.

The standard for reviewing sufficiency of the evidence is set forth below:

When the issue of sufficiency of evidence is raised on appeal, the reviewing court determines whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Mussall , 523 So.2d 1305 (La.1988). Discretion in determinations of credibility is vested in the jury, which may accept or reject testimony within the bounds of rationality, and we will only impinge upon its discretion "to the extent necessary to guarantee the fundamental protection of due process of law." Mussall , 523 So.2d at 1310. Thus, other than ensuring the sufficiency evaluation standard of Jackson , "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. State v. Ryan , 07-504, p. 2 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268, 1270 (quoting State v. Lambert , 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727 ).

However, the Jackson standard "does not permit the reviewing court to view just the evidence most favorable to the prosecution and then to decide whether that evidence convinced it beyond a reasonable doubt." Mussall , 523 So.2d at 1310. "Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency." State v. Allen , 36,180, p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, 626, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

State v. Thomas , 17-959, pp. 13-14 (La.App. 3 Cir. 9/26/18), 255 So.3d 1189, 1199, writs denied , 18-1757, 18-1662 (La. 4/22/19), 268 So.3d 303, 303.

State v. Trosclair , 19-833, p. 2 (La.App. 3 Cir. 6/24/20), 299 So.3d 704, 707-08, writ denied , 20-949 (La. 1/20/21), 308 So.3d 1162.

Officer Benjamin Shaw testified that he received a call from the Sabine Medical Center on May 28, 2018. The caller informed Officer Shaw that a person with injuries had been dropped off at the hospital. When Officer Shaw contacted the victim at the hospital, the victim stated that he was in a lot of pain. The victim told Officer Shaw that Defendant hit him in the back of the neck and that he could not feel his legs.

Officer Shaw made contact with Defendant approximately five hours later at around 2:00 a.m. at the Sabine Parish Sheriff's Office. Defendant told Officer Shaw that he went looking for the victim because he believed the victim took his weed eater. No further information had been received, Officer Shaw testified, regarding the theft of the weed eater. Defendant told Officer Shaw that the victim wanted to fight and that the victim swung a pellet gun at him. Defendant also told Officer Shaw that he caught the pellet gun with his right hand, and Officer Shaw confirmed a bruise on Defendant's hand. When asked what Defendant said happened next, Officer Shaw testified:

A. Well, when he caught – you know, when he caught the pellet gun, he said Mr. Gosey just turned around and ran away from him. He said he went to chase him. He said Mr. Gosey fell into a ditch and he said he fell on top of him. And he said as soon as he fell on top of him, he heard Mr. Gosey say his legs were hurting. So, they loaded him in a truck and took him to the hospital.

Officer...