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State v. English

Court of Appeals of Louisiana, Second Circuit

August 9, 2017

STATE OF LOUISIANA Appellee
v.
RANDEL I. ENGLISH Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 318, 981 Honorable Brady D. O'Callaghan, Judge

          STEPHEN A. GLASSELL Counsel for Appellant

          JAMES E. STEWART, SR. Counsel for Appellee District Attorney

          MEKISHA S. CREAL SENAE D. HALL TOMMY J. JOHNSON Assistant District Attorneys

          Before WILLIAMS, COX, and BLEICH (Pro Tempore), JJ.

          WILLIAMS, J.

         The defendant, Randel I. English, was charged by bill of information with driving while intoxicated ("DWI"), third offense, in violation of La. R.S. 14:98(D). Following a jury trial, the defendant was found guilty as charged. He was sentenced to serve five years at hard labor, with two and one-half years suspended. One year of the prison sentence was ordered to be served without the benefit of parole, probation or suspension of sentence. The trial court also imposed a fine of $2, 000. Further, the court ordered the defendant to serve two years of supervised probation upon release from prison and placed special conditions on the defendant's probation. For the following reasons, we affirm the defendant's conviction. However, we vacate the defendant's sentence and remand this matter to the trial court with instructions to resentence the defendant in full compliance with the provisions set forth in La. R. S. 14:98(D).

         FACTS

         On October 18, 2013, the defendant, Randel I. English, was arrested for DWI. On November 18, 2013, the state filed a bill of information charging the defendant with DWI, third offense, in violation of La. R.S. 14:98(D). The bill of information identified two previous convictions, both on November 26, 2007, for DWIs that occurred on January 11, 2007, and on February 11, 2007. The defendant waived arraignment and entered a plea of not guilty. Due to numerous requests by defense counsel, the trial was continued until May 16, 2016.

         At trial, Michael Mattingly, a taxi cab driver, testified as follows: on October 18, 2013, he was driving his taxicab downtown in Shreveport; the defendant "flagged [him] down" near Stray Cats Bar; the defendant entered his taxicab and instructed him to drive him to another bar called The Cub Lounge; he noticed that the defendant "had a hard time just getting into the cab"; when they arrived at The Cub Lounge (where the defendant's truck was parked), the defendant told him that he was going to drive himself home; he observed the defendant getting out of the taxicab and determined that the defendant "was obviously inebriated"; he advised the defendant "numerous times" that he should not be driving in his condition; he watched the defendant get into a dark gray Ford Ranger pickup truck and start the engine; he watched as the defendant "killed the engine three times" trying to "roll off"; he believed the defendant was having trouble driving the standard-shift vehicle; he called the police department to report a suspected intoxicated driver because he feared for the defendant's safety and the safety of others; and he had known the defendant for 10 years but he did not recognize him on the morning of the incident. Mattingly stated:

I feared for his safety or [the safety of] anyone else. I've actually had friends hit somebody while they were drunk. I've had people I knew get hit by drunk people. And he was way too intoxicated. I tried to advise him four or five times not to drive, but he was persistent.

         On cross-examination, Mattingly testified that the defendant did not pay for the taxicab ride. He denied calling 9-1-1 because the defendant failed to pay the cab fare. Mattingly explained that he told the police officer that the defendant did not pay the cab fare because the officer asked him whether the defendant had paid.

         Sergeant James Germain, a patrol supervisor for the Shreveport Police Department, testified as follows: on October 18, 2013, at approximately 4:45 a.m., he responded to a call from dispatch; he was informed by dispatch that a taxicab driver had reported that he had driven a customer to The Cub Lounge and the customer did not pay the cab fare, was highly intoxicated, was getting into a vehicle and was "fixing to drive away"; the caller had described the vehicle as a gray Ford Ranger pickup truck; he located the vehicle at an intersection near The Cub Lounge; he activated his mobile video system ("MVS") and pursued the truck; the defendant pulled over and stopped after "maybe 30 seconds";[1] the defendant exited the vehicle when he was given a verbal command to do so; another Shreveport police officer, Shane Prothro, was assigned to the DWI Unit; Ofc. Prothro arrived on the scene as he was stopping the defendant; and Ofc. Prothro performed field sobriety tests on the defendant.

         On cross-examination, Sgt. Germain admitted that prior to stopping the defendant, he observed the defendant driving for approximately one-half mile, down several streets, taking several turns and negotiating a 60-90 degree curve. He also admitted that he did not see the defendant run off of the road or commit any traffic violation. Sgt. Germain testified that he had probable cause to stop the defendant due to the report of a theft (of the taxicab fare). He stated that he did not suspect the defendant of being intoxicated until the defendant exited his truck. Sgt. Germain testified that when the defendant exited the vehicle, he observed that he had a "slight waver to his stance[.]"

         Ofc. Shane Prothro testified as follows: on the morning October 18, 2013, he was assigned to the DWI task force with the Shreveport Police Department; he responded to a call from Sgt. Germain, who told him that he was following a driver who was possibly impaired; he arrived on the scene in time to observe the defendant exiting his truck; the defendant "appeared to stumble out of the driver's side door" of his vehicle; the defendant approached Sgt. Germain's patrol vehicle when he was ordered to do so; he patted the defendant down and "detected the strong odor of an alcoholic beverage coming from him"; the odor of alcohol was "more pronounced" when [the defendant] was speaking towards [Ofc. Prothro]"; the defendant denied drinking alcohol that night; the defendant "appeared to be off-balance, " and he was "swaying from side to side and front to back"; the defendant's "eyes were very glassed over and red" and his speech was slurred; his observations led him to believe the defendant was "extremely impaired, the highest level of impairment"; he performed a field sobriety test on the defendant; specifically, he performed the horizontal gaze nystagmus ("HGN") eye test, looking for a nystagmus, an involuntary jerking of the eyes, at certain points in the test, which indicates that a subject is impaired; the HGN results showed that the defendant exhibited six clues of intoxication; he also noticed that the defendant swayed with the movement of stimulus; the defendant was unable to recite the full alphabet, despite being given three opportunities to do so;[2] he determined that the defendant was impaired after he was given the HGN eye test and the defendant's inability to recite the alphabet "just made my feelings about him being impaired even stronger."

          Ofc. Prothro further testified as follows: he instructed the defendant to perform a "one-leg test, " but the defendant refused to comply any further "without an attorney being present"; he determined that the defendant "was too impaired to be operating a motor vehicle in the public roadways"; he arrested the defendant and placed him in the backseat of the patrol car; the defendant appeared "very relaxed with his head down"; and when they arrived at the police station, the defendant refused to submit to a chemical blood alcohol test.

         On cross-examination, Ofc. Prothro testified as follows: the defendant was cooperative during the traffic stop; the defendant produced his driver's license when requested to do so and he responded to the police officers' questions; the defendant walked to the patrol car when instructed and he did not "trip, fall or stumble" while doing so; various medical conditions can cause nystagmus, such as some types of astigmatism and head trauma; he did not ask the defendant if he suffered from astigmatism prior to administering the eye test; he asked the defendant to complete a medical questionnaire when they arrived at the police station, but the defendant refused to do so and invoked his right to counsel; the defendant was placed in the backseat of the patrol car with his hands handcuffed behind him and without a seatbelt; when they arrived at the police station, he escorted the defendant to the "Intoxilyzer room, " where DWI suspects are usually taken, advised the defendant of his Miranda rights, including his rights in connection with the Intoxilyzer test and reviewed the medical questionnaire with him; and the defendant "refused everything."

         The Intoxilyzer room contains a camera that recorded the interaction between Ofc. Prothro and the defendant. The video recording was played in the presence of the jury during the cross-examination of Ofc. Prothro. After the video was played, Ofc. Prothro admitted that the recording did not show the defendant "fumbling or stumbling" as he walked into the Intoxilyzer room. He stated that the video showed that the defendant had "one little stumble, does a little bit of swaying while standing in the room, but otherwise was fairly erect and appears to be attentive." Further, he testified that he instructed the defendant to stand in one spot in the room while he asked him a series of questions; after each question he instructed the defendant to say, "I refuse" if he did not want to respond. He stated that the defendant responded to each question by stating, "I refuse." Ofc. Prothro admitted that the defendant was attentive, responsive to questions and gave "logical answers" based on the instructions given to him.

         On redirect examination, Ofc. Prothro testified as follows: in his experience, people who are impaired can be cooperative and do not necessarily have to be combative; the defendant never told him that he had any health problems or eye conditions; he was unaware of any medical issues that would cause a strong odor of alcohol to emanate from a person; he uses a focal point in the Intoxilyzer room to determine if a person is swaying; he determined that the defendant was swaying while standing in the room; and there was nothing in the Intoxilyer room that would have caused the defendant to stumble.

         Detective Danny Duddy, the supervisor of crime scene investigation unit for the Shreveport Police Department, testified as a fingerprint expert. Det. Duddy testified that he compared fingerprints from the two November 26, 2007 convictions, Criminal Docket No. 256764 and Criminal Docket No. 257434, for DWI, second offense, of a defendant named Randel English, with fingerprints obtained from the defendant in the courtroom. Det. Duddy concluded that the defendant was the same person convicted in both cases in 2007.[3]

         The defendant did not call any witnesses to testify. After deliberating, the jury found the defendant guilty as charged of DWI, third offense. Thereafter, the defendant filed a motion for a new trial and a motion for judgment of acquittal; the trial court ...


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