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State v. Stafford

Court of Appeals of Louisiana, Third Circuit

March 7, 2018

STATE OF LOUISIANA
v.
DERRICK WALKER STAFFORD -AKA- DERRICK STAFFORD

         APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2015-CR-190819-B HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

          John Sinquefield Matthew B. Derbes Winston White Assistant Attorneys General COUNSEL FOR APPELLEE: State of Louisiana

          Paul J. Barker Christen Denicholas Law Offices of Paul J. Barker, LLC COUNSEL FOR DEFENDANT/APPELLANT: Derrick Walker Stafford

          Eric J. Santana Law Offices of Eric Santana, LLC COUNSEL FOR DEFENDANT/APPELLANT: Derrick Walker Stafford

          Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

          JOHN D. SAUNDERS JUDGE.

         Defendant, Derrick Walker Stafford, was indicted on December 10, 2015, for second degree murder, a violation of La.R.S. 14:30.1, and attempted second degree murder, violations of La.R.S. 14:27 and 14:30.1. On January 5, 2016, Defendant filed a "Motion for Bill of Particulars." On February 3, 2016, the State filed a "State's Memorandum in Opposition to the Defense Motion for Bill of Particulars." On September 13, 2016, the State filed a "Notice of State's Intention to Introduce Other Crimes Evidence Under La.Code of Evidence Article 404(B) and Supporting Memorandum of Law." Defendant responded to the State's "Notice" on September 28, 2016, and filed a "Memorandum in Opposition." Defendant also filed a "Motion to Quash" and "Memorandum in Support" on September 21, 2016. A hearing was held on September 28, 2016, to address the above motions and responses. The trial court denied the motion to quash and granted the State's motion to introduce other crimes evidence.

         A jury trial selection commenced on March 13, 2017. On March 24, 2017, Defendant was found guilty of manslaughter, a violation of La.R.S. 14:31, and attempted manslaughter, violations of La. R.S. 14:27 and 14:31. On March 30, 2017, Defendant filed a "Motion for New Trial and Memorandum in Support." The motion was heard on the date of sentencing, following which the motion was denied. Defendant waived all delay requirements, and the trial court proceeded to sentence him.

         Defendant was sentenced to fifteen years imprisonment at hard labor for the attempted manslaughter conviction and forty years imprisonment at hard labor for the manslaughter conviction, with the first twenty years without the benefit of probation, parole, or suspension of sentence. The two sentences were ordered to be served concurrently. Defendant filed a "Motion to Reconsider Sentence" on April 20, 2017. Following a hearing, the trial court denied the motion.

         Defendant has perfected a timely appeal, wherein he raises five assignments of error, as follows: 1) The trial court erred in denying Mr. Stafford's motion for a bill of particulars; 2) The trial court erred in denying Mr. Stafford's motion to quash the bill of indictment in this case; 3) The trial court erred in admitting evidence of prior bad acts that were more prejudicial than probative; 4) It was error for the trial court to deny the motion for mistrial based on the introduction of a rape allegation against Mr. Stafford; and 5) Mr. Stafford's sentences of forty years and fifteen years are unconstitutionally excessive.

         FACTS:

         After Christopher Few's ("Mr. Few") car was stopped following a traffic pursuit, Defendant and Officer Norris Greenhouse ("Officer Greenhouse") fired at a ninety-degree angle into the driver's side of the vehicle while the victim sat in his car. Officer Greenhouse shot four times, and Defendant shot fourteen times. Mr. Few was wounded. His six-year-old son, Jeremy Martis ("Jeremy"), who was sitting in the front seat of the car, was killed. Both officers were charged under separate lower court docket numbers with attempted second degree murder and second degree murder.

         Testimony given at trial established that on November 3, 2015, Mr. Few picked up his six-year-old son, Jeremy, from school. He and his girlfriend, Megan Dixon ("Ms. Dixon"), dropped the boy off at the house of Ms. Dixon's aunt, Erica Slocum ("Ms. Slocum"), and went out to a bar in Marksville. Shortly thereafter, they got into an argument, and Ms. Dixon left the bar with some girlfriends. Mr. Few left at the same time. He picked up his son from Ms. Slocum's house. He then spied Ms. Dixon driving her friend's van. When the van was stopped at a stop light, he approached the van on foot and attempted to get Ms. Dixon to get out and go home with him. The light changed, and Ms. Dixon drove on. As she drove away, she heard sirens. Mr. Few followed her briefly in his vehicle then passed her up with a police car in pursuit. She indicated that Mr. Few gestured towards Jeremy as he passed the van. She assumed he wanted her to take Jeremy home. Mr. Few pulled his vehicle over once, but she drove past him. Once again, while being pursued by a police car, Mr. Few passed her while pointing at Jeremy. However, she turned off to go to the casino with her friends.

         Jason Brouillette ("Officer Brouillette") and Defendant were both officers with the Marksville City Police Department. However, on the evening of November 3, 2015, they were moonlighting for the Ward 2 City Marshal's Office. The officers received a transmission from Officer Greenhouse that he was in pursuit of a Kia SUV. The officers were close to the area and soon spotted Mr. Few's vehicle. Officer Brouillette turned his unit across the roadway in an attempt to block Mr. Few, but Mr. Few drove off the roadway and around the police unit. Officer Brouillette joined the chase behind Officer Greenhouse. Officer Brouillette testified that the chase was conducted at speeds approximately forty to fifty miles per hour. Officer Greenhouse attempted to pass Mr. Few to cut him off, but Mr. Few weaved his vehicle in a manner to block Officer Greenhouse from passing him. Shortly thereafter, Mr. Few entered a street that dead-ended, and he stopped with Officer Greenhouse's unit stopped right behind him. Officer Brouillette did not actually see Mr. Few's vehicle back into Officer Greenhouse's unit or the officer fall to the ground. He saw Mr. Few pull the Kia forward. He stood next to Officer Greenhouse and Defendant as they fired at Mr. Few's vehicle. While his gun was pulled, he did not believe he was threatened, and he did not fire his gun. He did not see Mr. Few with a weapon.

         Defendant, who was thirty-three years old at the time of trial, testified that at the time of the shooting, he was acting in self-defense and defense of another. Defendant explained that after Mr. Few was stopped on the dead-end road, as he exited the police vehicle, he saw Mr. Few back into Officer Greenhouse's vehicle. Officer Greenhouse was able to get out of the way, however. Mr. Few then pulled his vehicle forward. At this point, Defendant had pulled his weapon and gave a loud verbal command for Mr. Few to exit the Kia and to show his hands. Defendant explained that he believed Mr. Few was either going to run into the woods or he was going to "ambush" them. Defendant insisted he never saw Mr. Few put his hands up. However, when Mr. Few looked back at the officers and backed towards them, Defendant "felt [he] had no choice but to save Norris[.]" He believed Mr. Few was using the vehicle as a dangerous weapon. While Defendant stated he was not aware at the time of how many times he fired his gun, he agreed the evidence established he fired fourteen times and acknowledged that three of the bullets that struck Jeremy were from his gun. He stated that he did not intend to kill when he fired his weapon, only to stop the threat. Defendant stated he did not know Jeremy was in the front seat of the vehicle.

         Kenneth Parnell ("Lieutenant Parnell"), a lieutenant with the Marksville City Police Department, also joined the chase at speeds between twenty-five and thirty miles per hour. He arrived last at the dead-end street and parked his unit in such a way that Mr. Few had an "area where he could have got out." Lieutenant Parnell got out of his unit and stood between his unit and Officer Greenhouse's unit. While he never saw Mr. Few back the Kia SUV into Officer Greenhouse's unit or saw Officer Greenhouse fall to the ground, as the lieutenant exited his vehicle, he saw the Kia back up. This was when the shooting started. The lieutenant never fired his gun, and he never saw Mr. Few with a gun. He testified he was not in fear for his life.

         The jury also heard testimony for two crash scene constructionists. It was established that Officer Greenhouse's unit had been struck in the front end and Mr. Few's Kia's rear end exhibited damage consistent with backing into the police vehicle. The jury also heard testimony from two Louisiana State Police Criminalistics Laboratory ballistic analysts and firearm analysts who testified regarding the shots fired into Mr. Few's vehicle. Finally, the jury heard the testimony of an expert in the use of force. The expert explained in detail why physiologically it takes seconds after a suspect gives up for an officer under stress situations to stop firing his weapon. He testified that in a situation like what Defendant was experiencing, it was easy to make a wrong call because the mind does not receive all the information instantaneously.

         ASSIGNMENTS OF ERROR NUMBERS 1 AND 2:

         We will address assignments of error number one and two together, as the alleged errors are interrelated. Defendant's first argument is that the trial court erred when it did not order the State to respond to his motion for bill of particulars after he was arraigned with a short form indictment because the State offered open file discovery. Defendant's second argument is that because the State failed to respond to his motion, the indictment was rendered defective. We find no merit to these contentions.

         A hearing was held on September 28, 2016, wherein the following motions were heard: "Defendant Greenhouse's Motion for Bill of Particulars[, ] Defendant Stafford's Motion to Quash and Motion to Consolidate[, ] and State of Louisiana Prieur 404 Motion."

         Officer Greenhouse's counsel began the hearing with the argument that the State should have responded to his motion for a bill of particulars. He argued the State's strategy was to convict Officer Greenhouse of second degree murder of Mr. Few's son, Jeremy, using the "transferred intent" theory. Officer Greenhouse's defense counsel argued that because the State used a short form indictment, which stated only that on November 3, 2015, Officer Greenhouse committed the offense of second degree murder of Jeremy, a violation of La.R.S. 14:30.1, there was insufficient information provided to Officer Greenhouse to prepare an adequate defense. Officer Greenhouse argued that he did not learn how the State intended to prove his guilt of second degree murder until the State submitted a proposed jury instruction to the trial court which defined the killing of someone by "transferred intent." Officer Greenhouse requested that the trial court order the State to respond to its motion for a bill of particulars to verify that the element of transferred intent was going to be the basis of its argument to the jury. Noting that the State gave Officer Greenhouse open file discovery and that the information sought regarding the question of the State's theory of prosecution was satisfied during the hearing, the trial court denied Officer Greenhouse's motion. We note that Defendant never sought to join or adopt Officer Greenhouse's motion requesting that the trial court order the State to respond to its bill of particulars. Nor did Defendant object in any way to the trial court's ruling.

         While Officer Greenhouse's motion was addressed, Officer Greenhouse and Defendant were not co-defendants, and Defendant did not adopt Officer Greenhouse's motion or object to the trial court's denial of the motion. As noted above, Officer Greenhouse's motion involved the theory of "transferred intent" concerning the shooting death of the six-year-old.

         Next, Defendant argued that his and Officer Greenhouse's cases should be consolidated for the convenience of the defendants, the witnesses, and the trial court. Officer Greenhouse, however, objected, and the trial court denied the motion.

         Although Defendant's motion for bill of particulars requested that the trial court order the State to comply with the motion, Defendant's motion was not addressed at the September 28, 2016 hearing; therefore, the trial court made no ruling regarding Defendant's motion. Accordingly, we find that Defendant's assignment of error number one lacks merit.

         The trial court then took up Defendant's motion to quash the indictment, which alleged that the State should have included the phrase "specific intent" in the indictment because it was an essential element of the crime of attempted second degree murder. Defendant argues that had the State responded to his motion for bill of particulars, his constitutional right to specific notice of the nature and circumstances of the charge against him would not have been violated.

         In pertinent part, second degree murder is defined as "the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm[.]" La.R.S. 14:30.1. The attempt statute, La.R.S. 14:27, in pertinent part, provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

         At the September 28, 2016, hearing, Defendant argued:

The case law is pretty clear, you have to prove the specific intent to kill with attempted second degree murder. And the case law also is further clear and the law is that the indictment must state specific intent to kill must be in the indictment . . . . They failed to even put that in there. And so I'm supposed to just believe based on the indictment alone because like I said they didn't do a bill of particulars.

         An indictment shall be a "plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated." La.Code Crim.P. art. 464.

         At the hearing, Defendant argued the indictment was defective and should be quashed. He argued:

Now we read their documents Your Honor, and all it says is that Mr. Stafford committed the offense of attempted second degree murder by committing the offense of attempted second degree murder. There's nothing alleged in there so if you're looking on the indictment itself, the face of it, just telling me that he did this is not enough. It's simply not.
The law is pretty clear, essentially it requires whether any conceivable set of facts, as alleged in the bill of information together with those specified in the bill of particulars when particulars have been provided if found credible by the trier of fact can support a conviction.
"You're looking at . . . you look at this indictment essential element of attempted second degree murder is specific intent to kill. "They failed to even put that in there. And so I'm supposed to just believe based on the indictment alone because like I said they didn't do a bill of particulars. I can't ask the court to look at the entire file, then we'd be getting into the merits of the case. That's not what a Motion to Quash is for."
. . . .
And the law is clear even if it's just a technical requirement. It has to say specific intent, those words have to be in the indictment.

         Following argument, the trial court ruled:

And in addition as stated in the prior motions, the law is quite clear from the Louisiana Supreme Court that the normal statutory requirements that the - - each essential element of a crime be listed in an indictment is not required in a short from indictment; especially considering when open file discovery is granted. Motion to Quash is therefore denied; objection to the ruling of the court is noted and error is assigned.

In State v. Lauff, 06-717, pp. 6-7 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 818, the fifth circuit stated:

Both the Louisiana Supreme Court and this Court have consistently held that a motion to quash is, essentially, a mechanism to urge pre-trial pleas, i.e. pleas which do not go to the merits of the charge. State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 411, cert. denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998); State v. Billard, 03-319 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1074, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. Billard, supra. A court considering a motion to quash must accept as true the facts contained in the bill of information and in the bill of particulars, and determine as a matter of law from the face of the pleadings whether a crime has been charged. Id. While evidence may be adduced on the motion to quash, such evidence may not include a defense on the merits. State v. Byrd, 708 So.2d at 411. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. Billard, supra.

         Defendant argues that "the only instrument the trial court could rely on in deciding the motion to quash was the short form bill of indictment, which is insufficient on its face with the requested bill of particulars. Therefore, the trial court erred in denying the motion to quash."

         At the hearing, Defendant argued that the supreme court, in State v. Bishop, 01-2548 (La. 1/14/03), 835 So.2d 434, supported his position that an indictment which alleged attempted second degree murder must state that specific intent to kill was an element of the crime. The trial court, however, did not agree with Defendant's interpretation of the case. As reported in the lower appellate court's case, State v. Bishop, 34, 637 (La.App. 2 Cir. 7/24/01), 792 So.2d 886, writ granted, 01-2548 (La. 8/30/02), 824 So.2d 1162. the defendant and an accomplice severely beat a man and left him lying in a field. The defendant was convicted of attempted second degree murder. Years later, after several post-conviction applications, the defendant obtained a reinstatement of his previously filed notice of appeal. The appellate court ruled that the state failed to show specific intent to kill the victim and reduced the conviction to aggravated battery. However, the supreme court found the evidence was sufficient to show specific intent to kill and reinstated the conviction of attempted second degree murder. Bishop, 835 So.2d 434. Therein, the supreme court noted that the jury instructions regarding attempted second degree murder given to the jury erroneously stated that in order to convict, the state must prove "specific intent to kill or to inflict great bodily harm." Id. at 439. However, we did not find in the Bishop opinion where the supreme court stated that an indictment charging attempted second degree murder must include the phrase "specific intent to kill."

         In State v. Coleman, 13-942, pp. 17-18 (La.App. 5 Cir. 5/14/14), 142 So.3d 130, 140-41, writ denied, 14-1224 (La. 1/23/15), 159 So.3d 1056 (footnote omitted), the fifth circuit discussed the content of a sufficient indictment:

Article I, Section 13 of the Louisiana Constitution requires that an indictment inform a defendant of the nature and cause of the accusation against him. State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1240, writ denied, 13-0306 (La.6/21/13), 118 So.3d 413. This requirement is implemented by La. C.Cr.P. art. 464, which provides:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

La.C.Cr.P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including second degree murder. Chairs, 106 So.3d at 1240. Both this Court and the Louisiana Supreme Court have consistently upheld the constitutionality of these short forms. Id. (citing Draughn, 950 So.2d at 624).

For instance, in Chairs, supra, the defendant, who was convicted of second degree murder, argued on appeal that the trial court erred in denying his motion to quash the indictment. He argued in the motion that the short form was constitutionally deficient due to its failure to specify whether his prosecution was being pursued under the specific intent theory or the felony murder theory of second degree murder. Chairs, 106 So.3d at 1240. His indictment read in pertinent part: ". . . on or about the 8th day of November, 2009, the said ROGER D. CHAIRS . . . violated R.S. 14:30.1 in that [he] did commit second degree murder of a known juvenile (DOB 4/29/2002)." Chairs, 106 So.3d at 1241.
This Court determined that the defendant was fully aware of the nature of the charges against him and concluded that the trial court did not abuse its discretion in denying the defendant's motion to quash. Id. In reaching this conclusion, this Court noted that the indictment conformed to the short form provided in La.C.Cr.P. art. 465(A)(32) and that the defendant was provided with ample discovery, including police reports, arrest warrants, search warrants, crime lab reports, and statements of witnesses and co-defendants. Id.
Likewise, in the instant case, the indictment complied with the short form in La.C.Cr.P. art. 465(A)(32), as it provided: ". . . on May 7, 2007, the said CHARLES COLEMAN A/K/A 'BIRD" violated La. R.S. 14:30.1 in that he did commit the second degree murder of Marlon Turner."
While the record reflects that defendant requested and was provided with discovery, the contents of that discovery are not evident from the record. Nevertheless, where defendant does not complain of discovery violations and the indictment complies with the short form, defendant was adequately informed of the nature of the charges against him. Therefore, we find no abuse of discretion in the trial court's denial of defendant's motion to quash the indictment. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1206 ("An appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion.").

         In the current case, the indictment read as follows:

On or about November 3, 2015, in the Parish of Avoyelles, Derrick Walker Stafford committed the offense(s) of LA R.S. 14:27(14:30.1); namely Second Degree Murder by attempting to ...

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