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State v. Batiste

Court of Appeals of Louisiana, Third Circuit

May 9, 2018

STATE OF LOUISIANA
v.
TROHERRO KEITH BATISTE

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 330, 421 HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

          Paula Corley Marx Louisiana Appellate Project COUNSEL FOR DEFENDANT- APPELLANT: Troherro Keith Batiste

          Phillip Terrell, Jr. District Attorney, Ninth Judicial District Court Catherine L. Davidson Assistant District Attorney COUNSEL FOR STATE-APPELLEE: State of Louisiana

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

          ELIZABETH A. PICKETT JUDGE

         FACTS

         On March 15 and 16, 2016, the state alleges that the defendant, Troherro Keith Batiste, battered the victim and caused her to undergo surgery for major injuries. The evidence revealed that the defendant had battered the victim on multiple prior occasions. In fact, on the day of the incidents in question, the defendant pled guilty to domestic abuse battery.

         On June 12, 2017, the defendant's grand jury indictment was amended to charge the defendant with: 1) Count one - attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, "in that he did, on or about and between the 15th day of March, 2016 and the 16th day of March, 2016, attempt to commit Second Degree Murder of Rene Mason"; 2) Count two - aggravated second degree battery, a violation of La.R.S. 14:34.7, "in that he did, on or about and between the 15th day of March 2016, and the 16th day of March 2016, without the consent of the victim, intentionally inflict serious bodily injury with a dangerous weapon, to wit a barbecue pit, upon Rene Mason"; 3) Count three - aggravated second degree battery, a violation of La.R.S. 14:34.7, "in that he did, on or about and between the 15th day of March 2016, and the 16th day of March 2016, without the consent of the victim, intentionally inflict serious bodily injury with a dangerous weapon, to wit a barbecue pit, upon Rene Mason"; and 4) Count four - second degree battery, a violation of La.R.S. 14:34.1, "in that he did, on or about and between the 15th day of March 2016, and the 16th day of March 2016, without the consent of the victim, intentionally inflict serious bodily injury upon Rene Mason." After a trial by jury held June 13, 2017, to June 15, 2017, the defendant was found guilty as charged on all counts. Thereafter, on August 14, 2017, the defendant was sentenced as follows:

Attempted second degree murder - 35 years
Aggravated second degree battery - 15 years
Aggravated second degree battery - 15 years
Second degree battery - 8 years.

         The trial court ordered the sentences to run concurrently with the sentence imposed for attempted second degree murder. Additionally, the trial court ordered "the sentence" to be served without benefit of probation, parole, or suspension of sentence. Thereafter, on August 16, 2017, the defendant filed a Motion for Appeal and Designation of Record, which was granted on August 18, 2017. On September 12, 2017, the defendant filed a pro se "Motion to Reconsideration." On September 19, 2017, the defendant filed a pro se "Motion to Reconsider the Imposed Sentence and Contradictory Hearing." The trial court denied the motion as untimely.[1] The defendant is now before the court alleging four assignments of error.

         ASSIGNMENTS OF ERROR

         1. The trial court erred in denying the objection to the hearsay testimony of Kevin Thomas

a) through a police officer's testimony; and
b) in a statement made by Thomas for investigative purposes.
Kevin Thomas' statements had not been subject to confrontation or cross-examination in violation of the confrontation clause.
2. Should this Honorable Court find the lack of objection to the introduction of the statement of Kevin Thomas precludes review of the Assignment of Error No. 1, then review should be allowed as the failure to object constitutes ineffective assistance of counsel.
3. The equal protection guarantees outlined in Batson v. Kentucky were violated in this case.
4. The trial court erred in sentencing Troherro Keith Batiste without benefit of parole on counts 2-4 as the crimes of aggravated second degree battery and second degree battery do not provide for that restriction in this case.

         ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

         In assignment of error number one, the defendant challenges the trial court's admission of a statement made by Kevin Thomas, a witness who refused to testify at trial. The defendant argues the admission of Mr. Thomas's statement through the testimony of Officer Torrence Bowens violated his right to confront his accusers. In assignment of error number two, the defendant, out of an abundance of caution, asserts his counsel was ineffective for failing to reassert his objection to the introduction of Mr. Thomas's written statement. We will discuss both assignments together.

         Deputy Jerry McKinney testified that he went to the cell block to get Mr. Kevin Thomas to testify, but Mr. Thomas refused to accompany the deputy to the courtroom. The state requested the trial court order Mr. Thomas to come into the courtroom and testify. The trial court then asked Deputy McKinney to instruct Mr. Thomas that he was being ordered by the trial court to testify. According to Deputy McKinney, Mr. Thomas continued to refuse to testify. Mr. Thomas was never brought to the courtroom. The trial court did not directly address Mr. Thomas regarding his refusal to testify. The state asked the trial court the following:

BY MR. METOYER:
Your Honor, we would ask, that under Code of Evidence, Article 804.2, that when a witness - - when a witness persist or refusing [sic] to testify concerning the subject matter of his statement, despite an order of the Court to do so, that he be declared unavailable as a witness.

         Defense counsel responded that he had no objection, stating that he believed that was the law. The following colloquy then took place:

BY MR. METOYER:
And, Your Honor, since that is the state of the law, that also entitles the - - the State to have his record put in, and we can publish it to the jury.
BY THE COURT:
The Court declares him unavailable.
BY MR. METOYER:
Okay.
BY MR. SMITH:
I - - I would object to that, inasmuch as I've not had an opportunity to cross and confront the, uh, witness, as - -
BY MR. METOYER:
Neither has the - -
BY THE COURT:
The Court will - -
BY MR. METOYER:
Neither has the State.
BY THE COURT:
The Court will allow it.
BY MR. METOYER:
Thank you. Okay.
BY THE COURT:
So objection's overruled.
. . . .
BY MR. METOYER:
Your Honor, uh, I think, and just for purposes of the record for Mr. Smith - - to Mr. Smith's objection, according to, uh, Justice Scalia, before he died, uh, my understanding is this, the State - - the State's duty is to provide the witness to be available for cross-examination. By having him subpoenaed and having Mr. Thomas here, we have certainly made him available, but we - - and the Court has ordered him. ...

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