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State v. Walls

Court of Appeals of Louisiana, Third Circuit

March 7, 2019

STATE OF LOUISIANA
v.
MICHAEL LEE WALLS

          APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 89486 AM HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE.

          Asa A. Skinner, District Attorney Lea R. Hall, Jr., Assistant District Attorney, Counsel for Appellee: State of Louisiana.

          S. Christie Smith, IV SmithAdvocates, LLC, Counsel for Defendant/Appellant: Michael Lee Walls.

          Court composed of Sylvia R. Cooks, Billy H. Ezell, and Candyce G. Perret, Judges.

          SYLVIA R. COOKS, JUDGE.

         FACTS AND PROCEDURAL HISTORY

         On July 21, 2016, Defendant, Michael Lee Walls, was indicted on one count of molestation of a juvenile when the offender has control or supervision over the juvenile, in violation of La.R.S. 14:81.2(A)(1); and one count of indecent behavior with a juvenile under the age of thirteen, in violation of La.R.S. 14:81(A)(1) and 14:81(H)(2). The molestation charge was based upon allegations that Defendant, while having supervision of the juvenile, had "anal sexual intercourse" with S.H. The indecent behavior charge was based upon facts alleging Defendant chased S.H.'s sister, J.H., "while wearing Sponge Bob underwear with his penis hanging out."

         Following a multi-day trial, a unanimous jury found Defendant guilty as charged on both counts on March 23, 2017. The trial court ordered a Pre-Sentence Investigation (PSI). On May 24, 2017, the trial court sentenced Defendant to eighteen years at hard labor for the molestation of a juvenile charge and eighteen years at hard labor without the benefits of probation, parole, or suspension of sentence for the indecent behavior charge. Noting the case involved "an issue of having occurred on multiple occasions to multiple victims," the trial court ordered the two sentences to run consecutively to each other.

         On May 26, 2017, Defendant filed a "Motion to Reconsider Sentence," arguing his sentences were excessive as they were partially based upon disputed evidence and that Defendant's age (sixty-three years old) and health meant the thirty-six year total sentence was essentially a life sentence. The trial court denied the motion.

         In late December, 2018, this court noticed, and the State raised in its brief, that Defendant's brief was devoid of any page references to the record, in violation of Uniform Rules-Courts of Appeal, Rule 2-12.4(A), which requires an appellant's brief to contain "reference to the specific page numbers of the record and citations to the authorities on which the appellant relies."

         Defense counsel was verbally notified he had until January 7, 2019, to file an amended brief containing record references, with a written order stating the same sent on December 26, 2018. On January 11, 2019, this court received a faxed courtesy copy of said brief which was unsigned and included a certificate of service noting "a copy of this Brief has been served on all parties at the addresses set forth below by depositing same into the U.S. Mail on the 31[sic] day of October 2018." On January 16, 2019, this court received a signed original of Defendant's Supplemental Brief. The brief was postmarked on January 14, 2019. A review found, after comparing the page references to the record, none of them are accurate aside from the references pertaining to Defendant's assignment of error number one.

         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, there is an error in the commitment order that requires correcting.

         At sentencing, the trial court ordered the sentences to be served consecutively. Although the minutes of sentencing correctly reflect the sentences were ordered to be served consecutively, the commitment order does not provide so, stating "[t]his sentence shall be concurrent with any or every sentence the offender is now serving[.]" There is no other statement in the commitment order as to the imposition of the sentences to run consecutively. Therefore, we order the commitment order to be corrected to accurately reflect the trial court's imposition of the sentences to run consecutively to one another.

         ASSIGNMENT OF ERROR NUMBER ONE

         In his first assignment of error, Defendant contends he should receive a new trial on the grounds the trial court erred in denying his for cause challenge to strike a juror, Ms. Shawn Moak. Defendant alleges this forced him to use a peremptory challenge to remove her. However, as noted by the State, there is no evidence in the record to support Defendant's claim that he used a peremptory strike to remove Ms. Moak.

         On March 21, 2017, after Ms. Moak had been tentatively accepted as a juror, the trial court held a hearing outside the presence of the jury regarding use of certain evidence under La.Code Evid. art. 412.2. At that time, the trial court also took up the issue of Defendant's claim that, while being transported to the courthouse that morning, he and Ms. Moak "made eye contact and I could just tell by the expression on her face that she recognized me." Defendant stated that he was dressed in the same civilian clothing he was wearing during court and that he was unshackled while riding in the front seat of the marked police unit in which he was being transferred. Defendant testified he immediately informed Ben West of the Vernon Parish Sheriff's Office, the officer transporting him to the courthouse, whom Defendant claimed told him "not to worry about it."

         Deputy West confirmed he was in uniform while transporting Defendant. Deputy West testified they saw two ladies walking across the street, and Defendant recognized one of them as a juror in his case. Subsequently, Ms. Shawn Moak was called into the courtroom and the following exchange occurred between Ms. Moak and the trial court:

Q. Okay. My question that I have to you, Ms. Moak, is as far as today is concerned, at any time have you seen Mr. Walls outside of the courthouse or the courtroom today?
A. No, sir.
Q. You're clear about that? ...

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