FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
331, 035 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE.
Phillip Terrell, Jr. 9th JDC District Attorney Cheryl A.
Carter Assistant District Attorney, Counsel for
Plaintiff/Appellee: State of Louisiana.
Kelly Bauman Louisiana Appellate Project, Counsel for
Defendant/Appellant: Marcus Dwayne Piper.
composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce
G. Perret, Judges.
HOWARD EZELL, JUDGE.
October of 2016, the Rapides Parish District Attorney's
Office charged Defendant Marcus Dwayne Piper with attempted
second degree murder, a violation of La.R.S. 14:27 and
La.R.S. 14:30.1, and possession of a firearm by a convicted
felon, a violation of La.R.S. 14:95.1. On April 24, 2018, the
court heard Defendant's motion to recuse via a judge ad
hoc and denied it. The parties selected a jury on June 5, and
6. Said jury began hearing evidence on the latter date and
found Defendant guilty of a lesser-included offense,
aggravated battery, a violation of La.R.S. 14:34, and guilty
as charged for the possession of a firearm offense. On June
25, the court sentenced him to ten years at hard labor for
aggravated battery and twenty years for possession of a
firearm by a convicted felon.
now seeks review by this court, assigning two errors.
Stanley was walking out of a store and talking on her cell
phone when Defendant ran up to her and put a gun to her head.
He wanted information on the whereabouts of her boyfriend.
Defendant's brother Charles approached and hit the top of
her head, then Defendant hit her in the face with a gun.
Defendant's brother stepped back and fired his weapon,
but no shots hit the victim. The brothers got in a car and
left the scene. Defendant had prior felony convictions.
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 and
the court minutes of sentencing require correction.
the sentencing judge imposed both sentences without the
benefit of parole, which is required for Defendant's
conviction of possession of a firearm by a convicted felon,
but this restriction may only be imposed for aggravated
battery if the offender knew or should have known that the
victim is an active member of the United States Armed Forces
or is a disabled veteran and the aggravated battery was
committed because of that status. Louisiana Revised Statutes
14:34(B) requires at least one year of the sentence be
imposed without benefit of parole, probation, or suspension
of sentence if the above "status" requirement
applies. There was no reference by the sentencing judge to
this provision, nor indication in the record that this
"status" provision was applicable to
Defendant's case. Accordingly, we find Defendant's
aggravated battery sentence should be amended to delete the
denial of parole eligibility. The trial court is instructed
to make an entry in the court minutes reflecting this
the sentencing minutes indicate Defendant was ordered to pay
court costs of $495.00 due June 25, 2018, and in default
thereof, he was to serve ninety days in the parish jail.
However, the sentencing transcript does not indicate the
court imposed the payment of court costs or default
time. "[W]hen the minutes and the
transcript conflict, the transcript prevails." State
v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770
So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01),
797 So.2d 62. Accordingly, we order the trial court to
correct the court minutes of sentencing to strike the order
to pay court costs and to serve jail time in default thereof.
OF ERROR NUMBER ONE
first assignment of error, Defendant argues the judge ad hoc
erred by denying his motion to recuse the trial judge.
the recusal hearing, Defendant's trial attorney testified
regarding the circumstances that led to the recusal motion:
A. He was first on the docket. He's charged with felon
with a firearm and attempted murder. An offer of, uh, fifteen
years had been tendered by the District Attorney. At some
point during the day, he indicated that he wanted to go to
trial and not take the plea. Um, I'm, I'm assuming
the part y'all are talking about. I went into the
courtroom, I said, uh, I may have told Ms. Carter we need to
bind him over for trial, um, I recall the Judge saying, um,
that's good or that'll -- tell your client
that'll make our, my day. Something of that -- I
don't know verbatim -- but something of that nature. Uh
Q. So you're testifying that your, your client declined
the offer, the plea offer from the State?
A. He did.
Q. Okay. And did you inform the Judge that he declined the
A. I think I may have just said we need to bind him over
which would have indicated yes, that the plea offer was
Q. Okay. And specifically what was her response to that?
A. I thought she said tell your client he'll -- that will
make our day or that will make my day. That's what I
thought. It may have (interrupted)
Q. Can you recall specifically at this time?
A. No. I, I would not be able -- I mean, the tape is -- what,
what it says is what it says. I -- that's what I recall.
Q. Whatever statements, um, that were made at that time --
whatever her response was what did you do after she made that
A. I probably said, you know, um, that's scary or maybe
that - I don't know what -- I may have said that may be
grounds for recusal right at that moment. I don't know. I
-- the, the tape is -- well, the tape is the tape. Um, I, I
-- my recollection was -- it and I'm not -- I can't -
it'd be - I'd speculate if I -- what her thought was
-- I don't know. Okay. I can't - I'm not gonna
Q. What, whatever your -- her statements were, um, was it the
grounds for your motion for recusal?
A. Yes. Yes, but I'm not gonna speculate as to what she
meant or thought. I'm just gonna tell you that's what
I heard and that's what I, I felt like it -- ...