FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-617,
SECTION "J" Honorable Darryl A. Derbigny, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY, PARISH OF ORLEANS Donna
Andrieu Irena Zajickova Michael Danon DISTRICT ATTORNEY'S
OFFICE ORLEANS PARISH COUNSEL FOR APPELLEE/RELATOR, STATE OF
Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Terri F. Love, Judge Daniel L. Dysart,
Judge Paula A. Brown
A. BROWN, JUDGE
Terrell Belvin, ("Defendant") appeals his
conviction for second degree battery, arguing the evidence
was insufficient to convict. Additionally, the State of
Louisiana seeks supervisory review of the district
court's denial of the State's motion to reconsider
sentence and/or correct illegal sentence ("motion to
reconsider sentence") and the denial of its motion to
continue the hearing on Defendant's motion to reconsider
sentence under La. R.S. 15:529.1 and/or motion to correct an
illegal sentence ("motion to correct illegal
sentence"). This Court granted the State's writ
application for the limited purpose of considering it with
Defendant's timely filed appeal. For the reasons that
follow, we affirm Defendant's conviction; the State's
writ application is granted in part and denied in part; and
the Defendant's sentence is vacated and the matter is
remanded for Defendant's resentencing consistent with
March 21, 2014, Defendant and Reeshawn Arnold were charged
with one count of second degree battery of Douglas Potter
(the "victim"), in violation of La. R.S.
14:34.1 and one count of criminal damage to
property, in violation of La. R.S. 14:56(B)(2). Defendant
pled not guilty to both charges.
the district court found probable cause only as to the second
degree battery charge,  Defendant was tried by a jury on that
charge on December 9, 2014 and December 10, 2014, and
convicted of second degree battery. On January 11, 2016,
Defendant filed a motion for appeal.
State filed a habitual offender bill on April 19, 2016,
charging Defendant as a fourth felony offender based on three
previous drug convictions. On August 12, 2016, the district
court sentenced Defendant to five years at hard labor for his
conviction of second degree battery. On September 30, 2016,
the district court adjudicated Defendant a fourth felony
offender and sentenced Defendant to life imprisonment at hard
labor pursuant to La. R.S. 15:529.1(A)(4)(b).
filed a motion to correct illegal sentence on July, 6, 2018,
citing the 2017 Amendments to the Habitual Offender Law
("2017 Amendments") which will be discussed in more
detail infra. The State moved to continue the
hearing. On July 18, 2018, the district court denied the
State's motion to continue and granted Defendant's
motion to correct illegal sentence, resentencing Defendant to
twenty years at hard labor as a fourth felony offender.
State, on August 1, 2018, filed a motion to reconsider
Defendant's sentence which the district court denied on
August 7, 2018. The State noticed its intent to seek a writ
Court routinely reviews the record on appeal for errors
patent. State v. Lewis, 2015-0773, p. 9 (La.App. 4
Cir. 2/3/16), 187 So.3d 24, 29. A review of the record
reveals no errors patent.
January 21, 2014, Defendant and Mr. Arnold allegedly brutally
beat the victim, causing him to suffer a coma and seizures
that will necessitate medical treatment for the rest of his
trial, Officer Jacob Lathrop of the New Orleans Police
Department ("NOPD") testified that he was called to
investigate a battery which occurred in the early morning
hours of January 21, 2014 in front of the Last Call Bar,
located in the 800 block of Conti Street. Officer Lathrop
arrived on the scene with Officer Meghan Constantine, who was
in training at the time. Upon his arrival, Officer Lathrop
saw the victim on the ground, unresponsive and bleeding from
an injury to the head. Officer Lathrop canvassed the area for
surveillance video and witnesses. He said Officer Constantine
obtained a statement from the bartender at The Last Call Bar,
the only identifiable eyewitness to the incident. Neither he
nor Officer Constantine was able to obtain a statement from
the victim because the victim was in a coma. Officer Lathrop
stated Defendant was arrested on February 27, 2014 after NOPD
received notice Defendant was at a hotel. At the time of his
arrest, Defendant was with Kayla Rogers. Officer Lathrop
identified Defendant in court as the man he had arrested.
cross-examination, Officer Lathrop acknowledged that he did
not return to the crime scene to talk to any other persons
about the battery. He also stated that outside of the
bartender, no other witnesses said that they had seen the
Perez, the detective assigned to investigate this case, spoke
to the bartender, identified as Allison McDonald, less than
twenty-four hours after the incident. Based on Ms.
McDonald's description, Ms. McDonald and Detective Perez
put together a composite sketch of Defendant. Detective Perez
also obtained surveillance video from The Famous Door, a bar
located next door to The Last Call. He said the surveillance
video and the composite sketch were provided to the news
media for assistance in identifying the suspects. Detective
Perez identified the victim, Defendant, and Mr. Arnold from
the surveillance video.
cross-examination, Detective Perez acknowledged that he did
not record or take written notes from his interview with Ms.
Jones, a former NOPD officer, assisted Detective Perez in the
investigation. Detective Jones testified that on January 22,
2014, he received a Crime Stopper's tip which identified
Defendant as one of the subjects/perpetrators seen in the
media's broadcast of the surveillance
video. Detective Jones located a photograph of
Defendant after conducting a records check. A comparison of
Defendant's photograph with the composite sketch
previously provided by Ms. McDonald each depicted a tattoo in
the center of Defendant's forehead. Detective Jones said
Ms. McDonald identified Defendant in the photograph during
the recorded interview he conducted with her on January 22,
2014 and signed the photograph. Detective Jones testified
that Defendant was arrested about one month after the battery
Frank Culicchia, a neurosurgeon, testified that he and other
members of his department operated on the victim. Dr.
Culicchia identified the victim's medical records which
were introduced into evidence. Dr. Culichhia noted that the
victim was comatose and diagnosed with traumatic
intercerebral hemorrhage-a bleeding of the brain-upon his
entry to the emergency room. Dr. Culicchia opined that the
nature of the bruising to the brain showed the victim was
struck hard, and there were multiple sources of trauma that
caused the injuries. The doctor described the victim's
recovery as remarkable. However, he cautioned that the victim
would never be the same and could suffer seizures requiring
medical treatment for the rest of his life.
Potter, the victim's wife, reiterated that her
husband's injuries required six brain surgeries in 2014,
numerous hospital stays, and rehabilitation. When describing
her husband's current condition, Mrs. Potter testified
that "[h]e has seizures. He has to have 24-7 care. He
doesn't remember things. He has trouble putting things in
order of how to do things. He's not the same."
Huey, a custodian of inmate telephone call records for the
Orleans Parish Sheriff's Department, testified that he
supplied a disc containing three jailhouse phone calls made
by Defendant on the afternoon of the day following the attack
on the victim. A call to Reeshawn "T-Roc"
Arnold was played for the jury. In the call, Defendant tells
Mr. Arnold: "Man, you got me f***ed up out here,
son." Defendant goes on to say: ". . . people got
me wanted for that s**t you did by the bar last night, say
they got my picture all over the news and everything -you on
Nola.com - you put that man in a coma son -" Mr. Arnold
responds: "I did, son?" Defendant responds:
"Yeah, - saying you got to clean that s**t up,
son." Mr. Arnold responded either, "Why, son,
I'm a do that son," or "Why son, I didn't
McDonald, the bartender on duty at the Last Call on the
evening of the battery, described Defendant as a regular at
the bar. She said Defendant and Kayla Rogers, Defendant's
girlfriend, had been eating in the bar. Another black male,
later determined to be Mr. Arnold, entered the bar. Ms.
McDonald believed she told Mr. Arnold to leave when he did
not produce proof of identification. Ms. McDonald said that
Defendant and Ms. Rogers stood in the doorway smoking after
they had finished their food. She asked them to step out of
the doorway after she noticed that they were blocking the
entrance of other potential patrons who wanted to enter the
bar. Ms. Rogers and Defendant stepped onto the sidewalk. At
that point, the victim walked by carrying an upright bass and
a brief case. She said the victim told Defendant and Ms.
Rogers "to get the f***[*] out of his way." Words
were exchanged, and Mr. Arnold, who was standing on the
sidewalk next to Defendant, punched the victim in his face,
causing blood to pour down his face. The victim dropped his
bass instrument and took a "boxer" stance. Mr.
Arnold hit the victim again and then Defendant hit him in the
face. She described Defendant's blow as not a great hit.
Ms. McDonald said the victim was hit again and fell to the
ground. When the victim hit the ground, she called 911. She
said Defendant, Ms. Rogers, Mr. Arnold, and another female
stayed within fifty feet of the bar. The State introduced an
audio of the 911 call, which was played for the jury. Ms.
McDonald acknowledged her voice on the 911 call. Ms. McDonald
identified Defendant in open court and identified Mr. Arnold
as the black male in the blue hat and the gold pants that she
had instructed to leave the bar.
McDonald remembered talking to the police on the night of the
incident and going to the police station with Detective
Perez. She identified the composite photograph of Defendant
that she had assisted the police in drafting. She verified
that she had signed the photograph. However, she said she did
not remember talking to Detective Jones. The State introduced
into evidence and played a video of the statement she gave to
Detective Jones. Ms. McDonald acknowledged that she has had a
lifelong problem with heroin and that she relapsed after the
battery incident, stating that witnessing the incident may
have been a contributing factor in her relapse. She
maintained that she was not on heroin the night of the
cross-examination, Ms. McDonald testified that the victim was
rude and aggressive. She reiterated that she saw Mr. Arnold
throw the first punch. She said Mr. Arnold threw another
punch before Defendant threw his punch that "barely
grazed" the victim. After this "grazing"
punch, she said she lost sight of what was happening. She
acknowledged that in her 911 call, she told the operator that
four people were involved in the fight with the victim-two
men and two women. Ms. McDonald could not recall giving a
statement to Officer Constantine or any other officer at the
bar on the evening of the incident. She also had no
recollection as to whether or not she told an officer that
she only heard and did not see the fight or whether or not
she had previously denied seeing Defendant strike the victim.
re-direct examination, Ms. McDonald again confirmed that Mr.
Arnold threw the first punch and that Defendant's punch
came after Mr. Arnold's first strike. She averred
Defendant hit the victim only after the victim swung at
Defendant. Ms. McDonald verified the victim had something in
both hands when he was first punched. The State re-played the
video of Ms. McDonald's statement to Detective Jones and
questioned the accuracy of her trial testimony. Ms. McDonald
affirmed that her testimony at trial was true.
Joseph Lorenzo, an investigator with the Orleans Parish
District Attorney's Office, testified that he sat in on
the District Attorney's Office two interviews with Ms.
McDonald. He said recordings of the 911 call and the recorded
statement she gave Detective Jones were played for Ms.
McDonald at those interviews. Detective Lorenzo maintained
that Ms. McDonald never said during those interviews that
Defendant had acted in self-defense.
Lorenzo testified on cross-examination that Ms.
McDonald's statements to the District Attorney's
Office were not given under oath. He also acknowledged that
Ms. McDonald thought the victim had provoked Mr. Arnold.
Nevertheless, Detective Lorenzo reiterated on re-direct
examination that Ms. McDonald confirmed in both interviews
that her statement to Detective Jones was true.
Davis, the defense witness, testified that on the night of
January 20, 2014, she was smoking a cigarette with Defendant
and Mr. Arnold on the sidewalk outside the bar when the
victim walked past them and pushed her out of the way. She
said the victim cursed her, and Mr. Arnold told the victim
not to be rude to Ms. Davis. Ms. Davis testified the victim
then cursed at them again, using racial slurs, and started to
walk away. Then, he returned and pushed Mr. Arnold. At that
point, she said Mr. Arnold hit the victim in self-defense.
Ms. Davis denied that the victim and Defendant ever swung at
each other. She said the fight was exclusively between Mr.
Arnold and the victim. Ms. Davis admitted that she was
currently in jail for a municipal attachment related to
simple battery, theft, possession of marijuana, criminal
damage to property, and trespassing charges.
cross-examination, Ms. Davis denied that Ms. Rogers was
present at the time of the fight. She testified that the
victim pushed her with his right hand. She said he did not
have his musical instrument in his hand when he pushed her;
instead, she claimed it was strapped on his back. Ms. Davis
denied Defendant had anything to do with the fight or that he
threw a punch of any kind. Ms. Davis said Mr. Arnold used to
date her best friend and that she had been in a relationship
with a friend of Defendant who had been killed. Ms. Davis was
shown the surveillance video which depicted the victim
carrying his bass. She said it looked to her at the time that
the bass was strapped behind his back. Ms. Davis then noted
that it had been two years since the incident and described
herself as a mental patient. She said she had no explanation
as to how the victim could push her and Mr. Arnold with the
bass in his hand.
State re-called Ms. Davis as a rebuttal witness. She refused
to take the stand. The State moved to hold her in contempt.
The State's motion was granted by the district court.
Jones was re-called by the State on rebuttal. Detective Jones
testified that Ms. McDonald was the only person he spoke to
as part of the investigation. He confirmed that he did not
speak to Ms. Davis or Mr. Arnold and re-affirmed that
Defendant refused to give him a statement. Detective Jones
asserted that during his entire two-year investigation,
neither Defendant nor anyone else, including Ms. McDonald,
ever said Defendant had acted in self-defense.
sole assigned error is that the evidence was insufficient to
convict him of second degree battery.
OF THE EVIDENCE
Court, in State v. Hickman, 2015-0817, p. 9 (La.App.
4 Cir. 5/16/16), 194 So.3d 1160, 1165-1166 (citation
omitted), discussed the standard for determining a claim of
insufficiency of evidence as follows:
When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the
standard enunciated in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this
standard, the appellate court "must determine that the
evidence, viewed in the light most favorable to the
prosecution, was sufficient to convince a rational trier of
fact that all of the elements of the crime had been proved
beyond a reasonable doubt." State v. Neal,
00-0674 (La.6/29/01) 796 So.2d 649, 657 (citing State
v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission
of the offense, La. R.S. 15:438 requires that "assuming
every fact to be proved that the evidence tends to prove, in
order to convict, it must exclude every reasonable hypothesis
of innocence." Neal, 796 So.2d at 657.
Ultimately, all evidence, both direct and circumstantial must
be sufficient under Jackson to prove guilt beyond a
reasonable doubt to a rational jury. Id. (citing
State v. Rosiere, 488 So.2d 965, 968 (La. 1986)).
rational triers of fact could disagree as to the
interpretation of the evidence, the rational trier's view
of all of the evidence most favorable to the prosecution must
be adopted." State v. Green, 588 So.2d 757, 758
(La.App. 4th Cir. 1991).
sustain a second-degree battery conviction, the State must
prove (1) the intentional use of force or violence upon the
person of another,  (2) without the consent of the victim, (3)
when the offender has the specific intent to inflict serious
bodily injury. La. R.S. 14:34.1; see also State v.
Landry, 2003-1671, p. 7 (La.App. 4 Cir. 3/31/04), 871
So.2d 1235, 1238. La. R.S. 14:34.1(B)(3) defines serious
bodily injury as "bodily injury which involves
unconsciousness, extreme physical pain or protracted and
obvious disfigurement, or protracted loss or impairment of
the function of a bodily member, organ, or mental faculty, or
a substantial risk of death." As employed in the
statute, 'extreme physical pain' references "a
condition which most people of common intelligence can
understand; the term is considered subjective in nature and
susceptible to interpretation." State v.
Legendre, 522 So.2d 1249, 1251 (La.App. 4th Cir. 1988),
quoting State v. Thompson, 399 So.2d 1161, 1168
argues that the jailhouse conversations with Mr. Arnold,
along with the testimony of Ms. Davis and Ms. McDonald, all
prove that Mr. Arnold was the sole perpetrator of any serious
bodily injury inflicted upon the victim. Defendant highlights
his proclamations of innocence during the jailhouse
conversations and Mr. Arnold's failure to explicitly
refute that Mr. Arnold was the sole perpetrator of the attack
on the victim. Defendant also cites to Ms. Davis'
testimony that Mr. Arnold was the only person who
participated in a fight with the victim. As to Ms. McDonald,
the State's lone eyewitness, Defendant argues Ms.
McDonald gave differing accounts as to whether he, along with
Mr. Arnold, intentionally struck and injured the victim;
however, he emphasizes that in her trial testimony, she
described his punch as a "glancing" blow that did
not inflict serious bodily injury. Defendant claims that
changes in Ms. McDonald's account of the battery
undermines her credibility and raises questions as to whether
she initially misidentified Defendant as an active
participant in ...