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State v. Belvin

Court of Appeals of Louisiana, Fourth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
TERRELL M. BELVIN STATE OF LOUISIANA
v.
TERRELL BELVIN

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-617, SECTION "J" Honorable Darryl A. Derbigny, Judge

          Leon 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 LOUISIANA.

          Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANT/RESPONDENT

          Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown

          PAULA A. BROWN, JUDGE

         Defendant, 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[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 this opinion.

         PROCEDURAL HISTORY

         On 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[2] 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.[3]

         After the district court found probable cause only as to the second degree battery charge, [4] 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.

         The 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).[5]

         Defendant 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.

         The 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 of review.

         ERRORS PATENT

         This 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.

         FACTS

         On 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 life.

         At 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.

         On 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 battery.

         Thomas 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.

         On cross-examination, Detective Perez acknowledged that he did not record or take written notes from his interview with Ms. McDonald.

         Brian 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.[6] 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 occurred.

         Dr. 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.

         Mrs. 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."

         Jim 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.[7] 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 do that."

         Ms. 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.

         Ms. 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 offense.

         On 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.

         On 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.

         Detective 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.

         Detective 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.

         Tameka 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.

         On 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.

         The 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.

         Detective 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.

         DISCUSSION

         Defendant's sole assigned error is that the evidence was insufficient to convict him of second degree battery.

         SUFFICIENCY OF THE EVIDENCE

         This 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, [20]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)).

         "If 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).

         To sustain a second-degree battery conviction, the State must prove (1) the intentional use of force or violence upon the person of another, [8] (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 (La.1981).

         Defendant 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 ...


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