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State v. Washington

Court of Appeals of Louisiana, Third Circuit

June 5, 2019

STATE OF LOUISIANA
v.
GERRELL WASHINGTON

          APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2017-CR-200827-A HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

          Paula C. Marx Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Gerrell Washington

          Hon. Charles A. Riddle, III District Attorney Twelfth Judicial District Court Emily Edwards Bertholl Assistant District Attorney Post Office Box COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie, Judges.

          D. KENT SAVOIE JUDGE

         On June 14, 2017, Defendant, Gerrell Washington, was charged by bill of information with second degree battery, a violation of La.R.S. 14:34.1. By written motion filed on January 11, 2018, Defendant waived his right to a jury trial.[1] On July 19, 2018, Defendant was tried by bench trial on both the present charge, second degree battery, and a charge filed in a separate docket number, cruelty to persons with infirmities.[2] The trial court found Defendant guilty of both charges. The trial court ordered a Pre-Sentence Investigation (PSI) report and set sentencing.

         On September 17, 2018, the trial court sentenced Defendant on the second degree battery conviction to eight years in the Department of Corrections, to run concurrently with the sentence imposed for cruelty to persons with infirmities. On the cruelty to persons with infirmities conviction, the trial court imposed a sentence of ten years in the Department of Corrections, with all ten years to be served without benefit of parole, probation, or suspension of sentence. Defense counsel asserted an objection and subsequently filed a written Motion for Reconsideration, alleging the sentences imposed were excessive. The trial court set the Motion for Reconsideration for hearing on October 16, 2018. After hearing argument, the trial court denied the Motion for Reconsideration.

         Defendant's Motion and Order for Appeal was granted on September 24, 2018. For the following reasons that will be discussed, we affirm with instructions.

         FACTS

         On May 1, 2017, Defendant, a forty-three-year-old inmate, was working at the Bunkie Senior Center as part of a work release program. The victim, Ruddio Rico, age sixty-eight at the time of the incident, worked with his wife as a volunteer at the center. At trial, the victim explained that earlier that day his wife told him Defendant "cussed" at her and threatened her when she told him not to pressure wash near the cracks of the windows. According to the manager of the Bunkie Senior Center, she saw the victim walk up to Defendant and tell Defendant to never call his wife names again. The victim testified that he also told Defendant that if he ever had a conflict with his wife again, he would send Defendant back to jail. When the victim turned around and walked back to his truck, Defendant followed and asked what the victim was going to do about it. The victim turned around to face Defendant, and Defendant hit the victim in the face. The victim fell backward, and Defendant began "stumping" the victim's hands and kicking the victim in the back. Defendant stopped beating the victim when the manager yelled at Defendant to go inside. The manager estimated the attack lasted about five minutes.

         According to the manager, the victim was bleeding from his face, nose, eyes, and hand, leaving a pool of blood where he lay. The manager did not see any weapons on the victim and did not hear the victim make any threats to Defendant. When asked if the victim yelled during the attack, the manager replied, "No, I mean it just happened so fast, he just turned around and Gerrell hit him with his fist."

         The victim described the beating as follows:

A. He hit me right here in the eye.
Q. And you've indicated just for the record, your right eye?
A. Right eye, it's a prosthetic eye right now. And then hit me on the nose and then I have a cut on here right here. And then I fell to the ground unconscious he put his hand . . . or his foot over my left hand . . . . And he was smashing down on my hand with foot [sic] and he was kicking me in the back several times and he kicked me in the head several times.

         The victim also testified that he was 99% unconscious after he was hit. The victim described the pain he felt as being worse than his wound in Vietnam. The victim was transported by ambulance to Bunkie General Hospital, where he was then transported by helicopter to Shreveport. When asked to describe the victim when she saw him at the hospital, the victim's wife stated, "He was real bad off, he was bleeding from the eye and his hand and then he was . . . his eye was all bruised and it was horrible." The victim stayed at LSU Medical Center in Shreveport for about seven days.

         As a result of Defendant's attack, the victim lost his right eye and some teeth. The victim continues to suffer from blurred vision in his left eye, memory loss, and headaches. As a result of injuries to his left hand, the victim underwent two surgeries and still suffers from pain in his hand. The doctor in Shreveport initially tried to save the victim's right eye but a few days later decided it was best to remove it. The victim did not have facial reconstruction surgery since it would have interfered with other problems. After counsel noted the victim was currently walking with a cane, counsel asked if the victim walked with a cane on the day of the incident. The victim responded:

A. No.
Q. Is your reason for walking with a cane a direct result of the beating?
A. No [sic] a direct result with the beating because I had tremendous back surgery which you cannot return for sure sure [sic] if that indicated some of the cause.

         In his defense, Defendant presented the testimony of one officer regarding a voluntary statement he received from an eye-witness. The witness stated that he saw "a white male elderly man push Gerrell, Gerrell then punched him in the face, the police were then called." Additionally, the victim's wife testified that when she told her husband (the victim) about her run-in with Defendant, her husband said that it did not sound like Defendant. Defendant testified that on the day in question, he was having an issue with the victim's wife trying to supervise him. When Defendant discussed the issue with his real supervisor, the victim's wife got upset and left. Shortly thereafter, Defendant testified, the victim drove up, slammed his car door, walked up to Defendant, and pushed Defendant in the chest. The victim threatened to "plant" Defendant "in the ground" if he ever called his wife a "b-i-t-c-h" again. Defendant testified that the victim followed him and tried to grab his shirt. Defendant further testified that he automatically "went on defense" and hit the victim. Defendant denied jumping or "stumping" the victim.

         Defendant testified that he was approved for the work release program because of his "outstanding disciplinary jacket." According to Defendant, he had "no violence in [his] jacket" in almost twenty years of incarceration. On cross- examination, Defendant testified that he participated in the sport of boxing while in prison.

         After hearing the evidence presented, the trial court found Defendant guilty of both offenses, ruling as follows:

         BY THE COURT:

I thank you for your presentations of evidence here today. And really in two separate charges and I will address them separately.
Second Degree Battery is defined by Louisiana Revised Statute 14:34.1, second degree battery is a battery when the offender intentionally inflicts serious bodily injury. The evidence presented here today it is abundantly clear that the State met it's [sic] burden of proof the defendant is guilty as charged of second degree battery. The victim Mr. Ruddi Rico sustained very severe injuries to his left eye and lost the left eye, has a prosthetic eye today, severe damage to his right vision. He has damage to his face, damage to his nose and lots of bleeding, lots of pain, loss of teeth and has memory problems all as a result of the and as a consequence of the beating that was inflicted upon him by Gerrell Washington on May 1st, 2017.
This court has not considered if a defense to the charge that anybody exercised any authority over anybody, the series of events are most regrettable that occurred that day. Regrettable as they may be the consequence and the results that occurred are clear violations of the criminal statute for which there has been no defense shown in this courtroom here today.
Accordingly I find the defendant guilty as charged of Second Degree Battery based upon the events and testimony of the victim, Ms. Sherry Guillory and Officer Lee who all testified about the events that occurred that day.
As far as the next charge Cruelty to Persons with Infirmities, that statute and I'm just going to read the words that apply to today's case and it says '[c]ruelty to persons with infirmities under 93.3 of the criminal code is the intentional mistreatment by any person whereby unjustifiable pain is caused to a person who is aged.
Aged is defined in Section C as a person or individual 60 years of age or older. It is without doubt that the victim of this crime was 68 years old on May 1st, 2017.
The State has proven each and every element of this offense beyond a reasonable doubt as to each element charged in this crime, in both crimes, accordingly I find the defendant guilty as charged to both crimes by evidence beyond a reasonable doubt.

         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 one error patent involving the sentence imposed and one error patent as to the minutes of sentencing. The error patent involving the minutes of sentencing is assigned as error and will be addressed in Assignment of Error Number Two.

         At sentencing, the trial court stated the following regarding diminution of sentence:

The sentences imposed herein are not enhanced sentences as defined in our law. As required by Article 890.1 of the Code of Criminal Procedure, I hereby inform you that the crime of second degree battery to which you have been convicted is a crime of violence as defined by our law and the sentence is not subject to diminution for good behavior. Additionally, the crime of cruelty to persons with infirmities is not listed as a crime of violence in our law and the sentence on this charge is subject to diminution for good behavior.

         The trial court's statement appears to be a denial of diminution of sentence for the conviction of second degree battery. "[A] trial court lacks the authority to grant or deny good time. Except where otherwise provided by law, the provisions of LSA-R.S. 15:571.3(C) are directed to the Department of Corrections exclusively, and 'the sentencing judge has no . . . role in the matter of good time credit.'" State v. Braziel, 42, 668, p. 12 (La.App. 2 Cir. 10/24/07), 968 So.2d 853, 861 (citing State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661). Accordingly, Defendant's sentence for second degree battery shall be amended to delete the trial court's statement regarding diminution eligibility, and the trial court is instructed to make an entry in the minutes reflecting this amendment. See State v. Drummer, 17-790, p. 7 (La.App. 3 Cir. 6/6/18), 245 So.3d 93, 98, writ denied, 18-1139 (La. 2/11/19), 263 So.3d 413.

         ASSIGNMENT OF ...


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