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State v. Henry

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

STATE OF LOUISIANA
v.
DESMYNE JOSEPH HENRY

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 8159-17 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE.

          John Foster DeRosier Calcasieu Parish District Attorney Elizabeth Brooks Hollins Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Annette Fuller Roach Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Desmyne Joseph Henry

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Candyce G. Perret, Judges.

          D. KENT SAVOIE JUDGE.

         On April 11, 2017, Defendant, Desmyne Joseph Henry, was charged with one count of distribution of a Schedule 1 controlled dangerous substance (synthetic marijuana), a violation of La.R.S. 40:966(A)(1), and one count of introducing contraband into jail, a violation of La.R.S. 14:402(A). The second count was subsequently amended to charge a violation of La.R.S. 14:402(E) instead of La.R.S. 14:402(A). After a three-day trial, on October 12, 2017, a unanimous jury found Defendant guilty of one count of distribution of a Schedule I controlled dangerous substance (synthetic marijuana) and one count of possession or introduction of contraband in jail. Defendant filed a Motion for New Trial, which was denied by the trial court on October 27, 2017.

         On October 20, 2017, the State filed a habitual offender bill, alleging Defendant to be a fourth or subsequent felony offender. Thereafter, on January 5, 2018, the trial court adjudicated Defendant a fourth or subsequent felony offender and sentenced Defendant as a fourth habitual offender for distribution of a Schedule 1 controlled dangerous substance to life imprisonment without benefit of probation, parole, or suspension of sentence. The trial court ordered the sentence to run concurrently with any previously imposed sentences and with any other sentence. For possession or introduction of contraband in jail, the trial court sentenced Defendant to five years, to run concurrently with any other sentences. On February 8, 2018, Defendant filed a "Motion for Amendment, Modification or Reconsideration of Sentence," which was denied by the trial court on December 14, 2018.

         On March 21, 2018, Defendant filed a Motion for Appeal, which was granted by the trial court on June 11, 2018. Now before the court is a brief filed by Defendant alleging five assignments of error - two alleging insufficiency of the evidence as to both convictions; one alleging the trial court erroneously allowed the introduction of other crimes evidence; one alleging improper argument as to Defendant's failure to testify; and the final one alleging the mandatory life sentence was excessive in this case. For the reasons that follow, we affirm Defendant's convictions, vacate Defendant's sentences, and remand this matter with instructions.

         FACTS

         On March 3, 2017, Defendant was an inmate at Calcasieu Correctional Center. Defendant gave another inmate a tissue containing synthetic marijuana and instructed the inmate as to where to deliver the substance.

         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, we find there is an error patent concerning Defendant's habitual offender sentence for distribution of a controlled dangerous substance, Schedule I, and an error patent concerning his sentence for introduction of contraband into or upon the grounds of a state correctional institution.

         On October 22, 2019, the Louisiana Supreme Court rendered the following per curiam opinion in State v. Lyles, 19-203 (La. 10/22/19), ___ So.3d ___ (footnotes omitted), a case in which the issue was raised:

We granted the application to determine whether defendant's habitual offender status and sentence are governed by La.R.S. 15:529.1 as it existed at the time of the commission of the crime, as it was amended by 2017 La. Acts 282, or as it was amended by 2018 La. Acts 542. Finding Act 282 applies, we reverse the court of appeal, vacate the habitual offender adjudication and sentence, and remand with instructions to the district court for further proceedings.
On November 11, 2016, a St. John the Baptist Parish jury found defendant guilty of an aggravated battery, La.R.S. 14:34, he committed on February 1, 2015. On November 16, 2016, the State filed a habitual offender bill of information alleging two predicate offenses-a 1991 distribution of cocaine conviction and a 2004 manslaughter conviction. On February 13, 2017, the district court adjudicated defendant a third-felony offender and sentenced him to the life sentence mandated by La.R.S. 15:529.1(A)(3)(b) (effective August 15, 2010). The court of appeal vacated the habitual offender sentence and remanded for resentencing because of the trial court's failure to vacate the underlying aggravated battery sentence. State v. Lyles, 17-0405 (La.App. 5 Cir. 2/21/18), 239 So.3d 1055. After remand, the district court resentenced defendant on March 12, 2018, to the same term of imprisonment under the same provision of law. Defendant appealed.
On appeal, defendant contended that the Habitual Offender law, as amended by 2017 La. Acts 282, should be applied to him. Among other changes, this act reduced from ten to five years the time allowed-commonly known as the cleansing period-between expiration of correctional supervision for one offense and commission of the next offense on the habitual offender ladder. Defendant's probation for distribution of cocaine expired in 1996 and he did not commit manslaughter until 2003. Therefore, defendant contended he was a second-felony offender subject to a sentencing range of 3 1/3 to 20 years imprisonment under the amended law.
Defendant relied on Section 2 of Act 282, which provides, "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." The State, however, relied on a subsequent amendment to the Habitual Offender Law in 2018 La. Acts 542 to argue that the district court applied the correct version of the Habitual Offender Law (i.e., the one in effect when defendant committed the crime in 2015). According to the State, despite the language of Act 282, the legislature subsequently clarified its intent with Act 542, which added La.R.S. 15:529.1(K).
The court of appeal agreed with the State, and found the district court sentenced defendant under the correct version of the Habitual Offender Law:
Upon review, we rely on the well settled jurisprudence that the law in effect at the time of the offense is determinative of a defendant's punishment, including for habitual offender proceedings. [State v. Parker, 03-0924 (La. 4/14/04), 871 So.2d 317; State v. Sugasti, 01-3407 (La. 06/21/02), 820 So.2d 518; State v. Williams, 03-0571 (La.App. 5 Cir. 11/12/03), 862 So.2d 108.] Further, we find that by enacting subsection K, the legislature clarified its original intent that the date of commission of the underlying offense be used to determine the sentencing provision applicable to a habitual offender, except as otherwise explicitly provided in the statute. Therefore, after review, we find that the Habitual Offender Law in effect at the time of the commission of defendant's underlying offense of aggravated battery should be applied in determining defendant's habitual offender sentence, and the trial court did so correctly when imposing defendant's enhanced sentence of life imprisonment without benefits.
....
Accordingly, we find that the 2015 version of La. R.S. 15:529.1(A)(3)(b) is the sentencing provision applicable to defendant herein because his third felony (the aggravated battery conviction) and his predicate conviction of manslaughter are crimes of violence under La. R.S. 14:2(B)(5) and La. R.S. 14:2(B)(4), respectively. Additionally, defendant's 1991 conviction for distribution of cocaine in violation of La. R.S. 40:967(A) was a violation of the Uniform Controlled Dangerous Substance Law punishable by ten years of imprisonment or more. La. R.S. 40:967(B)(4). Under the habitual offender statute as it existed at the time of the commission of the underlying offense of aggravated battery, defendant was subject to an enhanced mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence. See La. R.S. 15:529.1(A)(3)(b). For the foregoing reasons, we find that the trial court correctly applied the Habitual Offender Law in effect in 2015 in sentencing defendant.
State v. Lyles, 18-0283, pp. 9-10 (La.App. 5 Cir. 12/27/18), 263 So.3d 930, 938-939.
The question presented is one of statutory interpretation, which begins "as [it] must, with the language of the statute." Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). "Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning." State v. Oliphant, 12-1176, p. 5 (La. 3/19/13), 113 So.3d 165, 168; see also Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("In any event, canons of construction are no more than rules of thumb to help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' ") (citations omitted).
As noted above, the relevant portion of Act 282 provides: "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." 2017 La. Acts 282, § 2. By contrast, Act 542 added new Subsection (K) to R.S. 15:529.1:
K. (1) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed.
(2) The provisions of Subsection C of this Section as amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the amount of time that must elapse between the current and prior offense for the provisions of this Section to apply, shall apply to any bill of information filed pursuant to the provisions of this Section on or after November 1, 2017, accusing the person of a previous conviction.
2018 La. Acts 542, § 1 (effective August 1, 2018).
We note at the outset, from the plain language of these provisions in conjunction with the effective dates of the acts, the legislature appears to have created three categories of persons potentially affected by these provisions:
1. There are persons-like the present defendant-whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed before that date. Those defendants would be eligible to receive the benefits of all ameliorative changes made by Act 282.
2. There are persons whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed between that date and August 1, 2018 (the effective date of Act 542). Those persons would be eligible to receive the benefit of the reduced cleansing period, and they may also have colorable claims to the other ameliorative changes provided in Act 282, although we need not decide that question today.
3. Finally, there are persons whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed on or after August 1, 2018. They would receive the reduced cleansing period by operation of Subsection K(2) added by Act 542 but their sentences would be calculated with references to the penalties in effect of the date of commission in accordance with Subsection K(2) added by Act 542.
The State urges, and the court of appeal found, essentially, that the legislature intended what it wrote in Act 542 but did not intend what it wrote in Act 282, and therefore Act 542 should be applied because it "clarifies" Act 282. However, the language indicating that Act 282 "shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017" is quite clear. Therefore, we must presume the legislature meant what it said, and the judicial inquiry ends there.
The State, however, attempts to breathe ambiguity into this language by questioning when a conviction becomes final. That question is readily answered by Code of Criminal Procedures articles 914 and 922, and the State's desire that finality be determined differently for purposes of the Habitual Offender Law than in other contexts does not suffice to introduce ambiguity into the clear language the legislature chose.
We find that 2017 La. Acts 282, § 2, which provides that Act 282 "shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017" is unequivocal, and therefore not subject to further judicial construction. For persons like defendant, whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed before that date, the full provisions of Act 282 apply. Accordingly, we find defendant was adjudicated and sentenced pursuant to the wrong version of the Habitual Offender Law. We reverse the court of appeal, vacate the habitual offender adjudication and sentence, and remand for further proceedings. On remand, the district court is directed to apply the version of the Habitual Offender Law, La.R.S. 15:529.1, as it was amended by 2017 La. Acts. 282, and before its amendment by 2018 La. Acts 542.

         Defendant falls within the first category discussed above because his conviction is not yet final, and his habitual offender bill was filed October 20, 2017. It is clear the trial court sentenced Defendant under La.R.S. 15:529 (A)(4)(b) which required a mandatory life sentence without benefit of parole, probation, or suspension of sentence. The trial court sentenced Defendant under the pre-Act 282 version of the habitual offender statute. In accordance with Lyles, Defendant was eligible to receive the benefits of the ameliorative changes made by Act 282. Accordingly, Defendant's habitual offender sentence is vacated, and the case is remanded for resentencing.

         Next, Defendant received an indeterminate sentence for his conviction of introduction of contraband into or upon the grounds of a state correctional institution. Although the court minutes and the commitment order reflect that the sentence was ordered to be served in the Louisiana Department of Corrections, the sentencing transcript does not so indicate. Louisiana Revised Statutes 14:402 requires imposition of a sentence of up to five years with or without hard labor. The trial court's failure to indicate whether the sentence is to be served with or without hard labor rendered it indeterminate. Therefore, the sentence is vacated, and this matter remanded for resentencing, with the trial court instructed to specify whether the sentence is to be served with or without hard labor. State v. Ervin, 17-18 (La.App. 3 Cir. 12/13/17), 258 So.3d 677.

         ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

         In assignments of error numbers one and two, Defendant argues that the evidence was insufficient to convict him on both counts. The crux of Defendant's argument is that the State failed to negate the reasonable probability that Defendant was misidentified as the perpetrator of both offenses. In assignment of error number three, Defendant challenges the admission of other crimes evidence introduced at trial. When the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The rationale is that when the entirety of the evidence is insufficient to support Defendant's conviction, Defendant must be discharged as to that crime, and any other issues become moot. State v. Hearold, 603 So.2d 731 (La.1992). Accordingly, we will address the sufficiency of the evidence first.

         The standard of review in a case of identification is well-established:

"In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . [T]he 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. Captville, 448 So.2d 676, 678 (La.1984). Furthermore, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La. 4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La. 4/11/00), 776 So.2d 1134, 1147.

State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (alteration in original).

         Evidence at Trial

         The first witness to testify at trial was Jered Bellar, a corrections officer involved in the incident at issue. On March 3, 2017, Officer Bellar was supervising two trustees as they served "chow" to each of the inmates in each dorm. One of the trustees, Officer Bellar testified, was Tyrese Andrews. According to Officer Bellar, Mr. Andrews was patted down as usual before he began serving chow. When asked if anything extra was found on Mr. Andrews, Officer Bellar replied, "No, sir." Officer Bellar then testified as follows regarding the events that ensued:

A. Well, after we pat them down, we go to - - at the time I was working at B-Pod. We were in - - we'd go to B-1; we start usually B-1 and then go around to B-8. Well, we go to B-1; we start serving, and Mr. [Andrews] grabs a handful of those forks they use to eat, goes inside the dorm and starts handing them out to everybody, which normally we don't usually see anything wrong with that because a lot of the trustees want to get the job done. So I figured at the time he was just wanting to get the job done. So I didn't think anything of it.
Well, he stopped and talked to Mr. Henry and - -
Q. You say "Mr. Henry." Who is Mr. Henry?
A. Desmyne Henry.
Q. Do you see him in the courtroom today?
A. Yes, he's right here.
Q. Okay. Would you please point him out for the record and state what he's wearing.
A. He's right there. He's wearing a white T-shirt and black tie - - or a white polo shirt and black tie.
MR. MURRAY: Judge, let the record reflect he's identified the defendant sitting at counsel table.
THE COURT: All right.
BY MR. MURRAY:
Q. All right. So you saw him start talking with Mr. Henry?
A. Yes.
Q. Okay. And continue, please.
A. I saw him talking to Mr. Henry, and I knew they knew each other. They'd talk every now and then or every time he comes to serve. Well, at the time I noticed Desmyne motion something, kind of give like a little hug to him. And when he walks out of the - - and he stopped serving - - he stopped giving his forks out. When he walked back out, I noticed he had a piece of paper sticking out of his pocket. And I asked Mr. Andrews, I'm, like, I asked him, like, "What's that in your pocket?" He goes - - he looks down. He says, "It's nothing." I'm like, "Okay. It wasn't there awhile ago, so I need to know what it is."
So I take it, I open it up, and it had this substance of - - it looked green and brown to me, like green, brown leafy substance.
Q. Okay.
A. And I shut the door, and I asked Andrews what - - "Where did you get this?" and he didn't say anything.

         Officer Bellar testified that when confronted, Defendant denied giving the substance to Mr. Andrews.

         Officer Bellar reiterated that Mr. Andrews did not have anything extra on him when he began serving chow and stated that Mr. Andrews did not come into contact with anyone else after he met with Defendant:

Q. Okay. So Desmyne Henry then was the only person that he had gotten that close to, and it was after that embrace that you had seen something - -
A. Yes.
Q. - - extra on his person?
A. That's correct.

         Finally, Officer Bellar testified that he was told to write up Defendant for passing a green and brown plant-like substance to another inmate.

         On cross-examination, defense counsel asked if Officer Bellar had any knowledge as to whether Mr. Andrews had been searched prior to coming into Officer Bellar's presence on the day in question. Officer Bellar replied:

A. As long as I've worked there, the supervisor who's in charge of A-Pod where Andrews is located, or was located at the time, he was always real strict about getting that done. So I fully, 100 percent, believe he was searched prior to coming to B-Pod.
Q. But you don't have personal knowledge regarding that, do you?
A. Personal knowledge? Like I said, as long as I've worked there, - - and it was for two years I've worked there - - and they've never not searched anyone.
Q. Okay. Never not searched anyone? How do you know that?
A. Because I've worked A-Pod before, and we were always told to search them, and we always have searched them.
Q. I don't want to belabor this, but as a matter of literal fact, you don't have personal knowledge whether or not he was searched prior to this? Personal knowledge?
A. As a matter of literal fact, I do not.

         According to Officer Bellar, Mr. Andrews came into physical proximity of Defendant about fifteen minutes after Mr. Andrews arrived at the pod. When asked how many people Mr. Andrews interacted with prior to interacting with Defendant, Officer Bellar answered:

A. I don't know the exact number, but as I was watching him, he was just walking by, handing his forks out, and then he went and talked to Mr. Henry.
Q. He came into close physical proximity to several different prisoners, though, prior to being close to Mr. Henry, correct?
A. Not close - - not as close as he got with Henry.
Q. Agree. Not as close but close physical proximity with several different prisoners, is that correct?
A. Within - - within a few inches, yes.

         When asked to describe the interaction between Mr. Andrews and Defendant, Officer Bellar replied:

A. Andrews walked to Henry, and Henry came and met him about halfway.
Q. All right. And you're saying that on direct examination, I believe, that Mr. Henry hugged Mr. Andrews?
A. In a manner of speaking. It was more of embrace, like, as if two really good friends would; but in a manner of speaking, yes, a hug.

         Officer Bellar estimated that he was about seven or eight feet away from Mr. Andrews and Defendant. When asked if he personally witnessed Defendant give something to Mr. Andrews, Officer Bellar replied:

A. What I saw was them embracing each other, and then Andrews walking back with a piece of paper in his pocket. That's what I witnessed.

         Officer Bellar acknowledged that he did not "necessarily see [Defendant's] hands because Andrews' body was blocking his hands." When asked if he watched Mr. Andrews' every move, Officer Bellar responded:

A. I mean, I was watching his every move like we're supposed to.
Q. You were watching Mr. Andrews' every move?
A. Yes.
Q. And you weren't watching anybody else?
A. I have - - I can see them out of my peripheral vision. I wouldn't go back and forth to each inmate, but I saw mostly him, because when a trustee goes into a dorm, we mostly concentrate our attention on them.
Q. Okay. I understand that, but you're saying - - you are acknowledging that your attention was not fixed on Mr. Andrews the whole time he handed out every spork. You may have noticed movement in your peripheral vision, ...

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