FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 8159-17 HONORABLE DAVID ALEXANDER RITCHIE,
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
composed of Elizabeth A. Pickett, D. Kent Savoie, and Candyce
G. Perret, Judges.
KENT SAVOIE JUDGE.
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.
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.
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.
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.
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
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.
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.
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
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
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
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
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
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.
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.
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.
OF ERROR NUMBERS ONE AND TWO
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.
standard of review in a case of identification is
"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).
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?
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
A. And I shut the door, and I asked Andrews what - -
"Where did you get this?" and he didn't say
Bellar testified that when confronted, Defendant denied
giving the substance to Mr. Andrews.
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 - -
Q. - - extra on his person?
A. That's correct.
Officer Bellar testified that he was told to write up
Defendant for passing a green and brown plant-like substance
to another inmate.
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,
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.
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
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,
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.
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
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.
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
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.
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
Q. You were watching Mr. Andrews' every move?
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, ...