NOT DESIGNATED FOR PUBLICATION
The defendant, Timothy Lee Elliot, was charged by bill of information with simple criminal damage to property where the damage amounts to five hundred dollars but less than fifty thousand dollars, a violation of La. R.S. 14:56(A)(1).
The defendant was an inmate at the Terrebonne Parish Jail in Ashland. On December 14, 2015, the defendant had been moved temporarily to cell 106. The defendant was locked in this cell, but the food and service hatch on the cell door was open. An inmate outside of the cell exchanged words with the defendant and closed the hatch on the door. Angered, the defendant stood on the back of the toilet in his cell, reached toward the ceiling, and pulled out the speaker and its wiring from the ceiling. The defendant then used a speaker or speaker cover to strike the cell door window several times, causing a large fracture in the window. Much of the defendant's actions in the cell were captured by the jail's video camera system.
The defendant testified at trial. He denied pulling the speaker from the ceiling. He stated that when he entered the cell, the speaker had already been pulled out and the speaker parts had been placed under the bunk. The defendant admitted that he struck the window on the cell door, but denied having the intent to break it.
COUNSELED ASSIGNMENT OF ERROR NO. 1
In his first counseled assignment of error, the defendant maintains the bill of information is fatally defective and presents an error patent on the face of the record.
The bill of information herein provides: "In violation of La R.S. 14:56.B.(2), Timothy Lee Elliot, on or about December 14, 2015, did intentionally damage any property of another, without the consent of the owner, Terrebonne Parish Consolidated Government wherein the damage amounts to five hundred dollars or more but less than $50,000.00."
The short-form indictment under La. C.Cr.P. art. 465(A)(19) provides the following: "Simple Criminal Damage to Property—A.B. committed simple criminal damage to ____ (state the property damaged) with the damage amounting to ____ dollars."
The defendant urges that the bill of information filed against him did not utilize this statutorily authorized form. That is, according to the defendant, the bill of information did not allege the item that was damaged or the amount of damage to the item.
The Louisiana Constitution of 1974 provides that an accused shall be informed of the nature and cause of the accusation against him. La. Const. art. I, § 13. La. C.Cr.P. art. 464 provides:
Article 465, however, authorizes the use of specific short-form indictments in charging certain offenses. The constitutionality of the short forms has been consistently upheld by the Louisiana Supreme Court.
The time for testing the sufficiency of a bill of information is before trial with a motion to quash.
This counseled assignment of error is without merit.
COUNSELED ASSIGNMENT OF ERROR NO. 2
In his second counseled assignment of error, the defendant asserts that the evidence was insufficient to support the conviction. Specifically, the defendant contends the State did not prove the value of damage.
A conviction based on insufficient evidence cannot stand as it violates Due Process.
At the time of the offense, La. R.S. 14:56 provided in pertinent part:
The crime of simple criminal damage to property requires only general criminal intent.
The defendant herein concedes that it was within the jury's discretion to determine whether the speaker was broken when he was placed in the cell; and further that it was within the jury's discretion to infer that he intended to break the glass. With regard to the value of the items broken, however, the defendant contends the evidence was legally insufficient.
Testimony at trial established that the cost of the replacement glass for the cell door was $333.60.
Testimonial and video evidence established that the defendant caused major damage to an otherwise undamaged window on his cell door. The video of the incident revealed the following. The defendant was in his cell, the door closed and locked. The hatch on the defendant's cell door was open. Another inmate approached the defendant from outside, and they exchanged words. That inmate then closed the defendant's hatch. This caused the defendant to become animated and climbed on the back of the toilet, where he could be seen reaching for the ceiling. The defendant then climbed down from the toilet. Moments later, the defendant threw an object several times at the cell door window. Next, he held the object in his hand and beat on the window several times. He hit the window a total of twelve times during which the window broke and fractured.
Deputy Johnny Ivy, Jr., a corrections facility officer with the Terrebonne Parish Sheriff's Office, provided a similar recounting of the incident. Deputy Ivy was supervising the inmates in "Charlie" pod. The defendant had been placed alone in cell 106 about an hour earlier. Deputy Ivy explained that "Charlie 100" was a lockdown dorm in which the defendant's cell was located. This meant the inmates were kept in their cells twenty-three hours a day, and let out for one hour for a hygiene break. Only one inmate was allowed out of his cell at a time. According to his testimony, Deputy Ivy had given the defendant a hygiene break, and then locked him back in his cell. Frank Fowler, an inmate who was out of his cell, exchanged words with the defendant and then slammed closed the defendant's hatch hole. The defendant became enraged, "yelling and screaming." The defendant moved out of Deputy Ivy's view, but when the deputy saw the defendant again, the defendant had begun smashing the window of his cell door. Deputy Ivy notified his supervisor, and the defendant was placed in a restraint chair.
The defendant testified on cross-examination that he hit the window, but that it was already cracked. While the cell window was at some distance on a less-than-clear video, there were no apparent cracks or defects in the window before the defendant hit it. Regardless of any minor or minute imperfections that may have been present on the window, it was the defendant who banged on the glass until he broke it, causing a large, cracked, starburst pattern in the window.
Regarding the speaker, according to the defendant, the speaker and speaker parts were underneath his bunk when he got in his cell. According to Deputy Ivy, Captain Mitchell Dupre, the Assistant Warden at the Terrebonne Parish Criminal Justice Complex, and Lieutenant Rodrigue, with the Terrebonne Parish Sheriff's Office who also worked at the jail, each cell had a two-way speaker in the ceiling. The corrections officers used these speakers to communicate with the inmates in their cells. After the defendant broke the cell window and was removed from the cell, Lieutenant Rodrigue reviewed the video of the incident. Lieutenant Rodrigue indicated he observed the defendant become upset after his hatch hole was shut; the defendant then climbed on the toilet and it appeared that he pulled down the intercom system. Thereafter, the lieutenant testified, the defendant began beating the glass with it. Lieutenant Rodrigue stated that he went inside the defendant's cell and "looked up and the speaker was gone." The lieutenant further explained, "He hid all of the pieces in the cell. So, we searched his cell and we found pieces of the speaker everywhere inside the cell." Lieutenant Rodrigue indicated that the speaker was not broken before the incident. He also testified that the defendant could reach the ceiling with ease by standing on the toilet.
The defendant did not just break the speaker when he pulled it from the ceiling, but he damaged the entire speaker system across two cell blocks because he pulled out the wires from the ceiling, as well. Captain Dupre explained that because of the size of the repair job, the jail's maintenance department could not fix it. Instead, the jail had to contract the job out with the company who had installed the speaker system, R&S Corporation, which provided a repair cost estimate of $1,925.00. According to Junius Portier, the maintenance supervisor at the Terrebonne Parish Jail, the speaker wires might be 200 feet to 300 feet long. Portier also testified that for R&S Corporation to come to the jail to give an estimate cost $400.00 or $500.00. In describing the extent of the damage, the following exchange took place with Captain Dupre on direct examination:
Aside from the extensive damage the defendant caused to the speaker system, there was conflicting testimony over whether the speaker actually worked prior to having been torn from the ceiling. According to Deputy Ivy, as far as he knew, the speaker was operational at the time of the incident. Deputy Ivy further indicated that in the records he had checked, from October to December of 2015, there had never been a request or a maintenance issue with any speakers in C-100. According to Lieutenant Rodrigue, each cell had an operable speaker, and the pod officer tested the speakers every day. Lieutenant Rodrigue further testified that he had moved the defendant to cell 106 about one hour before the incident, and that the speaker was working.
On the other hand, Leray Vito, an inmate at the same jail as the defendant who testified for the defense, indicated that none of the speakers worked, except the one in cell 7 (107), which was Kyle Cedotal's cell. Mr. Cedotal testified that the speakers in the cellblock (C-100) did not work, except for his in cell 107.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt.
When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt.
After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of simple criminal damage to property, where the damage amounted to five hundred dollars but less than fifty thousand dollars.
This counseled assignment of error is without merit.
COUNSELED ASSIGNMENT OF ERROR NO. 3
In his third counseled assignment of error, the defendant contends the trial court erred in denying his initial request for a competency evaluation.
During voir dire, defense counsel made an oral motion for a sanity commission. The defendant's attorney informed the trial court that in the last hour or two he had a conversation with Shirley Elliot, the defendant's mother, who informed counsel of information of which he had not been aware. The defense attorney indicated that Ms. Elliot told him some things which led him to believe that defendant had some serious mental health issues. The trial court granted an oral motion for a sanity commission hearing, allowed Ms. Elliot to testify, and thereafter denied the requested relief.
According to the defendant, Ms. Elliot's testimony established that the defendant had been battling mental health issues since he was a teenager, and that he had been diagnosed with "several, seriously debilitating mental conditions." The defendant asserts that the trial court's ruling was an abuse of discretion because there was no factual basis for it, and it foreclosed the jury's determination of whether he had the ability to form the requisite intent to commit the crime. We disagree.
La. C.Cr.P. art. 642 provides:
The proper legal standard for determining whether a criminal defendant is competent to stand trial was set forth, in pertinent part, in
At the hearing conducted during a voir dire break, Ms. Elliot indicated her son had been evaluated when he was a teenager in school. The school, according to Ms. Elliot, said the defendant was emotionally disturbed. Because a psychiatrist that the defendant saw recommended a "lock-up type unit," they went to the Devereux Foundation in Texas, where the defendant stayed for over a year. Ms. Elliot testified that her son also had been to DePaul's in New Orleans, because a judge in Houma had sent him there. And Ms. Elliot recalled that the defendant had gone to "Mental Health in Lafourche Parish" and seen "somebody there a couple of times."
On cross-examination, the State elicited from Ms. Elliot that the defendant was forty-seven years old at the time of trial, and that the issues the defendant had were all when he was a minor. Since his stay at DePaul's, the defendant had not been placed in a mental health facility, and he had never been committed by the Coroner's Office for a "3-day visit." The State then reviewed the defendant's extensive criminal history with Ms. Elliot. She either did not or could not remember if she had ever spoken with any of the defendant's attorneys about mental issues he had. According to Ms. Elliot, the defendant had been diagnosed with border-line personality disorder and with being "emotionally disturbed." She did not know what type of medication the defendant was taking, or if he was taking any medication.
In ruling on the motion, the trial court stated the following:
We find no reason to disturb the trial court's ruling. A mental examination of a defendant is required only when there are reasonable grounds to doubt the defendant's mental capacity to proceed.
The defendant was convicted of the instant crime on March 30, 2016, and on February 15, 2017, he was before the trial court for a habitual offender hearing. At this time, the defendant's new defense counsel noted that he had filed a motion for sanity commission on November 3, 2016. The motion alleged that on August 24, 2016, the defendant attempted to commit suicide at the Terrebonne Parish Criminal Justice Complex. According to the motion, the defendant cut himself with a razor, and was placed on suicide watch. The trial court granted the motion and appointed a sanity commission to evaluate the defendant.
The defendant asserts that the trial court stated it would confine the evaluation to a determination regarding present sanity. On August 17, 2017, when the trial court took up the matter, according to the defendant's appellate brief, he was found competent to proceed but that the trial court failed to address the issue of his "competency at the time of the offense." Therefore, according to the defendant, the trial court failed to address its erroneous ruling insofar as the defendant's capacity to distinguish right from wrong at the time of the offense. The defendant contends that the trial court, therefore, erred by failing to order an earlier evaluation of him.
The defendant is incorrect in his assertion that the trial court confined the evaluation to determine sanity. It had been almost one year since the defendant's trial and instant conviction when the trial court appointed a sanity commission. As such, the defendant's sanity at the time of the crime was not an issue before the trial court at the habitual offender hearing. Rather, the issue before the trial court was whether the defendant was competent to assist counsel at the habitual offender/sentencing hearing.
At the August 17, 2017 habitual offender hearing, the trial court noted that he was in receipt of the reports from the two doctors who had examined the defendant. The trial court informed counsel that the doctors had found that the defendant could assist his attorney and that he was competent to proceed. Accordingly, trial court ruled, "Based on the opinions of both of the doctors, the Court finds that [the defendant] can assist his attorney, and this matter can proceed forward." Thereafter, the habitual offender hearing was conducted; the defendant was adjudicated a sixth-felony habitual offender and sentenced.
Based on the foregoing, we find no abuse of discretion in the trial court's grant of the motion for a sanity commission to determine the defendant's competence to assist at his habitual offender adjudication and sentencing.
This counseled assignment of error is without merit.
COUNSELED ASSIGNMENT OF ERROR NO. 4
In his fourth counseled assignment of error, the defendant argues his sentence is excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive.
The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Artcile 894.1.
With a sentencing exposure of twenty years to life imprisonment, the defendant was sentenced to forty years at hard labor without benefit of probation or suspension of sentence. The defendant suggests that his sentence is excessive because all but his previous conviction of battery of a correctional facility employee, which occurred more than sixteen years before the instant offense, were non-violent offenses. Further, according to the defendant, this simple criminal damage offense, which consisted of his breaking glass and a speaker in his cell, occurred only after he was provoked by a fellow inmate who closed the hatch hole to his cell, "causing him grave distress."
We find no abuse of discretion by the trial court. In denying the defendant's motion to reconsider sentence, the trial court noted in pertinent part:
While the classification of a defendant's instant or prior offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders.
Accordingly, the forty-year sentence is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive.
This counseled assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related pro se assignments of error, the defendant claims he was sentenced under the wrong habitual offender provision because none of his prior convictions was a crime of violence.
According to the defendant, battery of a correctional facility employee is not a crime of violence because it is not listed as such in La R.S. 14:2(B). Further, since his conviction would not be final until after November 1, 2017, he should have been sentenced under the amended version of La. R.S. 15:529.1(A)(4)(b), which provides:
For simple criminal damage to property (where damage amounts to five hundred dollars but less than fifty thousand dollars), the offender shall be imprisoned for not more than two years.
The defendant's assertions are baseless. At the habitual offender hearing, defense counsel suggested that none of the defendant's prior convictions were crimes of violence; and that battery of a correctional facility employee was not listed under La. R.S. 14:2 as a crime of violence. The prosecutor disagreed, arguing that the list of crimes in La. R.S. 14:2 is illustrative, and that by the very nature of the crime of battery of a correctional facility employee, it was a crime of violence. The trial court stated it was of the opinion that the defendant had never been convicted of a crime of violence and, accordingly, sentenced the defendant to twenty years imprisonment at hard labor, pursuant to La. R.S. 15:529.1(A)(4)(a). The trial court further noted that whether the defendant was sentenced under the law at that time (August of 2017) or under the new law,
The State objected to the twenty-year enhanced sentence and filed a motion to reconsider sentence. At the hearing on this matter, the trial court noted that in
Based on the foregoing, we find no error in the trial court rulings. Battery of a correctional facility employee is a crime of violence and, as such, La. R.S. 15:529(A)(4)(a) (either version), rather than the amended version of La. R.S. 15:529(A)(4)(b), was the correct provision under which to sentence the defendant.
These pro se assignments of error are without merit.
For these reasons, we affirm the trial court's conviction, habitual offender adjudication, and sentence.
WELCH, J. concurring in part and dissenting in part.
While I agree with the majority opinion that the issue of whether the bill of information was fatally defective is not properly before us, that the evidence was sufficient to support the conviction, and that the trial court did not abuse its discretion with respect to the request for a competency evaluation, I disagree with the majority's conclusion as to the excessiveness of the defendant's sentence for the reasons set forth in my dissent in