State v. Babineaux

• Court: Court of Appeal of Louisiana
• Writing for the Court: Susan M. Chehardy
• Citation: State v. Babineaux, 8 So.3d 621 (La. App. 2009)
• Decision Date: 13 January 2009
• Docket Number: No. 08-KA-705.,08-KA-705.
• Parties: STATE of Louisiana v. Jerry BABINEAUX, Jr.

8 So.3d 621

STATE of Louisiana v. Jerry BABINEAUX, Jr.

No. 08-KA-705.

Court of Appeal of Louisiana, Fifth Circuit.

January 13, 2009.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, The State of Louisiana.

Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Jerry Babineaux, Jr.

Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

SUSAN M. CHEHARDY, Judge.

On July 6, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jerry Babineaux, Jr., with manslaughter, a violation of La. R.S. 14:31. The next day, defendant pled not guilty at his arraignment. After a hearing, the trial judge denied defendant's pre-trial motions, including his motion to suppress statements.

On March 2, 2007, after a three-day trial, the twelve-person jury found defendant guilty of negligent homicide, a responsive verdict to manslaughter. On April 17, 2007, the trial court sentenced defendant to imprisonment at hard labor for five years.

That same day, the State filed a multiple bill alleging defendant was a fourth felony offender, and defendant stipulated to his identity but denied the remaining allegations of the bill. After a hearing, the trial court found that defendant was a fourth felony offender. On April 23, 2007, the trial court vacated the original sentence and, pursuant to La. R.S. 15:529.1, imposed an enhanced sentence of 20 years at hard labor, to run concurrently with any other sentence he was currently serving.

On April 10, 2008, defendant filed an untimely motion to reconsider sentence under State v. Dorthey, 623 So.2d 1276 (La. 1993). On May 1, 2008, the trial court heard and denied that motion. On May 2, 2008, defendant filed a motion for appeal that was granted.

Initially, we must address the question of timeliness. La.C.Cr.P. art. 914 provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.

B. The motion for an appeal must be made no later than:

(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.

(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

La.C.Cr.P. art. 881.1 provides that a defendant may make or file a motion to reconsider sentence within 30 days following the imposition of sentence or within such longer period as the trial court may set at sentence.

In State v. Jupiter, 05-869 (La.App. 5 Cir. 2/3/06), 922 So.2d 1245, this Court found that defendant's motions to reconsider sentence and appeal were untimely. Further, even though the trial court had granted an appeal, this Court dismissed the appeal and remanded it to the district court to allow defendant the opportunity to seek reinstatement of his appeal rights by application for post-conviction relief. Id., 922 So.2d at 1247.

However, in two recent Louisiana Supreme Court cases, State v. S.J.I., 06-2649 (La.6/22/07), 959 So.2d 483 and State v. Shay, 07-0624 (La.10/26/07), 966 So.2d 562, the supreme court vacated similar judgments of the courts of appeal. In both, the supreme court remanded the case to the court of appeal to address the merits of relators' assignments of error. The supreme court noted that the trial courts had granted relators' pro se motions for appeal and appointed appellate counsel and the State had not complained of any procedural irregularities in the out-of-time appeal. Dismissing the appeal and remanding to the district court, the court reasoned, would only prolong the delay, without serving any useful purpose.

Because the procedural history and facts in our case are the same as the history and facts in S.J.I. and Shay, we will address the merits of defendant's assignments of error to avoid further useless delay.

Facts

On the night of April 30, 2006, Jerry Babineaux, who is also known as "Jay," made a telephone call to arrange to purchase illegal narcotics. After he ended the call, Babineaux and his friend, Darryl Reid, also known as "Rebow," left the house on bicycles. Several hours later, Babineaux and Reid went to play pool at the Mona Lisa Lounge on Laroussini Street in Westwego. However, when they arrived, the lounge was closed.

At that point, Babineaux asked Reid to repay money Reid had previously borrowed from Babineaux, but Reid refused. Reid kicked and damaged the bicycle that Babineaux had been riding. When Babineaux tried to grab Reid's arm, Reid attempted to punch Babineaux. A fist fight ensued. Babineaux admitted hitting Reid in the face at least two or three times during the altercation. As the physical altercation escalated, Reid pulled out a knife¹ and chased Babineaux around a truck parked in the Mona Lisa's parking lot.

Babineaux grabbed a wooden board from the bed of the truck and told Reid, "Stop. Leave it alone. I had enough." Reid, however, continued coming at Babineaux with the knife. When Babineaux swung the board in an attempt to knock the knife out of Reid's hand, he struck Reid in the side with the board.

After Babineaux struck Reid in the side, Reid said, "All right, Jay. All right . . ." and began walking down 10^th Street towards Avenue C. Babineaux started to follow, about a block behind Reid. As they walked, Babineaux asked Reid again for money to buy beer and cigarettes, but Reid again put him off until the next day. While they were walking, Reid fell down in the middle of the street and did not move. When Babineaux approached Reid, Reid stated that he was fine and cursed at defendant. Babineaux, who was still carrying the wooden board, started home.

On his way home, Babineaux saw Robert Dominique in front of his house at Avenue D and 10^th Street. Babineaux threw the board down behind Dominique's house and went home. When Babineaux arrived at her apartment, he told his live-in girlfriend, Shantelle Blanda, that he was going to jail that night because he had "knocked the f*ck out of [Reid]."

Blanda decided to check on Reid herself. Blanda stated that she needed a beer before she checked on Reid so, on the way to check on Reid, she and Babineaux walked to the Shell station near her apartment. According to Blanda, while they were walking, Babineaux admitted that he hit Reid with the board because he did not get a share of "crack cocaine" from Reid's transaction.

In the meantime, at approximately 12:30 to 12:45 a.m., William Bellanger reported a man lying semi-conscious on the ground near the corner of 10th Street and Avenue C. He told the 911 operator that he had seen another man walk away from the scene while holding something in his hand like a stick or a bat. At approximately 12:40 to 1:00 a.m., Officer Kelly Carrigan arrived and found Reid lying flat on his back in the street near the corner of 10^th Street and Avenue C.

When Officer Carrigan approached Reid, he heard a gurgling sound coming from Reid's mouth and observed that Reid was bleeding from his ears, eyes, and nose. Officer Carrigan also observed that Reid was grasping a knife in his right hand, which Officer Carrigan removed for his safety. As Reid was lying there, he told a second policeman, Officer Terry Braun, that he was having trouble breathing. Reid was immediately transported by ambulance to a trauma center; unfortunately, despite the medical team's best efforts, Reid died.

At approximately 1:00 a.m., Officer Bruce Chauvet obtained a description of the suspect and started searching the neighborhood. Approximately 40 minutes later, Officer Chauvet observed a couple in the vicinity of the incident. The man, later identified as Babineaux, matched the suspect's description and the white female was later identified as Shantelle Blanda. After speaking with them, Officer Chauvet detained them regarding the incident in question.

After Babineaux was advised of his constitutional rights, he made statements to Officer Chauvet and Officer Carrigan. In essence, defendant stated, "Yeah, what do you want to know? I f*eking hit him with a piece of wood cause[sic] he stumped[sic] on my bike by the Mona Lisa and I was trying to kill him, that f*cking b*tch and I'll do it again, too. F*ck him, mother f*cker." The officers then transported defendant to the Westwego Police Headquarters, where he was advised of his constitutional rights in writing.

At headquarters, defendant declined further interview with the detective on the basis that he had already spoken to the police and that his actions were self-defense. That night, Detective Barteet did not observe any visible injuries to defendant.

The next day, which was May 2, 2006, defendant changed his mind and gave a statement to Detective Barteet. In that statement, defendant admitted that he and Reid were in a physical altercation and that he struck Reid in the side with a board after Reid revealed a knife.

Dr. Susan Garcia, an expert forensic pathologist, performed the autopsy on Reid. Dr. Garcia testified that the cause of death was blunt force trauma to Reid's side, which damaged his spleen, causing exsanguination. The blow to Reid's spleen was fatal because, as a result of advanced cirrhosis of the liver, Reid's blood did not coagulate properly. Based on the testimony and evidence, the jury found defendant guilty of the responsive verdict of negligent homicide.

In his first assignment of error, defendant argues that the evidence did not support the verdict because the State did not adequately refute his claim that the killing was in self-defense. Defendant specifically contends that he struck the blow, which turned out to be fatal, to disarm the victim. The State responds that the evidence contradicts self-defense because the evidence reflects that defendant attacked the...