State v. Day

• Decision Date: 23 December 2014
• Docket Number: No. 14–708.,14–708.
• Citation: 158 So.3d 120
• Parties: STATE of Louisiana v. Jaime Brooks DAY.
• Court: Court of Appeal of Louisiana — District of US

158 So.3d 120

STATE of Louisiana

v.Jaime Brooks DAY.

No. 14–708.

Court of Appeal of Louisiana, Third Circuit.

Dec. 23, 2014.

John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.

William T. Fontenot, Fontenot & Fontenot, Lake Charles, LA, for Defendant/Appellant, Jaime Brooks Day.

Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.

Opinion

SAUNDERS, Judge.

Jaime Brooks Day (hereafter “Defendant”) appeals her conviction for second degree cruelty to a juvenile for which she was sentenced to thirty years hard labor with credit for time served. For the following reasons, we affirm the conviction, but vacate the sentence and remand to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On December 16, 2008, G.H. was placed in the custody of his father and Defendant, his step-mother, following allegations of abuse by his biological mother.¹ Defendant's husband was frequently away from the home, leaving her alone to care for G.H. and the children of Defendant and the biological father of G.H. Following a report of child abuse, Calcasieu Parish Sheriff's Deputies went to Defendant's residence on February 19, 2010, and Defendant and her husband brought G.H. to the hospital. Defendant was charged in an indictment filed on April 8, 2010, with three counts of second degree cruelty to a juvenile, a violation of La.R.S. 14:93.2.3, and five counts of cruelty to a juvenile, a violation of La.R.S. 14:93.² Defendant entered a plea of not guilty on April 9, 2010.

On November 4, 2013, the State amended the indictment, noting its intent to proceed to trial on one count of second degree cruelty to a juvenile instead of three counts and striking five counts of cruelty to a juvenile. On the same day, the jury was selected and trial began. Multiple fact and expert witnesses testified at trial.

On November 13, 2013, the jury found Defendant guilty of second degree cruelty to a juvenile. On December 6, 2013, Defendant was sentenced to serve thirty years at hard labor, with credit for time served. A motion for appeal was filed and granted on December 17, 2013. A motion to reconsider sentence was filed on January 2, 2014, and denied without hearing on January 7, 2014.

ASSIGNMENTS OF ERROR:

Defendant now appeals her conviction and sentence and asserts the trial court erred:

1. by allowing the prosecution to publish only the portion of a home video that favored their case, but not the portion favoring Defendant;

2. in failing to grant a mistrial after the investigating deputy coached a witness in the midst of her testimony;

3. allowing the state's expert to testify outside the field of pediatrics and tell the jury that Defendant was guilty of child abuse;

4. by excluding as hearsay the school principal's reason for rejecting G.H.'s application for admission into the private school;

5. allowing an employee of the Department of Child and Family Services with no first-hand knowledge of the underlying facts to tell the jury that Jaime committed child abuse;

6. by the allowing G.H. to testify by closed circuit television without allowing Defendant to have G.H. examined to assess the necessity of his closed circuit testimony; and

7. failing to give adequate reasons for the imposition of a thirty-year sentence.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, we have reviewed the record for errors patent on the face of the record and find none.

ASSIGNMENT OF ERROR NO. 1:

In her first assignment of error, Defendant contends the trial court erred by allowing the prosecution to show to the jury only four minutes of a video approximately twenty-five minutes long in total, which she contends she made to prove to mental health authorities how mentally ill G.H. was, in an effort to secure the long-term care he needed. The portion of the video withheld from the jury shows G.H. clawing his face, punching himself, announcing his desires to harm himself, screaming, and telling Defendant he will miss her. It shows her telling G.H. not to hurt himself, to calm down, and that she will miss him should he be placed in long-term care. She contends the latter shows the extent of G.H.'s mental illness, his efforts to harm himself, and presents her in a “better light.”

New Trial

Defendant asserts the portion shown to the jury was inflammatory because it “made her look horrible and made G.H. look like a normal child crying for his mother.” While the video was being played, one of the jurors asked, “Do we have to watch this?” After this question, the court requested the video be paused, and the prosecution announced it had shown all they wanted to show. Defendant contends the inflammatory impact was evident by the fact that a juror had an outburst during the viewing of the video. Defense counsel had no objection to the admissibility of the videotape. Nonetheless, Defendant asserts that showing only a portion of the video was unduly prejudicial and that La.Code Crim.P. art. 851(5) allows for a grant of new trial in this situation, where “the ends of justice would be served.”

In pertinent part, La.Code Crim.P. art. 851 provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial whenever:

....

(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

Defendant did not file a motion for new trial in this matter. Pursuant to La.Code Crim.P. art. 851 (emphasis added), the court shall grant a new trial “upon motion of the defendant. ” Thus, in the absence of a timely motion by Defendant, this court cannot grant a new trial pursuant to La.Code Crim.P. art. 851(5).

Contemporaneous objection

Defendant contends the contemporaneous objection rule does not preclude raising this issue on appeal because a “substantial right” was affected, citing State v. Langston, 43,923 (La.App. 2 Cir. 2/25/09), 3 So.3d 707, writ denied, 09–696 (La.12/11/09), 23 So.3d 912 ; State v. Montoya, 340 So.2d 557 (La.1976) ; State v. Williamson, 389 So.2d 1328 (La.1980) ; State v. Green, 493 So.2d 588 (La.1986) ; and State v. Arvie, 505 So.2d 44 (La.1987), in support of her argument.

Louisiana Code of Criminal Procedure Article 841(A) provides “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” However, “[e]rrors that affect substantial rights of the accused are reviewable by the appellate court, even absent contemporaneous objection, to preserve the ‘fundamental requirements of due process.’ State v. Williamson, supra; State v. Green, supra. ” Langston, 3 So.3d at 715. Generally, only errors that are structural may be reviewed in the absence of contemporaneous objection. State v. Hongo, 96–2060 (La.12/2/97), 706 So.2d 419. A structural error is one that, “by its very nature, impacts the entire framework of the trial from beginning to end, without reference to any other trial consideration.” State v. Langley, 06–1041, pp. 12–13 (La.5/22/07), 958 So.2d 1160, 1168, cert. denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007).

In Montoya, 340 So.2d 557, on direct examination, the arresting officer made reference to defendant's post-arrest silence. The court held this to be reversible error because it violated the defendant's constitutional right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In Arvie, 505 So.2d at 47–48 (footnotes omitted), our supreme court explained:

On very rare occasions, this court has refused to apply the contemporaneous objection rule as a bar to review of an error which was so fundamental that it struck at the very essence of the reliability of the fact-finding process. In State v. Williamson, 389 So.2d 1328 (La.1980), the judge instructed the jury on the essential elements of first and second degree murder as those crimes were defined under statutes which had been amended to redefine the crimes before the date of the charged crime. Apparently the prosecution and the defense shared the court's misconception, and there were no objections to the instruction. This court reversed the conviction, despite the absence of a contemporaneous objection, noting that a substantial error in the very definition of the charged crime was of such importance and significance as to violate the fundamental requirements of due process.

In State v. Green, 493 So.2d 588 (La.1986), this court again considered an error to which no contemporaneous objection had been made at trial. During Green's trial on the charge of third offense theft, the trial judge failed to instruct the jurors that they were to consider Green's prior theft convictions only for the purpose of sentence enhancement and not for the purpose of determining his guilt or innocence. Although defense counsel failed to request such an instruction or to object to its omission, this court considered the error and reversed the conviction. This court's unanimous opinion noted that the Court in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) had approved the constitutionality of a procedure which allowed evidence both of the current offense and of prior convictions of similar crimes at the guilt determination trial only because of the procedural requirement in the statutory scheme that the jury must be instructed to consider the prior crimes only for the purpose of sentence enhancement and not for the purpose of deciding guilt or innocence of the charged crime. Because Louisiana's statute arguably was facially unconstitutional without the requirement of a limiting instruction, this court held that the failure to give such an instruction required

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