State v. Dorsey

• Decision Date: 09 December 2020
• Docket Number: NO. 2020-KA-0029,2020-KA-0029
• Citation: 312 So.3d 652
• Parties: STATE of Louisiana v. Leo DORSEY
• Court: Court of Appeal of Louisiana — District of US

312 So.3d 652

STATE of Louisiana

v.Leo DORSEY

NO. 2020-KA-0029

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 9, 2020

Leon Cannizzaro, District Attorney, Donna Andrieu, Michael Ambrosia, DISTRICT ATTORNEY's OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE/APPELLEE

Bruce G. Whittaker, LOUISIANA APPELLATE PROJECT, 1215 Prytania Street, Suite 332, New Orleans, LA 70130-4357, COUNSEL FOR APPELLANT

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )

Judge Joy Cossich Lobrano

The defendant, Leo Dorsey ("Defendant"), appeals his convictions and sentences for the second-degree murder of T.T. ("Decedent"); attempted second-degree murder of S.G. ("Victim"); illegal possession of a firearm; and obstruction of justice. For the reasons that follow, we vacate the convictions and sentences for second-degree murder and attempted second-degree murder; affirm the conviction for obstruction of justice; vacate the sentence for illegal possession of firearm; and remand to the district court for further proceedings consistent with this opinion.

Victim testified at trial and established the following: On the evening of January 31, 2017, Decedent, Victim, and Defendant were at Victim's house, discussing a movie they all had previously seen. Decedent and Victim remembered an aspect of the movie in one way while Defendant remembered it another. Victim testified: "The bet was if he was right, he could drive off in my car. If he was wrong, we get his gun or something like that." Decedent and Victim knew that Defendant was in possession of a firearm. The three reviewed the movie and confirmed that the women were correct. Defendant became agitated that he had lost the bet and "started fussing and kept talking about it, kept talking about it." Victim, frustrated with Defendant's behavior, volunteered to leave her own residence. Victim stated: "Well, you know, I'm about to leave because I don't have time to be going back and forth with you. But he like, "Oh, you don't have to go, I'm gonna leave." Defendant responded that he would leave instead and stood up and stated, "Well, I should shoot y'all for playing with me." Decedent stood up abruptly, and as she approached Defendant, he shot her and Victim and immediately left the residence. Victim called 911 to report the shooting and request emergency medical assistance. Paramedics and police arrived on scene within minutes. The evidence established that police secured the scene and a search yielded two shell casings but no gun was ever recovered.

While Defendant did not testify, he gave a statement to police after his arrest that was entered into evidence at trial. Defendant confirmed that he was at Victim's house, had a firearm with him, but that he left before the homicide. Defendant had difficulty explaining where he was at the time of the shooting. Defendant claimed he was at the house in part to protect Decedent, who was receiving threatening phone calls concerning a stolen car and had received threatening phone calls that evening. Police were unable to confirm Defendant's claim because of the security on the cell phone. However, Victim testified that Decedent neither received any threatening phone calls that night nor was in any trouble with anyone over a car.

ERRORS PATENT

La. C.Cr.P. art. 920 provides that "[t]he following matters and no others shall be considered on appeal: (1) An error designated in the assignment of errors; and (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." Notwithstanding the code article and La. C.Cr.P. art. 882, authorizing the correction of an illegal sentence "at any time," under prior Louisiana jurisprudence, reviewing courts would not interfere with the imposition of illegally lenient sentences absent a complaint by the state. See State v. Fraser , 484 So.2d 122, 124-25 (La. 1986) (an appellate court should not "notice and correct an undesignated error when the correction is more onerous to the only party seeking review.").

In 1999, however, the legislature enacted La. R.S. 15:301.1. Section B of the statute provides that "[i]f a sentence is inconsistent with the statutory provisions, upon the court's own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions."

Whether the statute and subsequent jurisprudence (most notably State v. Williams , 00-1725, pp. 8-9 (La. 11/28/01), 800 So.2d 790, 797 )) required the court to remand and impose a fine required under the statute was a matter which rendered conflicting jurisprudence by this court until State v. Williams , 03-0302, pp. 3-5 (La. App. 4 Cir. 10/6/03), 859 So.2d 751, 753, when it submitted the issue for an en banc vote:

A review of the record reveals one error patent. The trial court sentenced Mr. Williams under La. R.S. 40:967(F)(1)(b) only to imprisonment. However, La. R.S. 40:967(F)(1)(b) provides that a person convicted of the offense shall be sentenced to imprisonment and shall be fined "not less than one hundred thousand dollars, nor more than three hundred fifty thousand dollars." The State neither objected to the illegally lenient sentence, nor raised the issue on appeal.

The Louisiana Supreme Court has held that an appellate court may correct an illegally lenient sentence by remanding to impose a mandatory fine. State v. Decrevel, 2003-0259 (La. 5/16/03), 847 So.2d 1197. However, it did not say that an appellate court is required to do so. In State v. Comena , 2002-1562, p. 4 (La. App. 4 Cir. 3/19/03), 843 So.2d 464, 467, and in State v. Major, 2002-0133, p. 7 (La. App. 4 Cir. 10/2/02), 829 So.2d 625, 631, we declined to do so. However, a contrary holding was rendered right before Major, supra, was decided in State v. Legett, 2002-0153 (La. App. 4 Cir. 5/22/02), 819 So.2d 1104. In Legett, we held that the failure to impose the mandatory fine under La. R.S. 40:967 required we remand the matter for the imposition of that fine. Similarly, in State v. Hall, 2002-1098, pp. 5-6 (La. App. 4 Cir. 3/19/03), 843 So.2d 488, 494, we held that "the matter must be remanded for the imposition of the fine." Id.

To resolve this conflict in this circuit, we submitted this issue for an en banc vote, and this circuit voted en banc to follow Legett and Hall . Following those cases, we remand this case to the trial court for the imposition of the mandatory fine.

This court has consistently cited Williams in support of its opinions remanding cases to district courts for the imposition of mandatory fines required by statute. See e.g., State v. Vidrine, 19-0906, p. 22 (La. App. 4 Cir. 4/15/20), 298 So.3d 781, 794 ; State v. Copelin , 16-0264, p. 4 (La. App. 4 Cir. 12/7/16), 206 So.3d 990, 994. In addition, this court recently reversed a district court ruling finding that the imposition of the mandatory fine violated due process. See State v. Travis, 18-0645, pp. 7-9 (La. App. 4 Cir. 2/13/19), 265 So.3d 854, 859-60.¹

Nevertheless, we are constrained to follow the Fourth Circuit's prior jurisprudence directing that we remand for correction of the defendant's sentence where the trial court has failed to impose a statutorily mandated fine. See State v. Lawson , 20-00032, pp. 1-2 (La. 7/2/20), 297 So.3d 728, 729 (agreed-upon sentence negotiated pursuant to plea bargain should not be disturbed even if it does not include fine that would otherwise be mandated by sentencing statute).

In the case sub judice , the district court failed to impose a fine on Defendant in connection with his conviction for illegal possession of a firearm. See La. R.S. 14:95.1(B) (providing, in relevant part, that "[w]hoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars"). Accordingly, we vacate Defendant's illegally lenient sentence for illegal possession of a firearm by a felon and remand to the district court for resentencing that complies with the statutory requirements.

DISCUSSION

Defendant assigns two errors on appeal: (1) that the evidence is insufficient to support his convictions for second-degree murder, attempted second-degree murder, and obstruction of justice; and (2) that the jury's non-unanimous verdicts are unconstitutional.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold , 603 So. 2d 731, 734 (La. 1992). As the Louisiana Supreme Court has explained, "[t]he reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981)." Hearold , 603 So. 2d at 734. Such an acquittal would necessarily prevent any retrial. See State v. Gaines , 96-1850, p. 4 (La. App. 4 Cir. 1/29/97), 688 So.2d 679, 682, writ denied , 97-0510 (La. 9/5/97), 700 So. 2d 503 (observing that "[a]lthough [the defendant's] conviction must be reversed on other grounds, the issue of sufficiency of evidence must be addressed" because "if there was insufficient evidence even in the face of an error so prejudicial as to warrant a new trial, then there can be no new trial"). Thus, the Louisiana Supreme Court has held that an appellate court's failure to address the sufficiency of the evidence, when raised, is error. See State v. Morris , 615 So.2d 327, 328 (La. 1993) (observing that "the court of appeal erred in pretermitting relator's contention that the evidence was insufficient to prove the validity of [his] earlier convictions, which [were] an essential element of the charged crime"). Accordingly, a sufficiency of evidence analysis must...