State v. Johnson
| Decision Date | 20 October 2000 |
| Docket Number | No. 33,877-KW.,No. 33,791-KA.,33,791-KA.,33,877-KW. |
| Citation | 771 So.2d 798 |
| Parties | STATE of Louisiana, Plaintiff-Appellee, v. Jermaine JOHNSON, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Richard Ieyoub, Attorney General, Paul Joseph Carmouche, District Attorney, Suzanne Owen, Assistant District Attorney, Counsel for Appellee.
Before BROWN, GASKINS, DREW, JJ.
After a jury trial, Jermaine Johnson, was convicted as charged of battery of a police officer in a correctional facility, while defendant was detained therein, a violation of La. R.S. 14:34.2(B)(2). Following his conviction, defendant was charged and adjudicated as a third felony habitual offender. As a third felony offender with a violent crime conviction, the habitual offender law mandated a minimum sentence of life imprisonment, without benefits. The trial court instead sentenced defendant to 27 years at hard labor without benefit of parole, probation or suspension of sentence.
The defendant appealed his conviction. The state filed a writ application asserting error by the trial court in imposing a sentence less than that mandated by the habitual offender law set forth in La. R.S. 15:529.1. These matters have been consolidated. The defendant's conviction and habitual offender adjudication are affirmed. His illegally-lenient sentence is set aside, and he is sentenced to life imprisonment, without benefit of parole, probation, or suspension of sentence.
On April 10, 1999, Caddo Sheriffs Department Deputy Stephen Trujillo was working as a "pod deputy" in the Alpha pod of the Caddo Correctional Center. On that date, while on duty and in uniform, Deputy Trujillo attempted to restrain an unruly inmate. As he was doing so, Deputy Trujillo was suddenly and violently struck several times in the nose and head by another inmate. Deputy Trujillo did not see his attacker.
Deputy Lawrence Pierre was assisting Deputy Trujillo in handcuffing the troublesome inmate when he saw the defendant, Jermaine Johnson, strike Deputy Trujillo several times. When emergency assistance arrived, Deputy Pierre immediately identified Johnson as the inmate who attacked Deputy Trujillo. At trial, Deputy Pierre again positively identified Johnson as the inmate who attacked Deputy Trujillo. The state's witnesses established that this incident occurred at the Caddo Correctional Center where Johnson was an inmate. Johnson called no witnesses and introduced no exhibits.
Following his conviction by a unanimous jury, a habitual offender bill of information was filed charging Johnson as a third felony offender, to which Johnson filed an opposition. The trial court adjudicated Johnson a third felony offender in a written opinion dated November 3, 1999. On October 28, 1999, the trial court orally provided detailed reasons in support of a sentence of 27 years at hard labor without benefit of parole, probation or suspension of sentence in lieu of the statutorily-mandated life sentence for a third felony offender. The trial court reiterated and expounded upon its reasons in support of the 27-year hard labor sentence (without benefits) imposed in its November 3, 1999 written per curiam opinion. Because this sentence deviated from the mandatory minimum sentence of life imprisonment for a third felony offender, the state objected and filed a motion to reconsider which was denied following a hearing on January 25, 2000.
Defendant filed this appeal claiming that the evidence was insufficient to convict him, that the trial court erred in failing to instruct the jury regarding responsive verdicts, and that his adjudication as a third felony offender was improper. From the denial of its motion to reconsider sentence, the state sought supervisory review of the trial court's deviation downward from the sentence mandated by the habitual offender law.
Assignment of Error No. 1: Sufficiency of the evidence.
In this appeal, defendant does not deny that he struck Deputy Trujillo. However, he claims that the state failed to prove beyond a reasonable doubt1 that he was detained at a correctional facility at the time of the incident.
La. R.S. 14:34.2 provides, in part:
A. (1) Battery of a police officer is a battery committed without
the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty.
(2) For purposes of this Section, "police officer" shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.
B. (1) Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.
(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.
Defendant's argument that the state failed to prove beyond a reasonable doubt that he was detained in a correctional facility when this incident occurred simply has no merit. The state's two witnesses clearly testified that when the attack occurred on Deputy Trujillo, the defendant was an inmate in Alpha pod at the Caddo Correctional Center. Contrary to the arguments of defendant, there is no jurisprudence requiring the state to offer some documentation regarding how and why the defendant was detained in the correctional facility in order to substantiate the witnesses' testimony.
There is also no merit to defendant's argument that the witnesses "lacked foundation" for their testimony. First, no foundational objection was made to the witnesses' testimony. La. C.Cr.P. art. 841. Second, any attack on foundation or knowledge would go to the credibility and weight to be given the witnesses' testimony which is clearly an issue for the jury to decide. State v. Ervin, 32,430 (La.App.2d Cir.9/22/99), 747 So.2d 109; State v. Finch, 31,888 (La.App.2d Cir.5/5/99), 733 So.2d 716.
Viewing the totality of the evidence presented in a light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that the evidence presented was sufficient to prove all of the elements of this offense and that defendant committed this crime when and while he was detained in the Caddo Correctional Center. Therefore, the jury's guilty verdict is supported by the record. The defendant's arguments to the contrary are without merit.
Assignment of Error No. 2: Failure to instruct jury regarding responsive verdicts.
Johnson argues that the trial court erred by failing to instruct the jury regarding lesser and included offenses to the charge of battery of a police officer and that these offenses should have been responsive verdicts on the verdict form. The state responds that the trial court correctly denied defendant's request to include the other offenses in the jury charge, or in the alternative, that if error occurred, it was harmless and not prejudicial to defendant.
The defendant made a timely request for the proposed instructions and contemporaneously objected when the trial court denied his request. The issue of proposed jury instructions and responsive verdicts was first raised during voir dire, then again toward the close of final arguments. Defense counsel argued to the court that he and the prosecutor had agreed, before trial began, that the jury should be instructed regarding responsive verdicts. The assistant district attorney admitted same, but further stated that she would now (at trial) defer to the trial court on this issue.
In conjunction with this assigned error, both the defendant and the state raise what appears to be an issue of first impression. The defendant contends that La. R.S. 14:34.2(B)(2) sets forth an additional essential element of the crime of battery of a police officer, though later contending, in the alternative, that it is merely an enhancement factor for the sentencing judge. On the other hand, the state argues that subparagraph B(2) provides for an enhanced penalty (from a misdemeanor to a felony) when it proves that the defendant was under the jurisdiction and custody of the Department of Public Safety and Corrections or being detained as, in the instant case, at a correctional facility when the offense occurred. The state urges that this statute, La. R.S. 14:34.2, is analogous to the grades of theft set forth in La. R.S. 14:67.
In reading La. R.S. 14:34.2(A)(1), it is clear that the crime of battery of a police officer, misdemeanor grade (with a six month maximum sentence), is committed when all of the following elements have been shown:
1) a battery;
2) committed without the consent of the victim; and
3) when the offender has reasonable grounds to believe that the victim is a police officer acting in the performance of his duty.
However, the bill of information clearly states that this felony prosecution is under La. R.S. 14:34.2(B)(2). Thus, the jury had to find that the state proved all of the above elements, plus the additional element of the defendant being a detainee in a jail facility when the commission of the...
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