State v. Ross
| Decision Date | 15 October 2014 |
| Docket Number | No. 14–KA–84.,14–KA–84. |
| Citation | 182 So.3d 983 |
| Parties | STATE of Louisiana v. Arnold T. ROSS. |
| Court | Court of Appeal of Louisiana — District of US |
Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, E. Clifton Milner, Megan L. Gorman, Assistant District Attorneys, Gretna, LA, for the State of Louisiana.
Lieu T. Vo Clark, Attorney at Law, Mandeville, LA, for Defendant/Appellant.
Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and HANS J. LILJEBERG.
Defendant appeals his sentence imposed relative to his conviction for La. R.S. 14:30.1. For the following reasons, we affirm and remand with instructions.
On September 10, 2009, a Jefferson Parish Grand Jury indicted defendant, Arnold T. Ross, on one count of second degree murder of a known juvenile (D.O.B.8/11/08) in violation of La. R.S. 14:30.1 and one count of sexual battery of a known juvenile (D.O.B.8/11/08) in violation of La. R.S. 14:43.1.1 On September 14, 2009, defendant pleaded not guilty at arraignment. On December 10, 2010, defendant withdrew his plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity, but withdrew the plea prior to trial. Defendant proceeded to trial on July 11, 2013. On July 12, 2013, a twelve-person jury returned a unanimous verdict of guilty as charged on both counts of the indictment. On September 16, 2013, following a pre-sentence investigation and a Miller2 hearing held pursuant to La.C.Cr.P. art. 878.1, the trial court sentenced defendant to life imprisonment at hard labor without benefit of probation or suspension of sentence on count one and a concurrent sentence of ten years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on count two. Defendant orally objected to the severity of the sentence and later filed a motion to reconsider sentence, which the trial court denied on September 18, 2013. The trial court granted defendant's timely motion for appeal on that same date. Defendant's appeal follows.
At the time of the offense, D.3 , age 34, who was recently paroled for a drug offense, temporarily lived with her cousin and through her cousin came to know defendant, age 17.4 D. also became very close with defendant's family. Eventually, D. was able to secure an apartment in a complex on the West Bank of Jefferson Parish for her and her son, D.L., and was in the process of working a case plan to regain custody of her two older children. D. worked as a prep cook at Kentucky Fried Chicken to support herself and her son, which required her to walk an hour each way to and from her apartment. While D. was at work, D. routinely left D.L., who was approximately nine-months-old, in the care of defendant's sister, Khishannon Ross.
On the evening of June 5, 2009, defendant went to D.'s apartment. He was upset, talking, and venting. Defendant left the apartment and then returned an hour later. D. and defendant spoke again and then went to bed. The next morning, defendant's sister was not yet at the apartment when D. had to leave for work, so she asked defendant if he could watch D.L. until his sister arrived to pick up D.L.5 Defendant agreed, and D. changed D.L.'s onesie, made sure he was dry, and fixed him a bottle, which she left within his reach. D. also prepared and left D.L.'s baby bag. D. left the apartment and arrived at work at approximately 8:00 a.m.
Keshia and Leonard Schexnayder lived in the next apartment and shared a common bedroom wall with D. On that same morning, the Schexnayders were awakened by a door slamming shut and minutes later multiple knocks/hits/thumps against the common wall of the apartment. Several minutes after that, there was a "frantic knock" at their door. Mr. Schexnayder answered the door to find defendant upset and crying, stating the baby had fallen down the stairs. Mr. Schexnayder rushed past defendant into the next-door apartment, where he found D.L. unconscious on the floor upstairs. The baby did not appear to be breathing, with his head "a little bit further than what it was supposed to be," and mucus and blood coming from his nose and mouth. Mr. Schexnayder straightened the child's head, and D.L. took a breath of air. Ms. Schexnayder took the baby downstairs while her husband phoned 911. Both the paramedics and the Jefferson Parish Sheriff's Office responded to the scene. D.L. was not breathing, and he was transported to the hospital.
Deputies responded to what they believed at the time to be a "medical roll." Defendant was distraught and relayed to police that his girlfriend asked him to watch D.L. because she had to go to work early. Defendant stated that he went downstairs to make a bottle for the baby, when he heard a thumping noise coming down the stairs. He ran to the stairs from the kitchen, where he found D.L. at the bottom of the stairs with his nose bleeding. Defendant stated that he placed the baby on the sofa and attempted CPR, which he did not know how to perform. Mr. Schexnayder, however, told deputies that he found D.L. on the floor upstairs, not downstairs when he arrived. Defendant attempted to speak over Mr. Schexnayder, saying several times to the effect, "yeah, you remember the baby was down the stairs." At that point, deputies separated defendant from Mr. Schexnayder.
After apprising their superiors of the situation, deputies were instructed to close off the scene. Defendant was Mirandized6 and placed in the backseat of a police unit. The deputies processed the scene,7 and defendant was transported to the Criminal Investigations Bureau to be interviewed by Detective Jeffrey Rodrigue.
At approximately 9:30 a.m., D. received a phone call from police notifying her of an accident at home. The police picked her up from work and brought her to the hospital.
At approximately 1:16 p.m. and again at 1:59 p.m., defendant waived his Miranda rights and gave two statements to Detective Rodrigue.8 In his first statement to police, defendant admitted that he lied about D.L. falling down the stairs. He explained that after D. left for work, he returned to the bedroom to watch the movie Pineapple Express because he could not sleep.9 He further explained that the television awakened D.L., who was asleep in the bed with him, and he began to cry. Defendant attempted to give D.L. his bottle, which he refused. Approximately 30 minutes later, D.L. had a bowel movement and defendant placed him in the bathtub, where D.L. continued to have bowel movements. Defendant took D.L. from the tub and placed him into a towel before bringing D.L. to change his clothes. In the bedroom, D.L. had another bowel movement, and at that time defendant spanked D.L.'s hand. Defendant stated that he spanked D.L. a second time, missing D.L.'s hand and hitting him in the face with an open hand. Defendant said that he hit D.L. at least two to three times.10 D.L. started to bleed from the nose and mouth, so defendant grabbed a bandana, wet it, and tried to stop the bleeding. When defendant returned to D.L., he was nearly unconscious, struggling to breathe, and vomiting. At that time, defendant went to the neighbors' home for help. He stated that he lied to the neighbors and police about D.L. falling down the stairs because he was scared of going to jail. Defendant stated that before the neighbors arrived, he attempted to blow into D.L.'s mouth and push on his stomach.
At the conclusion of defendant's first statement, Detective Rodrigue learned that D.L. died at the hospital and also sustained tearing to the anus. Based on this information, Detective Rodrigue interviewed defendant a second time. In his second statement, defendant explained that the trauma to D.L.'s anus occurred in the bathroom, while he attempted to prevent D.L. from having another bowel movement. Defendant explained that he wrapped a towel around three or four fingers of his right hand and pushed his hand in D.L.'s anus up to the middle of his knuckle, in order to "stop the bowel movement from coming out." Defendant said that he did this to help D.L, not punish him. Defendant stated that D.L. did not scream or cry while this was being done to him. This occurred before defendant struck D.L.
Later that day, Dr. Karen Ross, an assistant coroner and forensic pathologist for the Jefferson Parish Sheriff's Office, performed an autopsy of the victim. Dr. Ross determined the cause of death to be multiple blunt force injuries and agreed that the injuries were "consistent with a child receiving blunt force trauma, over, and over, and over again, multiple times, over an extended period of time, or at least over an extended single event." Dr. Ross additionally concluded that the victim's injuries were not consistent with a fall down the stairs or any attempt at CPR. She further relayed at trial that the victim's injuries were "some of the worst injuries that [she'd] ever personally had in an autopsy."
On appeal, defendant asserts that the trial court erred in denying his motion to reconsider sentence and maintains that the life sentence imposed for his conviction for La. R.S. 14:30.1 is constitutionally excessive.
Defendant asserts that the trial court abused its discretion in imposing a life sentence for his conviction of La. R.S. 14:30.1, even with parole eligibility, without due consideration as to whether the mandatory minimum sentence as applied to defendant was too severe and constitutionally excessive.
Conversely, the State argues that defendant's sentence is commensurate with the nature and severity of the crime and that the alleged mitigatory factors of his educational level and mental health history were introduced at the Miller hearing and considered by the trial court when imposing sentence. The State concludes that the defendant has failed to rebut the presumption of constitutionality of his mandatory life sentence.
Both the Eighth Amendment to the United States Constitution ...
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