State v. Sepulvado

• Court: Court of Appeal of Louisiana
• Writing for the Court: Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
• Citation: State v. Sepulvado, 59 So.3d 463 (La. App. 2011)
• Decision Date: 04 May 2011
• Docket Number: No. 10–435.,10–435.
• Parties: STATE of Louisianav.Sherri Ann SEPULVADO.

59 So.3d 463

STATE of Louisiana

v.Sherri Ann SEPULVADO.

No. 10–435.

Court of Appeal of Louisiana, Third Circuit.

March 9, 2011.Rehearing Denied May 4, 2011.

Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Sherri Ann Sepulvado.Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.AMY, Judge.

[3 Cir. 1] The defendant was charged with first degree murder and aggravated arson. The State later amended the bill to charges of second degree murder and aggravated arson. After a bench trial, the defendant was convicted of manslaughter and aggravated arson. The trial court imposed a fifteen-year sentence on the aggravated arson conviction and thirty-year sentence on the manslaughter conviction. Following a hearing on a motion for new trial, the trial court re-sentenced her to twelve years at hard labor on the arson conviction. The defendant appeals.

Factual and Procedural Background

This case involves the death of LaTasha Nigerville, whose body was found in her Zwolle, Louisiana home on September 25, 2006. The record establishes that firefighters responded to a fire at her home on that date and that a firefighter discovered her body while clearing debris from the house.

The State alleged that on the evening of September 24, 2006, Sherri Sepulvado, Chad Rivers and Martrell Lynch were with LaTasha at her residence, as were Jerrick Thomas and Patrick Penegar. The State argued that, at some point during an evening of drug use by the group, Ms. Sepulvado and LaTasha became involved in a physical altercation and that the defendant struck the victim in the head with a small bat. The State argued that LaTasha fell and was not making sounds or moving. It contended that her clothes were removed, a mattress was placed on top of her, and that gasoline was poured onto the mattress and set ablaze. The State contended that the group then left the home.

Sherri (hereinafter “the defendant”), Chad, and Martrell were indicted for first degree murder and aggravated arson in December 2006. The murder charge was later reduced from first degree murder to second degree murder. While Martrell entered [3 Cir. 2] into a plea agreement with the State during the co-defendants' October 2009 bench trial, the case proceeded against the defendant and Chad. The trial court acquitted Chad of second degree murder, but convicted him of aggravated arson. The trial court convicted the defendant of manslaughter and aggravated arson.

In February 2010, the trial court denied the defendant's motions in arrest of judgment and new trial. It then sentenced her to thirty years imprisonment at hard labor for the manslaughter conviction and fifteen years at hard labor without the benefit of parole, probation, or suspension of sentence for the aggravated arson conviction. The trial court denied the defendant's motion to reconsider sentence. The trial court granted the defendant's appeal on March 15, 2010. This appeal was taken from the manslaughter and aggravated arson convictions.

Subsequently, in May 2010, Chad filed a motion for post-verdict judgment of acquittal, arguing that the evidence demonstrated that LaTasha was dead at the time the fire was set. Thus, he argued that he could not have been convicted of aggravated arson, that the evidence only supported a simple arson conviction and that his acquittal of second degree murder indicated that the trial court found that LaTasha was dead at the time of the fire. The trial court granted the motion, and sentenced Chad to twelve years at hard labor.¹

Subsequently, the defendant filed a “Motion for New Trial,” asserting that the granting of the motion for post-verdict judgment of acquittal constituted newly discovered evidence. She referenced Chad's assertion that the evidence indicated that LaTasha died before the fire was set. At the August 26, 2010 hearing on the motion,² [3 Cir. 3] defense counsel requested the same relief granted to Chad, i.e., the reduction of the aggravated arson conviction to simple arson. The trial court denied the motion. However, the minutes from the hearing provide that the trial court “amended the charge the defendant was convicted of to Simple Arson instead of Aggravated Arson.” The transcript reflects that the trial court sentenced the defendant to twelve years at hard labor, to be served concurrently with the thirty-year sentence.

The defendant appeals, arguing that: 1) the State presented insufficient evidence to sustain the manslaughter and simple arson convictions; 2) the trial court erred in denying her motion for bill of particulars; 3) the State failed to provide timely discovery of evidence; 4) the proceedings violated the protection against double jeopardy; 5) the trial court erred in denying her motion for mistrial upon the prosecutor's reference to her failure to testify; and that 6) the sentences are excessive.

Discussion

Errors Patent

Our review of the record in accordance with La.Code Crim.P. art. 920 reveals no errors patent on the face of the record that require correction.

Sufficiency of the Evidence

The defendant first asserts that “[t]he evidence presented by the State against [her] was insufficient to support convictions of manslaughter and arson.” We first turn to the latter conviction.

Simple Arson

Both the defendant and the State contend that, at the hearing on the motion for new trial filed after the order of appeal was entered, the trial court “reduced” the defendant's aggravated arson conviction and entered a conviction of simple arson. [3 Cir. 4] The defendant's appellate brief assumes a conviction of simple arson. However, as referenced in the factual and procedural background, the record only clearly reveals a conviction of aggravated arson. The results of the hearing on the motion for new trial are unclear as to whether the trial court vacated the defendant's conviction for aggravated arson and convicted her of simple arson or whether she was re-sentenced.

Although it denied the motion for new trial, the trial court explained that:

[O]ut of fairness, out of equity, in my opinion when I heard this case—it was a bench trial—after looking back on the testimony and the relief that I granted Mr. Rivers, the victim in this case, in my opinion, according to the coroner's testimony, was deceased at the time. The coroner did not say those words but that is my interpretation of his testimony, the victim was deceased at that the time that Mr. Rivers burned her body. So I do not think it fits—aggravated arson fits under the Code. I think simple arson is more appropriate. I'm going to sentence Ms. Sepulvado under the simple arson statute and give her twelve years. I'm amending her sentence regarding aggravated arson from fifteen years without benefit to twelve years at hard labor concurrent with the thirty year sentence that she's serving.

This does not indicate that the trial court disturbed the defendant's conviction for aggravated arson. It instead appears that the trial court denied the motion for new trial, but re-sentenced the defendant. ³ The minutes of the hearing, however, indicate the trial court vacated the aggravated arson conviction and entered a conviction for simple arson. The minutes provide that: the trial court “amended the charge the defendant was convicted of to Simple Arson instead of Aggravated Arson.” ⁴ The [3 Cir. 5] defendant argues sufficiency of the evidence with regard to a simple arson conviction. However, we find the record insufficient to address the conviction as such.

It is apparent from the trial court's ruling that, in consideration of a ruling in the co-defendant's case, it felt that further action was warranted. The vehicle before it was a motion for new trial which it denied in name, but granted in effect. However, La.Code Crim.P. art. 857 does not permit the trial court to summarily modify the conviction and/or sentence. Instead, “[t]he effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.” Id. Finding that the trial court erred in effectively granting the motion for new trial, but not ordering a retrial of the aggravated arson conviction, we set aside the verdict of aggravated arson and remand for a new trial. We turn to reconsideration of the defendant's manslaughter conviction, which was not at issue in the motion for new trial.

Manslaughter

The defendant questions the certainty of the evidence with regard to the cause of death and contends that the testimony of alibi witnesses for her and Chad should have been favored over other witnesses linking her to the events preceding LaTasha's death. The defendant observes that there was no physical evidence of her involvement in the crime(s). She further asserts that the evidence connecting her to the crime involved the testimony of two men, Patrick Penegar and Martrell Lynch, who “by their own testimony, stripped LaTasha's unconscious body with the intent of raping her. It was during this time Latasha died—when she was at the mercy of two men intent on raping her while she was unconscious.” She contends that since these individuals entered pleas, they were “not available for the Trial Court to hold [3 Cir. 6] responsible.” She argues that her conviction followed as she and Chad “were the only options left to the Court.”

When sufficiency of the evidence is raised on appeal, we consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have determined that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). As the trial court fulfills...