State v. Tarver

• Decision Date: 12 March 2003
• Docket Number: No. 02-0973.,No. 0974-KA.,No. 0975-KA.,02-0973.,0974-KA.,0975-KA.
• Citation: 846 So.2d 851
• Parties: STATE of Louisiana v. Marvin D. TARVER.
• Court: Court of Appeal of Louisiana — District of US

846 So.2d 851

STATE of Louisiana v. Marvin D. TARVER.

No. 02-0973.

No. 0974-KA.

No. 0975-KA.

Court of Appeal of Louisiana, Third Circuit.

March 12, 2003.

James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Marvin D. Tarver.

Walter Evans Dorroh Jr., Assistant District Attorney, Hon. J. Reed Walters, District Attorney-28th Judicial District Court, Jena, LA, for State of Louisiana.

Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.

SAUNDERS, Judge.

Between June 1, 1999, and August 15, 1999, the Defendant anally raped his twelve-year-old biological son thirty times and forced his son to engage in oral sex with him thirty times. Additionally, during this time, the Defendant forced his eight-year-old biological son to manually stimulate him to orgasm on eight occasions.

On October 17, 2001, the Defendant, Marvin D. Tarver, was charged by three separate grand jury indictments with thirty counts of aggravated rape of a juvenile (lower court docket number 67,182), violations of La.R.S. 14:42, thirty counts of aggravated oral sexual battery (lower court docket number 67,183), violations of

La.R.S. 14:43.4, and eight counts of sexual battery (lower court docket number 67,184), violations of La.R.S. 14:43.1.

On May 28, 2002, trial on all three indictments commenced,¹ and on May 30, 2002, a twelve person jury found the Defendant guilty on all counts.

On July 2, 2002, the Defendant filed a "Motion for Post Verdict Judgment of Acquittal" which was denied by the trial court on July 3, 2002.

On this same date, the Defendant waived sentencing delays. Under lower court docket number 67,182, for his convictions of aggravated rape, the Defendant was sentenced as follows:

(1) Count one of the indictment, life imprisonment without benefit of parole, and to pay costs;

(2) Count two of the indictment, life imprisonment without the benefit of parole, with this sentence to run concurrently to the sentence imposed on count one;

(3) Counts three to thirty of the indictment, life imprisonment without benefit of parole on each count, with these sentences to run consecutive to the sentences imposed on counts one and two but concurrently to each other.

Under lower court docket number 67,-183, for his conviction of aggravated oral sexual battery, the Defendant was sentenced as follows:

(1) Count one, fifteen years at hard labor without the benefit of parole, plus all costs;

(2) Count two, fifteen years at hard labor without the benefit of parole, with this sentence to run consecutive to the sentence imposed under count one;

(3) Counts three to thirty, fifteen years at hard labor without benefit of parole on each count, with these sentences to run consecutively to counts one and two but concurrent to each other.

Under lower court docket number 67,184, the Defendant was sentenced as follows:

(1) Count one, ten years at hard labor without benefit of parole and pay all costs;

(2) Count two, ten years at hard labor without benefit of parole, with this sentence to run consecutively to count one;

(3) Counts three to eight, ten years at hard labor without benefit of parole, with these sentences to run consecutively to counts one and two but concurrently to each other.

Following imposition of sentence, the Defendant's attorney orally moved for reconsideration of sentence as excessive which the trial court denied. The Defendant's attorney then moved for an appeal which was granted.

On appeal, the three convictions have been consolidated, and the Defendant asserts the following errors:

1. The trial court erred by failing to afford counsel to defendant at arraignment after he had invoked his right to counsel in pre-trial interrogation.

2. Sentences for aggravated rape of life at hard labor to be served consecutively, one with the other, on two counts and life on twenty-eight other counts, concurrent with each other, but consecutive with the other two, plus 15 years on each of two charges of aggravated oral sexual battery consecutive with each other and then 15 years on twenty-eight other counts, concurrent with each other but consecutive with counts one and two, plus 10 year sentences on each of two counts of sexual battery, consecutive with each other and then 10 years on each of six additional counts concurrent with each other but consecutive with counts one and two, and each sentence to run concurrently with the other is excessive for this offender in this case.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find the sentencing minutes for lower court docket number 67,182 require correction. The sentencing transcript states that the sentences imposed on Counts three through thirty are to run concurrently with each other, but consecutive to Counts one and two. The minutes do not reflect that the sentences imposed on Counts three through thirty are to run consecutive to the sentences imposed in Counts one and two. Thus, the case must be remanded for correction of the sentencing minutes.

ASSIGNMENT OF ERROR NO. 1:

The Defendant contends the trial court erred in failing to afford him counsel at arraignment, after he had invoked his right to counsel during pre-trial interrogation. The Defendant explains that during questioning by police on August 28, 2001, he requested counsel. On November 5, 2001, he was arraigned without counsel. The Defendant argues once he requested counsel, he invoked his right to counsel at every critical stage of the proceeding under the United States Sixth Amendment and La. Const. art. I, § 13. In support of his argument, the Defendant cites State v. Carter, 94-2859 (La.11/27/95); 664 So.2d 367.

Applying the principals set forth in Carter, the State counters that the Defendant's arraignment was not a "critical stage" because the Defendant was not "confronted by his expert adversary in such a setting as could render a future trial a mere formality."

The transcript from the November 5, 2001, arraignment indicates the Defendant was present for arraignment without counsel. The clerk read the bills of indictment and the Defendant entered pleas of not guilty. At the end of the proceeding, the trial court indicated that the Defendant had previously been appointed counsel. There was no indication that the Defendant waived the presence of counsel at this proceeding.

The Sixth Amendment to the United States Constitution provides "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."

La. Const. art. I, § 13 provides in part: "At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment."

In Carter, the supreme court held a defendant has a Sixth Amendment right to counsel only after adversary criminal proceedings have been initiated against him. The court explained:

In the plurality opinion of Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), the Supreme Court held the right to counsel does not attach prior to the "initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." In an oft-quoted passage, the Court explained why the Sixth Amendment right to counsel does not attach until this point in the proceedings.

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the "criminal prosecutions" to which alone the explicit guarantees of the Sixth Amendment are applicable. Kirby, Id. at 689-90, 92 S.Ct. at 1882.

Id. at p. 5, 372.

The Carter court stated that after the Sixth Amendment right to counsel attached, the right to counsel "exists only during those post-attachment, pretrial confrontations which would be considered `critical stages'." Id. at p. 6, 373.

Then, the Carter court turned to La. Const. art. I, § 13, explaining that in State v. Hattaway, 621 So.2d 796 (La.1993), the court held that the right to counsel under this constitutional provision attached no later than a defendant's initial court appearance or first judicial hearing and thereafter applied to pre-trial proceedings which would be considered "critical stages" under the jurisprudence interpreting the Sixth Amendment. The court explained what is a "critical stage" in pertinent part:

This determination involves an analysis of "whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice" and includes "any pretrial procedure occurring after the attachment of the right to counsel in which a meaningful defense or a fair trial could potentially be impaired if an uncounselled defendant were subjected to a confrontation by the state." Hattaway, 621 So.2d at 802 and 809. Therefore, even though the literal language of Art. I, Sec. 13 gives a defendant the right to counsel at "each stage of the proceedings", this court interpreted that phrase to include only those stages occurring after the attachment of the right to counsel which would be considered "critical stages" under the Sixth Amendment to the United States Constitution.

Id. p. 4, 664 So.2d at 371.

In footnote number four of Carter, pp. 6-7, 664 So.2d at 373, the court) explained in pertinent part:

As the Supreme...