State v. Verret

• Decision Date: 06 May 2009
• Docket Number: No. 08-1335.,08-1335.
• Citation: 9 So.3d 1112
• Parties: STATE of Louisiana v. Brian A. VERRET.
• Court: Court of Appeal of Louisiana — District of US

9 So.3d 1112

STATE of Louisiana v. Brian A. VERRET.

No. 08-1335.

Court of Appeal of Louisiana, Third Circuit.

May 6, 2009.

Michael Harson, District Attorney, J.N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.

Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Brian A. Verret.

Court composed of SYLVIA R. COOKS, MARC T. AMY and J. DAVID PAINTER, Judges.

AMY, Judge.

The defendant was charged with four counts of negligent homicide, violations of La.R.S. 14:32. A jury found him guilty as charged, and the trial court sentenced him to serve five years at hard labor on each count, to run concurrently. One year of the sentence was suspended. Further, it ordered the defendant to pay restitution in an amount to be determined by the Division of Probation and Parole or after a hearing subsequent to his incarceration. The defendant appeals, arguing that the evidence is insufficient to support his convictions and that the restitution portion of his sentences is not founded in law. For the reasons that follow, we affirm the defendant's convictions but vacate the defendant's sentences and remand the matter to the trial court for resentencing.

Factual and Procedural Background

On September 30, 2006, the defendant, Brian A. Verret, was traveling in his Mustang on Ambassador Caffery Parkway in Lafayette toward Johnston Street. The State presented witnesses who testified that he appeared to be racing another vehicle, a black Honda CRX, as he approached the bridge on Ambassador Caffery. The State alleged that while on the bridge, the defendant lost control of his Mustang, entered a lane of oncoming traffic and hit a vehicle, a white Honda Accord. The Honda Accord was occupied by James Thibodeaux, Danielle Thibodeaux, Jeremy Meche, and Sunshine Jasek. All four of the occupants died as a result of the automobile crash.

The defendant was charged with four counts of negligent homicide, violations of La.R.S. 14:32. A jury convicted him on all four counts, and the trial court ordered a presentence investigation. At the sentencing hearing, the trial court sentenced the defendant to five years at hard labor on each count, to run concurrently with one another. One year of the sentence was suspended, and as a condition of probation, the defendant was ordered to pay restitution in an amount to be determined. The defendant appeals, contending that "[t]here was insufficient evidence to convict Defendant of negligent homicide," and "[t]he sentence is not founded in law with respect to restitution ordered."

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920¹, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an error patent requiring the sentences to be vacated.

At the sentencing hearing, the trial court stated:

For each count of negligent homicide, I am imposing a sentence of imprisonment at hard labor for five years. All of those will be concurrent sentences.

I am ordering that you serve four years of this sentence and that one year of the sentence be suspended. And I am suspending that year because I want to—During the term of probation, there are some conditions to be met, including some restitution payments to be made in that.

The suspension of the one year that's going to be suspended after the first four years are served are going to be conditioned on the following:

....

The period of probation is going to be four years, to give him time to make those restitution payments.

The trial court unequivocally imposed a five-year sentence on each count to run concurrently. When it ordered suspension of one year and discussed the terms and length of probation, however, the trial court only referred to one sentence. Insofar as the trial court failed to specify to what counts the suspension and probationary period applied, the trial court imposed indeterminate sentences.

This court addressed a similar issue in State v. Morris, 05-725, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107, 1113, wherein it found that "[t]he trial court imposed indeterminate sentences because it suspended the sentences and placed Defendant on five years of supervised probation without specifying to which count or counts the probation applied." In Morris, 918 So.2d 1107, the court quoted from State v. Taylor, 01-680, p. 2 (La.App. 3 Cir. 11/14/01), 801 So.2d 549, 550:

After suspending five years of the defendant's eight-year sentence and the totality of the six-year sentence, the trial court imposed a five-year supervised probation period. It is unclear, however, to which sentence this probation period applies or whether it applies to each. Thus, the sentences are indeterminate and in violation of La.Code Crim.P. art. 879, which provides: "If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence."

Finding the defendant's sentences indeterminate, we vacate the sentences and remand this matter to the trial court for the imposition of determinate sentences. In doing so, we instruct the trial court to specify whether the periods of probation are to be served concurrently or consecutively and upon what point the probated sentences begin as to each count. See La.Code Crim.P. art. 883.

Accordingly, we vacate the sentences on the grounds they are indeterminate and remand the case for resentencing. Upon remand, if any periods of probation or suspension are imposed, the trial court is instructed to specify to which count(s) they apply.

Insufficiency of Evidence

In his first assignment of error, the defendant argues that "[t]he evidence presented was insufficient to support the jury verdicts of negligent homicide." Particularly, he asserts that the identity of the defendant as the driver who was driving erratically was never positively established, especially in light of the fact that there were allegedly two cars racing.

This court set forth the analysis for evaluating a claim of insufficient evidence:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

A jury convicted the defendant of four counts of negligent homicide. Louisiana Revised Statutes 14:32 provides, "[n]egligent homicide is the killing of a human being by criminal negligence." "Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." La.R.S. 14:12. In relation to causation, the fifth circuit stated:

The Louisiana Supreme Court has held it is not essential that the State prove the defendant's action was the sole cause of the victim's death. In a case involving charges of negligent homicide arising from a "drag racing" accident, the supreme court found the proper test is whether the defendant's conduct was a substantial factor in bringing about the ensuing death." State v. Martin, 539 So.2d 1235, 1239 (La.1989), citing State v. Matthews, 450 So.2d 644, 646 (La.1984).

State v. Bellow, 08-259, pp. 11-12 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, 314.

William Sandy Kaplan testified that he was stopped at the traffic light at the corner of Settlers Trace and Ambassador Caffery Parkway on the night of September 30, 2006. He testified that he was familiar with "high-performance motors" as he "was one of the founding members of the Porsche Club of America chapter here in Lafayette in the late '70's." He stated that on September 30, 2006, he "saw two cars racing down Ambassador Caffery towards the mall." He continued, stating, "I thought to myself, oh, my God, man, somebody's going to get hurt doing that. Because they were going very, very fast. And they were red-lining." He explained that "[r]ed-lining is when an engine is revved up very, very fast, and it's going at the top speed in that gear. It makes a whining sound." Mr. Kaplan further explained that he thought one of the cars was a Mustang and that the other was either a Mustang or a Honda. Ultimately, he concluded that he had "no doubt" that one of the cars was a Mustang, and there was "absolutely, unequivocally no doubt in [his] mind" that the two cars were racing. The day after the accident, Mr. Kaplan read about the crash and contacted the police.

Kristen Kahanek testified that on September 30, 2006, at 9:30 p.m., she was traveling in the left lane on Ambassador Caffery towards the mall. She heard "very, very loud mufflers approaching from behind." She stated that the cars passed her and that the Mustang switched lanes very quickly several times. When asked about the speed of the vehicles, she stated that "it...