State v. Wise

• Decision Date: 09 January 2014
• Docket Number: No. 13–KA–247.,13–KA–247.
• Citation: 128 So.3d 1220
• Parties: STATE of Louisiana v. Kevin WISE.
• Court: Court of Appeal of Louisiana — District of US

128 So.3d 1220

STATE of Louisiana

v.Kevin WISE.

No. 13–KA–247.

Court of Appeal of Louisiana, Fifth Circuit.

Nov. 19, 2013.

Rehearing Denied Jan. 9, 2014.

Paul D. Connick, Jr., District Attorney, Twenty–Forth Judicial District, Parish of Jefferson, Terry M. Boudreaux, David Wheeler, Vince Paciera, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Lieu T. Vo Clark, Attorney at Law, Mandeville, Louisiana, for Defendant/Appellant.

Kevin Wise, Louisiana State Penitentiary, Angola, Louisiana, Appellant/In Proper Person.

Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.

STEPHEN J. WINDHORST, J.

Defendant, Kevin Wise, was convicted of attempted simple robbery in violation of La. R.S. 14:27/65, and was sentenced to imprisonment at hard labor for a term of three and a half years.¹ After an habitual offender hearing, defendant was adjudicated a fourth felony offender under La. R.S. 15:529.1, and was sentenced to life in prison without benefit of parole, probation, or suspension of sentence. After the denial of his Motion for Reconsideration of Sentence and his pro se motion to quash, defendant appealed from his conviction and sentence.

FACTS

During the afternoon hours of December 22, 2011, defendant entered the Burger King on Lapalco Blvd. in Harvey, Louisiana. Sharlene Jones, a store manager, was getting change out of the safe for a customer when defendant reached over the counter and told her to give him the change drawer. Defendant and Ms. Jones struggled over the cash drawer and defendant stated that he had a gun. Defendant jumped over the counter and the cash drawer fell on the floor, scattering the money it contained. Defendant picked up some of the money. He then attempted to escape through the front door, but discovered that Ms. Jones had locked it. Next he attempted to escape through the “drive-thru” window.

During this time a second manager, Nyishia Randall, exited from the back office and saw defendant in the kitchen, by the safe, “scrambling for money,” and then trying to crawl out of the “drive-thru” window.

While defendant was trying to escape, Lt. Dax Russo arrived on the scene. He was let into the store and was told that defendant was trying to exit the “drive-thru” window, however only defendant's head and torso were through the window. After much resistance, Lt. Russo was able to apprehend defendant before defendant was able to completely exit the window. Lt. Russo discovered that, despite his assertions to the contrary, defendant was unarmed.

Defendant testified on his own behalf at trial. He stated that when he entered the Burger King he ordered and paid for his food. While waiting for his order, defendant testified that he “blacked out.” Defendant stated that he did not remember struggling with Ms. Jones over a cash drawer, nor did he remember struggling with Lieutenant Russo or attempting to exit the restaurant through the drive-thru window. Defendant further claimed that when he finally regained consciousness, he did not have any money in his pockets. After defendant provided a statement to the police at the police station, an ambulance transported him to University Hospital. Defendant testified that he has prior convictions for unauthorized use of a movable, issuing worthless checks, aggravated battery, theft, attempted simple robbery, and first degree robbery.

DISCUSSION

In his two counseled assignments of error, defendant alleges that the trial court erred in denying his motion for reconsideration of sentence and that his sentence is constitutionally excessive. However, there are errors patent which preclude discussion of these issues.

We have reviewed the record for errors patent according to the mandates of La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following which merits attention. In this case, neither the transcript nor the commitment indicates that the trial court vacated defendant's original sentence prior to imposing his enhanced sentence. When the original sentence on the underlying offense has not been vacated by the court at the time of defendant's sentencing as a habitual offender, the original sentence remains in effect and the subsequent sentence as a habitual offender is null and void. State v. Netter, 11–202 (La.App. 5 Cir. 11/29/11), 79 So.3d 478,writ denied,12–0032 (La.8/22/12), 97 So.3d 357. Accordingly, we must vacate defendant's habitual offender sentence and remand the matter to the trial court for resentencing. The trial court is instructed to vacate defendant's original sentence before imposing the habitual offender sentence.

In his first pro se assignment of error, defendant alleges that the trial court erred in granting the State's motion in limine to exclude evidence of mental disease denied him the right to present a defense. He further alleges that during the trial, the trial court improperly prevented him from presenting his defense when it refused to allow him to testify regarding the diabetic attack he suffered at the time the instant offense was committed.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11–1167 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813,writ denied,12–1694 (La.2/22/13), 108 So.3d 763. However, this right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. The trial court is accorded great discretion in evidentiary rulings and, absent a clear abuse of that discretion, rulings on admissibility of evidence will not be disturbed on appeal. State v. Magee, 11–0574 (La.9/28/12), 103 So.3d 285, 321.

“Not guilty and not guilty by reason of insanity” is one of four possible pleas to the indictment at the arraignment. La.C.Cr.P. art. 552. The defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. La.C.Cr.P. art. 561. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial. Id. A legal presumption exists that a defendant is sane and responsible for his actions at the time of an offense. La. R.S. 15:432. To rebut that presumption and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652; State v. Silman, 95–154 (La.11/27/95), 663 So.2d 27, 32. However, when a defendant is tried upon a plea of “not guilty,” evidence of insanity or mental defect at the time of the offense shall not be admissible. La.C.Cr.P. art. 651; State v. Necaise, 466 So.2d 660, 664 (La.App. 5 Cir.1985).

Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime. State v. Stewart, 93–0708 (La.App. 1 Cir. 3/11/94), 633 So.2d 925, 934,writ denied,94–0860 (La.9/16/94), 642 So.2d 189. For that reason, such evidence is not relevant to the issue of a defendant's guilt or innocence. State v. Carter, 97–2902 (La.App. 4 Cir. 5/10/00), 762 So.2d 662, 675,writ denied,00–1598 (La.6/15/01), 793 So.2d 1233,cert. denied,534 U.S. 1116, 122 S.Ct. 926, 151 L.Ed.2d 889 (2002). Moreover, evidence of a mental disease or defect affecting a defendant at the time of an offense is inadmissible, whether it is an organically caused mental condition, or a psychologically or emotionally induced mental condition. State v. Anseman, 607 So.2d 665, 670 (La.App. 5 Cir.1992), writ denied,613 So.2d 989, 990 (La.1993).

Although defendant argues that there is a distinction between physical and mental defects, under the circumstances of this case, defendant's contention is misplaced. The physical impairment about which defendant contends he should have been allowed to testify concerned a diabetic episode which he claimed caused him to “black-out” immediately prior to the commission of the crime, resulting in his inability to recall his actions which led to his arrest. Instances of a mental defect, for purposes of La.C.Cr.P. art. 651, “include a defendant's denial of recall of the events of a crime, [and] evidence of a prior mental condition to explain his lack of recall is inadmissible, even if only offered to corroborate [the] defendant's explanation of why he cannot testify about the event surrounding the crime.” State v. Pitre, 04–0545 (La.App. 1 Cir. 12/17/04), 901 So.2d 428,writ denied,05–0397 (La.5/13/05), 902 So.2d 1018 (citing State v. Dixon, 95–0269, p. 3 (La.App. 4 Cir. 1/19/96), 668 So.2d 388,writ denied,96–0332 (La.5/17/96), 673 So.2d 608,cert. denied,519 U.S. 983, 117 S.Ct. 438, 136 L.Ed.2d 335 (1996).)

Defendant's claimed “physical impairment” appears to have been offered in an attempt to show that defendant's mental condition at the time of the offense may have affected his mental functions, and thus, his intent to commit the crime. Accordingly, in the absence of a plea of “not guilty and not guilty by reason of insanity,” defendant was barred from presenting any evidence to support a defense of amnesia, diminished capacity, or evidence of another physical disease which may have affected his mental state in an attempt to act as a complete defense to the charge or to mitigate his culpability. La.C.Cr.P. art. 651; State v. Williams, 11–427 (La.App. 5 Cir. 2/28/12), 88 So.3d 1102; State v. McCray, 39,883 (La.App. 2 Cir. 6/29/05), 908 So.2d 68, 72,writ denied,05–2015 (La.2/17/06), 924 So.2d 1015. Defendant's first pro se assignment of error is without merit.

In his second pro se assignment of error, defendant argues the trial court erred in...