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STATE OF LOUISIANA VERSUS SHEDRICK BENNETT

NO.I0-KA-393


'1UAR:: CIRCUIT FlU FlED 2011
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COURT OF APP[AL FIFTH CIRCUIT
COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 08-5973, DIVISION "D"
HONORABLE ROBERT M. MURPHY, JUDGE PRESIDING


March 29,2011

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marion F. Edwards, Jude G. Gravois, and Marc E. Johnson

PAUL D. CONNICK District Attorney TERRY M. BOUDREAUX ANDREA F. LONG Assistant District Attorneys Parish of Jefferson 200 Derbigny Street Gretna, LA 70053 COUNSEL FOR PLAINTIFF/APPELLEE MARGARET S. SOLLARS Attorney at Law Louisiana Appellate Project 513 Country Club Boulevard Thibodaux, LA 70301 COUNSEL FOR DEFENDANT/APPELLANT

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AMENDED AND AFFIRMED AS AMENDED; SENTENCES ON COUNTS TWO AND THREE AFFIRMED; REMANDED WITH INSTRUCTIONS

Defendant, Shedrick Bennett, appeals his convictions and sentences for battery of a correctional officer. For the reasons that follow, we affirm defendant's convictions, affirm defendant's sentences on counts two and three, and amend defendant's sentence on count one. PROCEDURAL HISTORY On November 25, 2008, defendant was charged in a bill of information with three counts of battery of a correctional officer while incarcerated in a correctional facility in violation of La. R.S. 14:34.2. He proceeded to trial and, on September 15,2009, a six-person jury found defendant guilty as charged on all three counts. The trial court sentenced defendant to one year imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each of the three counts, and ordered the sentences be served consecutively.

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Thereafter, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender on the basis of four predicate felony convictions. After a hearing, the trial court found the State proved only two predicate felony convictions within the ten-year cleansing period of defendant's underlying conviction on count one. The trial court vacated defendant's sentence on count one and re-sentenced defendant as a third felony offender on count one to ten years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with the consecutive sentences ordered as to counts two and three.
FACTS

On September 6, 2008, defendant was an inmate in the custody of the Jefferson Parish Correctional Center (JPCC). At approximately 2:40 p.m., Deputy Justin Remes, who was assigned to the JPCC, responded to a call involving an altercation between defendant and another inmate in Pod-3B. When he arrived, the inmates had already separated. Deputy Remes noted defendant was "heated" and agitated. He escorted defendant out of the pod and placed him against a wall in the hallway to handcuff him. Defendant resisted efforts to be handcuffed by moving his hands and head wildly and erratically. Deputy Maya Seymour saw Deputy Remes struggling to handcuff defendant and she assisted. A third deputy, Deputy Sean Williams, also assisted in gaining control of defendant and handcuffing him. After defendant was handcuffed, Deputies Remes, Seymour, and Williams, escorted him to the elevator to take him to the medical area for treatment. While waiting for the elevator, defendant continued to be physically combative. He struck Deputy Seymour in her upper chest and shoulder with his elbow several times. He was also verbally abusive and spit blood, which came from a small cut -3

on the inside of his lip, all over the three deputies' faces and bodies while yelling he would kill them. According to the deputies, defendant said he had used drugs when he was on the streets, he hoped he had AIDS, and he hoped the deputies died. The deputies managed to get defendant to the nurse but he was too combative to immediately be seen.
LAW AND ANALYSIS

Shackling ofDefendant

In defendant's first assignment of error, he argues the trial court erred in ordering him to be shackled during trial. He contends the trial court abused its discretion in shackling him because there was no specific justification for restraining him. He maintains he was prejudiced by being shackled because he was unable to take notes during the trial and could not stand when the jury entered or exited the courtroom. Defendant contends the restraints served no purpose but to influence the jury to think he was so dangerous he must have committed the charged crimes. Prior to the commencement of trial, the trial judge ordered that defendant be shackled. He specifically noted that he was doing so because he was concerned with the health of defendant's appointed counsel. Defense counsel objected, and the trial judge responded: Mr. Bennett has a history in this courtroom of having had a confrontation with officers in the past. He created a question in my Bailiffs mind yesterday when he wasn't shackled as to the safety of the courtroom. As such, the Court has made a decision based upon his alleged prior bad acts, that is a manslaughter charge, and the activity in this case and both as to the charges, and to his acting out in this courtroom before, and is going to overrule the objection. Order that he be shackled, but it's my understanding the shackles do not create any noise because they are a synthetic material, and it's my understanding if he keeps his hands down no one will know that he is handcuffed.

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"Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality ofjudicial proceedings." State v.

Wilkerson, 403 So.2d 652,659 (La. 1981). However, exceptional circumstances
may require the trial court, within its discretion, to restrain a defendant for reasons of courtroom security or order or where the defendant's past conduct reasonably justifies apprehension that he may attempt to escape. For a finding of reversible error, the record must show an abuse of the trial court's discretion resulting in clear prejudice to the accused. Id. The record shows defendant had a history of violent and threatening conduct in the courtroom. At the preliminary hearing five months before trial, defendant lost control in court during the testimony of a State's witness and had an expletive laden outburst requiring the trial judge to repeatedly warn defendant to calm down. Based on defendant's past conduct, the trial court's bailiff expressed concern for the security of the courtroom. We find no abuse of the trial court's discretion in ordering defendant shackled during trial under these circumstances. Additionally, we find defendant has failed to show he was prejudiced by being shackled. Defendant does not allege and the record does not show that the jury actually observed or was able to observe that defendant was shackled. The trial judge explained that the shackles would not be visible to the jury if defendant kept his hands down. There is no indication defendant did not keep his hands down. Although defendant alleges he was prejudiced by his inability to stand when the jury entered and exited the courtroom, we note that defendant was not alone in remaining seated as the record shows defense counsel also remained seated. Further, we find defendant was not prejudiced by his inability to take notes during trial due to the shackles. This case was uncomplicated, involved only four -5

State witnesses, and took only one day to present. Accordingly, this assignment of error lacks merit.

Other Crimes Evidence

In defendant's second assignment of error, he contends the trial court erred in admitting other crimes evidence without notice and a hearing. He further argues the prejudice of the other crimes evidence outweighed its probative value. The State responds that the evidence at issue constituted res gestae or an integral part of the crime and, therefore, the evidence was admissible without notice or a hearing. Prior to trial, defense counsel raised the issue of the admissibility of a statement allegedly made by defendant regarding other crimes evidence. The statement at issue was that defendant had been a drug user on the streets and that he hoped he had AIDS so the deputies would all die. Defense counsel argued that any reference to defendant's prior drug use was inadmissible other crimes evidence. She further asserted that she had not received notice of the State's intent to use other crimes evidence. The trial court found the statement demonstrated intent and ruled the evidence admissible. Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404B(1); State v. Prieur, 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Dauzart, 02-1187 (La. App. 5 Cir. 3/25/03),844 So.2d 159,165. Evidence of other crimes is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
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mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad act. La. C.E. art. 404(B)(1); Dauzart, supra. In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Jackson, 93-0424 (La. 10/18/93),625 So.2d 146,149. Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. La. C.E. art. 403. Evidence that constitutes an integral part of the crime, formerly known as "res gestae," is admissible without any prior notice to the defense. State v. Charles, 00-1586 (La. App. 5 Cir. 6/27/01), 790 So.2d 705,708. A close connexity is required between the charged and uncharged conduct to assure that the purpose served by admission of the other crimes evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place, rather than to depict the defendant as a bad man. Id. Evidence constituting an integral part of the crime includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, provided a continuous chain of events is evident under the circumstances. State v. Parker, 536 So.2d 459, 461-62 (La. App. 1 Cir. 1988), writ denied, 584 So.2d 670 (La. 1991). As recognized by this Court, [t]he test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State's case of narrative momentum and cohesiveness, 'with power not only to support conclusions
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but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.'

State v. Rhea, 03-1273 (La. App. 5 Cir. 2/23/04), 868 So.2d 863,867 (citing State v. Colomb, 98-2813 (La. 10/1/99),747 So.2d 1074, 1076, quoting Old Chiefv. UnitedStates, 519U.S.172, 187, 117 S.Ct. 644, 653, 136L.Ed.2d
574 (1997)). The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. State v. Dauzart, 844 So.2d at 165-166. Clearly, evidence of other crimes or bad acts is prejudicial since all evidence which tends to make it more probable than not that an individual committed a criminal offense is necessarily prejudicial. The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Williams, 02-645, p. 16 (La. App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La. 4/25/03), 842 So.2d 398. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La C.E. art 404(B)( 1) will not be disturbed. State v.

Merritt, 04-204, p. 11 (La. App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La. 11/24/04),888 So.2d 228.
The record shows three sheriff s deputies testified that defendant spontaneously blurted out that he had been a drug user and that he hoped he had AIDS so that the deputies would die. The deputies stated defendant made the statement while spitting blood at them. We find the contested statement was admissible as an integral part of the crime. See State v. Harris, 28,517, pp. 8-9 (La. App. 2 Cir. 8/21/96), 679 So.2d 549, 556, writ denied, 96-2954 (La. 9/26/97), 701 So.2d 975 (statement made by the defendant during a drug transaction that he

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hoped undercover officer to whom he was selling drugs was not the police because he had been in trouble before, constituted an integral part of transaction and came within ambit of res gestae); and State v. Mickel, 581 So.2d 404,405 (La. App. 5 Cir. 1991) (testimony in prosecution for illegal use of weapon that the defendant stated "I'll shoot you, too," was admissible as an integral part of weapons charge). Accordingly, we find no merit to this assignment of error.

Excessive Sentence
In his last assignment of error, defendant argues his maximum ten-year enhanced sentence is excessive. Although defendant contends on appeal that the trial court failed to comply with La. C.Cr.P. art. 894.1, the motion to reconsider sentence he filed with the district court did not argue that the trial judge failed to follow the sentencing guidelines of Article 894.1. The failure to state the specific grounds on which a motion to reconsider sentence is based limits a defendant to a review of the sentence for constitutional excessiveness. State v. White, 09-1122, p. 5 (La. App. 5 Cir. 6/2911 0),44 So.3d 309, 311. The Eighth Amendment to the United States Constitution and Article I,

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