Judgment rendered November 29, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,361-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DERION JAMISON Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 378,598
Honorable Christopher T. Victory, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Sherry Watters
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
BRITTANY B. ARVIE TOMMY JAN JOHNSON KODIE K. SMITH Assistant District Attorneys
Before STONE, COX, and THOMPSON, JJ. STONE, J.
This criminal appeal arises from the First Judicial District Court, the
Honorable Chris Victory, presiding. A unanimous jury found the appellant-
defendant, Derion Jamison (“defendant”), guilty of: (1) second degree
murder in violation of La. R.S. 14:30.1, for which he received a sentence of
life imprisonment at hard labor subject to parole eligibility pursuant to La.
R.S. 15:574.4; (2) attempted second degree murder in violation of La. R.S.
14:27 and La. R.S. 14:30.1, for which he received a sentence of fifty years at
hard labor without benefits; and (3) aggravated assault with a firearm in
violation of La. R.S. 14:37.4, for which he received a sentence of ten years
at hard labor, and a $5,000 fine plus court costs. The sentences were ordered
to be served consecutively. The defendant now appeals his sentences.
FACTS AND PROCEDURAL HISTORY
In July 2019, the Collins family and some friends traveled from
Rayville, Louisiana, to Shreveport to enjoy a short vacation and visit Splash
Kingdom. The Collins family included Ha’Shoun Collins (“Ha’Shoun”),
Alajah Collins (“Alajah”), Quantarius Collins (“Quantarius”), and friends
included Traveon Webster (“Traveon”), Jayla Boley (“Jayla”), and Alexis
Hanks (“Alexis”).1 The Collins family and friends stayed at the Country Inn
& Suites and an adjoining hotel. The defendant and his friends were also
staying at the Country Inn & Suites. The two groups did not know each
other.
1 This group of individuals will be collectively referred to as the “Collins family and friends”. Alajah Collins is Ha’Shoun Collins’ brother and Quantarius Collins is a cousin. Around 11:00 p.m. on July 18, 2019, Traveon and Alajah returned to
the Country Inn & Suites after spending the day with other family members
(who also traveled from Rayville). Shortly thereafter, Traveon and Alajah
made contact with some females from the defendant’s group near an
elevator. Alajah commented to one of the women that he was “trained to
go.” The defendant approached Traveon and Alajah and asked Alajah what
he meant by that phrase. Alajah told the defendant that he knew what he
meant.2 The defendant nodded, said “okay,” and got on an elevator with the
woman to whom Alajah’s comment was made. Although neither party made
any threats at the time, Traveon stopped Alajah from getting on the elevator
with the defendant because of the “energy.”
At approximately 1:00 a.m., the Collins family and friends were
gathered in the parking lot of the Country Inn & Suites near their vehicles,
talking. The defendant and his friends were also gathered outside the hotel
by the front entrance. Traveon described the defendant’s demeanor as that
of a “guard dog” and that the defendant was watching his group as if they
were a threat to him. At this time, Ha’Shoun noticed that the defendant was
“mugging” them as if they had done something to him. Ha’Shoun and
Traveon decided to speak with the defendant to explain that they were not
looking for trouble. Ha’Shoun, Traveon, and Alajah were not armed with
weapons, and no one raised their voice during this exchange. Afterward, all
parties shook hands. As Ha’Shoun, Traveon, and Alajah began to walk
away, the defendant said, “don’t think y’all checking anything.” Ha’Shoun,
Traveon, and Alajah turned around, and Ha’Shoun made a comment to the
2 At trial, Alajah explained that he was suggesting that the woman have sex with him. 2 defendant.3 At this point, Quantarius, who had been sitting in the back of his
truck, started walking toward the defendant, Ha’Shoun, Traveon, and
Alajah.4 The defendant then pulled out a gun and fired several shots,
mortally wounding Ha’Shoun, and injuring Traveon in the stomach and
Quantarius in the leg. The defendant then fled the scene with other
individuals in his group. The suspects were unknown at the start of this
investigation.5
On August 5, 2020, Corporal John Scheen (“Cpl. Scheen”) was
involved in a high-speed chase with a white Nissan Altima. Cpl. Scheen
terminated the pursuit because it became a threat to public safety. Moments
later, the pursuit vehicle crashed, and the driver and a passenger fled the
scene. At the location of the crash, Cpl. Scheen recovered shoes, a ski mask,
two black cellphones, and two .9mm pistols. Test firings from one of the
guns found at the car crash matched the shell casings found at the scene of
the shooting at the Country Inn & Suites one year earlier. The vehicle
owner, Shakina Fields (“Ms. Fields”), testified that on the day of the crash,
the defendant was driving her car and refused to return it to her.6 As a result
of the crash, the defendant became a suspect in the death of Ha’Shoun and
the injuries to Traveon and Quantarius. After obtaining the defendant’s
Facebook information from Ms. Fields, the detective on the case prepared
3 Here, the testimony differs as to what Ha’Shoun said to the defendant. Traveon testified that they told the defendant “it wasn’t like that and that they were not here for that.” Alajah and Quantarius testified that Ha’Shoun responded to the defendant and said “I’m about my business.”
4 At trial, Alajah testified that when Quantarius jumped from the back of his truck, he made the comment “are we going to fight?”
5 The surveillance cameras at the hotel were not working.
6 At trial, Shakina Fields testified that the defendant was her “baby daddy’s son.” 3 photographic line-ups wherein several witnesses identified the defendant.7
Subsequently, the defendant was indicted on one count of second degree
murder and two counts of attempted second degree murder. At the time of
the offense, the defendant was seventeen years old.8
After the trial, the jury found the defendant guilty of second degree
murder, attempted second degree murder, and aggravated assault with a
firearm. At sentencing, the only mitigating evidence submitted to the court
was the defendant’s age. The defendant was offered the opportunity to
speak before sentencing but declined by stating that he had “nothing to say.”
No presentence investigation (“PSI”) report was ordered by the court. Also,
during sentencing, the trial court used the following La. C. Cr. P. art. 894.1
factors to support the sentence: (1) the offender knowingly created a risk of
death or great bodily harm to more than one person; (2) the offender used
threats of or actual violence in the commission of the offense; (3) the offense
resulted in a significant permanent injury or significant economic loss to the
victim or his family; (4) the offender used a dangerous weapon in the
commission of the offense; (5) the offender foreseeably endangered human
life by discharging a firearm during the commission of an offense which has,
as an element, the use of physical force against the person of another; and
(6) the offender used a firearm or other dangerous weapon while committing
or attempting to commit an offense which has, as an element, the use of
physical force against the person of another.
7 Ms. Fields identified the defendant as the individual who was driving her white Nissan Altima the day of the accident. Quantarius, Alajah, Jayla, and Traveon identified the defendant as being the shooter at the Country Inn & Suites.
8 The defendant was born on June 2, 2003. 4 A hardship hearing was not held regarding the $5,000 fine. As a
result, the aforementioned sentence was imposed.
On October 10, 2022, counsel for the defendant filed a motion to
reconsider sentence, arguing that: (1) despite the trial court’s express
recognition of parole eligibility under La. R.S. 15:574.4, the trial court
incorrectly sentenced him to life without benefits; and (2) that sentencing
him to consecutive sentences of life without parole, fifty years without
parole, and ten years is both excessive in violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment. The trial court
denied the motion to reconsider.
The defendant now appeals his sentence, arguing the following
assignments of error: (1) his life sentence contravenes La. R.S. 15:574.4,
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012); (2) his 50-year
sentence violates State ex rel. Morgan v. State, 15-0100 (La. 10/19/16), 217
So. 3d 266; (3) whether the trial court imposed an excessive sentence by
sentencing him to maximum consecutive sentences; and (4) whether the trial
court erred in imposing a $5,000 fine and court costs without conducting the
mandatory hearing per La. C. Cr. P. art. 875.1.
For the following reasons, we affirm the defendant’s convictions and
sentences imposed for second degree murder and attempted second degree
murder. While we affirm the defendant’s conviction for aggravated assault
with a firearm, we vacate the portion of the sentence imposing a $5,000 fine.
DISCUSSION
La. R.S. 15:574.4 and Miller v. Alabama
The defendant interprets his life sentence as not being subject to La.
R.S. 15:574.4(F). However, his interpretation is incorrect. After stating that 5 the defendant would be sentenced to life without parole in accordance with
the explicit mandate of La. R.S. 14:30.1, the trial court modified its initial
statement of the sentence by clarifying that the defendant is parole eligible
“to the extent the defendant complies and qualifies with the conditions
enumerated in of La. R.S. 15:574.4(F).” While the trial court could have
been more artful, the trial court’s pronouncement of sentence is sufficient to
indicate parole eligibility under La. R.S. 15:574.4(F), and thus, the
requirements of Miller are satisfied.
The defendant further argues that his sentence of fifty years without
benefits is contrary to Morgan, supra because it denies him a “meaningful
opportunity for release.”9 However, the instant case is distinguishable from
Morgan. In Morgan, the defendant was convicted of a single offense and
sentenced to a term of 99 years without possibility of parole. Here, the
defendant was convicted of three offenses, resulting in three consecutive
sentences. The facts of Morgan are not authoritative in this case and, thus,
are not applicable.
Excessive Sentence
In his second assignment of error, the defendant contends that his
consecutive sentences are excessive and violative of the Eighth
Amendment’s prohibition against cruel and unusual punishment. The
defendant also argues that the record does not support the trial court’s
imposition of maximum sentences, as the district court failed to consider
9 The defendant, in brief, has much to say about La. R.S. 15:574.4(J). However, he concedes, La. R.S. 15:574.4(J) is inapplicable because it was enacted after he committed these crimes. 6 mitigating circumstances and lesser sentences as required by State v.
Dorthey, 623 So. 2d 1276 (La. 1993).
La. C. Cr. P. art. 881.1(E) precludes a defendant from presenting
sentencing arguments to the court of appeal which were not previously
presented to the trial court. During his motion to reconsider sentence, the
defendant failed to argue that the trial court did not articulate factors that
support the imposition of maximum sentences. Therefore, we hold that the
defendant waived his entitlement to review this issue. State v. Stevens,
33,700 (La. App. 2 Cir. 8/23/00), 766 So. 2d 634. However, we will review
defendant’s constitutional excessiveness challenge regarding his consecutive
sentences.
The Eight Amendment of the United States Constitution and Article I,
§ 20, of the Louisiana Constitution prohibits the imposition of cruel or
excessive punishment. Although a sentence falls within statutory limits, it
may be excessive. State v. Sepulvado, 367 So.2d 762 (La. 1979). An
appellate court utilizes a two-prong test in reviewing a sentence for
excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the article’s guidelines.
State v. Smith, 433 So. 2d 688 (La. 1983); State v. West, 53,526 (La. App. 2
Cir. 6/24/20), 297 So. 3d 1081; State v. Sandifer, 53,276 (La. App. 2 Cir.
1/15/20), 289 So. 3d 212; State v. DeBerry, 50,501 (La. App. 2 Cir.
4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332.
The articulation of the factual basis for a sentence is the goal of La. C. Cr. P.
art. 894.1, not rigid or mechanical compliance with its provisions. Where 7 the record clearly shows an adequate factual basis for the sentence imposed,
remand is unnecessary even where there has not been full compliance with
La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v.
Lee, 53,461 (La. App. 2 Cir. 4/22/20), 293 So. 3d 1270, writ denied, 20-
00582 (La. 10/14/20), 302 So. 3d 1113; State v. Payne, 52,310 (La. App. 2
Cir. 1/16/19), 262 So. 3d 498; State v. DeBerry, supra. The trial court is in
the best position to consider a particular case’s aggravating and mitigating
circumstances and, therefore, is given broad discretion in sentencing. State
v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043,
117 S. Ct. 615, 136 L. Ed. 2d 539 (1996); State v. West, supra; State v.
Valadez, 52,162 (La. App. 2 Cir. 8/15/18), 251 So. 3d 1273; State v.
Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764; State v. Allen,
49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La.
1/25/16), 184 So. 3d 1289. The important elements that should be
considered are the defendant’s personal history (age, family ties, marital
status, health, employment record), prior criminal record, seriousness of the
offense, and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049
(La. 1981); State v. DeBerry, supra. The trial court is not required to assign
any particular weight to any specific matters at sentencing.
State v. Parfait, 52,857 (La. App. 2 Cir. 8/14/19), 278 So. 3d 455, writ
denied, 19-01659 (La. 12/10/19), 285 So. 3d 489.
Second, an appellate court must determine if the sentence is
constitutionally excessive. State v. Smith, 01-2574 (La. 1/14/03), 839 So. 2d
1. A sentence is unconstitutionally excessive when it imposes punishment
grossly disproportionate to the severity of the offense or constitutes nothing
more than needless infliction of pain and suffering. State v. Bonanno, 384 8 So. 2d 355 (La. 1980); State v. Smith, supra. The relevant question is
whether the trial court abused its broad sentencing discretion, not whether
another sentence might have been more appropriate. State v. Cook, 95-2784
(La. 5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615,
136 L. Ed. 2d 539 (1996).
A sentence is considered grossly disproportionate if, when the crime and
punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. West, supra; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18),
246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208. The
sentencing court has wide discretion to impose a sentence within the
statutory limits, and the sentence imposed will not be set aside as excessive
absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.
12/13/04), 893 So. 2d 7; State v. Allen, supra. On review, an appellate court
does not determine whether another sentence may have been more
appropriate but whether the trial court abused its discretion. State v.
Williams, supra; State v. Tubbs, 52,417 (La. App. 2 Cir. 11/20/19), 285 So.
3d 536, writ denied, 20-00307 (La. 7/31/20), 300 So. 3d 404, on recons., 20-
00307 (La. 9/8/20), 301 So. 3d 30, and writ denied, 20-00307 (La. 9/8/20),
301 So. 3d 30.
When two or more convictions arise from the same act or transaction,
or constitute parts of a common scheme or plan, the terms of imprisonment
shall be served concurrently unless the court expressly directs that some or
all be served consecutively. La. C. Cr. P. art. 883. However, concurrent
sentences arising out of a single course of conduct are not mandatory, and
consecutive sentences are not necessarily excessive. State v. Green, 54,955 9 (La. App. 2 Cir. 4/5/23), 361 So. 3d 546; State v. Dale, 53,736 (La. App. 2
Cir. 1/13/21), 309 So. 3d 1031. It is within the trial court’s discretion to
make sentences consecutive rather than concurrent. State v. Green, supra;
State v. Dale, supra. The trial court’s failure to articulate specific reasons
for consecutive sentences will not require a remand if the record provides an
adequate basis to support separate sentences. State v. Green, supra; State v.
Williams, 52,052 (La. App. 2 Cir. 6/27/18), 250 So. 3d 1200.
The trial court stated during the sentencing hearing that it “considered
all the facts under Article 894.1(B), both mitigating and aggravating.” The
court identified La. C. Cr. P. art. 894.1(B)(5), (B)(6), (B)(9), (B)(10),
(B)(18), and (B)(19) applied in this case and stated a factual basis for each
aggravating factor listed above. The trial court also stated that it did not find
any mitigating circumstances to apply, but it noted the defendant’s age at the
time the crimes were committed. The defendant received a sentence of life
imprisonment at hard labor without sentencing benefits for the second
degree murder to the extent that he complies and qualifies with the
conditions enumerated in La. R.S. 15:574.4(F), fifty years at hard labor
without sentencing benefits for the attempted second degree murder, and ten
years at hard labor along with a $5,000 fine plus court costs for aggravated
assault with a firearm. The sentences are to be served consecutively. Based
on our review of the sentencing transcript, we find that the trial court
adequately considered the provisions of La. C. Cr. P. art. 894.1 in sentencing
the defendant, and regardless, the record supports all of the sentences even
without the trial court’s oral reasons.
After shaking hands to end what at best could be considered a minor
disagreement, the defendant unhesitatingly shot three human beings, killing 10 one of them instantly and seriously injuring two others. Additionally, the
defendant was only connected to the murder — one year later — after
engaging in a high-speed chase with police, where he crashed a vehicle, fled
the scene, and left the murder weapon behind. Based on these findings, the
record provides an adequate basis to support consecutive sentences in spite
of the trial court’s failure to articulate reasons for the imposition of
consecutive sentences. The defendant showed a severe disregard for the
value of human life when he shot three people merely to demonstrate his
intolerance for perceived disrespect. Therefore, we find that the consecutive
sentences are not constitutionally excessive, nor do they shock the sense of
justice and demonstrate a needless infliction of pain and suffering.
Fine and Court Costs
The trial court imposed a fine and court costs of $5,000 without
holding a hearing regarding the defendant’s ability to pay. The defendant
argues that this fine is excessive and that such a hearing was required. The
defendant also asserts that his $5,000 fine is illegal because he is presumed
indigent due to his representation by court-appointed counsel. He further
asserts that he “may not be incarcerated simply because he is unable to pay a
fine which is part of his sentence.”
Courts have found representation by court-appointed counsel and the
Louisiana Appellate Project to be presumptive evidence of indigency when
deleting default time. State v. Belton, 11-948 (La. App. 3 Cir. 3/07/12), 88
So. 3d 1159. However, in State v. Dickerson, 579 So. 2d 472 (La. App. 3
Cir. 1991), the third circuit stated, “we find that the trial court’s imposition
of a fine upon the indigent defendant in this case, which did not provide for
a jail term in the event of default of payment of the fine, is not excessive and 11 is not an illegal sentence.” Additionally, in State v. Williams, 598 So. 2d
708 (La. App. 5 Cir. 1992), the fifth circuit stated, “the defendant’s further
contention that an indigent may not be sentenced to pay a fine and costs,
however, is an inaccurate statement of law. An indigent defendant may not
be sentenced to additional jail time for failure to pay a fine or costs.” We
note that the trial court did not subject the defendant to additional
incarceration for failure to pay a fine and court costs. Therefore, we find
that the defendant’s contention that the imposition of a fine is illegal because
he is indigent to be without merit.
We observe that the defendant was sentenced on September 12, 2022.
Effective August 1, 2022, La. C. Cr. P. art. 875.1 was amended and
reenacted to require a financial hardship hearing. La. C. Cr. P. art. 875.1
states, in pertinent part:
Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall conduct a hearing to determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. (emphasis added). Before the imposition of the $5,000 fine, the trial court should have held a
hearing pursuant to La. C. Cr. P. 875.1. Since a hearing was not held, we
vacate the $5,000 fine, and we remand the matter to the trial court for the
required hearing. In doing so, we decline to address its excessiveness at this
time.
CONCLUSION
For the foregoing reasons, we affirm the defendant’s convictions and
sentences imposed for second degree murder and attempted second degree
murder. While we affirm the defendant’s conviction for aggravated assault
12 with a firearm, we vacate the portion of the sentence imposing a $5,000 fine.
We remand this case for a hearing pursuant to La. C. Cr. P. art. 875.1 to
determine the defendant’s ability to pay a fine.
CONVICTIONS AFFIRMED; SENTENCES FOR SECOND
DEGREE MURDER AND ATTEMPTED SECOND DEGREE
MURDER AFFIRMED; SENTENCE FOR AGGRAVATED ASSAULT
WITH A FIREARM, VACATED, IN PART; CASE REMANDED
WITH INSTRUCTIONS.