State v. Brabham

638 So. 2d 428
CourtLouisiana Court of Appeal
DecidedMay 31, 1994
DocketNo. 94-KA-71
StatusPublished
Cited by2 cases

This text of 638 So. 2d 428 (State v. Brabham) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brabham, 638 So. 2d 428 (La. Ct. App. 1994).

Opinion

JjKLIEBERT, Chief Judge.

The defendant Bryan Bradham was charged by bill of information filed on October 15, 1991 with two counts of molestation of a juvenile in violation of LSA-R.S. 14:81.-2(A)(C). When arraigned on January 8, 1992, the defendant entered a plea of not guilty to both charges. On June 17, 1993, the trial court conducted a preliminary examination and found that there was probable cause to charge him with the offenses. The defendant proceeded to trial on June 22, 1993, and at the conclusion of the three-day trial the jury returned with verdicts of guilty of indecent behavior with a juvenile, (LSA-R.S. 14:81), a lesser charge, on count one and guilty as charged on count two. After denying the defendant’s motion for judgment of acquittal and motion for new trial on October 26, 1993, the trial court sentenced the defendant to five years at hard labor on count one and ten years at hard labor on count two. The court ordered the sentences to be served consecutively with each other and consecutively with any other sentences. The defendant subsequently filed a motion to reconsider sentence on the ground of excessiveness.

|2While residing with Cindy Martin, the defendant sexually abused her son, D.M.1 According to D.M., on several occasions the defendant would climb into his bed, pull down his pajamas and “rub his penis on my butt.” On other occasions the defendant would awaken him and force him to observe as the defendant engaged in sexual intercourse with Ms. Martin while she was asleep.

The defendant also sexually abused Ms. Martin’s niece, J.B. The incident occurred during a visit on which she was awakened when she felt the defendant “rubbing” her vagina. At the time of the trial, she, too, was 12 years old, the abuse having occurred several years earlier during the same time period as the abuse to D.M.

The defendant contends the trial court erred in denying the defendant’s motion for mistrial on the grounds that several jurors observed the defendant wearing handcuffs during a recess.

Compelling a criminal defendant to stand trial in readily identifiable prison attire over his express objection infringes upon his presumption of innocence and denies the defendant due process of law. LSA-Const. 1974, Art. I, Section 16; State v. Brown, 585 So.2d 1211 (La.1991).

However, the mere fact that a defendant appeared in restraints or may have been viewed by jurors does not in itself constitute reversible error. The mere possibility that a defendant was prejudiced is insufficient to constitute reversible error. Rather, there must be a showing by the defendant that jurors did view defendant and that the viewing resulted in prejudice to the defendant which impacted upon the verdict. State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Newton, 562 So.2d 978 (La.App. 3rd Cir.1990). See also State v. Jasper, 506 So.2d 211 (La.App. 5th Cir.1987).

In the instant case, the defendant was not handcuffed during trial. During the lunch break, one juror saw him in handcuffs as he was being transported from the courtroom. She told one other juror about having [430]*430seen defendant handcuffed. The remaining four laiurors had no knowledge of the defendant’s being handcuffed on the lunch break.

The trial judge conducted a thorough colloquy with each juror to determine the effect, if any, that their knowledge of the incident might have on their ability to impartially judge the defendant. As can be seen from the record,2 only two of the six jurors had knowledge of the defendant’s appearance in the hallway in handcuffs and the effect on their judgment was non-existent. Furthermore, as the judge acknowledged in the colloquy, the jurors had already learned that the defendant was currently incarcerated on an armed robbery conviction. Therefore, we find that the trial court was correct in denying defendant’s motion for mistrial.

Next, the defendant argues that the sentences imposed, totalling fifteen years, are excessive.

The Louisiana Constitution in Article 1, Section 20 prohibits the imposition of excessive punishment. Even a sentence within the prescribed statutory limit, may violate a defendant’s constitutional right against excessive punishment. State v. Sweeney, 443 So.2d 522 (La.1983).

A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentencing is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. The sentence imposed will not be set aside' absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. State v. Lobato, 603 So.2d 739 (La.1992), appeal after remand, 621 So.2d 103 (La.App. 2nd Cir.1993).

The defendant was convicted of inde-cedent behavior with a juvenile in violation of LSA-R.S. 14:81 and molestation of a juvenile in violation of LSA-R.S. 1481.2(A)(0). For those | ¿convictions, the defendant faced fines of $15,000 and up to twenty-two years in prison; however, no fine was imposed.

In the instant case the sentences imposed are not grossly disproportional to the crime in light of the harm committed to the young victims, who were between the ages of 7 and 10 when the abuse occurred. The sentences imposed amount to a total of fifteen years as opposed to a possible fine of $15,000 and a potential exposure of twenty-two years at hard labor. Furthermore, the defendant’s criminal history included a conviction of armed robbery, thereby demonstrating his propensity for criminal activity. Therefore, we find the sentences imposed are not excessive.

An error patent discussion which was conducted in accordance with LSA-C.Cr.P. art. 920 and State v. Williams, 593 So.2d 753 (La.App. 5th Cir.1992) reveals the following errors.

The sentencing transcript, unlike the hard labor sentencing form, fails to show that the trial court gave the defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence; however, such an allowance is mandatory. LSA-C.Cr.P. art. 880; State v. Sherman, 532 So.2d 908 (La.App. 5th Cir.1988). Therefore, the sentence is amended to confirm the hard labor sentencing form and give the defendant such credit.

Accordingly, for the reasons assigned, defendant’s conviction is affirmed and the sentence is amended to give defendant credit for time served and, as amended, affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.

J¿APPENDIX

(AT THE BENCH OUT OF HEARING OF THE JURY)

MR. FLEMING: [Defense Counsel]

It is the lady in grey.

THE COURT:

All right. Mr. Bailiff, would you escort the jury out please for one moment. Ma’am, if you would stay for a second.

[431]*431(THE JURY LEAVES THE COURTROOM)

Yes, ma’am. Let me ask you a couple of quick questions.

MS. ARSENEAUX: [Juror]

Okay.

There may have been a possibility that when the defendant was leaving the courtroom, you may have been coming out the jury box?

MS. ARSENEAUX:

Um-hum. I was going to the rest room.

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Related

Dunbar v. Renfroe
856 So. 2d 378 (Court of Appeals of Mississippi, 2003)
State v. Bradham
638 So. 2d 428 (Louisiana Court of Appeal, 1994)

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638 So. 2d 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brabham-lactapp-1994.