State v. Campbell

404 So. 2d 1205
Supreme Court of Louisiana·Decided September 28, 1981·No. 81-KA-0295·Published·Cited by 423 cases

Opinion

404 So.2d 1205 (1981)

STATE of Louisiana
v.
Thurman L. CAMPBELL, Jr.

No. 81-KA-0295.

Supreme Court of Louisiana.

September 28, 1981.

*1206 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.

Robert Earl Piper, Jr., of Piper & Brown, Shreveport, for defendant-appellant.

GUIDRY, Justice Ad Hoc[*].

Defendant, Thurman Campbell, Jr., was indicted by a Caddo Parish Grand Jury for second degree murder, a violation of La. R.S. 14:30.1. The defendant pled not guilty and trial of the matter began on September 30, 1980. On the fourth day of trial and prior to completion of the State's case, Campbell changed his plea to that of guilty of manslaughter, a violation of La.R.S. 14:31. Following a pre-sentence investigation and subsequent sentencing hearing, the defendant was sentenced to serve twenty years at hard labor in the custody of the Louisiana Department of Corrections. Campbell appeals on the basis of three assignments of error.

FACTS

On March 29, 1979, defendant loaned a rented U-Haul truck to two acquaintances, Charles Lacour and Dennis Ray Brown. Lacour and Brown failed to return the truck to defendant and abandoned the vehicle when it ran out of fuel. On April 1, 1979, the defendant and a companion accosted Lacour and Brown as they left a liquor store in Shreveport. According to testimony received at Campbell's trial, the defendant was armed with a gun and demanded a sum of money from the two men. Subsequently, defendant ordered the men to walk to the deserted parking lot of the liquor store where he again demanded a sum of money. Thereafter, Campbell struck Brown over the head with the gun. Allegedly, Brown, as he turned to run, saw Lacour raise his arm and then heard a gunshot. Lacour subsequently died of a gunshot wound to the head. At trial, the defendant contended that the gun accidently discharged when Lacour grabbed for the weapon.

*1207 ASSIGNMENTS OF ERROR 1 & 2

Defendant assigns as error the imposition by the trial court of an allegedly excessive sentence and the alleged failure of the trial judge to articulate sufficient reasons for such sentence in accordance with the provisions of La.C.Cr.P. Article 894.1.

The imposition of a sentence, even though within statutory limits, may violate a defendant's right, under the Louisiana Constitution, against excessive punishment. Therefore, excessiveness of sentence is an appropriate question for review on appeal. See State v. Sepulvado, 367 So.2d 762 (La. 1979). In State v. Bonanno, 384 So.2d 355 (La.1980) we set forth the standard to be used in reviewing a sentence alleged to be excessive. Therein we commented:

"As stated previously, to determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. State v. Goode, supra. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980)."

Additionally, in State v. Sepulvado, supra, we concluded that the statutory criteria legislatively provided by La.C.Cr.P. Article 894.1 affords appropriate criteria by which to measure whether a sentence within the statutory limits is nevertheless excessive.[1] Under La.C.Cr.P. Article 894.1, the sentencing judge must state for the record those considerations taken into account in imposing sentence and the factual basis for such considerations. State v. Jackson, 360 So.2d 842 (La.1978). Simply stated, the record must reflect that the trial court adequately considered these criteria in imposing sentence.

The instant record indicates that sentence was imposed after a lengthy sentencing hearing during which several character witnesses and the defendant, himself, testified. Although the defendant contends that the trial judge failed to provide sufficient reasons for sentencing, an examination of the record reveals that defendant's allegation is totally without merit.

*1208 In this case, the trial judge provided an unusually thorough discussion of the factual basis for defendant's sentence. He noted the seriousness of the offense as well as trial testimony indicating that the defendant was additionally suspected of committing the crimes of aggravated kidnapping and armed robbery arising out of the same incident. Further, the trial court noted that defendant acted without strong provocation and noted that there existed no grounds to excuse or justify his behavior. The trial judge considered that the defendant had a prior history of crime as evidenced by his lengthy rap sheet and concluded that if he were placed on probation there existed a distinct probability that he would commit another crime. In support of this conclusion, the trial judge noted that Campbell had previously been placed on probation for a prior offense, yet had not discontinued his criminal activities. Although cognizant of the hardship on defendant's family which will result from his incarceration, the trial judge concluded that the risk of continued criminal activity by Campbell militated against the imposition of a lesser sentence. The trial judge commented that a lesser sentence would surely deprecate the seriousness of Campbell's crime.

In State v. Spencer, 374 So.2d 1195 (La. 1979), we stated:

"...The trial judge's reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvado, supra."

Our careful review of the record in light of the standards set forth above reveals no abuse of the trial court's discretion.

The defendant had originally been indicted for the crime of second degree murder which carries a mandatory sentence of life imprisonment without benefit of probation, parole, or suspension of sentence. After four days of trial, the defendant, fearing conviction on the murder charge, changed his guilty plea to one of guilty of manslaughter with no sentence limitations or recommendations imposed upon the trial court.[2] As we have repeatedly stated, the trial judge exercised all due diligence in specifically delineating his reasons for imposing a twenty year sentence on defendant. The record clearly supports the trial court's conclusions regarding the defendant, therefore, we conclude that the sentence imposed is both reasonable and just.

ASSIGNMENT OF ERROR 3

By this assignment of error, defendant urges that this Court review the instant record for patent errors. In brief and as a footnote only, defense counsel alleges that during the Boykinization process, the trial judge failed to specifically inform Campbell of the waiver by virtue of his guilty plea, of his right against compulsory self-incrimination

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