State v. Miller

49 So. 3d 1028, 10 La.App. 3 Cir. 237, 2010 La. App. LEXIS 1463, 2010 WL 4318903
CourtLouisiana Court of Appeal
DecidedNovember 3, 2010
DocketNo. 10-237
StatusPublished
Cited by3 cases

This text of 49 So. 3d 1028 (State v. Miller) 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. Miller, 49 So. 3d 1028, 10 La.App. 3 Cir. 237, 2010 La. App. LEXIS 1463, 2010 WL 4318903 (La. Ct. App. 2010).

Opinion

PICKETT, Judge.

FACTS

[ i At the end of January 2007, the victim, eighty-five-year-old Hazel Bergeron, answered a knock at her door. She testified a man was at her door wearing a mask made out of “funny papers” and he asked to come in and use the telephone because he had car trouble. Mrs. Bergeron said she recognized him because he had done repair work at her house in December 2006. She knew his voice, and part of his face was exposed.1

Mrs. Bergeron did not let the defendant, Michael Jason Miller, in, but he broke the door and entered. Another man also came in. She thought it was someone else who had done repair work there. She screamed, and the defendant stuffed a towel in her mouth. After getting $5 and a blank check, the defendant put a knife to her throat, and he also threatened to come back with a gun if she reported the crime. The defendant beat Mrs. Bergeron severely. During the ordeal, she lost consciousness, so she did not remember being beaten. The defendant left her on the floor.

On February 2, 2007, at about 12:20 a.m., one of Mrs. Bergeron’s sons, Dr. Joseph Bergeron, came to the house. He had just arrived from out of town to attend a family wedding. Mrs. Bergeron was curled up on the floor, in a pool of her own blood. Her face was heavily bruised, and there was blood on her head. Dr. Berger-on, who had experience as an emergency room physician, estimated that his mother had lain there for more than thirty hours.

Mrs. Bergeron was hospitalized first in Lake Charles, then in Beaumont, Texas. She had an intra-cranial injury, a broken pelvis, and hypothermia. The police | ¡.investigation at her home revealed that the telephone lines had been cut, and her door was damaged. Also, police learned that the defendant had tried to use Mrs. Bergeron’s credit card at a local Wal-Mart.

On June 17, 2008, the Calcasieu Parish District Attorney’s Office filed a bill of information charging the defendant with attempted second degree murder and aggravated burglary. His wife was also charged but was not tried with him, and thus is not a subject of this appeal. His first trial ended in a mistrial on May 7, 2009.

A new jury was selected on June 22-24, 2009. On the latter date, it began hearing evidence. On June 26, the jury found the defendant guilty as charged.

On October 28, 2009, the trial court heard argument regarding the defendant’s motions for new trial and for acquittal. It denied both motions. The defendant then waived sentencing delays, and the court conducted a habitual offender proceeding. At the close of that hearing, the court found the defendant to be a second habitual offender.

The court sentenced the defendant to seventy-five years at hard labor for attempted second degree murder and sixty years at hard labor for aggravated burglary, with the sentences to run concurrent[1031]*1031ly.2 The court also revoked the defendant’s probation from an earlier conviction. On October 30, 2009, the defendant filed a motion to reconsider sentence, which the court denied on the same date.

The defendant now appeals his convictions, assigning four errors.

ASSIGNMENTS OF ERROR

1. The state failed to establish all of the elements of proof that Michael Jason Miller was guilty of attempted second degree murder.

|a2. The prosecution and conviction of Michael Jason Miller for both attempted second degree murder and aggravated burglary violated his constitutional protection against double jeopardy.

3. The trial court erred in denying Michael Jason Miller’s motion to remove Mrs. Morris Hunter as a juror.

4. The trial court erred in denying Michael Jason Miller’s objection to Dr. Joseph Bergeron providing hearsay testimony.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find one error patent concerning the advisement of the time limitation for filing an application for post-conviction relief.

The trial court provided insufficient information regarding the time period for filing an application for post-conviction relief. The court minutes of sentencing state, “The Court advises the defendant of the prescriptive period for filing post conviction relief and he states he understands.” However, the sentencing transcript indicates the defendant was not fully advised of the time limitation of La.Code Crim.P. art. 930.8. After initially advising the defendant that he would have three years to file an application for post-conviction relief, the court stated:

I’m sorry, two years, two years, in which to file your application for post-conviction relief and that’s in article 930 of the Code of Criminal Procedure and subsequent articles. I mean 930 et seq. And you can ask your attorney for more information about that.

Louisiana Code of Criminal Procedure Article 930.8 states that the time period for filing an application for post-conviction relief is two years, which begins to run when the judgment of conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. It is not clear from the trial court’s comments that the two year prescriptive period begins to run only when the conviction and sentence |4are final. The trial court is instructed to inform the defendant of the correct provisions of article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant argues the evidence adduced at trial was insufficient to support his conviction for attempted second degree murder. Specifically, he contends the evidence does not demonstrate that he had the specific intent to kill Mrs. Bergeron. Specific intent to kill is an essential element of attempted second degree murder. See, e.g., [1032]*1032State v. George, 09-143 (La.App. 3 Cir. 10/7/09), 19 So.3d 614.

The analysis for sufficiency claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)).

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Bluebook (online)
49 So. 3d 1028, 10 La.App. 3 Cir. 237, 2010 La. App. LEXIS 1463, 2010 WL 4318903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miller-lactapp-2010.