State v. Murphy

206 So. 3d 219, 2016 La.App. 1 Cir. 0901, 2016 La. App. LEXIS 1963
Louisiana Court of Appeal·Decided October 28, 2016·No. 2016 KA 0901·Published·Cited by 12 cases

Opinion

McDonald, j.

laThe defendant, Donald Murphy, was charged by bill of information on counts one through four with production of pornography involving a juvenile under the age of thirteen years, violations of LSA-R.S. 14:81.1(E)(5)(b); on count five with computer aided solicitation of a minor, a violation of LSA-R.S. 14:81.3(B)(l)(c); and, on count six with unlawful use of a social networking website, a violation of LSA-R.S. 14:91.5(0(1). The defendant pled not guilty on all counts. On the first day of trial, the defendant filed a motion to sever count six from the-remaining counts and a motion to suppress his confession. The trial court denied the motions. Following a jury trial, the defendant was .unanimously found guilty as charged on all six counts.

The defendant filed a motion for new trial, which the trial court granted as to count six and denied as to counts one through five.1 The State' filed a habitual offender bill of information, seeking to enhance the sentences on the defendant’s four convictions of production of pornography involving a juvenile. After a hearing, the defendant was adjudicated a second-felony offender as to counts one through four under LSA-R.S. 15:529.1(A)(2)(a).2 On each of counts one through four, the' trial court sentenced the defendant to ninety-nine years imprisonment at hard labor without the benefit of parole,'probation, or suspension of sentence. On count five, the trial court sentenced the defendant to ten years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court ordered thé sentences to be served concurrently. The State subsequently nol-prossed count six.

The defendant now appeals, assigning error to the trial court’s denial of his chal[224] lenge for cause on two prospective jurors; the trial court’s denial of his motion to sever count six; the trial court’s denial of his motion for a mistrial; and the trial court’s failure to identify which count was being enhanced by the habitual offender bill of information. For the following reasons, we affirm the convictions and sentences.

| .¡STATEMENT OF FACTS

In or around November 2012, the defendant began communicating via the internet with M.R., the victim herein who was twelve years old at the time.3 The victim testified that the defendant initiated conversations with her on a social network chat site called “Kik.” The victim further testified that she and the defendant became friends, that she told the defendant her age, that he told her his age, and that they had approximately 500 text message communications over a period of time. At one point, the defendant sent the victim a sexually graphic video that revealed his “privates [genitals],” and instructed her to view it alone. The victim was uncomfortable with the video and told the defendant that she did not want it. However, the communications (including additional video exchanges and photographs) continued through early January 2013, and became increasingly lewd. Specifically, among the photographs, the victim complied with the defendant’s request to send him a photograph of her vagina. The defendant told the victim to delete the photographs that he sent her and that he did not want anyone else to see them. However, the victim did not follow his instructions to delete the photographs. The victim complied with the defendant’s instructions to send additional sexually graphic photographs and videos of herself committing acts as specifically instructed by the defendant, including masturbation. The defendant also repeatedly told the victim that he himself masturbated while viewing the photos and videos she sent.

Early in 2013, David Ferris of the Louisiana Attorney General’s Office Cyber Crimes Unit, began investigating the case after it was forwarded to his office through the nationwide Internet Crimes Against Children Task Force. The Attorney General’s Office received the evidence of the offenses, including chat logs, videos, and images that were transferred, and began investigating the defendant. The defendant was taken into custody after he was flown into Houma, Louisiana, from a rig offshore. After |4he was advised of his Miranda4 rights and signed a waiver of rights form, the police conducted a recorded interview of the defendant. The defendant admitted to using the Kik social network to communicate with females. The defendant also confessed to having communications and exchanging explicit photographs (of other people) with an underage female who indicated that she was thirty years younger than him. He initially stated that he thought she was eighteen years old, then stated that she said she was sixteen years old, but then admitted that she informed him that she was about thirteen or fourteen years old. The defendant ultimately admitted that the victim sent him photographs of her private parts. He also admitted to receiving sexually graphic videos of the victim and to sending the victim sexually graphic photographs and videos of himself.

[225] ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues that the trial court erred in denying his challenges for cause as to two prospective jurors, Ryan Hopkins and Cheryl Rivera. The defendant argues that their, answers as a whole indicated that they could not be fair and impartial. The defendant notes that Mr. Hopkins was a deputy of the St. Tammany, Parish Sheriffs Office at the time of the trial and that Ms. Rivera was an FBI information technology specialist, who was married to a retired DEA agent. The defendant concedes that both prospective jurors indicated that they could be fair and gave responses that were “technically in line.” The defendant argues however that, absent further inquiry, their work with law enforcement alone was grounds for a cause challenge. ,

An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. LSA-Const. art. I, § 17(A). Both the defendant and the State are given twelve peremptory challenges in trials of offenses punishable by death or necessarily by imprisonment at hard labor. LSA-C.Cr.P. art. 799. Pursuant to LSA-C.Cr.P. art. 797(2), a prospective juror may be challenged for cause because he is not impartial, whatever the cause of his partiality. Prejudice is presumed when a trial court erroneously denies a challenge for cause and | sthe defendant has exhausted his peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280; State v. Ross, 623 So.2d 643, 644 (La. 1993). An erroneous ruling depriving an accused of a peremptory challenge substantially violates his rights and constitutes reversible error. Robertson, 630 So.2d at 1280-81.

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State v. Murphy, 206 So. 3d 219, 2016 La.App. 1 Cir. 0901, 2016 La. App. LEXIS 1963 (La. Ct. App. 2016).

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