State v. Simmons

136 So. 3d 358, 13 La.App. 5 Cir. 258, 2014 WL 766471, 2014 La. App. LEXIS 482
CourtLouisiana Court of Appeal
DecidedFebruary 26, 2014
DocketNo. 13-KA-258
StatusPublished
Cited by15 cases

This text of 136 So. 3d 358 (State v. Simmons) 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. Simmons, 136 So. 3d 358, 13 La.App. 5 Cir. 258, 2014 WL 766471, 2014 La. App. LEXIS 482 (La. Ct. App. 2014).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant challenges his convictions and sentences for attempted first degree murder of a peace officer, resisting arrest by force, and disarming a peace officer. For the following reasons, we affirm.

Procedural History

On October 13, 2010, the St. Charles Parish District Attorney filed a bill of information charging defendant, Jerry Simmons, with resisting an officer by force or violence, in violation of La. R.S. 14:108.2 (Count 1); attempted first degree murder of a peace officer, Thomas Plaisance, in violation of La. R.S. 14:27 and 14:30 (Count 2); and disarming of a peace officer, in violation of La. R.S. 14:34.6.1

On July 6, 2011, the court denied defendant’s third verbal request to proceed pro se and instructed defendant to file a written motion within 15 days, which he did. After a Faretta2 hearing on August 10, 2011, the court granted defendant’s motion to represent himself.3 On September 7 and 8, 2011, the matter was tried | ¡¡before a 12-person jury.4 On September 8, 2011, the jury found defendant guilty as charged on all counts.

On October 12, 2011, the trial judge sentenced defendant on Count 1, resisting a police officer with force or violence, to three years imprisonment in the Department of Corrections; on Count 2, attempted first degree murder of a peace officer, to 22 years imprisonment, in the Department of Corrections; and on Count 3, disarming of a police officer, to five years imprisonment in the Department of Corrections, to run concurrently. Defendant moved for appeal, which was granted.

On January 18, 2012, the trial court ordered a pre-sentence investigation. On March 28, 2012, the State filed a multiple offender bill of information, and defendant denied the allegations of the multiple offender bill. After several hearings, the trial judge found that the State had proven defendant to be a fourth felony offender. On May 29, 2012, the trial court vacated defendant’s original sentences and imposed concurrent, enhanced sentences, in the Department of Corrections, of 25 years imprisonment on Count 1, 75 years imprisonment on Count 2, and 25 years imprisonment on Count 3, without' benefit of probation, parole or suspension of sentence. Defendant filed a timely motion for appeal.

Facts

At trial, Deputy Thomas Plaisance of the St. Charles Parish Sheriffs Office (“SCPSO”) testified that, on August 23, 2010, at about 10:40 p.m., he stopped a driver on River Road in New Sarpy for speeding. After the driver pulled his truck into the parking lot of the Friendly Quick Stop at the corner of Clement and River Road, Officer Plaisance observed a [363]*363large pit bull terrier, untethered, in the bed of the truck. As Deputy Plaisance exited his police unit, the dog barked and lunged at him. Deputy Plaisance instructed the driver to restrain the dog so the driver put the |4dog in the cab of the truck. Unfortunately, Deputy Plaisance was unaware that the truck’s passenger window was open.

As Deputy Plaisance observed the driver, he suspected that the driver had been drinking alcohol. When asked, the driver admitted that he had consumed two to three beers that night but refused to submit to a field sobriety test.

When Deputy Plaisance instructed the driver to place his hands behind his back for arrest, he initially hesitated then turned as if to run away. Deputy Plai-sance drew and activated his Taser then again ordered the driver to place his hands behind his back and instructed him to lie on the ground. Eventually, the driver, identified as Jerry Simmons, defendant-herein, complied.

As defendant lay on the ground, Deputy Plaisance succeeded in getting the handcuff on defendant’s right wrist but, as Deputy Plaisance attempted to handcuff defendant’s left wrist, defendant rolled onto his back and struck Deputy Plaisance with his fist. As defendant punched Deputy Plai-sance, the pit bull jumped out of the truck and bit Deputy Plaisance on the head and on the side. When defendant saw his dog biting Deputy Plaisance, defendant encouraged the dog, saying “Kill him! Get him! Bite him!” Deputy Plaisance, who was kneeling, drew his gun and fired at the dog, which enraged defendant.

At this point, Deputy Plaisance had his attention on the dog, which he felt was the greater threat. When Deputy Plaisance attempted to holster his sidearm, he could not because he had forgotten to “decock it.” Defendant, who had moved behind Deputy Plaisance, immediately attempted to remove the weapon from the holster. Deputy Plaisance, who was still kneeling, realized that he would lose control of his sidearm and released the magazine from the weapon, which left only one round of ammunition in the gun. Defendant did gain control of Deputy Plaisance’s sidearm but dropped it during the struggle.

15As the two men struggled, defendant knocked Deputy Plaisance to the ground, straddled his torso, and struck him with his fists in the face and jaw. Defendant also repeatedly lifted Deputy Plaisance’s head and slammed it into the ground, which caused lacerations on his scalp. Additionally, defendant bit Deputy Plai-sance’s first finger, causing a deep laceration.

During this incident, James Wilcox, his wife, three children, and his friend, Travis Credeur, were standing outside their houses across the street from the Friendly Quick Stop. James Wilcox testified that, when Deputy Plaisance and defendant began speaking loudly, the dog jumped out of the truck and attacked Deputy Plaisance. Mr. Wilcox testified that, after defendant started beating Deputy Plaisance’s head into the ground, he and his friend, Pete Massengale, approached to help the officer. According to Mr. Massengale, he thought that if he failed to stop defendant, defendant was going to kill Deputy Plai-sance.

Mr. Massengale, who grabbed a wooden boat paddle from another bystander, approached Deputy Plaisance and warned defendant to stop. According to Deputy Plaisance, when Mr. Massengale asked, Deputy Plaisance told Mr. Massengale to hit defendant with the paddle. Mr. Mas-sengale struck defendant in the shoulders but defendant ignored Mr. Massengale and continued to hit Deputy Plaisance. Mr. [364]*364Massengale struck defendant again in the shoulders, to no avail. Finally, Mr. Mas-sengale struck defendant forcefully, with the flat of the paddle, in the back of the head.

Defendant finally stopped hitting Deputy Plaisance and rolled to his side. After defendant released him, Deputy Plaisance tased defendant, which subdued him. Lieutenant Mike Folse arrived almost immediately, and he and Deputy Plaisance together were finally able to handcuff defendant. The dashboard camera | fiin Deputy Plaisance’s vehicle recorded the incident. The video of the incident was introduced into evidence and played for the jury.

During the altercation, Deputy Plaisance received a laceration to his forehead, which required stitches; the dog bites on his scalp, which required stitches; the human bite on the right index finger, which required stitches and caused the most time out of work; and bruising and swelling to his face and jaw. For four days, he was unable to chew solid food.

Lieutenant George Breedy of the SCPSO testified that, on August 24, 2010, he was dispatched to the St.

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Cite This Page — Counsel Stack

Bluebook (online)
136 So. 3d 358, 13 La.App. 5 Cir. 258, 2014 WL 766471, 2014 La. App. LEXIS 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simmons-lactapp-2014.