State Of Louisiana v. Patrick J. Callegan

CIV

FIRST CIRCUIT

2024 KA 0031

STATE OF LOUISIANA

VERSUS

PATRICK CALLEGAN

Judgment Rendered: 2mm

Appealed from the
18th Judicial District Court
In and for the Parish of Iberville
State of Louisiana
Docket No. 1031- 17

The Honorable Elizabeth A. Engolio, Judge Presiding

Antonio M. Clayton Counsel for Appellee,
District Attorney State of Louisiana
Trenton J. Shows
Assistant District Attorney
Port Allen, Louisiana

Katherine M. Franks Counsel for Defendant/Appellant,
Madisonville, Louisiana Patrick Callegan

BEFORE: WOLFE, MILLER, AND GREENE, JJ.

MILLER, J.

On September 7, 2017, the defendant, Patrick J. Callegan, was charged by

grand jury indictment with first degree rape, a violation of La. R.S. 14: 42. 1 He

initially pled not guilty but entered a guilty plea to the amended charge of second

degree rape, a violation of La. R.S. 14: 42. 1. On September 24, 2020, this court set

aside his conviction and sentence and remanded the case to the trial court to allow

him the opportunity to withdraw his guilty plea. State v. Callegan, 2019- 1243 ( La.

App. 1St Cir. 9/ 24/ 20), 2020 WL 5688757 ( unpublished). On remand, the defendant

withdrew his guilty plea, and the matter proceeded to trial on the original charge of

first degree rape, and the defendant was convicted on June 21, 2023 by a

unanimous jury. On July 31, 2023, the trial court sentenced the defendant to life

imprisonment.2 The defendant now appeals, designating two assignments of error.
For the following reasons, we affirm the conviction, amend the sentence, and

affirm the sentence as amended.

FACTS

On June 17, 2017, six-year- old K.B.G.3 disclosed to her great grandmother,

S. M.,
that the defendant, a family acquaintance, vaginally raped her during a prior

visit to S. M.' s home in White Castle. K.B. G.' s mother brought her to the hospital,

where staff notified the police and performed a sexual assault examination. DNA

analysis of the sexual assault kit showed the defendant could not be excluded as

the male DNA donor on swabs from K.B.G.' s vaginal area. The defendant

The defendant was also charged with intimidating a witness, a violation of La. R.S.
14: 129. 1, but the State entered a nolle prosequi on the charge.

2 The sentencing transcript reflects the trial court failed to restrict benefits on the sentence
as statutorily mandated by La. R.S. 14: 42( D)( 2)( b). However, when a trial court does not
mention the restriction of benefits provided in the sentencing statute, such conditions are self -
activating pursuant to La. R.S. 15: 301. 1( A). Thus, no corrective action is needed in this case. See
State v. Meek, 2023- 0362 ( La. App. 1st Cir. 11/ 9/ 23), 379 So. 3d 67, 69 n. l, writ denied
La. 5/ 29/ 24), 385 So. 3d 703.

3 Because the charged crime is a sex offense, we reference the victim by her initials only.
See La. R.S. 46: 1844( W)( 1)( a).

I

confessed in his interview with police and was arrested for the first degree rape of

AMENDMENT OF INDICTMENT

In his first assignment of error, the defendant argues the State failed to

timely amend the indictment before trial. A defendant has a constitutional right to

be advised, in a criminal prosecution, of the nature and cause of the accusations

against him. La. Const. art. I, § 13. An indictment is a written accusation of crime

made by a grand jury. La. C. Cr.P. art. 383. The district attorney has full authority
to amend indictments, both as to form and substance, at any time before trial.

However, if the district attorney substantively amends the indictment after trial

begins, the trial court shall order a mistrial. See La. C. Cr.P. art. 487( A); see also

State v. Charles, 2019- 0757 ( La. App. 1St Cir. 8/ 19/ 19), 2019 WL 3891818, * 1

unpublished), writ denied, 2019- 01615 ( La. 7/ 24/ 20), 299 So. 3d 49 ( per curiam).

The purpose of requiring the State to amend an indictment before trial is to provide

the defendant with adequate notice of the crime for which he is charged so he can

properly prepare his defense. When the indictment against the defendant provides

sufficient notice of the crime with which he is charged, a defendant suffers no

prejudice. State v. Dean, 2010- 1020 ( La. App. 1St Cir. 12/ 22/ 10), 2010 WL

5442005, * 8 ( unpublished), writ denied, 2012- 0011 ( La. 8/ 22/ 12), 97 So. 3d 355.

The time for testing the sufficiency of a bill of information is before trial by

way of a motion to quash or an application for a bill of particulars. State v.

Drau n, 2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 623, cert. denied, 552 U.S.

1012, 128 S. Ct. 5379 169 L. Ed. 2d 377 ( 2007). A post -verdict attack on the

sufficiency of an indictment should be rejected unless the indictment failed to give

fair notice of the offense charged or failed to set forth any identifiable offense. Id.

4 Prior to giving a statement, the defendant was advised of his rights pursuant to Miranda
v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

9

In the instant case, the State originally charged the defendant by grand jury

indictment with first degree rape. He pled guilty to an amended charge of second

degree rape in exchange for a sentence of thirty-five years. The defendant

withdrew his guilty plea at a hearing on July 27, 2022, after which the State and

the trial court advised the defendant he would be tried on the original charge of

first degree rape.

Before trial, the defendant filed two pro se motions to quash the indictment

based on double jeopardy and numerous other grounds, pursuant to La. C. Cr.P.

arts. 532 and 533. The trial court denied both motions. Subsequently, on April 26,
2023, the State made a handwritten amendment to the amended indictment

changing the charge from second degree rape back to the original charge of first

degree rape.

Trial in this matter began on June 20, 2023. During voir dire examination,

all parties informed the jury that the defendant was charged with first degree rape.

After jury selection, the defendant re -urged the motions to quash on a new ground;

namely, he argued his guilty plea to second degree rape was a conviction and,

therefore, the greatest offense with which the State could charge him was second

degree rape. The trial court again denied the motions, to which the defendant did

not object. The deputy clerk of court then read aloud the indictment, which stated

the charge as first degree rape. The jury found the defendant guilty of first degree

rape, and the defendant did not object to the verdict. At the sentencing hearing on
July 31, 2023, the trial court sentenced him to life in prison.

Initially, we note that in the two motions to quash the indictment filed by the
defendant, he asserted numerous grounds upon which he argued that the indictment

should be quashed. However, the State' s alleged failure to timely amend the

indictment was not raised in these motions. Although he re -urged the motions on

the morning of trial, he still did not argue the State failed to timely amend the

C!

indictment. Thus, the defendant did not raise the sufficiency of the indictment in a

motion to quash before the trial court. Nonetheless, as the defendant has made a

post -verdict attack on the sufficiency of the indictment, we will address his claims

of an untimely amendment. Such an attack should be rejected unless the indictment

failed to give the defendant fair notice of the offense charged. See Draughn, 950

So. 2d at 623.

On appeal, the defendant concedes he was aware the State intended to

charge him with first degree rape. However, he contends the State orally amended

the indictment immediately prior to sentencing. The record reflects the indictment

was actually amended on April 26, 2023, and filed as amended prior to trial. Thus,

the defendant' s assertion that the State orally amended the indictment at the

sentencing hearing on July 31, 2023, is incorrect.5

Moreover, the defendant had ample notice both before and after the April

26, 2023 amendment that the State intended to bring him to trial on the charge of

first degree rape. When the defendant re -urged his motion to quash on the day of
trial, June 20, 2023, he was clearly aware the indictment had been amended to

reflect the original charge of first degree rape, as he argued the State should try
him on second degree rape instead. Further, the defendant did not object to or raise

any issue as to the State' s alleged failure to amend the indictment at any point
during trial. The trial court, the parties, and the minute clerk all stated the

defendant was charged with first degree rape without objection from the defendant.

Therefore, the defendant was clearly on notice of the offense charged and the

indictment was timely amended. This assignment of error is without merit.

5 The defendant claims the sentencing minute entry reflects the State orally amended the
indictment. However, the minutes simply list the charge as " 2ND DEGREE RAPE AMENDED
TO l ST DEGREE RAPE[.]" Thus, it does not reflect the State amended the charge at that time.
Moreover, the sentencing transcript is void of any reference to such amendment, which the
defendant concedes on appeal.

E

MOTION FOR MISTRIAL

In his second assignment of error, the defendant argues the trial court

erroneously denied his motion for mistrial after the State elicited testimony

referring to inadmissible other crimes evidence. He further argues the trial court

erred in finding the evidence admissible as part of the res gestae of the offense.

Evidence of other crimes is generally not admissible. However, other crimes

evidence is admissible " when it relates to conduct that constitutes an integral part

of the act or transaction that is the subject of the present proceeding." La. C.E. art.

404($)( 1)( a).
This exception, formerly known as res gestae, incorporates a rule of

narrative completeness without which the State' s case would lose its narrative

momentum and cohesiveness. Such evidence forms part of the res gestae when it is

so nearly connected to the charged offense the State cannot accurately present its

case without reference to that evidence. See State v. Taylor, 2001- 1638 ( La.

1/ 14/ 03), 838 So. 2d 729, 741, cert. denied, 540 U.S. 1103, 124 S. Ct. 1036, 157 L.

Ed. 2d 886 ( 2004); State v. Adams, 2023- 0795 ( La. App. 1st Cir. 3/ 22/ 24), 387 So.

3d 668, 672.

Close proximity in time and location is required between the charged offense

and the other crimes evidence to ensure the purpose served by the admission of

other crimes evidence is not to depict the defendant as a bad man but, rather, to

complete the story of the crime on trial by proving its immediate context of

happenings near in time and place. Tater, 838 So. 2d at 741. The res gestae

doctrine in Louisiana is broad and includes not only spontaneous utterances and

declarations made before or after the commission of the crime, but also testimony

of witnesses and police officers pertaining to what they heard or observed during

or after the commission of the crime if a continuous chain of events is evident

under the circumstances. Id.

on

Under La. C. Cr.P. art. 770( 2), upon motion of a defendant, a mistrial shall

be ordered when the judge, district attorney, or a court official makes a remark or

comment within the hearing of the jury that refers to another crime committed or

alleged to have been committed by the defendant as to which evidence is not

admissible. As a general rule, a State witness is not a " court official" within the

meaning of Article 770. However, an impermissible reference to another crime

deliberately elicited from a State witness by the prosecutor would be imputable to

the State and would mandate a mistrial. State v. Caminita, 2016- 0121 ( La. App. 1 St

Cir. 9/ 16/ 16), 203 So. 3d 1100, 1105, writ denied, 2016- 2045 ( La. 9/ 6/ 17), 224 So.

A mistrial is a drastic remedy that should only be declared upon a clear

showing of prejudice by the defendant. The trial court has broad discretion in

determining whether conduct is so prejudicial as to deprive an accused of a fair

trial.
Caminita, 203 So. 3d at 1106. A reviewing court in Louisiana should not

reverse a defendant' s conviction and sentence unless the error has affected the

substantial rights of the accused. See La. C. Cr.P. art. 921; Caminita, 203 So. 3d at

1106.

On direct examination of Detective Leslie Bradford with the Iberville Parish

Sheriff' s Office, the State inquired about the investigation leading to the

defendant' s arrest. Detective Bradford testified that when she initially interviewed
the defendant, he denied K.B. G.' s allegations. Detective Bradford decided not to

apply for an arrest warrant for the defendant at that time. When the State asked

Detective Bradford what prompted her to later apply for an arrest warrant, she

stated that after speaking to various witnesses, she obtained an arrest warrant for

the defendant for intimidating a witness because the defendant was warned not to

contact K.B.G.' s family. Detective Bradford further stated that she subsequently

7

conducted an interview wherein the defendant admitted to raping K.B. G. and she

then applied for an warrant.

The defendant immediately objected and moved for a mistrial, arguing

Detective Bradford referred to other crimes evidence by stating the defendant was

arrested for intimidating a witness. The trial court agreed Detective Bradford

should not have mentioned the intimidation charge but ultimately ruled it could be

considered part of the res gestae and denied the motion for mistrial. The defendant

noted his objection but did not request that the trial court admonish the jury.
After review, we find that Detective Bradford' s statement constituted an

impermissible reference to another crime or bad act and was improperly presented

to the jury. The trial court' s ruling on the admissibility of the other crimes evidence

was error. The witness intimidation does not relate to conduct that constitutes an

integral part of the rape, is not so nearly connected to the rape that the State could

not accurately present its case without reference to that evidence, and was not in

close proximity in time and location to the rape. However, the erroneous admission

of other crimes evidence is subject to a harmless error analysis. See Adams, 387

So. 3d at 674. An error in the admission of other crimes evidence is not harmless

unless a reviewing court determines that the verdict actually rendered was surely

unattributable to the error. State v. Brown, 2018- 01999 ( La. 9/ 30/ 21), 330 So. 3d

199, 236, cert denied, U.S. , 142 S. Ct. 1702, 212 L.Ed. 2d 596 ( 2022).

Some of the evidence in this case consisted of testimony, interviews, medical

records, DNA swabs, a sexual assault kit, and text messages. Further, and most

importantly, the defendant, after being advised of his rights, confessed to raping
K.B. G. in his second interview.

Much credit should be accorded to the good sense and fair-mindedness of

the jurors who have seen the evidence, heard the arguments, and been instructed by
the trial judge that arguments of counsel are not evidence. State v. Dupre, 2022-

1228 ( La. App. 1st Cir. 4/ 14/ 23), 367 So. 3d 81, 90, writ not considered, 2023-

01333 ( La. 12/ 19/ 23), 374 So. 3d 979. There is no indication that the jury was

unable to discern and distinguish the acts constituting the offense of first degree

rape from the brief reference to the other act of intimidation of a witness. We are

convinced that the verdict rendered in this case was surely unattributable to any

error in the admission of Detective Bradford' s statement. Thus, we find that the

drastic remedy of a mistrial was not warranted in this case, and the trial court did

not err in denying the defendant' s motion for mistrial. Accordingly, this

assignment of error lacks merit.

Pursuant to La. C. Cr.P. art. 920( 2), this court routinely conducts a review of

all appeals for error discoverable by mere inspection of the pleadings and

proceedings and without inspection of the evidence. State v. Anthony, 2023- 0117

La. App. 1st Cir. 11/ 3/ 23), 378 So. 3d 766, 775, writ denied, 2024- 00027 ( La.

5/ 21/ 24), 385 So. 3d 242. After a careful review of the record, we have found two

patent errors.

The trial court failed to impose the sentence herein at hard labor as

statutorily required by La. R.S. 14: 42( 1))( 2)( b).' Thus, the sentence is illegally

lenient.
Inasmuch as an illegal sentence is an error discoverable by a mere

inspection of the proceedings without inspection of the evidence, La. C. Cr.P. art.

920( 2) authorizes consideration of such an error on appeal. Further, La. C. Cr.P. art.

882( A) authorizes the appellate court to correct an illegal sentence on review.

Because the trial court had no discretion in imposing the sentence at hard labor, we

6 Although the minutes and commitment order state the trial court imposed the sentence
at hard labor, the sentencing transcript reflects the trial court did not. When there is a discrepancy
between the transcript and the minutes and/ or commitment order, the transcript prevails. State v.
Lynch, 441 So. 2d 732, 734 ( La. 1983); see also State v. Johnson, 2020-0679 ( La. App. 1st Cir.
4/ 28/ 21), 2021 WL 1662420, * 6 n.4 ( unpublished), writ denied, 2021- 00802 ( La. 10/ 5/ 21), 325
So. 3d 381.

M

amend the sentence by providing it be served at hard labor. See State v. Jefferson,

2018- 0037 ( La. App. 1st Cir. 6/ 1/ 18), 2018 WL 2454474, * 4 ( unpublished).

Additionally, the trial court failed to advise the defendant of the applicable

time period to file an application for post conviction relief. Louisiana Code of

Criminal Procedure article 930. 8( C) directs the trial court to inform the defendant

of the prescriptive period for applying for post conviction relief at the time of

sentencing. State v. LeBoeuf, 2006- 0153 ( La. App. 1st Cir. 9/ 15/ 06), 943 So. 2d

1134, 1142, writ denied, 2006- 2621 ( La. 8/ 15/ 07), 961 So. 2d 1158. Its failure to

do so, however, has no bearing on the sentence and is not grounds to reverse the

sentence or remand for resentencing. Further, La. C. Cr.P. art. 930. 8 does not

provide a remedy for an individual defendant who is not told of the limitations

period. Id. at 1142- 43.

Out of an abundance of caution and in the interest of judicial economy, we
advise the defendant that La. C. Cr.P. art.
930. 8 generally provides that no

application for post conviction relief, including applications which seek an out -of -

time appeal, shall be considered if filed more than two years after the judgment of

conviction and sentence have become final under the provisions of La. C. Cr.P. arts.

914 or 922. Id. at 1143.

CONVICTION AFFIRMED; SENTENCE AMENDED AND
AFFIRMED AS AMENDED.

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