State of Louisiana v. Breonne D. Whitaker

Judgment rendered April 22, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,367-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

BREONNE D. WHITAKER Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 318,083

Honorable Ramona L. Emanuel, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

BREONNE D. WHITAKER Pro Se

JAMES EDWARD STEWART, SR. Counsel for Appellee
District Attorney

TOMMY JAN JOHNSON
WILLIAM JACOB EDWARDS
Assistant District Attorneys

*****

Before WILLIAMS, STONE, and COX, JJ.

COX, J.

This appeal arises from the First Judicial District Court, Caddo Parish,

Louisiana. Breonne Whitaker was convicted by a unanimous jury of

second-degree murder and was sentenced to life imprisonment, without the

benefit of probation, parole, or suspension of sentence. Whitaker appeals his

life sentence without benefits. For the following reasons, we affirm

Whitaker’s sentence.

FACTS

Whitaker was convicted of second-degree murder for the shooting

death of Frederick Henderson when Whitaker was 17 years old. Henderson

was found in a vehicle in Shreveport. Initially, he was thought to be the

victim of a single-vehicle accident. Paramedics discovered Henderson had a

single gunshot wound to the chest. His shorts were pulled down to his

knees. Investigators discovered that Henderson and Whitaker had an

altercation about a month prior to Henderson’s death. When investigators

talked to Whitaker, he told police that he caught Henderson engaging in oral

sex with a third man in his backyard. Whitaker told investigators that he

fired a gun at Henderson because Henderson had been following him and

trying to get him into his car, and he was scared because he was raped when

he was younger. Whitaker led law enforcement to a gun and the caliber

matched that used to shoot Henderson. State v. Whitaker, 52,533 (La. App.

2 Cir. 2/27/19), 266 So. 3d 526 (“Whitaker II”).

Whitaker later told law enforcement that Henderson drove him to a

mall, where Whitaker allowed Henderson to perform oral sex on him in

exchange for $50. Whitaker agreed to engage in sexual intercourse with

Henderson, but was unable to complete the act. When Whitaker exited the

vehicle, Henderson grabbed his shirt, and Whitaker fired one shot at

Henderson and ran away. Whitaker returned to the car after he heard the car

crash into a pole but ran away again toward his home. Id.

The jury heard testimony from Shreveport Police Department patrol

officers, homicide detectives, crime scene investigators, and a DNA analyst.

The jury also heard from a childhood friend of Whitaker’s who stated that

she knew Henderson from a party they had attended and Henderson often

dressed as a woman. She testified that she heard Whitaker say that he would

“get some money from the faggot.” She stated that this occurred about a

month prior to the shooting. Henderson’s mother testified that he was her

only son and was 23 years old when he was murdered. She stated that

Henderson helped care for his sister, who has cerebral palsy, as well as an

elderly great-aunt. Id.

Whitaker was sentenced to life imprisonment without the benefit of

probation, parole, or suspension of sentence. Whitaker appealed and,

following jurisdiction check, his sentence was vacated and the matter was

remanded for a ruling on an outstanding motion for post-verdict judgment of

acquittal. State v. Whitaker, 51,632 (La. App. 2 Cir. 5/25/17) 225 So. 3d 524

(“Whitaker I”). On remand, the trial court denied the motion.

Following a sentencing hearing pursuant to La. C. Cr. P. art. 878,

Whitaker was again sentenced to life imprisonment without benefits.

Whitaker appealed his sentence and, because the trial court did not provide

reasons for Whitaker’s life sentence without benefits, the case was remanded

for resentencing in compliance with La. C. Cr. P. art. 878.1. Whitaker II.

2

On remand, the trial court held a sentencing hearing on September 3,

2019. The State and defense made brief arguments. The trial court then

stated the following:

This court has also reviewed the sentencing guidelines in C. Cr.
P. art. 894.1, and has reviewed the evidence adduced at the
hearing, another hearing, which was previously held. And
based on all of the evidence adduced in court, makes the
determination that the appropriate sentence for Mr. Whitaker is
one of life imprisonment at hard labor without the benefit of
probation, parole, or suspension of sentence.

The key reason this court declines to give Mr. Whitaker the
benefit of parole is primarily because of his prior manslaughter
adjudication before this conviction for – in the instant case of
second-degree murder, both offenses being killings of human
beings.

The court also looks to the cases that discussed instances in
which defendants should be denied parole. And, further, the
court finds that Mr. Whitaker seems to have little regard for
human life, which is concerning given his youth. Thus, in
accordance with applicable law, the court … at this time
resentences Mr. Whitaker as follows: to a sentence of life
imprisonment without the benefit of parole, probation, or
suspension of in the instant case.

The trial court recommended Whitaker to any special programs for

which he was eligible and informed him of his appellate and post-conviction

relief time limits. The trial court gave Whitaker credit for time served. The

trial court then stated the following:

The court also notes that it will reduce its ruling with additional
specificity forthwith. Yesterday was Labor Day … which is a
holiday. And I just articulated my reasons orally. My judicial
assistant will be out until Thursday. And she will have an
opportunity to have my ruling in writing or reduced to written
form, to which the court can sign – its reasons for ruling, which
was the reason that the reviewing court vacated the prior
sentence and remanded for the court to articulate reasons for the
denial of the parole eligibility. And counsel and Mr. Whitaker
will receive copies of same as soon as the court can file it.

Whitaker filed his motion for appeal on September 16, 2019. His

appeal was granted on September 17, 2019. On September 26, 2019,
3

Whitaker filed a “Supplemental Motion to Reconsider and Vacate Excessive

Sentence.” It does not appear from the record before us that the trial court

made a ruling on the motion to reconsider.

On February 21, 2020, the trial court signed a document titled “Trial

Court’s Brief Written Reasons for Ruling Denying Benefit of Parole.” The

trial court’s written reasons state:

This court heard the evidence at the sentencing hearing
regarding the manslaughter adjudication Mr. Whitaker received
as a juvenile. Further, this court heard and saw the evidence
adduced at the trial. Inadvertently, the proper post-trial pre-
sentence motions were not ruled upon prior to sentencing. So,
Mr. Whitaker was resentenced after the motions were properly
addressed.

Then this court heard all the evidence adduced at the
resentencing hearing.

The court also considered the disciplinary records of Mr.
Whitaker.

This court also took into account the impact of the murder on
the victim’s family. This court also considered the disciplinary
records of Mr. Whitaker in his juvenile records and sanity
hearing reports as well as any other evidence from any other
type of hearings herein.

Additionally, in many of the other cases that have come before
this court for review to allow or disallow review for juvenile
lifers, this court has generally afforded the defendant’s parole
so far. In most cases, evidentiary sentencing hearings were not
had, nor was there opposition to the gravity of parole eligibility.

However, the criminal history of Mr. Whitaker, which includes
a manslaughter adjudication, as well as the nature and manner
at which he committed the second-degree murder causes this
court to deny parole. It is likely that had there not been an
evidentiary sentencing hearing, Mr. Whitaker’s criminal history
would not have been of record for resentencing.

It would seem that due to Mr. Whitaker’s actions, he appears to
have a disregard for human life even at his youthful age. This
court has determined that maybe he should not have the same
sentence as those who do not share the same criminal history,
discipline issues, and apparent disregard for human life.

4

The trial court then stated that it had reviewed the relevant cases and

applicable law, and denied Whitaker parole. Whitaker is now appealing his

life sentence without benefits.

DISCUSSION

In the instant appeal, Whitaker appeals his sentence. He argues the

trial court did not comply with the provisions of La. C.Cr.P. art. 878.1. He

also argues that the trial court erred in sentencing him to life imprisonment

without the benefit of parole, probation, or suspension of sentence.

Whitaker argues the trial court did not provide specificity in the

imposition of the sentence to support the finding that this is one of the worst

cases, and Whitaker one of the worst offenders. He argues the trial court

stated only what information had been reviewed and not how the

information provided a basis for the imposition of his life sentence without

parole. He argues his sentence is excessive because he was not engaging in

criminal activity when he shot Frederick Henderson. He asserts that he is

not the worst of offenders, he acted on impulse, and is remorseful for his

actions. Whitaker asks that this Court set aside the trial court’s sentence and

resentence him to life with the possibility of parole.

The State argues that by the age of seventeen Whitaker had killed two

people, showing a lack of regard for human life. The State asserts that even

after he was incarcerated, he continued his violent tendencies and

disobedience to the rules with a large number of fights and violations.1 The

State argues that the fact that the trial judge did not refer to Whitaker as one

1
At Whitaker’s resentencing hearing, the State introduced his jail records, which
included disciplinary actions for fighting, refusing to comply with orders, and violating
rules. There were also numerous instances where an inmate requested to be separated
from Whitaker. Whitaker II.
5

of the worst offenders or state that his offense was one of the worst offenses

is not fatal to Whitaker’s sentencing. The State argues La. C. Cr. P. art.

878.1 does not require a trial court to use those specific words. The State

also asserts that Whitaker’s sentence is not excessive, because of his

extensive criminal history. The State asks this Court to affirm Whitaker’s

sentence of life without parole.

In Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d

825 (2010), the Supreme Court prohibited life without parole in non-

homicide cases, for those under the age of 18 at the time of the crime. In

Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012),

the Supreme Court held that mandatory life without parole violates the

Eighth Amendment’s prohibition against cruel and unusual punishment, if

the murderer was under 18 years old at the time of the crime. Miller does

not categorically prohibit life without benefit of parole for juveniles, but a

sentencing court must first consider an offender’s youth and attendant

characteristics as mitigating circumstances before determining whether to

impose the harshest possible penalty for a juvenile offender. State v. Brooks,

49,033 (La. App. 2 Cir. 5/7/14), 139 So. 3d 571, writ denied, 14-1194 (La.

2/13/15), 159 So. 3d 459 (“Brooks II”).

La. C. Cr. P. art. 878.1 states, in part:

B. (1) If an offender was indicted prior to August 1, 2017, for
the crime of first degree murder (R.S. 14:30) or second degree
murder (R.S. 14:30.1) where the offender was under the age of
eighteen years at the time of the commission of the offense and
a hearing was not held pursuant to this Article prior to August
1, 2017, to determine whether the offender’s sentence should be
imposed with or without parole eligibility, the district attorney
may file a notice of intent to seek a sentence of life
imprisonment without the possibility of parole within ninety
days of August 1, 2017. If the district attorney timely files the
notice of intent, a hearing shall be conducted to determine
6

whether the sentence shall be imposed with or without parole
eligibility.

...

C. At the hearing, the prosecution and defense shall be allowed
to introduce any aggravating and mitigating evidence that is
relevant to the charged offense or the character of the offender,
including but not limited to the facts and circumstances of the
crime, the criminal history of the offender, the offender’s level
of family support, social history, and such other factors as the
court may deem relevant. The admissibility of expert witness
testimony in these matters shall be governed by Chapter 7 of
the Code of Evidence.

D. The sole purpose of the hearing is to determine whether the
sentence shall be imposed with or without parole eligibility.
The court shall state for the record the considerations taken into
account and the factual basis for its determination. Sentences
imposed without parole eligibility and determinations that an
offender is not entitled to parole eligibility should normally be
reserved for the worst offenders and the worst cases.

In State v. Fletcher, 49,303 (La. App. 2 Cir. 10/1/14), 149 So. 3d 934,

writ denied, 14-2205 (La. 6/5/15), 171 So. 3d 945, the defendant was 15

years old when he shot both of his parents with a shotgun, killing them

instantly. Fletcher’s 19-year-old-sister witnessed the murder of their mother.

Fletcher threatened to kill her as well and forced her to remain in her

bedroom for the remainder of the night. She was able to escape when

Fletcher went to school the next day.

This Court applied La. C. Cr. P. art. 878.1 and affirmed Fletcher’s life

without parole sentences. This Court noted that the sentencing judge in

Fletcher was the same judge who presided over the trial and was “intimately

familiar” with the case. At the Miller hearing, the trial court heard testimony

that Fletcher had a history of torturing animals, criminal activity, and

violence, and he still expressed a desire to kill his sister. The trial court also

heard testimony from a psychiatrist who opined that there was an increased

7

risk of future violent behavior and that Fletcher suffered from antisocial

personality disorder or psychopathy. Further, the trial court provided

thorough and well-considered reasons for sentencing, outlining the

jurisprudence and factors considered. This Court found that the trial court

completely fulfilled this Court’s directive to conduct a Miller hearing, to

make a more detailed and comprehensive review of the relevant factors, and

to state its reasons for sentencing on the record.

In State v. Smoot, 13-453 (La. App. 5 Cir. 1/15/14), 134 So. 3d 1, writ

denied, 14-0297 (La. 9/12/14), 147 So. 3d 704, the Fifth Circuit found that

the trial court had complied with the Miller principles at a sentencing

hearing that occurred before the enactment of art. 878.1. During the

sentencing hearing, the trial court stated that, in accordance with Miller, it

considered the defendant’s youth and previous criminal activity. The trial

court also considered that the elderly victim was shot multiple times in the

front and back by the juvenile defendant. It was noted that the defendant

was involved in the drug trade, had a prior conviction for possession with

intent to distribute cocaine, and shot the victim over a stereo. The district

court sentenced defendant to life imprisonment without the benefit of parole,

probation, or suspension of sentence.

In State v. Brooks, 47,394 (La. App. 2 Cir. 12/12/12), 108 So. 3d 161,

writ denied, 13-0080 (La. 5/31/13), 118 So. 3d 393 (“Brooks I”), this Court

affirmed the second-degree murder conviction of a juvenile defendant who

participated in a “senseless gunfight” which resulted in the death of an

innocent bystander. However, this Court vacated the mandatory sentence of

life imprisonment at hard labor without benefits and remanded the case to

the trial court for resentencing in light of Miller. Following a sentencing
8

hearing conducted pursuant to art. 878.1, the trial court again imposed a

sentence of life imprisonment without parole and the defendant again

appealed his sentence.

In Brooks II, supra, this Court affirmed the sentence, finding that the

trial court had “dutifully” complied with this Court’s instructions in the prior

opinion and that the sentence imposed was not constitutionally excessive.

Furthermore, the judge who resentenced Brooks was not the same judge who

imposed the original life sentence. However, this Court noted that the

resentencing judge expressly adopted the reasons of the initial judge and

expressed further reasons in support of his denial of parole.

The record before us shows that Whitaker received a thorough Miller

hearing in which he was allowed to testify, his juvenile and incarceration

records were reviewed, a sanity commission report was examined, and the

victim’s mother testified. The trial court stated that it considered all of that

information along with the evidence adduced at trial. The trial court stated

that it also considered the impact Henderson’s murder has had on his family.

The trial court considered the gravity of sentence. It stated that for most of

the juveniles before it, under the same circumstances, it had sentenced those

defendants to life with the possibility of parole.

The trial court found Whitaker’s criminal history particularly

disturbing, in that he had a prior manslaughter conviction, and that “the

nature and manner at which he committed the second-degree murder” of

Henderson showed a callous disregard for human life. The trial court stated,

“[H]e should not have the same sentence as those who do not share the same

criminal history, discipline issues, and apparent disregard for human life.”

9

The trial court did not specifically state that Whitaker is one of the

worst offenders and that this is one of the worst offenses. However, the

Miller hearing was thorough and the trial court articulated reasons for

resentencing Whitaker to life without parole. We affirm Whitaker’s

sentence.

CONCLUSION

For the foregoing reasons, Whitaker’s life sentence without the benefit

of probation, parole, or suspension of sentence is affirmed.

AFFIRMED.

10