State of Louisiana v. Jamey L. Stout

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1177

STATE OF LOUISIANA

VERSUS

JAMEY L. STOUT

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-193-08
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion,
Judges.

AFFIRMED AS AMENDED.

Hon. David W. Burton
District Attorney - 36th JDC
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
Counsel for State-Appellee:
State of Louisiana

Mitchel Mark Evans II
Attorney at Law
416 North Pine Street
DeRidder, LA 70634
(337) 462-5225
Counsel for Defendant-Appellant:
Jamey L. Stout

Jamey L. Stout
Avoyelles Correctional Center
1630 Prison Rd.
Cottonport, LA 71327
Pro se

PICKETT, Judge.

FACTS

On or about February 9, 2008, the defendant was involved in a physical

altercation with the victim. The victim died as a result of injuries sustained in the

altercation.

On February 9, 2008, the defendant, Jamey L. Stout, was indicted by a grand

jury with second degree murder, a violation of La.R.S. 14:30.1. Pursuant to a plea

agreement, the defendant entered a guilty plea to the reduced charge of manslaughter

on February 17, 2009. He was sentenced on May 13, 2009, to serve thirty years at

hard labor. Following a hearing on the defendant’s motion to reconsider sentence,

held on June 4, 2009, the trial court amended the sentence by ordering that it be

served at the Elaine Hunt Correctional Center. The motion was otherwise denied.

The defendant is now before this court on appeal, asserting that his sentence

is excessive.

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

there is one error patent.

At the hearing on the motion to reconsider sentence, the trial court amended the

sentence and ordered that the sentence be served at “Elaine Hunt Correctional

Center.” The trial court stated “I’m not sure that I have any authority to order the

Department of Corrections to do so; but we will order it, and if they comply, fine.

And if they choose to ignore my order, I don’t know that there’s anything I can do

about that.”

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Louisiana Revised Statutes 15:824 provides in pertinent part:

A. Notwithstanding any provision of law to the contrary, any
individual subject to confinement in a state adult penal or correctional
institution shall be committed to the Louisiana Department of Public
Safety and Corrections and not to any particular institution within the
jurisdiction of the department.

In State v. Wisenor, 452 So.2d 281 (La.App. 2 Cir. 1984), on appeal, the

defendant complained the trial court sentenced him to the Louisiana State

Penitentiary contrary to La.R.S. 15:824. The court found that the language in the

sentence may be “mere surplusage because § 824 refers to his commitment and not

to the sentence.” Id. at 285 (citation omitted). However, out of an abundance of

caution, the court deleted the reference to the Louisiana State Penitentiary.

There are no other illegalities in the sentence other than the portion suggesting

the place the defendant be incarcerated. Additionally, Elaine Hunt Correctional

Center was not a part of the trial court’s initial sentencing scheme. In the trial court’s

reasons to impose the thirty year at hard labor sentence, it did not consider any

particular institution and only named one after it was suggested by the defendant’s

counsel. Consequently, we amend the sentence and delete that portion of the trial

court’s order for the defendant to serve his time at Elaine Hunt Correctional Center

and instruct the trial court to note the amendment in the court minutes.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the defendant argues that the trial court failed to

properly consider evidence of provocation on the part of the victim. The defendant,

however, did not set forth this ground in his motion to reconsider sentence. Pursuant

to La.Code Crim.P. art. 881.1, the defendant’s failure to include this specific ground

in his motion to reconsider sentence precludes him from urging same for the first time

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on appeal. Accordingly, the defendant’s allegation is not properly before this court

and will not be considered herein.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues that the trial court failed to properly consider the

mitigating factors set out in La.Code Crim.P. art. 894.1. The record reflects that in

arriving at an appropriate sentence, the trial court reviewed the entire record,

including discovery provided to the defendant, documentation submitted prior to and

at the sentencing hearing, the Presentence Investigation Report, victim impact

statement, numerous letters from relatives and friends of both the defendant and

victim, and the testimony at the sentencing hearing. The trial court acknowledged its

difficulty in determining an appropriate sentence and then reviewed the facts of the

case that it found significant as follows:

I’ve struggled over the last couple of months, more in particular
the last couple of weeks, with: What is justice? What is appropriate to
do in this circumstance? A man’s life has been taken. He was a father,
a husband, a son, an uncle, a friend. In some respects, there’s no
punishment that would be severe enough in this matter. On the other
hand, Mr. Stout is a son and a nephew and a friend, and he has only just
turned 28 years old and is a young man who has a life ahead of him.

I do recognize that Mr. Stout received a tremendous advantage by
a plea bargain in this matter. Mr. Stout was facing and very well could
have been convicted of second degree murder, which would have carried
with it a mandatory life sentence without any other possibility of
probation, parole, or suspension of sentence; and a plea bargain in this
matter was reached where Mr. Stout pled guilty to manslaughter, in
effect capping the punishment at 40 years as opposed to life; and it
becomes my decision, then, to decide what, between zero and 40 years,
is just in this matter.

There was a tremendous number of letters from Mr. Stout’s family
and friends, all basically echoing the same course, and, for that matter,
there were a tremendous number of letters and petitions from the family
and friends of Mr. Hebert; but the one thing that I want to address, Mr.
Stout, is that these letters said over and over again that no one could
believe that you had done this act, that you were not capable of it, that

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you would never intentionally hurt anyone; and yet the evidence in this
matter totally contradicts that. First of all, there is a victim who died as
a result of this. So, it did happen, and those who refuse to acknowledge
that are not facing the reality that a man died and was buried and will
never breathe life on this earth again. So, you were capable of it. It did
happen. You physically beat another man to death with your bare hands.

Mr. Hebert is not able to tell us his version of what happened. So,
the only thing I am left to rely upon is what you had to say about the
matter and what the witnesses who were with you had to say about the
matter and the physical evidence that was there; and perhaps, to me, the
physical evidence speaks the loudest as to what occurred; and my
comments that are fixing to follow are not going to be pleasant, but I
feel that they need to be stated for the record.

First of all, you are six-five, approximately, and approximately
200 to 225 pounds. Mr. Hebert was approximately five-seven and
around 135 pounds. I’m not 100 percent sure whether your stated
concern or fear of Mr. Hebert had any basis in reality, but even assuming
that it did, there is no evidence that Mr. Hebert threw a punch, other than
your own self-serving testimony. There’s no physical evidence
whatsoever that Mr. Hebert had any defensive wounds on his arms or his
hands. There are a number of things that I want to point out from Mr.
Hebert’s injuries.

First of all, your hands were severely marked, bruised, cut,
swollen. There wasn’t a single mark on Mr. Hebert’s hands, not one,
other than a blood smear where he apparently wiped his mouth before
he died, to the point that there was not even any blood or marking to
show on Mr. Hebert’s shirt below his neckline. The evidence is that
there was severe bruising around the collarbone area and shoulders of
Mr. Hebert where you knelt on your knees on top of him in a defenseless
position, and in the witnesses’ -- who were with you -- their own words,
pounded and wailed away on him until one of them pulled you off of
him and said, “That’s enough.”

In the process, there was blood spatter from Mr. Hebert that
reached clean across the roadway into the ditch on the other side 10 to
20 feet away. Mr. Hebert had a tooth that was knocked completely out
of his mouth several feet away, lying in the roadway. You broke nearly
every bone in Mr. Hebert’s face. You completely crushed his
cheekbones, his nose. You broke his jaw in two places to the point that
his jaw was sticking out of his chin. You fractured his larynx and the
hyoid bone under his chin. You crushed his windpipe, and the
bloodstains on Mr. Hebert’s face all drained toward the road.

I don’t say this to be terrorizing the victim’s family but to say that
the idea that Mr. Hebert was getting up when you left is just an outright

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untruth. If Mr. Hebert had started to even so much as sit up, there would
have been blood that drained down his face, but all of the blood that
drained from Mr. Hebert’s face drained straight down towards the road
where he never moved more than a couple of inches from one side to the
other from the position that you left him when you got through severely
beating him.

I don’t know what caused that, Mr. Stout. I’m not in your mind.
I wasn’t in your mind on that night, but even if that was triggered by
some sense in your mind of danger or self-defense, the threat to you or
anyone else with you was alleviated probably with the first blow. The
witnesses seemed to indicate that you took Mr. Hebert to the ground
with the first blow.

On top of all of that, when you and the other folks left, you were
parked behind where Mr. Hebert laid, not behind his vehicle in the same
lane of travel where you were parked, but Mr. Hebert was laying in the
oncoming lane completely over the center line. His body was
completely in the oncoming lane of traffic, and you had to drive around
him and perhaps even off the side of the road to get around him to leave,
and you left him laying motionless in an oncoming lane of traffic,
which, to me, indicates a tremendous carelessness, if nothing else, for
the life of Mr. Hebert.

There does not appear to be any evidence that you intentionally
sought Mr. Hebert out or that you went on the night of February 9th
looking for someone to injure or kill, but, nevertheless, that did occur.

Mr. Hebert had the very unfortunate situation of his vehicle
running out of gas in the middle of the road and had had prior
involvement with you and the other folks that night; but even your own
testimony at the sentencing hearing did not reveal anything that was
threatening in anything that Mr. Hebert said. Perhaps strange. The
toxicology reports do indicate that Mr. Hebert was intoxicated, but none
of which would justify the severe and brutal beating and ultimately his
death which resulted.

I researched cases to look at what other Courts have done in
situations similar to this, and in one of those cases the phrase was used
-- in upholding a sentence, the Court said that, in that case, the killing
was senseless, useless, unnecessary, and should not have taken place;
and I perhaps could not think of a more appropriate phrase than in this
situation. There was no reason for this to have happened; and what
made you stay on top of Mr. Hebert and beat him to the point that he
died, I perhaps will never know; and perhaps you will never know, but
it is a fact that it happened.

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In some of the letters that I received and in some of the statements
that have been made by the witnesses, this incident was referred to as a,
quote, “fight.” There is simply no evidence to suggest that there was a
fight.

Next, the trial court reviewed the aggravating and mitigating factors set forth

in La.Code Crim.P. art. 894.1 as follows:

One: “If the offender’s conduct during the commission of the
offense manifested deliberate cruelty to the victim,” and I find that that
is the case in this situation, that there was no reason for you, even if you
had feared for your safety or the safety of others, to have continued the
beating that occurred in this case.

Two: “The offender knew or should have known that the victim
of the offense was particularly vulnerable or incapable of resistance due
to extreme youth, advanced age, disability, or ill health.” As I’ve stated
earlier, that aggravating circumstance is present in this case just simply
looking at the physical statures of you and Mr. Hebert.

Three: “The offender offered or has been offered or given or
received anything of value for the commission of the offense.” That’s
not applicable.

Four: “The offender used his or her position or status to facilitate
the commission of the offense.” That’s not applicable.

Five: “The offender knowingly created a risk of death or great
bodily harm to more than one person.” That’s not applicable.

“The offender used threats of or actual violence in the commission
of the offense.” That is definitely applicable.

Seven: “Subsequent to the offense, the offender used or caused
others to use violence, force, or threats with the intent to influence the
institution, conduct, or outcome of a criminal proceeding.” That’s not
applicable.

Eight: “The offender committed the offense in order to facilitate
or conceal the commission of another offense.” Again, that’s not
applicable.

Nine: “The offense resulted in the significant, permanent injury
or significant economic loss to the victim or his family.” It resulted in
the death of the victim in this case.

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Ten: “The offender used a dangerous weapon in the commission
of the offense.” That is not applicable.

Eleven: “The offense involved multiple victims or incidents for
which separate sentences have not been imposed.” That’s not
applicable.

“The offender has persistently been involved in similar offenses
not already considered as criminal history or as a part of a multiple
offender adjudication.” That is not entirely applicable. This is a first
felony conviction that you have on your record. The pre-sentence
investigation report in this matter does indicate that you do have prior
involvement with the criminal court system. Primarily, the only
convictions you have are minor traffic offenses. However, you were
charged in May of 2002 with having committed molestation of a
juvenile and indecent behavior with a juvenile, but after a bench trial,
were found not guilty; and in June of 2002, you were presented before
the Grand Jury on a charge of forcible rape, and the Grand Jury returned
no true bill. I do not consider those two specific incidents with great
weight because the Grand Jury did not return an indictment, and the
Court found you not guilty. However, that is not to say that a not guilty
verdict is the same as innocence; but I have not contemplated the
enhancement of your sentence in this matter based upon either of those
cases because I do not have enough evidence to use those in any reliable
way. In common language, I’m not holding the fact that you were
charged against you because you were found not guilty.

Thirteen: “The offender was a leader or his violation was in
concert with one or more other persons with respect to whom the
offender occupied a position of organizer, superior, supervisory
position, or any other position of management.” Again, not applicable.

Fourteen: “The offense was a major economic offense.” Not
applicable.

Fifteen: “The offense was a controlled dangerous substance
offense, and the offender obtained substantial income or resources from
ongoing drug activities.” There’s no evidence of that.

“The offense was a controlled dangerous substance offense in
which the offender involved juveniles in the distribution or trafficking
of drugs.” Again, not applicable.

Seventeen: “The offender committed the offense in furtherance of
a terrorist act.” Not applicable.

Eighteen: “The offender foreseeably endangered human life by
discharging a firearm” -- not applicable in this case -- “or used,

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attempted use, or threatened use of physical force against the person or
property of another, which, by its very nature, involved a substantial risk
that physical force may be used in the course of committing the
offense.” That part is applicable as an aggravating offense.

Nineteen: “The offender used a firearm or other dangerous
weapon while committing or attempting to commit an offense which is
an element of the use, attempted use, or threatened use of physical force
against the person or property of another and which, by its very nature,
involves a substantial risk that physical force may be used in the course
of committing the offense.” Not applicable.

Twenty: “The offender used a firearm or other dangerous weapon
while committing or attempting to commit a controlled dangerous
substance offense.” Not applicable in this case.

The statute also provides enumerated mitigating circumstances for
the Court to consider, such as number twenty-two: “The defendant’s
criminal conduct neither caused nor threatened serious harm.” That’s
not a mitigating circumstance that would be applicable.

Twenty-three: “The defendant did not contemplate that his
criminal conduct would cause or threaten serious harm.” You have
stated that you did not feel that your conduct would cause or threaten
serious harm, but in reviewing the matter under any reasonable or
objective standard, that simply cannot be the case. So, that is not a
mitigating factor in your favor.

Twenty-four: “The defendant acted under strong provocation.”
There’s no evidence whatsoever that there was strong provocation for
this incident. So, that’s not a mitigating factor in your favor.

Twenty-five: “There was substantial grounds tending to excuse or
justify your criminal conduct, though failing to establish a legal
defense.” Again, only applicable in a very limited sense.

Twenty-six: “The victim of the defendant’s criminal conduct
induced or facilitated its commission.” Again, I don’t find that to be the
case.

Twenty-seven: “The defendant has compensated or will
compensate the victim for his criminal conduct for damage or injuries
sustained.” Not applicable. You can’t bring Mr. Hebert back.

“The defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period of time
before the commission of the instant crime.” Primarily, that is a
mitigating factor in your favor, that you do not have a lengthy criminal

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history, although you do have some evidence of involvement with the
criminal court system, as I stated earlier.

Twenty-nine: “The defendant’s criminal conduct was a result of
circumstances unlikely to recur.” I can’t answer that question.

“The defendant is particularly likely to respond affirmatively to
probationary treatment.” Again, as I’ve stated, that would not be
applicable in this case.

“The imprisonment of the defendant would entail excessive
hardship to him or his dependents.” Again, not applicable other than the
hardship to yourself.

Thirty-two: “The defendant has voluntarily participated in a pre-
trial drug-testing program,” which would not be applicable in this case.

And thirty-three: “Any other relevant mitigating circumstances,”
and, to me, the mitigating circumstances are your age and your lack of
a serious criminal record in this matter.

On appeal, the defendant complains that his incarceration during the entire

prosecution of this matter is relevant to factors twenty-nine and thirty. The defendant

maintains that he led an uneventful life while in custody for more than one year which

is relevant to the likelihood of recidivism. At the hearing on the defendant’s motion

to reconsider sentence, the defendant stressed that the mitigating factors indicate that

he was a candidate for rehabilitation, and that there was no indication that he will be

a repeat offender. The defendant explained that during his incarceration in a very

inhospitable environment, he was never put on “lockdown.”

The defendant also directs this court to a psychiatric evaluation performed by

Dr. James M. Anderson on August 8, 2008. Dr. Anderson indicates that the trial

court requested the evaluation to determine his ability to function in society without

being dangerous. Following his evaluation of the defendant, Dr. Anderson

concluded:

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In my opinion Jamey Stout is able to function in society without being
dangerous. The medical/psychiatric conditions that he reports have been
present for many years. They are not conditions that progress or worsen
over time. These risk factors were present prior to the event that
resulted in his incarcerations, and during that time he functioned in
society.

The defendant, however, did not raise this issue as it relates to his rehabilitation

in his motion to reconsider sentence. Pursuant to La.Code Crim.P. art. 881.1, the

defendant’s failure to include this specific ground in his motion to reconsider

precludes him from urging same for the first time on appeal. Accordingly, the trial

court’s consideration of Dr. Anderson’s report is not properly before this court and

will not be considered herein.

Lastly, the defendant asserts that his immunity to illness was permanently

compromised due to a splenectomy in 2002, and as a result, he has been hospitalized

on numerou s o cc as i o n s wi t h mu l t i p l e i mmu n o -c ompromised

symptomologies/ailments while incarcerated with the Department of Corrections.

The defendant indicates that a motion to supplement the record with his recent

medical records is pending in the trial court. As such, the defendant’s argument as

it pertains to this issue is premature and must first be considered before the trial court.

Because this ground was not raised in his motion to reconsider sentence, the

defendant is precluded from urging same for the first time on appeal pursuant to

La.Code Crim.P. art. 881.1. Accordingly, the defendant’s health status is not properly

before this court and will not be considered herein.

Considering the trial court’s thorough consideration of the aggravating and

mitigating factors found in the record, we find that the trial court satisfied the

requirements of La.Code Crim.P. art. 894.1. Accordingly, there is no merit in this

assignment of error.

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ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, the defendant argues that the trial court failed

to conduct a transparent review of comparable cases to arrive at a particularized

sentence. Based on the jurisprudence cited in his appellate brief, the defendant

concedes that the courts favor the maximum forty year sentence when a defendant has

pled to the reduced charge of manslaughter in instances where the plea does not fit

the reduced charge. The defendant maintains that in the instant case, however, he was

over-billed by the prosecution and that the charge of manslaughter squarely fits with

the facts of this case. As such, the defendant concludes that the comparative case law

does not support the imposition of sentence as harsh as that imposed by the trial court.

However, the defendant did not set forth this ground in his motion to

reconsider sentence. Pursuant to La.Code Crim.P. art. 881.1, the defendant’s failure

to include this specific ground in his motion to reconsider precludes him from urging

same for the first time on appeal. Accordingly, the defendant’s allegation is not

properly before this court and will not be considered herein.

CONCLUSION

The defendant’s sentence is hereby amended, deleting that portion of the trial

court’s order that the sentence be served at Elaine Hunt Correctional Center and the

amendment should be reflected in the court minutes. Otherwise, the defendant’s

sentence is affirmed.

AFFIRMED AS AMENDED.

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