State of Louisiana v. Martin P. Broussard

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-849

STATE OF LOUISIANA

VERSUS

MARTIN P. BROUSSARD

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 07-K-1481-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

CONVICTIONS AFFIRMED.
SENTENCES VACATED AND REMANDED FOR RESENTENCING.

Earl B. Taylor
27th JDC District Attorney
Jennifer Ardoin
Assistant District Attorney
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2806
Monroe, LA 71207
(318) 388-4205
COUNSEL FOR DEFENDANT-APPELLANT:
Martin P. Broussard

Martin P. Broussard
South Louisiana Correctional Center
3843 Stagg Avenue
Basile, LA 70515
Pro Se

PICKETT, Judge.

FACTS

Because the defendant pled guilty to the charges, there is little in the record

to indicate the facts of the case. Pursuant to the bill of information, on March 22,

2007, the defendant unlawfully entered the victim’s home with the intent to

commit a felony within. According to a pleading filed by the defendant, the

victim’s purse was taken and later he was seen using her Sam’s Club credit card.

While inside the home, he attempted to force the victim to have sexual intercourse.

The defendant was charged with aggravated burglary of an inhabited

dwelling, a violation La.R.S. 14:60, and attempted forcible rape, violations of

La.R.S. 14:27 and 14:42.1. The defendant filed a motion to suppress videotaped

statements he gave to the police. A hearing was held on March 31, 2010,

following which the motion was denied. The defendant pled guilty as charged on

May 25, 2010, but reserved his right to appeal the trial court’s denial of the motion

to suppress the statements. On the same date, the defendant was sentenced to

twenty years on each count, to be served concurrently, and concurrently with any

other sentence he was presently serving, with credit for time served. He did not

file a motion to reconsider the sentence.

The defendant has perfected a timely appeal. He raises six assignments of

error, five of which are pro se assignments.

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 are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the trial court erred when it denied the Motion to

Suppress the videotaped confession to the crimes charged. He asserts that the

confession was a product of an unduly coercive atmosphere.

Before the state may introduce a confession into evidence, it
must demonstrate that the statement was free and voluntary and not
the product of fear, duress, intimidation, menace, threats, inducements
or promises. La. R.S. 15:451; La.C.Cr.P. art. 703(D); State v.
Simmons, 443 So.2d 512, 515 (La.1983). If a statement is a product
of custodial interrogation, the state additionally must show that the
person was advised before questioning of his right to remain silent;
that any statement he makes may be used against him; and, that he
has a right to counsel, either retained or appointed. Miranda v.
Arizona, [384 U.S. 436, 86 S.Ct. 1602 (1966)]. When claims of police
misconduct are raised, the state must specifically rebut the allegations.
State v. Vessell, 450 So.2d 938, 942-943 (La.1984). A trial court’s
finding as to the free and voluntary nature of a statement carries great
weight and will not be disturbed unless not supported by the evidence.
State v. Benoit, 440 So.2d 129, 131 (La.1983); State v. English, 582
So.2d 1358, 1364 (La.App. 2nd Cir.1991), writ denied, 584 So.2d
1172 (La.1991). Credibility determinations lie within the sound
discretion of the trial court and its rulings will not be disturbed unless
clearly contrary to the evidence. Vessell, supra at 943. When
deciding whether a statement is knowing and voluntary, a court
considers the totality of circumstances under which it is made, and
any inducement is merely one factor in the analysis. State v. Lavalais,
95-0320, p. 6 (La.11/25/96), 685 So.2d 1048, 1053; State v. Lewis,
539 So.2d 1199, 1205 (La.1989); State v. Thomas, 461 So.2d 1253
(La.App. 1st Cir.1984), writ denied, 464 So.2d 1375 (La.1985).

State v. Blank, 04-204, pp. 9-10 (La. 4/11/07), 955 So.2d 90, 103, cert. denied, 552

U.S. 994, 128 S.Ct. 494 (2007).

Three officers were involved with the defendant’s interrogation: Dustin

Abshire, a detective with the Calcasieu Parish Sheriff’s Office, Buford Clay

Knight, a captain with the St. Landry Parish Sheriff’s Office, and Richard Ortego,

the lead investigator with the St. Landry Parish Sheriff’s Office. All three officers

testified at the suppression hearing. There was little factual testimony given by the

officers. Detective Abshire was present because of some other unrelated charge

outside of Calcasieu Parish. At the hearing, the three officers primarily identified
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their voices on the taped interview. The videotape was reviewed by the

participants and the trial court.

The defendant argues that during the interrogation, he was ―told if he

cooperated with the St. Landry Parish deputies, like he had with Abshire, they

would help him. Martin was told at the same time he would not get forty or fifty

years.‖ He also claims that he was threatened that his wife would be arrested and

his son placed in foster care if he did not cooperate.

After viewing the videotape, the trial court ruled:

I would think the tape was about an [sic] hour – I think it
started around 9:20, so the tape is about an [sic] hour and a half, and
the Court listened to it and looked at it overall, the expressions in the
tape, and the Court finds that there were no threats made in this case.
The confession was free and voluntary. Accordingly, the Motion to
Suppress is hereby denied. Of course the tape will have to be redacted
if this matter, if this case goes to trial on those issues involving the
other parishes. All right.

After reviewing the videotape, we agree with the trial court. The interview

initiated at 11:09 in the morning. Captain Knight read the defendant his Miranda

rights and asked the defendant if he would talk with them without an attorney

present. The defendant signed a form acknowledging he had been given his

Miranda rights and that he voluntarily agreed to talk with the officers. He was

questioned primarily by Captain Knight and Deputy Ortego. They began the

questioning by establishing how the defendant knew the victim. The defendant

explained that in March of 2007, he and his wife had spoken with the victim at her

house about a rental property she owned that they were interested in. The wife had

dogs, however, and the victim did not want dogs in the house. The officers asked

the defendant about the Sam’s Club credit card which belonged to the victim. They

advised him they had surveillance tapes showing that he used the card on several

occasions in different parishes. They urged him to cooperate and to tell the truth.

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The officers spoke in calm, soft voices and were respectful. They continuously

told him that it would go easier on him if he cooperated. The defendant indicated

his reluctance to speak because he could get forty or fifty years. Detective Absire

told the defendant he would not get forty or fifty years, particularly if he

cooperated and helped out the officers with the facts. They said that if he told the

truth, they would tell the district attorney’s office that he cooperated with them and

it could possibly go easier on him. The officers asked him if his wife, Donna, was

involved with the theft of the credit card. They reminded him that he should tell the

truth because it would be a shame if they had to arrest her and she would be taken

away from their young son. The possibility of the wife being arrested came up only

twice during the interview. The officers kept reminding the defendant that he

should tell the truth and get the matter over with so that he could start anew and

watch his son grow up. Eventually, the defendant admitted he went to the victim’s

house with the intent to rob her and that while in the house, he attempted to have

sexual intercourse with her. We find there was no undue coercion or intimidation.

The officers’ approach simply coaxed the defendant to tell them what occurred at

the victim’s house.

In State v. Reynolds, 45,674, pp. 3-4 (La.App. 2 Cir 11/3/10), 55 So.3d 136,

139, the second circuit stated:

Although promises or inducements will void a defendant’s
confession, a mild exhortation to tell the truth, or an indication that if
the defendant cooperates the officer will ―do what he can‖ or ―things
will go easier,‖ will not negate the voluntary nature of a confession.
State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ
denied, 1999-0331 (La.7/2/99), 747 So.2d 8. Appeals to a defendant’s
emotions and/or religious beliefs typically do not render an ensuing
confession involuntary. State v. Blank, 2004-0204 (La.4/11/07), 955
So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346
(2007). See also State v. Murray, 546 So.2d 944 (La.App. 3d
Cir.1989); State v. Welch, 448 So.2d 705 (La.App. 1st Cir.1984), writ
denied, 450 So.2d 952 (La.1984).

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In Reynolds, the defendant had committed two murders. The defendant was

thoroughly Mirandized and twice invoked his right to silence, which the officers

honored, but then the defendant initiated further conversations with the

interviewing officers. During interrogation, the officers, who knew the defendant

had admitted to his father that he had killed two people, reminded defendant that

he was putting his father in the awful position of having to testify against his own

son at trial. The officers further asked him if he preferred the electric chair or life

in prison. The officers also mentioned that the defendant was suspected of being

involved in another murder of a child and that he possibly would not make it out of

Angola. Before the defendant finally confessed his crimes, one of the officers

prayed with him. The second circuit noted that ―[t]here is no showing that any

statements made to the defendant during questioning were threatening, coercive, or

intimidating. No promises were made to the defendant.‖ Id. at 142. The court

found that the confession was voluntarily made.

In a fifth circuit case, the defendant argued that his confession was

involuntary because the officer made promises to him that they would tell the

district attorney that he cooperated with them in exchange for the statements.

However, the mere fact that a police officer tells a person in custody
that prosecutors will be advised of any cooperation is not sufficient
inducement to vitiate the free and voluntary nature of any statement.
See, State v. Jackson, 414 So.2d 310, 312-313 (La.1982); State v.
Matthews, 26,550 (La.App. 2 Cir. 12/21/94), 649 So.2d 1022, writ
denied, 95-0435 (La.6/12/95), 655 So.2d 341; State v. Lions, 624
So.2d 436, 438 (La.App. 5 Cir.1993).

Accordingly, we find that the trial court did not err in denying
the defendant’s motions to suppress statements on this basis.

State v. Redditt, 03-354, pp. 7-8 (La.App. 5 Cir. 10/28/03), 868 So.2d 704, 708,

writ denied, 03-3484 (La. 4/8/04), 870 So.2d 268. See also State v. Ardoin, 10-

1018 (La.App. 3 Cir. 3/9/11), 58 So.3d 1025, writ denied, 11-653 (La. 10/14/11),

5

74 So.3d 218, wherein this court did not find the defendant’s statements were

coerced when the officers told the defendant he needed to spare the child from

further medical, psychological, and legal exams, and if he did so, the officers

would try and work something out with the district attorney.

In the current case, the officers made no promises to the defendant to induce

him to tell them he was responsible for the crimes. Nor did they threaten him if he

did not cooperate. The officers spoke to him quietly and respectfully. There was

no coercion in this case. The state met its burden of proving that the statements

were voluntary, and the trial court did not err when it denied the motion to

suppress the confession. There is no merit to this assignment of error.

PRO SE ASSIGNMENTS OF ERROR

Defendant assigns five pro se errors as follows: 1) ineffective assistance of

counsel, 2) invalid bill of information, 3) unlawful arrest, 4) illegal search and

seizure, and 5) excessive sentence.

Pro se assignment of error number one

The defendant asserts that defense counsel’s performance was ineffective.

He argues defense counsel failed to investigate the facts of the case and refused to

file motions.

In Strickland, the United States Supreme Court set out a two-
prong test for proving ineffective assistance of counsel. Strickland
[v.Washington], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under
Strickland, for a defendant to establish that he received ineffective
assistance of counsel, he must show (1) ―counsel’s representation fell
below an objective standard of reasonableness‖ and (2) ―there is a
reasonable probability that, but for counsel’s unprofessional error, the
result of the proceeding would have been different.‖ Strickland, 466
U.S. at 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. In addition to
proving that defendant’s attorney’s representation fell below the
standard of reasonableness, it is incumbent upon the defendant in the
context of a guilty plea to show that ―there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.‖ Hill v. Lockhart, 474 U.S. 52,

6

59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also State v.
Washington, 491 So.2d 1337, 1338-39 (La.1986).

State v. Montalban, 00-2739, p. 5 (La. 2/26/02), 810 So.2d 1106, 1110, cert.

denied, 537 U.S. 887, 123 S.Ct. 132 (2002).

A claim for ineffective assistance of counsel is most
appropriately addressed through an application for post-conviction
relief, filed in the trial court where a full evidentiary hearing can be
conducted, rather than direct appeal. State v. McIntyre, 97-876
(La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032
(La.9/18/98), 724 So.2d 753. When the record contains sufficient
evidence to rule on the merits of the claim and the issue is properly
raised by assignment of error on appeal, it may be addressed in the
interest of judicial economy. State v. Peart, 621 So.2d 780, 787
(La.1993); State v. McIntyre, supra. Where the record does not
contain sufficient evidence to fully explore a claim of ineffective
assistance of counsel, the claim should be relegated to post-conviction
proceedings under LA.C.Cr.P. arts. 924- 930.8. State v. Rose, 97-943
(La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095, writ denied, 98-0673
(La.8/28/98), 723 So.2d 416.

State v. Washington, 03-1135, p. 15 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 983.

The defendant argues that defense counsel refused to investigate his claims

of factual innocence. He states that the victim was not able to positively identify

him and that even though he told defense counsel he was at work at the time of the

offenses, counsel refused to obtain the necessary evidence to prove his alibi. He

states that defense counsel refused to file motions. Accordingly, he had to file a

prose motion to quash the bill of information and a motion to dismiss the case.

The defendant’s pro se motion to quash was based on the same argument as

the argument he presents on appeal in pro se assignment of error number two:

invalid bill of information. As discussed below, there is no merit to this

assignment. The motion to dismiss is essentially an argument that the evidence was

insufficient to sustain the verdicts wherein a DNA analysis was flawed, the victim

was not able to identify her attacker, and the videotape of the confession was

tampered and altered to exclude the interviewing officers’ threats made if the

7

defendant did not confess to the crimes. As for the remaining claims, there is

nothing in the record to substantiate or refute the above list of ineffective

assistance of counsel claims. Defense counsel filed the motion to suppress the

confession, which, as established above, was correctly denied by the trial court. It

is difficult to defend against a confession.

We find the record is insufficient to address the allegations. These issues

would be more appropriately considered through post-conviction proceedings

under La.Code Crim.P. arts. 924-930.8.

Pro se assignments of error numbers two through four

2. Invalid bill of information:

The defendant argues that the bill of information was invalid because a

grand jury indictment was the correct vehicle in which to bring the charges against

him. He cites BLACK’S LAW DICTIONARY as his source for this assertion. However,

La.Code Crim.P. art. 382(A) and (B)(1) provides:

A. A prosecution for an offense punishable by death, or for an
offense punishable by life imprisonment, shall be instituted by
indictment by a grand jury. Other criminal prosecutions in a district
court shall be instituted by indictment or by information.

B. (1) A prosecution for violation of an ordinance and other
criminal prosecutions in a parish court shall be instituted by affidavit
or information charging any offense.

The defendant further argues that there is another Martin Paul Broussard for

whom he was mistaken and who was the actual perpetrator of the crimes for which

he was convicted. He does not elaborate on this assertion.

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3. Unlawful arrest:

The defendant states only that he was told that he was ―going to the sheriff’s

department to take a statement, then interrogated Mr. Broussard without his lawyer

present, and tricking him to sign a waiver to have counsel present believing he was

not under arrest.‖

4. Illegal search and seizure:

The defendant asserts that his van was searched without a warrant. He

makes no other assertion in this claim.

These three assignments of error are allegations without substantiation and

have not adequately briefed. Accordingly, they are considered abandoned.

Uniform Rules—Courts of Appeal, Rule 2-12.4. Furthermore, when the defendant

pled guilty to the crimes charged, he waived any pre-plea non-jurisdictional

defects. See State v. Wilson, 07-365 (La.App. 3 Cir. 10/3/07), 968 So.2d 776.

Pro se assignment of error number five

The defendant asserts that the two twenty-year sentences are excessive. The

defendant was convicted of aggravated burglary, a violation of La.R.S. 14:60. The

sentencing range for aggravated burglary is not less than one year and no more

than thirty years at hard labor. The defendant was also convicted of attempted

forcible rape. The sentencing range for the offense of forcible rape is no less than

five years and no more than forty years, with at least two years to be served

without the benefit of probation, parole, or suspension of sentence. La.R.S.

14:42.1. The attempt statute provides that in the case of a felony not punishable by

death or life imprisonment, that the defendant ―shall be fined or imprisoned or

both, in the same manner as for the offense attempted; such fine or imprisonment

shall not exceed one-half of the largest fine, or one-half of the longest term of

9

imprisonment prescribed for the offense so attempted, or both.‖ La.R.S.

14:27(D)(3).

The defendant received a term of imprisonment of twenty years for the

offense of aggravated burglary, two thirds of the potential term, and twenty years

for the offense of attempted forcible rape, to be served concurrently with the first

twenty-year sentence. The sentence for the attempted forcible rape in this case was

the maximum sentence allowable by law.

Initially, we note the defendant did not file a motion to reconsider the

sentence. Failure to file for reconsideration or to specify a specific ground

precludes a defendant from ―raising an objection to the sentence or from urging

any ground not raised in the motion on appeal or review.‖ La.Code Crim.P. art.

881.1(E). Accordingly, this court is limited to a ―bare bones‖ review of

excessiveness. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. In Barling, this

court discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, ―[n]o
law shall subject any person to cruel or unusual punishment.‖ To
constitute an excessive sentence, the reviewing court must find the
penalty so grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. The trial court has
wide discretion in the imposition of sentence within the statutory
limits and such sentence shall not be set aside as excessive absent a
manifest abuse of discretion. The relevant question is whether the trial
court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

Id. at 1042 (citations omitted).

We find that the record is insufficient to determine whether the sentences are

excessive in this case.

10

The sentencing guidelines to be followed by the trial court are
found in [Louisiana Code of Criminal Procedure] Article 894.1. In
considering these guidelines, this court has held:

[T]he trial court must ―state for the record the
considerations taken into account and the factual basis
therefor in imposing sentence.‖ La.Code Crim.P. art.
894.1(C). The purpose of obligating a trial court to do so
―is to insure that each sentence is individualized to the
offender and the offense.‖ State v. Davis, 511 So.2d 91,
92 (La.App. 3 Cir.1987). However, to comply with
La.Code Crim.P. art. 894.1(C), the trial court is not
required to ―articulate every circumstance or read
through a checklist of items.‖ State v. Anderson, 95-
1688, p. 4 (La.App. 3 Cir. 5/8/96); 677 So.2d 480, 483.
Still, the record should sufficiently establish that the trial
court adequately considered the guidelines of La.Code
Crim.P. art. 894.1 in particularizing a defendant’s
sentence. Id.

State v. Spencer, 00-1335, p. 7 (La.App. 3 Cir. 2/28/01); 781 So.2d
780, 785.

State v. Smith, 02-719, p. 1 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 787, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061. Moreover, as a general rule,

maximum or near maximum sentences are to be reserved for the worst offenders

and the worst offenses. State v. Fontenot, 09-1044 (La.App. 3 Cir. 5/12/10), 38

So.3d 1122, writ denied, 10-1758 (La. 8/19/11), 67 So.3d 1257.

In brief, the defendant argues that ―[t]he Court gives absolutely no reasons

for the excessive sentence whatsoever.‖ The defendant pled guilty to the charged

offenses on May 25, 2010, in a multi-person Boykinization hearing. He waived all

time delays and was sentenced. There was no presentence investigation report.

The trial court stated only:

Alright. So, you’ve been notified about the sex offender
registration. Alright. Regarding Count I-aggravated burglary-20 years
at hard labor. Count II-attempted forcible rape-20 years at hard labor.
Said sentences are to run concurrently with each other and
concurrently with the time being served in docket number 599407 in
the 14th JDC. Credit for time served on both of these counts from date
of arrest. You have a right to seek post conviction relief which will

11

prescribe after the passage of two years when your sentence becomes
final in any appellate or supreme court.

This court has held that it is unnecessary to remand a case for resentencing

where the record clearly shows an adequate factual basis for the sentence imposed,

even where there has not been full compliance with La.Code Crim.P. art. 894.1.

State v. Decuir, 10-1112 (La.App. 3 Cir. 4/6/11), 61 So.3d 782. However, in the

current case, there is very little in the record before this court that would indicate

whether a maximum and a near maximum sentence are appropriate in this case. In

State v. Scheen, 539 So.2d 846, 847-48 (La.App. 3 Cir. 1989), this court held that

―[t]he sentencing court’s reasons for imposition of a sentence are an important aid

when we review a sentence for excessiveness.‖ The record in the current case does

not reveal what the offense was in Calcasieu Parish that resulted in the sentence

referred to above. The facts of the current offenses are scarce. There is no victim’s

statement or police report. In the videotaped interrogation of the defendant, he

indicated he was married and had a young son. He explained that on the night of

the offenses, he was drinking alone, destitute and frustrated, so he went to the

victim’s home to rob her. He indicated that although he attempted to rape the

victim, he could not perform.

We find that the record is insufficient to determine whether the sentences are

constitutionally excessive and whether the defendant is the most grievous of

offenders deserving of a near maximum and a maximum sentence. We hereby

vacate the sentences and remand the matter to the trial court to resentence the

defendant, articulating for the record the factual basis for the sentences.

CONCLUSION

The defendant’s convictions are affirmed. We find that the record

does not contain sufficient evidence to fully explore a claim of ineffective

12

assistance of counsel. Accordingly, the claim is relegated to post-conviction

proceedings under La.Code Crim.P. arts. 924-930.8. There is insufficient

information in the record before this court to determine whether the defendant’s

maximum and near maximum sentences are constitutionally excessive under the

circumstances of this case. Accordingly, we vacate the sentences and remand to

the trial court for resentencing with instructions to articulate for the record the

reasons for the sentences imposed.

CONVICTIONS AFFIRMED.
SENTENCES VACATED AND REMANDED FOR RESENTENCING.

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