State of Louisiana v. Sherami Freyou

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-32

STATE OF LOUISIANA

VERSUS

SHERAMI FREYOU

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 09-1490
HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

J. Phillip Haney
District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Beth Smith Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Sherami Freyou

Angela B. Odinet
Assistant District Attorney
307 Church Street
St. Martinville, LA 70582
(337) 394-2220
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

SAUNDERS, Judge.

FACTS:

The record indicates that on July 9, 2009, eighteen-year-old Defendant

Sherami Freyou (hereinafter “Ms. Freyou”) complained that a man named Motley

Duhon groped her and sexually propositioned her. When Ms. Freyou refused his

advances, Mr. Duhon allegedly flipped the bed and pushed Ms. Freyou outside.

Ms. Freyou subsequently became angry when she learned that Adam Malin, the

victim in this case, was taking up for Mr. Duhon. Thereafter, Ms. Freyou was

riding in the car with her mother and grandmother. Following in their own car

were Codefendants, Thomas Hebert and his cousin, Jesa Sam. Ms. Freyou saw Mr.

Malin walking on the side of the road. Ms. Freyou then pointed to Mr. Malin and

yelled to Codefendants to beat Mr. Malin. Codefendants exited their car and beat

Mr. Malin. Witnesses reported that they saw the Codefendants approach Mr.

Malin and strike him in the head multiple times which caused him to fall to the

ground. Ms. Freyou drove off after shouting to Codefendants to beat Mr. Malin

but before the beating began. Both Codefendants fled the scene after beating Mr.

Malin. Mr. Malin died as a result of the injuries to his head; the fatal injury was

one of the blows to his head, which resulted in a brain hemorrhage causing

pressure on the portion of the brain that controls the functioning of respiration and

heart rate.

Ms. Freyou was charged by a Grand Jury Indictment with one count of

Principal Second Degree Murder, in violation of La.R.S. 14:30.1 and 14:24 on

August 5, 2009. The Bill of Indictment charged that Ms. Freyou knowingly and

intentionally acted as a Principal to Second Degree Murder by aiding and abetting

in the commission, or directly or indirectly counseling or procuring another to

commit the second degree murder of Mr. Malin. The State alleged that Ms. Freyou

procured, counseled and instigated Thomas Hebert and his cousin, Jesa Sam, each

separately indicted, to beat Malin in retaliation. When the charges were first

brought against her, Ms. Freyou waived a formal arraignment and entered a not

guilty plea on August 25, 2009. Two years later, on July 7, 2011, Ms. Freyou

entered into an open-ended plea bargain, pleading guilty to the reduced charge of

Principal to Manslaughter. The trial court ordered a Pre-Sentence Investigation

report and scheduled the sentencing hearing. The court conducted the sentencing

hearing on September 28, 2011, and sentenced Ms. Freyou to the maximum

sentence of forty years at hard labor. Ms. Freyou filed a Motion for

Reconsideration of Sentence which was denied without a hearing on October 31,

2011. It is this sentence which Ms. Freyou appeals.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, the

court finds that there are no errors patent.

ASSIGNMENT OF ERROR:

Ms. Freyou argues that the maximum sentence imposed by the trial court is

not supported by the record, is grossly disproportionate to the facts of this case,

and is an unconstitutionally excessive sentence. We find no merit in this

contention. The following principals govern an appeal of excessiveness:

The supreme court has determined that the standard for reviewing
excessive sentence claims is abuse of discretion:

The trial judge is given a wide discretion in the
imposition of sentences within the statutory limits, and
the sentence imposed by him should not be set aside as
excessive in the absence of a manifest abuse of his
discretion. A trial judge is in the best position to consider
the aggravating and mitigating circumstances of a
particular case, and, therefore, is given broad discretion
in sentencing. On review, an appellate court does not
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determine whether another sentence may have been more
appropriate, but whether the trial court abused its
discretion.

State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17
(citations omitted).

Under the manslaughter statute, “[w]hoever commits
manslaughter shall be imprisoned at hard labor for not more than forty
years.” La.R.S. 14:31(B). Therefore, the sentencing court imposed the
maximum penalty allowable for manslaughter.

A sentence which falls within the statutory limits
may be excessive under certain circumstances. To
constitute an excessive sentence, this Court must find that
the penalty is so grossly disproportionate to the severity
of the crime as to shock our sense of justice or that the
sentence makes no reasonable contribution to acceptable
penal goals and[,] therefore, is nothing more than the
needless imposition of pain and suffering. The trial judge
has broad discretion, and a reviewing court may not set
sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d
1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846
So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061
(citations omitted), this court discussed the factors it would consider
in order to determine whether a sentence shocks the sense of justice or
makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or
makes no meaningful contribution to acceptable penal
goals, an appellate court may consider several factors
including the nature of the offense, the circumstances of
the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed
for similar crimes. While a comparison of sentences
imposed for similar crimes may provide some insight, “it
is well settled that sentences must be individualized to
the particular offender and to the particular offense
committed.” Additionally, it is within the purview of the
trial court to particularize the sentence because the trial
judge “remains in the best position to assess the
aggravating and mitigating circumstances presented by
each case.”

“Generally, maximum sentences are reserved for those
cases that involve the most serious violations of the
offense charged and the worst type of offender.” State v.
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Jones, 05-735, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d
1113, 1116.

State v. Bailey, 07-130, pp.2-3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 249-50

(alterations in original).

In sentencing Ms. Freyou to forty years, the trial court considered the

evidence presented, Ms. Freyou’s criminal history, Ms. Freyou’s statements, and

the Victim Impact Statements introduced into evidence. The court noted that Ms.

Freyou “start[ed] the train rolling down the track” by shouting out the command to

the Codefendants to beat Mr. Malin, that Ms. Freyou has been abusing marijuana

and alcohol since the age of fifteen, the senselessness of the crime, and the young

age of all actors involved in this matter. The trial court also rejected the notion that

Ms. Freyou is not responsible because she, personally, did not beat up Mr. Malin:

“This doesn’t mean she has clean hands…. The fact of the matter is she pled guilty

to manslaughter[,] because somebody’s dead[,] as a principal. She was never

accused with hitting anyone, but she started the ball rolling.”

The prosecution points out that Ms. Freyou, by pleading to a lesser charge,

has the benefit of a lesser sentence than life in prison. In considering this factor, as

well as those reviewed by the trial court and its great discretion in such matters, we

agree with the decision of the trial court and find that Ms. Freyou’s sentence is not

excessive.

Accordingly, this contention by the Defendant has no merit.

DECREE:

SENTENCE AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules– Courts of Appeal, Rule 2–16.3.

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