State of Louisiana v. Thomas Herbert

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-228

STATE OF LOUISIANA

VERSUS

THOMAS HERBERT

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 09-1492
HONORABLE PAUL J. deMAHY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Marc T. Amy, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, dissents with written reasons.

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

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

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Thomas Herbert

AMY, Judge.

The defendant was charged with second degree murder, a violation of

La.R.S. 14:30.1. As part of a plea agreement with the State, the defendant pled

guilty to manslaughter, a violation of La.R.S. 14:31. After a hearing, the trial court

sentenced the defendant to forty years at hard labor. The defendant now appeals,

contending that his sentence is excessive. For the following reasons, we affirm.

Factual and Procedural Background

In connection with the death of Joseph Adam Malin, the State charged the

defendant, Thomas Blake Herbert, 1 with second degree murder, a violation of

La.R.S. 14:30.1. According to the record, the State contended that the defendant

and a friend, Jesa Sam, beat Mr. Malin and that Mr. Malin died from a brain

hemorrhage as a result of the attack.

After the trial court determined that certain inculpatory statements made by

the defendant were admissible, the defendant entered a plea of guilty to the

reduced charge of manslaughter, a violation of La.R.S. 14:31. At that hearing, the

State alleged the following factual basis for the conviction:

Your Honor, with respect to Mr. Herbert, the State would
submit that on or about the date alleged in the Bill of Information, a
woman by the name of Cheramie Freyou had claimed that she was
sexually assaulted by a person by the name of Motley Duhon. Motley
Duhon and the victim, Adam [Malin] were friends, and Adam [Malin]
was at the residence where and when the alleged sexual assault
occurred. Motley Duhon denied assaulting Cheramie Freyou and
Adam [Malin] corroborated the lack of any type of sexual assault on
Cheramie Freyou. Ms. Freyou, dissatisfied, contacted Mr. Herbert
and, Thomas Herbert, and [Jesa] Sam claiming she was sexually
assaulted and for Mr. Herbert and Sam to come see about her. After
dropping off Cheramie Freyou’s sister at her residence, Mr. Herbert
and Mr. Sam were following a red van occupied by Cheramie Freyou
and other members driving towards Neco Town Road, when they

1
The defendant’s last name is spelled “Hebert” in portions of the record. Further, the
victim’s last name is spelled “Malyn” in portions of the record and Cheramie Freyou’s name is
spelled as “Shermai” or “Sheramie.” Jesa Sam’s name is occasionally spelled “Jessa” or “Jesse.”
We use the spellings contained in the bill of information and the defendant’s appellate brief, as
appropriate.

came across Mr. [Adam Malin] walking down Deere Street in New
Iberia. Cheramie Freyou pointed out Mr. Adam [Malin] and
identified him as the person taking up for Mr. Duhon who she claimed
had sexually assaulted her. Ms. Freyou told Mr. Herbert and [Jesa]
Sam to go “handle up” on Mr. [Malin], which Ms. Freyou described
that term to law enforcement in her interrogation as being to beat Mr.
Adam [Malin] up.

The State would call witnesses that would testify that they saw
Mr. Herbert and Mr. Sam approach Mr. [Malin] and begin striking
him in the head multiple times causing him to fall to the ground. Both
Mr. Herbert and Mr. Sam fled the scene. Mr. Herbert admitted in his
interview to law enforcement officers, after a valid waiver of his
Miranda rights, that he struck the victim “two or three times.” The
victim, Adam [Malin] died as a result of the injuries caused by the
defendant and [Jesa] Sam. The fatal injury to Mr. [Malin] was the
cause by a blow to the head that resulted in (inaudible) hemorrhaging
in the base of the brain causing pressure on the portion of the brain
that controls the functioning of both respiration and heart rate
resulting in Mr. [Malin]’s death.

The plea agreement indicates that the plea agreement was open-ended and that the

trial court would order a certified criminal history.

When he pled guilty, the defendant testified that he was twenty-six years old

and had an eighth grade education. At the sentencing hearing, Mr. Malin’s mother

and uncle testified. Further, several victim impact statements were submitted into

the record. The State and the defense jointly submitted a certified criminal history

that indicated that the defendant had a misdemeanor conviction for remaining after

forbidden from 2003. Additionally, the defendant and several of his family

members testified on his behalf. After hearing all of the evidence, the trial court

sentenced the defendant to forty years at hard labor, the maximum sentence for

manslaughter. La.R.S. 14:31(B). The defendant later filed a motion for

reconsideration, which the trial court denied after a hearing.

The defendant now appeals, asserting as his sole assignment of error that his

sentence is excessive.

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Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, we find no such

errors.

Excessive Sentence

In his sole assignment of error, the defendant contends that the trial court

erroneously imposed an excessive sentence.

As part of its review of a sentence for excessiveness, the appellate court

should review the record to ensure that the trial court adequately complied with

La.Code Crim.P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). Article

894.1 contains a list of sentencing guidelines and requires that the trial court “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). This court, in State v.

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

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.

At the sentencing hearing, the defendant’s certified criminal history was

available to the trial court. Additionally, Mr. Malin’s mother and uncle testified

about the impact that Mr. Malin’s death has had on their family. Victim impact

statements from Mr. Malin’s father, grandmother, and aunt were also submitted to

the trial court. When imposing sentence, the trial court stated that it considered the

testimony and the victim impact statements introduced at the hearing, as well as
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the sentencing guidelines provided in Article 894.1. Further, the trial court

specifically discussed several of the aggravating and mitigating factors listed in

Article 894.1.2

Accordingly, we find that the record indicates that the trial court took proper

cognizance of the sentencing factors delineated in Article 894.1.

The second inquiry is whether the sentence imposed is excessive. The trial

court has wide discretion in imposing a sentence, and, absent an abuse of

discretion, a sentence that is within the statutory guidelines is not deemed

constitutionally excessive. State v. Saucier, 11-246 (La.App. 3 Cir. 11/9/11), 81

So.3d 691 (quoting State v. Brandenburg, 06-1158 (La.App. 3 Cir. 2/7/07), 949

So.2d 625, writs denied, 07-538, 07-614 (La. 10/26/07), 966 So.2d 571, 573).

Further, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d

297, 311, this court discussed the review of excessive sentence claims, stating:

The relevant question on review of a sentence is whether the
trial court abused its broad sentencing discretion and not whether the
sentence imposed may appear harsh or whether another sentence
might be more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674
2
In its discussion of the sentencing guidelines, the trial court made the following findings:

I find that the defendant is in need of correctional treatment at a custodial
environment which can most effectively be provided by a commitment to an
institution, and in fact the law requires that he be committed to an institution, and
I don’t find that to be constitutionally excessive. Any sentence less than what I
intend to impose would deprecate the seriousness of the defendant’s actions. I
disagree with the Defense that his conduct was a mistake or an accident. The
beating received by Mr. Malin was severe, it was deliberate, and I think Mr.
Herbert today tries to minimize what he did. He knowingly created a risk of great
bodily harm, he committed an act of actual violence. He did not use any
dangerous weapon or handgun or other firearm, but basically, he and his friend
beat Mr. Malin to death.

As a mitigating circumstance, he has never been involved in this type of
activity before. There’s no evidence of that. This did not involve any economic
offense or controlled dangerous weapon. Mr. Herbert indicates that he did not
contemplate any harm, but I find that difficult to believe. He did not act under
any strong provocation. There are no grounds that tend to excuse or justify his
conduct. Mr. Malin did not do anything that induced or facilitated the
commission of the crime against him. It’s impossible for Mr. Herbert to
compensate the victim’s family. Impossible to compensate the victim. And I’m
not convinced by the evidence that his conduct was a result of circumstances
unlikely to occur.
4

So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d
539 (1996). To constitute an excessive sentence, this court must find
the penalty imposed is 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, therefore,
it is nothing more than needless imposition of pain and suffering.
State v. Campbell, 404 So.2d 1205 (La.1981).

In making the determination of whether a sentence is shocking to our sense of

justice 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. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501.
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.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991).
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.” State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

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.

The defendant argues that, because he is a first felony offender, the trial

court erred in imposing the maximum sentence for manslaughter. He also

contends that he is not the “worst type of offender” because he is not known to be

violent, expressed remorse for his actions and Mr. Malin’s death, and that his

motivation was a “misplaced sense of chivalry.”

The defendant was initially charged with second degree murder, but pled

guilty to a reduced charge of manslaughter, a violation of La.R.S. 14:31. At the

sentencing hearing, the trial court imposed a sentence of forty years at hard labor,

the maximum potential sentence under La.R.S. 14:31. Generally, maximum

sentences are reserved for the most serious violation of the offense and the worst

type of offender. State v. Russell, 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154,

5

writ denied, 07-2069 (La. 3/7/08), 977 So.2d 897. However, “where a defendant

has pled guilty to an offense which does not adequately describe his conduct or has

received a significant reduction in potential exposure to confinement through a

plea bargain, the trial court has great discretion in imposing even the maximum

sentence possible for the pled offense.” State v. Falcon, 44,829, p. 4 (La.App. 2

Cir. 10/28/09), 26 So.3d 172, 175. We observe that the defendant was initially

charged with second degree murder, a violation of La.R.S. 14:30.1, which

mandates a sentence of life imprisonment. Accordingly, the defendant’s

sentencing exposure was substantially reduced by his plea agreement.

The trial court gave oral reasons when imposing the defendant’s sentence,

stating that he had taken into account the evidence presented at the hearing and the

sentencing guidelines provided by La.Code Crim.P. art. 894.1. In those reasons,

the trial court acknowledged that the defendant had “never been involved in this

type of activity before.” However, the trial court disagreed with the defendant’s

contention that Mr. Malin’s death was an accident, finding that the beating

administered by the defendant and Mr. Sam was “severe, it was deliberate” and

that the defendant was trying to minimize his culpability for the crime.

Additionally, a certified criminal history was available to the trial court, which

indicated that the defendant had a prior misdemeanor conviction.

Further, in addition to the evidence submitted at the plea and sentencing

hearings, the record indicates that trial court ruled on several pre-trial evidentiary

issues and was privy to DVD interviews, police reports and grand jury testimony.

A trial court may rely on varied sources of information and “may include evidence

usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay

and arrest as well as conviction records.” State v. Myles, 94-217, p. 2 (La. 6/3/94),

638 So.2d 218, 219.
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A review of comparable cases indicates that maximum or near-maximum

sentences for manslaughter have been upheld on a number of occasions. In State v.

Bowman, 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, writ denied, 96-2070

(La. 1/31/97), 687 So.2d 400, the defendant was sixteen at the time of the offense

and a first offender. The defendant was driving and one of his friends was

“fussing” with a pedestrian. The defendant acquiesced to the friend’s request that

he turn the car around and drive back towards the pedestrian. The friend then shot

and killed the pedestrian; the defendant contended that he did not know the friend

intended to do so. The defendant was charged with second degree murder, but a

jury returned the lesser verdict of manslaughter. After a hearing, the trial court

imposed a sentence of thirty-three years at hard labor. The fourth circuit affirmed,

finding that the trial court adequately considered the sentencing guidelines and that

the sentence was not excessive.

In State v. Sarkozy, 99-386 (La.App. 4 Cir. 1/26/00), 755 So.2d 345, the

State alleged that the defendant beat the victim to death with a hammer after the

victim refused to loan him a quarter. The defendant was charged with second

degree murder; however, a jury found him guilty of the lesser charge of

manslaughter. The trial court imposed the maximum sentence even though the

defendant was a first offender. The trial court found that the crime was

deliberately cruel, that the defendant was not acting in self-defense, and that he

showed no remorse. On appeal, the fourth circuit found that the sentence was not

constitutionally excessive. See also Falcon, 26 So.3d 172; State v. Black, 28,100

(La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-836 (La. 9/20/96), 679

So.2d 430.

Based on our review of the record, we find that the trial court did not abuse

its broad sentencing discretion in imposing the maximum sentence. The trial court
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found that the defendant committed an act of actual violence and that the beating

received by the victim was severe and deliberate. Further, the trial court found that

the defendant tried to minimize his culpability for the crime. Although the

defendant is a first felony offender, he received a significant benefit by pleading

guilty to manslaughter instead of second degree murder. Further, our review of

similar cases indicates that courts have upheld maximum or near-maximum

sentences for cases for manslaughter in circumstances similar to those of the

defendant.

This assignment of error is without merit.

DECREE

The sentence of the defendant, Thomas Blake Herbert, for the charge of

manslaughter, a violation of La.R.S. 14:31, is affirmed.

AFFIRMED.

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12-228

STATE OF LOUISIANA

VERSUS

THOMAS HERBERT

THIBODEAUX, Chief Judge, dissenting.

The defendant’s only past record is a nonviolent misdemeanor

offense. The jurisprudence is clear. Maximum sentences are reserved for the most

egregious offenses and the worst type of offender. In imposing a forty-year

sentence for a first time felony offender, the trial court abused its sentencing

discretion. While I do not wish to minimize the severity of this offense, I find that

the maximum sentence in this case makes no meaningful contribution to acceptable

penal goals and only results in enhancing Louisiana’s position as the incarceration

capital of the world.

For the foregoing reasons, I respectfully dissent.