State of Louisiana v. Jammicka Greene

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-649

STATE OF LOUISIANA

VERSUS

JAMMICKA GREENE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 43457
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and John E.
Conery, Judges.

CONVICTION AFFIRMED;
SENTENCE VACATED;
REMANDED FOR RESENTENCING.

Annette C. Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Jammicka Greene

Michael Harson
District Attorney—Fifteenth Judicial District
Ted L. Ayo
Assistant District Attorney
100 North State Street, Suite 215
Abbeville, Louisiana 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Jammicka Greene, appeals her aggravated

battery conviction and sentence, alleging insufficiency of the evidence, erroneous

jury instructions, excessive sentence, and ineffective assistance of counsel. For the

following reasons, we affirm Defendant‟s conviction, vacate her sentence, and

remand the matter to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On March 5, 2005, Defendant was involved in a personal dispute with the

victim, Sharell Charles. They argued in a parking lot near the victim‟s apartment

in Abbeville, Louisiana, but a mutual acquaintance, Chasity Petry, intervened and

broke it. After leaving the apartment complex, the two women met up again and

became embroiled in a physical altercation at a nearby intersection. During this

altercation, Defendant cut the victim multiple times with a sharp object that was

never conclusively identified, which resulted in the victim‟s hospitalization for

approximately one week.

On April 12, 2005, the State charged Defendant with attempted second

degree murder, a violation of La.RS. 14:27 and La.R.S. 14:30.1. The case was

tried before a jury on August 26, 2009, and the jury convicted Defendant of the

lesser-included charge of aggravated battery. On February 8, 2010, the trial court

sentenced Defendant to serve six years at hard labor. Defendant did not file a

Motion to Reconsider Sentence.

In 2011, Defendant‟s efforts to obtain an out-of-time appeal were rebuffed

by the trial court. She sought appellate review by this court, which dismissed the

matter as non-appealable.1 State v. Greene, 12-649 (La.App. 3 Cir. 8/22/12)

1
Defendant was seeking review of a denial of her post-conviction relief application in
which she requested an out-of-time appeal.

(unpublished opinion). The supreme court reversed, allowed the appeal, and

remanded the matter to this court to address the merits of Defendant‟s appeal.

State v. Greene, 12-2027 (La. 3/15/13), 109 So.3d 370.

ERRORS PATENT

In accordance with 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

actionable errors patent.

ASSIGNMENTS OF ERROR

Defendant asserts the following assignments of error:

I.

The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, . . . (1979)
standard, was insufficient to prove beyond a reasonable doubt that
Jammicka Greene committed either an aggravated battery[] or the
charged offense of attempted second degree murder.

II.

The evidence introduced at the trial of this case, when viewed
under the preponderance of the evidence standard, was sufficient to
establish that Jammicka Greene acted in defense of herself and/or her
unborn child.

III.

The trial court erred in both its original instructions to the jury
and in its re-instructions to the jury[] during deliberations.

IV.

The trial court failed to sufficiently or correctly consider and
weigh the factors set forth in [La.Code Crim.P.] art. 894.1, resulting in
the imposition of a sentence which violates the Eighth Amendment of
the Constitution of the United States and La.[Const.] Art. I, § 20, as it
is nothing more than cruel and unusual punishment and, thus,
excessive.

V.

Trial counsel erred by failing to object to the jury charges with
regard to the burden of proof necessary for a claim of self-defense, in

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failing to object to the re-instructions to the jury[,] and in failing to
file a motion to reconsider sentence, specifically setting forth: 1) the
mitigating factors the court did not consider in arriving at a sentence
in this case, and 2) the errors in the judge‟s conclusions of the facts of
the case. Appellant was prejudiced as a result of these errors as the
issues were not properly preserved for appellate review. As a result,
trial counsel rendered ineffective assistance of counsel.

ASSIGNMENTS OF ERROR NOS. 1 & 2:

Combining her first two assignments of error, Defendant argues that the

evidence adduced against her was insufficient to support her conviction for

aggravated battery, contending that her actions were justified. She claims that she

was acting in self-defense and defense of her unborn child, as she was eight

months pregnant at the time of the offense.

The standard for reviewing attacks on sufficiency of evidence is well settled,

as this court explained years ago:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Aggravated battery is defined by La.R.S. 14:34(A) as “a battery committed

with a dangerous weapon.” Battery is defined by La.R.S. 14:33 as “the intentional

use of force or violence upon the person of another. . . .”

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As Defendant points out, the standard for non-homicide self-defense was set

forth in La.R.S. 14:19 as it existed in 2005, the year of the offense:

The use of force or violence upon the person of another is
justifiable, when committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass against
property in a person‟s lawful possession; provided that the force or
violence must be reasonable and apparently necessary to prevent such
offense, and that this article shall not apply where the force or
violence results in a homicide.

Defendant‟s present argument is essentially the same one she made at trial.

She relies upon her testimony that the victim was the aggressor and that she feared

for herself and her unborn child. She also claimed that the victim was wielding a

bat—an allegation she did not mention in her original statement to police.

However, Defendant‟s case hinges upon credibility, as the victim and another State

witness testified that she was the aggressor. According to the victim and Glenda

Landry,2 Defendant attacked the victim as the latter was exiting her car. The

victim denied using a bat, and Landry did not see one.

As noted in Kennerson, this court is not allowed to second-guess the

credibility determinations made by the factfinder. In this case, the jury found the

victim and Landry more credible than Defendant. We are unable to say that the

jury‟s assessment was unreasonable or irrational. Therefore, we find Defendant‟s

assignments of error numbers one and two to be without merit.

ASSIGNMENT OF ERROR NO. 3:

In her third assignment of error, Defendant argues that the trial court gave an

incorrect instruction to the jury regarding self-defense and failed to mention

self-defense during its re-instruction. She also claims that the trial court failed to

explain to the jury the proper verdict if it found that she had acted in self-defense.

2
Glenda Landry testified as an eyewitness to the altercation between Defendant and the
victim.
4

However, Defendant acknowledges in her cited jurisprudence that an erroneous

self-defense instruction can be deemed harmless error.

The record indicates that trial counsel failed to object to the trial court‟s jury

instructions. Defendant acknowledges same in arguing that her trial counsel was

ineffective for failing to object to the court‟s jury instructions. Lacking such an

objection at trial, Defendant has not preserved the issue for appellate review. State

v. Runnels, 12-167 (La. App. 3 Cir. 11/7/12), 101 So.3d 1046, writ denied, 13-498

(La. 7/31/13), 118 So.3d 1121.

Regardless, we note that the instruction error was in Defendant‟s favor, as

the trial court‟s instruction placed upon the State the burden of proving Defendant

did not act in self-defense, even though this was a non-homicide case. In a

non-homicide case, such as attempted second degree murder, which is the charge

in the instant case, the defendant must carry the burden of proving self-defense by

a preponderance of the evidence. State v. Anderson, 98-492 (La.App. 3

Cir. 10/28/98), writ denied, 98-2976 (La. 3/19/99), 739 So.2d 781; State v. Black,

09-1664 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, writ denied, 10-1678

(La. 1/28/11), 56 So.3d 966. Also, the context of the trial judge‟s initial instruction

shows that a finding that Defendant acted in self-defense should result in a not

guilty verdict wherein the trial judge stated:

And, finally, if the State has failed to prove to you beyond a
reasonable doubt that the defendant is guilty of either the offense
charged or a lesser offenses [sic], then your verdict must be not guilty.

Self-defense, a defendant who raises -- this is where I made the
error. I told you that the State always had the burden unless it‟s
self-defense; that the defendant had to prove self-defense. That‟s
wrong. I don‟t know why I said it. It‟s been a long week.

A defendant who raises self-defense does not have the burden
of proof on that issue. The State must prove beyond a reasonable
doubt that the attempted second degree murder was not committed in
self-defense. So the burden always remains with the State.

5

Regarding the trial court‟s failure to re-instruct the jury on self-defense, the record

does not show that the jury requested such an instruction nor that the issue was

problematic for the jury. Rather, the record suggests that the jury members wanted

to clarify the various possible responsive verdicts.

In a fifth circuit case mentioned by Defendant, the court stated:

We note that the charge given by the trial court is not wholly
correct because it is based on the standard applicable when a homicide
results. However, we believe this error to be harmless.

In State v. Cage, 583 So.2d 1125 (La.1991), cert. denied, 502
U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991), the Louisiana
Supreme Court stated that an improper jury instruction is a trial error
and is subject to a harmless error analysis. We are mindful that the
United States Supreme Court held that an erroneous jury instruction
on reasonable doubt is not subject to harmless error. See Sullivan v.
Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
Nonetheless, we do not believe that the reasoning and analysis used
by the Sullivan court are applicable in this instance. In Sullivan, the
court held that a constitutionally deficient reasonable doubt instruction
vitiates the jury‟s findings and will always result in the absence of an
appropriate “beyond a reasonable doubt” jury finding. Such a
structural defect in the trial mechanism is not subject to a harmless
error.

However, the erroneous instruction in the instant case
concerned self-defense, and the existence of self-defense merely
presents exculpatory circumstances which defeat culpability without
negating the state‟s proof beyond a reasonable doubt of all the
essential elements of the offense. See State v. Barnes, 491 So.2d 42
(La.App. 5 Cir.1986). As such the instruction is subject to a harmless
error analysis.

The proper analysis for determining harmless error as stated by
the Supreme Court is, “not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in the instant trial was surely
unattributable to the error”. Sullivan v. Louisiana, supra. 508 U.S. at
____, 113 S.Ct. at 2081; State v. Code, 627 So.2d 1373 (La.1993),
[cert. denied], 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491
(1994).

In the instant case the evidence overwhelmingly established that
the defendant fired upon police officers as they attempted to enter the
building to execute a search warrant, thereby negating any claim of
self-defense. Therefore, we do not find that the defendant‟s

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conviction was attributable to the erroneous instruction. Thus, we
find the erroneous instruction to be harmless error.

State v. Richardson, 92-836, pp. 5-6 (La.App. 5 Cir. 12/14/94), 648 So.2d 945,

948, writ denied, 95-343 (La. 6/23/95), 656 So.2d 1011.

As set forth in the earlier Jackson review and as the State suggests,

self-defense was not a subtle legal issue at trial. It is quite clear that an altercation

occurred, and that Defendant cut the victim. Defendant testified that she was

defending herself and her unborn baby from the bat-wielding victim. The victim

and another witness testified that Defendant attacked the unarmed victim with

some sort of blade. Clearly, the jury believed the State‟s witnesses on the

self-defense issue, even though the trial court‟s instruction placed the burden of

disproving self-defense on the State. We find the court‟s error to be harmless as

the verdict is “surely unattributable” to this issue. Thus, we find that this

assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4:

In her fourth assignment of error, Defendant contends that her six-year

sentence is excessive. The record indicates that counsel objected to the sentence

without argument, and there was no motion to reconsider sentence. Louisiana

Code of Criminal Procedure Article 881.1(E) states:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the

defendant failed to object to the sentence at the sentencing hearing and did not

timely file a motion to reconsider sentence. Thus, this court found his claim of

excessiveness of sentence was barred. See also State v. Williams, 01-998

7

(La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836

So.2d 59; State v. Algere, 09-85 (La.App. 3 Cir. 6/3/09) (unpublished opinion);

State v. Robinson, 09-735 (La.App. 3 Cir. 12/9/09) (unpublished opinion); State

v. Stapleton, 09-891 (La.App. 3 Cir. 2/3/10) (unpublished opinion); State

v. Gresham, 10-474 (La.App. 3 Cir. 11/3/10) (unpublished opinion), writ denied,

10-2699 (La. 4/25/11), 62 So.3d 90. However, this court has reviewed

excessiveness claims despite the lack of an objection and motion to reconsider

sentence. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150,

writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, __ U.S. __, 131 S.Ct.

932 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State

v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.

6/25/10), 38 So.3d 352; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999

So.2d 338, writ denied, 09-606 (La. 12/18/09), 23 So.3d 936; State v. Quinn,

09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-1355 (La.

1/7/11), 52 So.3d 885. In the case at bar, we opt to review Defendant‟s argument

as a bare claim of excessiveness.

The following analysis is pertinent:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “„[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.‟”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences are
reserved for the most serious violations and the worst offenders.”
State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d
217, 225. The only relevant question for us to consider on review is
not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519
U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

8

The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir.
12/16/98),] 726 So.2d [57,] 58, stated that the reviewing court should
consider three factors in reviewing the trial court‟s sentencing
discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the
same court and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59.

We note that Defendant was subject to a sentence of up to ten years.

La.R.S. 14:34.

At sentencing, the trial court stated:

The victim impact statement is quite lengthy with regard to the
scarring and the problems that she has had as a result of the attack.
She was also pregnant at the time and delivered prematurely. She had
some hospital bills that remained unpaid, and she also missed some
work.

When pronouncing sentence, the court observed:

I‟m also taking into consideration in sentencing less than the
maximum -- even though this was violent, cutting in the face, across
the body, stabbing a pregnant woman, I‟m also taking into
consideration that there is no suspended sentence available and that
Ms. Greene will have to serve out her time that I give her. She‟s still
eligible for parole and still eligible for good time, but I cannot give
her a sentence and suspend any part of it.

Although Defendant makes other arguments, the key issue she raises is

whether her sentence was affected by the trial court‟s belief that the victim was

pregnant at the time of the offense. As Defendant‟s appellate counsel accurately

notes, the medical records introduced at trial indicate that the victim was not

pregnant at the time of the offense. We find this to be a significant discrepancy,

even within the context of a bare excessive claim review, as it bears upon the

nature of the crime.

9

As a Whatley/Lisotta analysis cannot be properly conducted without

clarification of this issue, we must remand this matter for a hearing and

determination of whether the victim was pregnant at the time of the offense. If the

trial court determines that the victim was pregnant during the altercation, the

record must be clarified to account for medical evidence in the record indicating

that the victim was not pregnant.

ASSIGNMENT OF ERROR NO. 5:

In her fifth and final assignment of error, Defendant argues that her trial

counsel was ineffective for failing to object to the erroneous jury charges and for

failing to file a motion to reconsider sentence. As Defendant notes, an

ineffective-assistance analysis has two parts: “In outlining the convicted

defendant‟s burden of proof in an ineffective assistance case, the Supreme Court

has established a two-part test. The defendant must show that a deficient

performance on the part of his attorney prejudiced his defense. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State

v. Velez, 588 So.2d 116, 131 (La.App. 3 Cir. 1991), writs denied, 592 So.2d 408

(La.1992), cert. denied, 505 U.S. 1220, 112 S.Ct. 3031 (1992).

Regarding Defendant‟s argument that counsel should have objected to the

erroneous jury charges, as previously addressed in this opinion, the merits of the

claim would not entitle Defendant to any relief. Even assuming, arguendo, that

counsel‟s inaction constituted a deficient performance, Defendant failed to prove

that her trial counsel‟s deficient performance prejudiced her defense as required by

Strickland.

It is unnecessary to address the failure of Defendant‟s trial counsel to file a

motion to reconsider sentence as we are remanding the case for clarification of the

record regarding Defendant‟s sentence.

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DISPOSITION

Defendant‟s aggravated battery conviction is affirmed. Defendant‟s

sentence is vacated. This matter is remanded to the trial court for a resentencing

hearing to determine whether the victim was pregnant at the time of the offense

and to resolve the current discrepancy between the sentencing transcript, which

indicates that the victim was pregnant, and the victim‟s medical records introduced

at trial which indicate otherwise. Upon resolution of this discrepancy, the trial

court shall resentence Defendant pursuant to her aggravated battery conviction.

CONVICTION AFFIRMED;
SENTENCE VACATED;
REMANDED FOR RESENTENCING.

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