State of Louisiana v. Derrick L. Harris

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-133

STATE OF LOUISIANA

VERSUS

DERRICK L. HARRIS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 51265
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED.

Cooks, J., dissents and assigns written reasons.

Michael Harson
District Attorney
Post Office Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

F. Stanton Hardee, III
Assistant District Attorney
100 N. State Street, Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

Brent A. Hawkins
Louisiana Appellate Project
Post Office Box 3752
Lake Charles, LA 70602
(337) 502-5146
COUNSEL FOR DEFENDANT/APPELLANT:
Derrick L. Harris

Derrick L. Harris
Hickory - 1
Louisiana State Prison
Angola, LA 70712
IN PROPER PERSON

AMY, Judge.

Following a bench trial, the defendant was convicted as charged of

distribution of marijuana. The trial court imposed a fifteen-year sentence to be

served at hard labor. Thereafter, and pursuant to a bill of information filed by the

State, the trial court adjudicated the defendant a fourth felony offender, vacated the

fifteen-year sentence, and imposed the mandatory life sentence set forth in La.R.S.

15:529.1. Pursuant to the statute, the trial court imposed the sentence without

benefit of parole, probation, or suspension of sentence. The defendant appeals.

For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that an undercover sheriff’s deputy working with the

Vermilion Parish Sheriff’s Office located an individual on a street in Abbeville,

inquired where he could purchase marijuana, and was taken to a residence. The

deputy testified that a subject he identified as the defendant, Derrick L. Harris,

walked from the residence and sold him marijuana for $30.

Based on that transaction, the State charged the defendant with distribution

of marijuana, a violation of La.R.S. 40:966(A)(1). After the matter proceeded to a

bench trial, the defendant was convicted as charged. At sentencing, the trial court

sentenced the defendant to fifteen years at hard labor, a mid-range sentence for the

conviction of distribution of marijuana.1 The trial court subsequently denied the

defendant’s motion to reconsider the sentence.

Following the defendant’s conviction, the State filed a bill of information,

along with amendments, listing a total of six felonies, including the conviction for
1
See La.R.S. 40:966(B)(3) which provides that a defendant convicted of distribution of
marijuana shall “be sentenced to a term of imprisonment at hard labor for not less than five nor
more than thirty years, and pay a fine of not more than fifty thousand dollars.”

distribution of marijuana. Following a hearing, the trial court adjudicated the

defendant a fourth felony offender. Accordingly, the trial court vacated the fifteen-

year sentence imposed for distribution of marijuana and imposed a sentence of life

imprisonment without benefit of probation, parole, or suspension of sentence.

The defendant appeals, arguing that the sentence of life imprisonment is

constitutionally excessive.2 In addition to his counsel-assisted brief, the defendant

advances two assignments of error in proper person, asserting that the trial court

erred in admitting testimony that violated the Confrontation Clause and, also, that

he did not have the benefit of effective assistance of counsel.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for

errors patent on the face of the record. We have identified no such errors.

Confrontation Clause

In addressing the underlying conviction for distribution of marijuana, the

defendant argues in his brief filed in proper person that the trial court erred in

permitting what he contends was impermissible hearsay testimony offered by the

State. He argues that the acceptance of the various points of evidence, discussed

below, violated the Confrontation Clause. See U.S. Const. amend. VI; La.Const.

art. 1, § 16.

2
The defendant also reserved the right to file an assignment of error regarding the
waiver of his right to jury trial after a supplemental transcript pertaining to that issue was
received. However, and although the record now contains that transcript, the defendant did not
file a related assignment.

2

Police Reports

The undercover drug purchase at issue in the distribution of marijuana case

involved an undercover officer approaching an individual who, according to

testimony, appeared to be a juvenile and who led them to the defendant’s location.

The defendant questions the State’s use of the term “The Juvenile” in the reports of

two officers involved in the undercover drug purchase rather than the use of the

juvenile’s name. The defendant suggests the individual’s identity was known to all

involved, that everyone was aware that the individual’s mother was in a

relationship with the defendant, and that the State should have been required to call

the individual as a witness so as to permit cross examination. Absent this

opportunity, the defendant argues, he could not conduct questioning regarding the

video recording of the drug transaction and could not contest the undercover

officer’s testimony. The defendant also questions the State’s failure to call an

additional officer as a witness, although the witness was present at trial.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the United

States Supreme Court explained that the Confrontation Clause prohibits the use of

testimonial, out-of-court statements unless the witness is unavailable and the

defendant had a prior opportunity to cross-examine that witness. However, the

defendant’s focus in this argument does not address testimonial, out-of-court

statements. The State largely presented its evidence through the testimony of the

undercover agent who performed the drug transaction with the defendant. A DVD

recording of the alleged exchange was admitted as well. Instead, the defendant

complains of the contents of a police report, with references to “The Juvenile,”

which was not introduced into evidence by the State, and is only contained

elsewhere within the record. Similarly, the defendant asserts that he should have

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had the opportunity to cross-examine another officer who was present at trial but

was not called by the State as a witness. The defendant has not connected that

desired witness to any testimonial, out-of-court statement. Accordingly, the

defendant’s argument lacks merit.

Chain of Custody

The defendant also asserts that the State failed to establish the chain of

custody with regard to certain evidence. First, the defendant contends that the

underlying offense allegedly occurred on October 2, 2008, yet, the DVD recording

of the alleged transaction was dated otherwise. Further, the defendant also

questions the fact that the State presented a witness who testified regarding the lab

results from the seized marijuana, but that the witness was not the individual who

conducted the tests. In support of his argument, the defendant cites Bullcoming v.

New Mexico, _ U.S. _, 131 S.Ct. 2705 (2011)(wherein the United States Supreme

Court explained that, if the State presents a report or certification from tested

evidence, then the person called to testify regarding that report or certification must

have conducted or observed the underlying testing). The defendant again contends

that the State’s presentation of evidence in this regard violated the Confrontation

Clause.

With regard to the chain of custody of the marijuana, however, the

defendant’s trial counsel stipulated to the unbroken chain from the point of

recovery from the officer to the courtroom. Accordingly, that issue was waived.

Neither do we find merit in the defendant’s contention that the State’s witness who

identified the retrieved substance as marijuana did not perform the testing. Rather,

Rachel Wickman of the Acadiana Crime Lab testified that she personally

performed testing on the submitted sample. The substance had been resubmitted

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for testing after the analyst who originally tested the substance became unavailable

for trial. Thus, as presented, the State’s evidence, as complained of by the

defendant, does not violate Bullcoming, _ U.S. _. Accordingly, this assignment

lacks merit.

Assistance of Counsel

Additionally, the defendant contends that both his trial and appellate counsel

offered ineffective assistance. With regard to his trial counsel, the defendant

contends that his attorney failed to adequately conduct pre-trial discovery and

investigation. He asserts that such pre-trial investigation would have uncovered

additional law enforcement officers involved in the investigation who could have

been called as witnesses. Additionally, the defendant notes that a DVD of the

alleged drug transaction was played at trial although no audio was available. He

argues that other officers could have been called to narrate the DVD and the events

captured therein. Finally, and with regard to appellate counsel, the defendant

claims that his attorney should have raised the Confrontation Clause argument he

raised in proper person, discussed above.

A criminal defendant is guaranteed the effective assistance of counsel

pursuant to U.S. Const. amend. VI and La.Const. art. 1, § 13. In pursuit of such a

claim of ineffective assistance of counsel, a defendant must establish “(1) that

counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms; and (2) counsel’s inadequate performance

prejudiced defendant to the extent that the trial was rendered unfair and the verdict

suspect.” State v. Leger, 05-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142-43

(citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) and State v.

Washington, 491 So.2d 1337 (La.1986)), cert. denied, 549 U.S. 1221, 127 S.Ct.

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1279 (2007). However, a claim of ineffective assistance of counsel is typically

more properly resolved by post-conviction proceedings as it allows the trial court

to conduct a full evidentiary hearing, if warranted. Id. However, if the appellate

record contains sufficient evidence to review the defendant’s claim, the matter may

be considered on appeal in the interest of judicial economy. Id.

After review, we conclude that resolution of the defendant’s claims

regarding the adequacy of pre-trial discovery and decisions of representation

regarding the calling of witnesses and lodging of arguments may require the

testimony of those involved. Accordingly, we do not consider the defendant’s

assignment and relegate the argument regarding effective assistance of counsel to

post-conviction relief.

Habitual Offender Sentence

In counsel-filed brief, the defendant addresses the life sentence imposed

following his adjudication as a fourth-felony offender. He references the factual

circumstances of the distribution of marijuana offense and notes that the amount

was nominal, e.g., less than one gram of marijuana for $30, in arguing that the life-

sentence resulting from the habitual offender proceeding is disproportionate. He

references a number of mitigating factors from his background and notes that, at

the time the trial court imposed the original sentence of fifteen years for the

distribution of marijuana conviction, the trial court remarked that he was not the

most egregious type of offender.

We first note that the defendant did not object to the life sentence at the time

of imposition, nor did he file a motion to reconsider that sentence. In such an

instance, La.Code Crim.P. art. 881.1(E) provides that the failure “shall preclude the

state or the defendant from raising an objection to the sentence or from urging any

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ground not raised in the motion on appeal or review.” Thus, this court is relegated

to a bare claim of excessiveness on review. See State v. Runnels, 12-167 (La.App.

3 Cir. 11/7/12), 101 So.3d 1046.

In this instance, the defendant was adjudicated a fourth felony offender. In

this regard, Louisiana Revised Statutes 15:529.1 provides, in pertinent part:

A. Any person who, after having been convicted within this
state of a felony, or who, after having been convicted under the laws
of any other state or of the United States, or any foreign government
of a crime which, if committed in this state would be a felony,
thereafter commits any subsequent felony within this state, upon
conviction of said felony, shall be punished as follows:

....

(4) If the fourth or subsequent felony is such that, upon a
first conviction the offender would be punishable by imprisonment for
any term less than his natural life then:

....

(b) If the fourth felony and two of the prior felonies are
felonies defined as a crime of violence under R.S. 14:2(B), a sex
offense as defined in R.S. 15:540 et seq. when the victim is under the
age of eighteen at the time of commission of the offense, or as a
violation of the Uniform Controlled Dangerous Substances Law
punishable by imprisonment for ten years or more, or of any other
crime punishable by imprisonment for twelve years or more, or any
combination of such crimes, the person shall be imprisoned for the
remainder of his natural life, without benefit of parole, probation, or
suspension of sentence.

The record demonstrates that the State proved that the defendant had a total of six

felony convictions: distribution of cocaine, simple burglary, theft with a value

between three and five hundred dollars, two counts of simple robbery, and, finally,

distribution of marijuana. Pursuant to La.R.S. 14:2(B)(23), the prior convictions

for simple robbery are classified as convictions for crimes of violence.

Additionally, both the distribution of marijuana and distribution of cocaine

convictions were for violations of the controlled dangerous substances law and

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were punishable by sentences of more than ten years. See La.R.S. 40:966(B)(3);

La.R.S. 40:967(B)(4)(b). Thus, La.R.S. 15:529.1(A)(4)(b) dictated that “the

person shall be imprisoned for the remainder of his natural life, without benefit of

parole, probation, or suspension of sentence.”

As explained in State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, the

Louisiana Supreme Court has repeatedly found the habitual offender law of

La.R.S. 15:529.1 to be constitutional in its entirety. By extension, its minimum

sentences imposed on habitual offenders are presumed to be constitutional as well.

Id. Although the judiciary affords great deference to the legislature’s

determination of an appropriate minimum sentence, the court can declare a

sentence unconstitutionally excessive under the facts of a particular case even

though it falls within the statutory parameters set forth by the legislature. Id.

However, that power may only be exercised “when the court is clearly and firmly

convinced that the minimum sentence is excessive.” Id. at 676.

The supreme court instructed that a sentencing judge must start with the

presumption that the mandatory sentence of the habitual offender law is

constitutional and may only depart from that upon a finding of clear and

convincing evidence to rebut that presumption. Johnson, 709 So.2d 672. Notably,

A trial judge may not rely solely upon the non-violent nature of the
instant crime or of past crimes as evidence which justifies rebutting
the presumption of constitutionality. While the classification of a
defendant's instant or prior offenses as non-violent should not be
discounted, this factor has already been taken into account under the
Habitual Offender Law for third and fourth offenders. LSA-R.S.
15:529.1 provides that persons adjudicated as third or fourth offenders
may receive a longer sentence if their instant or prior offense is
defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the
Legislature, with its power to define crimes and punishments, has
already made a distinction in sentences between those who commit
crimes of violence and those who do not. Under the Habitual
Offender Law those third and fourth offenders who have a history of

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violent crime get longer sentences, while those who do not are
allowed lesser sentences. So while a defendant’s record of non-
violent offenses may play a role in a sentencing judge’s determination
that a minimum sentence is too long, it cannot be the only reason, or
even the major reason, for declaring such a sentence excessive.

Id. at 676. Rather, and in order to rebut the presumption of constitutionality, a

defendant must clearly and convincingly demonstrate that he or she is exceptional.

Id. On this final point, the supreme court further explained that the defendant must

show that he or she is the victim of the legislature’s failure to assign sentences that

are meaningfully tailored to his or her culpability, the gravity of the offense, and

the circumstances of the case. Id. In evaluating the defendant’s argument

regarding a lesser sentence, the trial court must be mindful of the goals of the

habitual offender provision. Id. As explained in Johnson,

Clearly, the major reasons the Legislature passed the Habitual
Offender Law were to deter and punish recidivism. Under this statute
the defendant with multiple felony convictions is treated as a
recidivist who is to be punished for the instant crime in light of his
continuing disregard for the laws of our state. He is subjected to a
longer sentence because he continues to break the law. Given the
Legislature’s constitutional authority to enact statutes such as the
Habitual Offender Law, it is not the role of the sentencing court to
question the wisdom of the Legislature in requiring enhanced
punishments for multiple offenders. Instead, the sentencing court is
only allowed to determine whether the particular defendant before it
has proven that the mandatory minimum sentence is so excessive in
his case that it violates our constitution.

Id. at 677.

In this case, the trial court imposed the mandatory life sentence as required

by La.R.S. 15:529.1(A)(4)(b). Although the defendant references the trial court’s

acknowledgement of certain mitigating circumstances and the fact that he was not

the worst type of offender under the law, the trial court made those comments at

the time of the sentencing for the underlying distribution of marijuana conviction.

At that time, the State had urged the imposition of the maximum, thirty-year

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sentence for that conviction. Finding that the defendant was not the worst

offender, however, the trial court imposed a mid-range fifteen-year sentence.

Subsequently, and after the habitual offender adjudication, the trial court directly

imposed the term of life imprisonment without comment as to mitigating factors.

Additionally, the defendant’s argument regarding the excessiveness of his

sentence is made in reference to the circumstances of only his last felony

conviction for distribution of marijuana. However, the sentence now contested

resulted from adjudication under La.R.S. 15:529.1(A)(4)(b). Thereunder, the State

demonstrated that the defendant had a total of six felony convictions and that the

convictions fit the parameters of the statute. Accordingly, we find no abuse of

discretion in the trial court’s imposition of the mandatory life sentence described

therein.

While we recognize the defendant’s contention that the circumstances

regarding his most recent conviction do not reflect the most grave type of offense,

it is important to recall that La.R.S. 15:529.1(A)(4)(b) is specifically directed to the

repeat felony offender. As noted above, the supreme court has remarked that “the

defendant with multiple felony convictions is treated as a recidivist who is to be

punished for the instant crime in light of his continuing disregard for the laws of

our state.” Johnson, 709 So.2d at 677. In this case, the State clearly demonstrated

that the defendant is such a recidivist offender, having been convicted of six felony

convictions. In this light, we do not find that the trial court was obligated to find

that the circumstances of the defendant’s offense(s) were exceptional and

supportive of a downward deviation from the mandatory life term of La.R.S.

15:529.1(A)(4)(b). Accordingly, we affirm the defendant’s sentence.

This assignment lacks merit.

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DECREE

For the foregoing reasons, the conviction and sentence of the defendant are

affirmed.

AFFIRMED.

11

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-133

STATE OF LOUISIANA

VERSUS

DERRICK L. HARRIS

COOKS, J. Dissents.

Under the majority’s decision, Defendant, an honorably discharged

American veteran of Desert Storm, suffering from drug addiction, and unable to

get medical help from the U.S. Veterans’ Administration, will spend the rest of his

life in prison for selling .69 gram of marijuana to an undercover police officer who

solicited the sale while Defendant was in his own home minding his own business.

The majority ignores the fact that the trial court placed the entire record of the

conviction for selling this tiny amount of marijuana into the record for the habitual

offender hearing, including the transcript of the sentencing hearing at which he

went to great lengths to explain why he was imposing only a fifteen-year sentence

out of a possible thirty years. The majority incorrectly asserts that there was no

evidence presented at the hearing on the habitual offender charge, and then fails to

conduct even a review for bare excessiveness as required by our longstanding

jurisprudence. It certainly is shocking to my conscience as an appellate judge to

imagine that this Defendant, in light of the evidence and testimony put forth at his

hearings, which the trial judge found to be credible and worthy of note, could be

sent to prison for life based on the sale of .69 gram of marijuana. Although his

overall record meets the technical criteria to be considered a fourth felony

offender, the trial judge specially noted, after fully reviewing his past convictions,

that this Defendant is not what the law means to refer to as a “drug dealer” but is

simply an addict, who has, in the past, turned to crime to feed his habit. Even so,

1

as the trial judge specially noted on the record, it had been over ten years since

Defendant’s last conviction until his present conviction for selling a tiny amount of

marijuana. Likewise, it is clear that this Defendant is not the type of defendant the

legislature envisioned sending to prison for life when imposing the mandatory life

sentence for habitual offenders under La.R.S. 15:529.1(A)(4)(b).

The trial judge articulated his belief that Defendant is in need of treatment

for drug addiction, but noted regrettably that the law does not allow him to order

such treatment but only allows him to suggest to the Department of Corrections

that Defendant would benefit from such treatment. The trial judge also noted that

he believed Defendant’s testimony that he has a drug addiction problem. He also

believed the testimony of Defendant’s mother regarding Defendant’s addiction

problem and inability to get help from the Veterans’ Administration for his health

problem. She testified that her son has had an addiction problem since he returned

from Desert Storm. The trial judge noted Defendant sold a small amount of drugs

to feed his habit and does not seem to be the more serious type of “drug dealer”

whom our laws are aimed at incarcerating for long periods of time. The trial judge

remarked “I mean you were not a drug kingpin selling bales of marijuana to school

children on the school ground. I mean, that’s not the kind of thing that we’re

looking at here[,]” and further stated “I agree that you’re not what we would think

of as a drug dealer so far as I can tell.” The trial judge further stated “But you are a

four-time felon, and that presents problems that I can’t overcome for you no matter

how much I would want to.” The trial judge, in determining the appropriate

sentence for Defendant’s conviction for distribution of marijuana continued to

express his sentiments adding “As I was saying, I think that the maximum sentence

is not what is called for here . . . The time between your felonies is also kind of

interesting, at least for the convictions. You had one in 1994, distribution of

cocaine. The simple robbery was also in 1994, the next day. So I’m guessing that

2

those were related. You had a simple burglary in ’97 for which you got six years.

And then you were okay until this one, all the way to 2012.” (emphasis added)

It should be obvious to any court reviewing the entire record made part of

the habitual offender hearing that the trial judge, after fully considering

Defendant’s prior convictions; the gravity of his latest offense which made him a

fourth-time offender; the special circumstances of that conviction; and the factors

unique to this Defendant, believed the maximum sentence which should be

imposed on this Defendant is fifteen years. The State, having pushed for the

maximum thirty-year sentence for selling .69 gram of marijuana, (based on the fact

that Defendant had prior convictions) dissatisfied with the trial judge’s decision,

then filed a multiple offender bill triggering a mandatory life sentence. It is clear

from the record that the trial judge mistakenly believed he simply had no choice

but to impose the mandatory life sentence.

The trial judge committed legal error when he sentenced Defendant to life

imprisonment because he believed the law did not permit him to do otherwise. Not

only does our law permit him to deviate from the mandatory sentence, he is in fact

“duty bound” to do so if he makes a determination that such punishment would

make no measurable contribution to acceptable goals of punishment or that the

sentence amounts to nothing more than the purposeful imposition of pain and

suffering grossly disproportionate to the severity of the crime. State v. Doherty,

623 So.2d 1276 (La.1993). In State v. Johnson, 97-1906, p.8 (La. 03/04/98), 709

So.2d 672, 676, quoting State v. Young, our state supreme court held a trial judge

is permitted to deviate downward from a statutory mandatory minimum sentencing

provision of the Habitual Offender Law when a defendant shows by clear and

convincing evidence that “[he] is exceptional, which in this context means that

because of unusual circumstances this defendant is a victim of the legislature’s

failure to assign sentences that are meaningfully tailored to the culpability of the

3

offender, the gravity of the offense, and the circumstances of the case. If the trial

court does find justification for reducing the mandatory minimum sentence it must

then impose “the longest sentence which is not constitutionally excessive” with

specific reasons explaining why the sentence it is imposing is in fact the longest

sentence not constitutionally excessive as applied. Johnson, 709 So.2d 677. The

trial judge in this case had the constitutional authority and duty to deviate from the

mandatory minimum sentence. It is clear from the record that this trial judge did

not know that he could do so, and that he was, indeed, duty-bound to do so. The

evidence made part of the record in the habitual offender hearing clearly

demonstrates the trial judge did not think this Defendant deserved even thirty years

let alone a life sentence. The case should be remanded to the trial court for further

proceedings to determine whether this Defendant has shown that “because of

unusual circumstances [he] is a victim of the legislature’s failure to assign

sentences that are meaningfully tailored to the culpability of the offender, the

gravity of the offense, and the circumstances of the case.” Johnson, 709 So.2d at

676 (quoting State v. Young).

The majority is satisfied to stop with the determination that the technical

requirements of La.R.S. 15:529.1(A)(4)(b) are satisfied for imposition of a

mandatory life sentence without benefit of probation, parole, or suspension of

sentence against this Defendant as a fourth felony offender. This however, is by

no means the end of the inquiry. Our notions of fundamental fairness and due

process of law demand further constitutional considerations of the appropriateness

of this life-sentence-without-benefit imposed on this particular Defendant for his

particular offense.

As we noted in State v. Boutte, 10-928, pp. 5-6 (La.App. 3 Cir. 3/9/11), 58

So.3d 624, 629, writ denied, 11-689 (La. 10/7/11) 71 So.3d 314 (emphasis added):

4

Although the minimum sentences imposed upon multiple
offenders pursuant to the Habitual Offender Law are presumed
constitutional, a court has the power to declare such a sentence
excessive under Article I, Section 20 of the Louisiana Constitution.
State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339. “A court
may only depart from the minimum sentence if it finds that there is
clear and convincing evidence in the particular case before it which
would rebut this presumption of constitutionality.” State v. Johnson,
97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676. To rebut the
presumption of constitutionality, the defendant must show that he is
“exceptional, which in this context means that because of unusual
circumstances [he] is a victim of the legislature’s failure to assign
sentences that are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstances of the
case.” Id. at 676.

I believe it is unconscionable to impose a life-sentence-without-benefit upon

this Defendant who served his country on the field of battle and returned home to

find his country offered him no help for his drug addiction problem. It is an

incomprehensible, needless, tragic waste of a human life for the sake of slavish

adherence to the technicalities of law. It is bereft of fundamental fairness, and

absent any measure of balance between imposition of the most severe punishment

short of death with the gravity and culpability of the offense. I must, therefore,

vigorously dissent.

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