State of Louisiana v. Fermichael Harrison

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 13-981 consolidated with KA 13-982

STATE OF LOUISIANA

VERSUS

FERMICHAEL HARRISON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 52373 and No. 54154
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney
F. Stanton Hardee, III
Assistant District Attorney
Fifteenth Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
707 Julia St.
Rayville, LA 71269
(318) 728-2043
COUNSEL FOR DEFENDANT/APPELLANT:
Fermichael Harrison

Fermichael Harrison
Louisiana State Penitentiary
Main Prison - Walnut 3
Angola, LA 70712

EZELL, Judge.

Defendant sold a bag of Lortabs to an undercover narcotics officer in

Abbeville in December 2008. On April 13, 2010, the State filed a bill of

information charging Defendant, Fermichael Harrison, with distribution of

hydrocodone, a violation of La.R.S. 40:968. On July 12, 2011, the parties selected

a jury; said jury found Defendant guilty as charged on the same date. The trial

court sentenced Defendant to five years at hard labor on August 18, 2011.

On July 16, 2012, the State filed a bill of information alleging that

Defendant was a fourth habitual offender, pursuant to La.R.S. 15:529.1. The State

filed new bills on July 24 and 26. The July 24 bill changed the designation of his

July 2011 conviction from 52373-B to 52373. The July 26 bill changed the

statutory citation for the habitual offender action from La.R.S. 15:529.1(A)(4)(b)

to La.R.S. 15:529.1(A)(1)(c)(ii). The trial court conducted a habitual offender

hearing on September 20, 2012. It found him to be a fourth habitual offender and

sentenced him to life imprisonment.

Defendant now appeals his sentence, assigning two errors. For the following

reasons we affirm Defendant’s sentence.

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 there is

one error patent.

The Defendant was not informed of the two-year time limit for filing an

application for post-conviction relief as required by La.Code Crim.P. art. 930.8.

Therefore, the trial court is directed to inform the Defendant of the provisions of

Article 930.8 by sending appropriate written notice to the Defendant within ten

days of the rendition of this opinion and to file written proof in the record that the

Defendant received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05),

903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the evidence adduced by

the State at the habitual offender hearing did not support his adjudication as a

fourth offender. Specifically, he argues the State failed to show that he was

represented by counsel at the prior convictions, which were all guilty pleas. He

also argues he was not properly advised of his three core constitutional trial rights

as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). In State v.

Shelton, 621 So.2d 769, 779-80 (La.1993) (footnotes omitted) the supreme court

explained:

If the defendant denies the allegations of the bill of information,
the burden is on the State to prove the existence of the prior guilty
pleas and that defendant was represented by counsel when they were
taken. If the State meets this burden, the defendant has the burden to
produce some affirmative evidence showing an infringement of his
rights or a procedural irregularity in the taking of the plea. If the
defendant is able to do this, then the burden of proving the
constitutionality of the plea shifts to the State. The State will meet its
burden of proof if it introduces a “perfect” transcript of the taking of
the guilty plea, one which reflects a colloquy between judge and
defendant wherein the defendant was informed of and specifically
waived his right to trial by jury, his privilege against self[-
]incrimination, and his right to confront his accusers. If the State
introduces anything less than a “perfect” transcript, for example, a
guilty plea form, a minute entry, an “imperfect” transcript, or any
combination thereof, the judge then must weigh the evidence
submitted by the defendant and by the State to determine whether the
State has met its burden of proving that defendant’s prior guilty plea
was informed and voluntary, and made with an articulated waiver of
the three Boykin rights.

The State replies that it adduced “perfect” transcripts for all three prior

convictions, and those transcripts showed that in each matter at issue, Defendant

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was properly represented and Boykinized. As the State observes, the transcript it

introduced from Defendant’s 1993 plea shows that he was represented by counsel,

was properly advised of his constitutional rights, and waived them. The State also

introduced a transcript of Defendant’s 1996 plea that showed Defendant was

represented, Boykinized, and waived his rights. Finally, the State introduced a

transcript of Defendant’s 2003 plea that demonstrates he had counsel, was advised

of his Boykin rights, and waived them. Thus, this part of Defendant’s argument

lacks a factual basis.

Defendant also appears to challenge the identification of him as the same

person who pled guilty to the three predicate offenses. However, he did not

challenge the identification in his written response to the bill or in the hearing

below. Thus, he cannot raise this issue for the first time on appeal. La.R.S.

15:529.1(D)(1)(b), La.Code Crim. P. art. 841, see also State v. Elie, 10-1494

(La.App. 3 Cir. 10/5/11), 74 So.3d 1216, writ denied, 11-2786 (La. 4/13/12), 85

So.3d 1246, and State v. Dudley, 06-1087 (La.App. 1 Cir. 9/19/07), 984 So.2d 11.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that his sentence,

although mandatory pursuant to La.R.S. 15:529.1, is excessive. This court has

explained:

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

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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.

As pointed out by the state, the defendant presented no
evidence to show that his particular case was so exceptional that it
deserved a downward departure from the mandatory minimum
sentence as set forth in La.R.S. 15:529.1. Therefore, we find no merit
in this assignment of error.

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 (alteration in original).

Defendant has failed to show, or even attempted to show, that he is

“exceptional.” In the absence of such a showing, the assignment lacks merit.

SUPPLEMENTAL ASSIGNMENT OF ERROR

On November 19, 2013, a supplemental record was lodged with this court.

In response, Defendant’s counsel filed a timely supplemental brief. The State also

filed a supplemental brief.

In his lone supplemental assignment of error, Defendant argues the trial

court erred by not striking the entire venire because potential jurors were

systematically excluded on the basis of race. Before voir dire questioning began

on July 12, 2011, Defendant raised an objection to the composition of the venire

and to the method of its selection. The court heard testimony and argument on the

objection after trial and ultimately denied relief.

As Defendant also noted in a memorandum he filed below, a jury pool of

more than one hundred and fifty individuals was called, but approximately half that

number appeared. Twenty-one venire members were chosen to begin jury

selection and the jury was selected from that group. Four of the twenty-one were

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African-American; three of these were removed via the State’s peremptory

challenges.

The controlling statute is La.Code Crim.P. art. 419(A), which states:

A general venire, grand jury venire, or petit jury venire shall not
be set aside for any reason unless fraud has been practiced, some great
wrong committed that would work irreparable injury to the defendant,
or unless persons were systematically excluded from the venires
solely upon the basis of race.

The following colloquy occurred between the court and counsel for

Defendant and the State:

[THE COURT:] If you could convince me that the state, the
clerk of court, the registrar of voters, the State of Louisiana, the
district attorney’s office, does anything to prevent your client from
getting a jury of his peers, then I would grant your motion, but you
have not done that.

MR. WILLIAMS: I think that’s where we most disagree. I’m
not saying the state has to take an affirmative action to exclude any
particular ethnic group and/or gender base. If the system which is used
is flawed, and that’s --

THE COURT: But that’s chosen by the state, sir.

MR. WILLIAMS: Well, but we’re saying that the system itself
-- not that the state is taking any affirmative action, just that the
system that is being used at this particular time -- and in particular
here in Vermilion Parish; I’m not sure what’s going on in other
parishes -- is flawed; and if that flawed system leads to a systematic
exclusion, which can occur and has occurred here over time, we’ve
met that third prong.

And, once we meet that third prong, it then falls upon the state.
And what it says is that: After defendant makes a prima fascia [sic]
case, the state has the burden of justifying this infringement by
showing that the achievement of a fair cross section is incompatible
with a significant state interest. They haven’t done that. They think
it’s impractical, they state it’s impossible, but they haven’t shown
where it’s an infringement upon a significant state interest. And I
think that’s where Your Honor and I disagree. I think we’ve met our
three prongs, and now the burden shifts to the state.

THE COURT: I don’t agree.

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MR. BELLAIRE: Your Honor, this system was found to be
valid. It was upheld in 2004 by every court in this state. We’ve had
testimony today that it is unchanged from that time. De facto, it’s still
the exact same as it was. There has been no change. The Supreme
Court says unanimously, this is good. I don’t have to go any further.

THE COURT: I’m just giving Mr. Williams and his client
his day in court.

MR. BELLAIRE: I understand.

THE COURT: The motion is denied.

MR. WILLIAMS: Thank you, Your Honor. Note our
objection.

In State v. Law, 12-1024, pp. 12-14 (La.App. 3 Cir. 4/3/13), 110 So.3d 1271, 1280-

82, writ denied, 13-978 (La. 11/22/13), __ So.3d __, (second, third, and fourth

alterations in original) this court explained the general analysis:

[O]ur supreme court and this court have heard cases in which the
racial-composition issue has been raised in the context of motions to
quash. For example, the supreme court has reviewed the
jurisprudence of a claim of under-representation of a minority in the
venire:

A general jury venire “shall not be set aside for
any reason unless fraud has been practiced, some great
wrong committed that would work irreparable injury to
the defendant, or unless persons were systematically
excluded from the venires solely upon the basis of race.”
La.C.Cr.P. art. 419(A). The defendant bears the burden
of proving the grounds for setting aside the venire. State
v. Liner, 397 So.2d 506 (La.1981); State v. Manning, 380
So.2d 54 (La.1980). That burden of proof requires that
the defendant show more than the underrepresentation of
blacks on the petit jury venire in order to prove a
systematic exclusion of blacks. Manning, supra; State v.
Anderson, 315 So.2d 266 (La.1975). The law requires
that there must not be a systematic exclusion of blacks in
the source or sources from which jury venires are chosen.
However, that does not mean that a defendant is entitled
to a petit jury which reflects the population of the
community in every respect. “Defendants are not entitled
to a jury of any particular composition.” Taylor v.
Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690
(1975); State v. George, 371 So.2d 762 (La.1979). In

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fact, a jury comprising a complete representation of the
various groups within the community would be virtually
impossible to seat. State v. Cage, 337 So.2d 1123
(La.1976).

State v. Lee, 559 So.2d 1310, 1313-14 (La.1990), cert. denied, 499
U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).

This court addressed a claim similar to that asserted here as
follows:

In the case sub judice, it is undisputed that the 200
persons in the petit jury venire were selected at random
by a computer. After several persons were excused from
jury service, the clerk pulled twelve names at random
from the jury box, and continued accordingly until a
twelve-person jury was selected. During voir dire, the
State successfully challenged two jurors for cause but did
not peremptorily challenge any jurors. The defendant
successfully challenged two jurors for cause and
peremptorily challenged five jurors. Although the petit
jury venire was approximately 5% to 10% black, no
blacks were selected for voir dire. After an all[-]white
jury was selected, accepted and sworn in, the defendant
filed a motion to quash the petit jury venire on the basis
that it did not contain a representative cross-section of the
community. According to the defendant, this forced him
“to go to trial with an all[-]white jury.”

In State v. Kirts, 447 So.2d 1 (La.App. 3rd
Cir.1983), writ not considered, 464 So.2d 306 (La.1985),
this court addressed and rejected the same argument
defendant asserts in the case sub judice. In Kirts, defense
counsel filed a motion to quash the petit jury venire on
the morning of trial, contending that the petit jury venire
was racially imbalanced. Although no allegation of
discrimination was offered for the racial imbalance,
counsel for defendant asserted that a newly drawn venire,
representative of a cross[-]section of the community, was
necessary to assure that defendant would be judged by a
fair and impartial jury. On appeal from the trial court’s
refusal to grant the motion to quash, we rejected Kirts’
argument. We held that the defendant failed to make a
prima facie showing of discrimination where there are no
allegations of fraud, and the record is devoid of any
indications of such, or that some great wrong was
committed that would work irreparable injury to him.
Id., 447 So.2d at 3.

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In the case sub judice, defendant asserts that he
was prejudiced by the petit jury venire. We disagree. At
the argument of the motion to quash, defense counsel
stated that he was not alleging fraud, and offered no
evidence of discrimination or irreparable injury
attributable to the petit jury venire. Therefore, based on a
careful examination of the record, we find that the trial
court properly denied defendant’s motion to quash the
petit jury venire, finding that defendant failed to make a
prima facie showing of discrimination. State v. Kirts,
supra. Defendant’s assignment of error is without merit.

State v. Melancon, 563 So.2d 913, 914 (La.App. 3 Cir.1990), writ
denied, 586 So.2d 527 (La.1991). Thus, jurisprudence establishes that
Defendant is not entitled to the relief he seeks. He does not allege
fraud or systematic racial discrimination. Further, the cases cited
show that even if racial imbalance occurred that, without more, would
not entitle him to relief.

As noted earlier, Defendant states that a pool of one hundred and fifty

potential jurors was called, and roughly seventy five appeared for jury duty. He

does not state how many members of either number were African-American.

However, twenty one venire members were seated for voir dire, and Defendant

states four of them were African-American. We note that this last set of numbers

does not show a racial disparity. As mentioned earlier, testimony indicated that

approximately fourteen percent of Vermilion Parish’s population is African-

American. Since four is roughly nineteen percent of twenty one, the representation

of African-Americans on the panel seated for voir dire actually exceeded the

percentage in the parish at large.

Thus, Defendant argues that African-Americans were improperly excluded

from the jury pool but does not provide statistics sufficient to demonstrate the

claim. To the extent he does provide numbers that show the presence of African-

American venire members in the jury pool, said numbers suggest that a disparity

did not occur in this case.

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Defendant also mentions that three of the four African-American prospective

jurors were eliminated via peremptory challenges by the State. However, he does

not argue that those challenges were used improperly pursuant to Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). Defendant did not make a Batson

challenge below.

The State relies upon a Supreme Court case, Duren v. Missouri, 439 U.S.

357, 99 S.Ct. 664 (1979), in asserting that Defendant failed to make a prima facie

case that that a violation occurred. The Louisiana Supreme Court has synopsized

Duren as follows:

In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58
L.Ed.2d 579 (1979), the United States Supreme Court stated that:

In order to establish a prima facie violation of the fair-
cross-section requirement, the defendant must show (1)
that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of
this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such
persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the
group in the jury-selection process.

....

Assuming arguendo that they did constitute a cognizable class
the defendant would still not prevail on his sixth amendment claim,
because he fails to meet the second prong of the test that, “the
representation of this group in venires from which juries are selected
is not fair and reasonable in relation to the numbers of such persons in
the community.” 439 U.S. at 364, 99 S.Ct. 668 (emphasis ours).

State v. Lowenfield, 495 So.2d 1245, 1254-55 (La.1985).

The State argues that Defendant failed to meet the second and third prongs

of Duren. We find that Defendant’s argument fails under either legal rationale.

Defendant simply does not make a sufficient factual showing to support this

assignment of error.

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DECREE

For the above reasons, Defendant’s sentence is affirmed. The trial court is

directed to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8

by sending appropriate written notice to the Defendant within ten days of the

rendition of this opinion and to file written proof in the record that the Defendant

received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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

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