State of Louisiana v. Jeffrey Steven Doise

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-713

STATE OF LOUISIANA

VERSUS

JEFFREY STEVEN DOISE

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 39465-11
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

DAVID KENT SAVOIE
JUDGE

**********

Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie,
Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

John Foster DeRosier
District Attorney - Fourteenth JDC
Robert R. “Rick” Bryant
Ross Murray
Carla S. Sigler
Assistant District Attorneys
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Hon. James D. “Buddy” Caldwell
Attorney General
Andrea Barient
Colin Clark
Assistant Attorneys General
Post Office Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6200
COUNSEL FOR OTHER APPELLEE:
Office of the Attorney General, State of Louisiana

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Jeffrey Steven Doise

SAVOIE, Judge.

On October 27, 2011, Defendant, Jeffrey Steven Doise, was charged with

the second degree murder of his foster mother, Susan Doise, a violation of La.R.S.

14:30.1. Defendant pled not guilty to the charge on November 3, 2011.

Thereafter, on May 29, 2012, Defendant withdrew his plea of not guilty and

entered a plea of not guilty and not guilty by reason of insanity. On June 15, 2012,

the State filed a Motion to Appoint Sanity Commission to evaluate Defendant’s

mental condition at the time of the offense. Pursuant to the motion, the trial court

appointed Dr. James Anderson to examine and render a report on Defendant’s

mental condition at the time of the offense. Dr. Anderson submitted a report on

May 5, 2013, concluding that Defendant did not suffer from a mental disease or

defect which rendered him incapable of distinguishing right from wrong during the

commission of the offense.

In Defendant’s July 19, 2012 Motion to Quash to Indictment, Defendant

argued that he was a juvenile and could not be sentenced to life imprisonment

without parole.1 The trial court denied the motion to quash on August 22, 2012.

Thereafter, on October 5, 2012, Defendant filed a Motion to Appoint Sanity

Commission to evaluate Defendant’s mental competency to assist in his defense.

On that same date, the trial court appointed a sanity commission to determine

Defendant’s mental capacity to proceed. On December 5, 2012, the trial court

found Defendant capable of proceeding to trial.

1
In Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), the Supreme Court uses the
term “juvenile” to refer to anyone who committed a crime while under the age of eighteen. The
term “juvenile” is commonly used in Louisiana courts to refer to a person who is under the age
of seventeen at the time of the commission of an offense. See La.Ch.Code art. 804 (which
defines a “child” for purposes of delinquency as “any person under the age of twenty-one . . .
who commits a delinquent act before attaining seventeen years of age”). Since Miller is the
pertinent authority in this appeal, our use of the term “juvenile” in this opinion refers to a person
who is under the age of eighteen at the time the offense was committed.

On February 11, 2015, Defendant filed a Motion Challenging the

Constitutionality of C.Cr.P. Article 87[8].1 with Incorporated Memorandum. At a

hearing held on March 9, 2015, the trial court denied the motion. At that same

proceeding, the Defendant withdrew his former plea of not guilty and not guilty by

reason of insanity and entered a Crosby plea to second degree murder. See State v.

Crosby, 338 So.2d 584 (La.1976). Defendant specifically reserved his right to

appeal the following: (1) the trial court’s ruling on the constitutionality of the

sentencing provision; (2) the trial court’s denial of Defendant’s motion to have an

expert (Dr. Bauer) testify at the guilt phase; (3) the trial court’s denial of

Defendant’s Motion to Quash the Indictment; and (4) the trial court’s denial of

Defendant’s request for a unanimous-verdict jury instruction.

Based on a joint recommendation, Defendant was sentenced to life in

prison with eligibility for parole after serving thirty-five years, otherwise the

sentence was imposed without probation, parole, or suspension of sentence.

Defendant filed a Motion to Reconsider Sentence on March 11, 2015, which was

denied on that same date. Defendant filed a Notice of Appeal and Motion to

Appoint Appellate Counsel, which was granted on March 12, 2015. Defendant is

currently before the court alleging three assignments of error. For the following

reasons, we affirm and remand with instructions.

FACTS

The following factual basis was given by the State in support of the

Defendant’s plea:

Your Honor, on September 29th of 2011 Mr. Kyle Doise, who
had been working out of town, returned home to his residence at 1313
Jefferson Drive. When he arrived home he found his wife, Susan,
missing. He also saw that his wife’s vehicle was missing. He found
his four year old son, Garrett, alone under some sheets in a bed. He

2

also observed a 357 magnum under the bed in the bedroom where it
should not have been. He contacted 911, indicated his wife was
missing. The officers of the Lake Charles Police Department arrived,
they looked in the house, and they went to the bathroom where Mr.
Doise had not gone and they found Susan Doise had been shot and
found dead in the bathtub. Garrett had been, the four year old son of
Susan, had apparently been alone in the house for some 10 hours.
Jeffrey Doise, who is the foster son of Susan, had left that night in the
vehicle and gone to his girlfriend’s home in a Chevy Tahoe. He was
later found that morning by officers of the Calcasieu Parish Sheriff’s
Office in a shed hiding behind the house. He was brought back to the
Lake Charles Police Department where he gave a full confession to
shooting his foster mother because he was angry. Mr. Doise’s date of
birth at the time of the shooting was September 12th of 1994, making
him 17.

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

errors patent present.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant claims that the trial court erred in

rejecting a challenge to the constitutionality of La.Code Crim.P. art. 878.1, the

sentencing provision enacted by the Louisiana Legislature in response to the

United States Supreme Court’s opinion in Miller v. Alabama, ___ U.S. ___, 132

S.Ct. 2455 (2012), which held that a juvenile homicide offender cannot be

sentenced to life without parole unless certain mitigating factors are considered.2

Defendant filed a Motion Challenging the Constitutionality of C.Cr.P. Article

87[8].1 in the trial court. At a hearing held March 9, 2015, defense counsel argued

the following:

2
Defendant committed the present offense before Miller was decided. Because he had
not been sentenced, however, Miller and the subsequent Louisiana Legislative enactments are
applicable. See State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied, ___ U.S. ___,
134 S.Ct. 2663 (2014); see also State v. Williams, 12-1766 (La. 3/8/13), 108 So.3d 1169.

3

Essentially it’s our position that the statute is -- the legislature passed
it in 2013, it’s far outside the letter or the spirit of the Supreme
Court’s ruling in Miller v. Alabama; that essentially as I read Miller
the Supreme Court was giving the trial judges discretion to determine
what the sentence should be. The legislature, however, in its post-
Miller legislation, instead of giving the Court a range, saying 20 to
life, or some other criteria, simply said that the Court should
determine whether or not the offender is one of the worst offenders
and this is one of the worst offenses within the realm of homicides
and if they’re the worst offender and the worst offense they get life
without parole. It it’s not they get life with parole after 35 years
served and a certain quality of prison record.

I don’t think that’s giving the Court much discretion at all and I
think it’s less than what the Supreme Court intended, although it’s
certainly what the legislature intended and, therefore, I’m asking the
Court to overturn Article 871.1 [sic] of the Code of Criminal
Procedure as not being in the spirit of Miller v. Alabama or the letter
of Miller v. Alabama and I know we discussed this in the back and
Mr. Murray gave a compelling State reason for a different position.

After the State argued that the article was constitutional, the trial court

denied Defendant’s motion, finding that La.Code Crim.P. art. 878.1 in conjunction

with La.R.S. 15:574.4(E) provided an adequate constitutional remedy to the United

States Supreme Court’s ruling in Miller. Defendant then entered a Crosby plea to

second degree murder and was sentenced to the jointly recommended sentence of

life in prison with the eligibility for parole after serving thirty-five years.

On appeal, Defendant argues that La.Code Crim.P. art. 878.1 is

unconstitutional in light of the United States Supreme Court’s opinion in Miller

because Article 878.1 still provides for an automatic life sentence without parole,

probation, or suspension of sentence, with the eligibility for parole occurring only

after the defendant serves thirty-five years. In Miller, the Supreme Court held that

a defendant under the age of eighteen at the time he committed a homicide cannot

automatically be sentenced to life imprisonment without parole. Miller,

___U.S.___. Instead, the Supreme Court held the sentencer must have the

4

opportunity to consider mitigating factors, such as the defendant’s youth, before

imposing the severe penalty. Id. In response to the Supreme Court’s opinion in

Miller, the Louisiana Legislature enacted La.Code Crim.P. art. 878.1 and La.R.S.

15:574.4(E). Louisiana Code of Criminal Procedure Article 878.1 provides:

A. In any case were an offender is to be sentenced to life
imprisonment for a conviction of first degree murder (R.S. 14:30) or
second degree murder (R.S. 14:30.1) where the offender was under
the age of eighteen years at the time of the commission of the offense,
a hearing shall be conducted prior to sentencing to determine whether
the sentence shall be imposed with or without parole eligibility
pursuant to the provisions of R.S. 15:574.4(E).

B. At the hearing, the prosecution and defense shall be allowed
to introduce any aggravating and mitigating evidence that is relevant
to the charged offense or the character of the offender, including but
not limited to the facts and circumstances of the crime, the criminal
history of the offender, the offender’s level of family support, social
history, and such other factors as the court may deem relevant.
Sentences imposed without parole eligibility should normally be
reserved for the worst offenders and the worst cases.

If a trial court decides that a defendant’s sentence will be imposed with

parole eligibility, the following section of La.R.S. 15:574.4 provides:

E. (1) Notwithstanding any provision of law to the contrary,
any person serving a sentence of life imprisonment for a conviction of
first degree murder (R.S. 14:30) or second degree murder (R.S.
14:30.1) who was under the age of eighteen years at the time of the
commission of the offense shall be eligible for parole consideration
pursuant to the provisions of this Subsection if a judicial
determination has been made that the person is entitled to parole
eligibility pursuant to Code of Criminal Procedure Article 878.1 and
all of the following conditions have been met:

(a) The offender has served thirty-five years of the sentence
imposed.

(b) The offender has not committed any major disciplinary
offenses in the twelve consecutive months prior to the parole hearing
date. A major disciplinary offense is an offense identified as a
Schedule B offense by the Department of Public Safety and
Corrections in the Disciplinary Rules and Procedures for Adult
Offenders.

5

(c) The offender has completed the mandatory minimum of one
hundred hours of prerelease programming in accordance with R.S.
15:827.1.

(d) The offender has completed substance abuse treatment as
applicable.

(e) The offender has obtained a GED certification, unless the
offender has previously obtained a high school diploma or is deemed
by a certified educator as being incapable of obtaining a GED
certification due to a learning disability. If the offender is deemed
incapable of obtaining a GED certification, the offender shall
complete at least one of the following:

(i) A literacy program.

(ii) An adult basic education program.

(iii) A job skills training program.

(f) The offender has obtained a low-risk level designation
determined by a validated risk assessment instrument approved by the
secretary of the Department of Public Safety and Corrections.

(g) The offender has completed a reentry program to be
determined by the Department of Public Safety and Corrections.

(2) For each offender eligible for parole consideration pursuant
to the provisions of this Subsection, the board shall meet in a three-
member panel, and each member of the panel shall be provided with
and shall consider a written evaluation of the offender by a person
who has expertise in adolescent brain development and behavior and
any other relevant evidence pertaining to the offender.

(3) The panel shall render specific findings of fact in support of
its decision.

On appeal, Defendant contends that these two provisions do not satisfy

Miller because “Louisiana does not often, if ever, release people convicted of

homicide on pardon or parole.” Miller, ___U.S.___. He further argues that

“[m]ere access to the Parole Board for consideration for early release does not

satisfy Miller.” Arguing the point even further, Defendant states:

Louisiana took the most narrow reading of Miller in crafting a
statute which effectively preserves the brutal Life Sentence for

6

offenders under 18 by limiting sentencing courts solely to “. . .
whether the sentence shall be imposed with or without parole
eligibility.” La.C.Cr.P. art. 878.1. This limiting language means that
there is no change in Louisiana, and the mere administrative potential
provided by “eligibility” is meaningless in Louisiana history. The
article’s recitation of mitigation and aggravation as part of this hearing
is vitiated by the impotence of the trial court to follow Miller’s
guidance that “[t]he concept of proportionality is central to the Eighth
Amendment.” Instead, Louisiana holds fast to the automatic life
sentence, and makes only the slightest change by giving “eligibility”
to an administrative remedy decades after the sentence begins.

Since an inmate has no right to parole, Defendant claims that Louisiana has

“effectively denied what Miller sought to guarantee: that a child sentenced in a

heinous case of homicide still had to be considered child by child, not the same

way adult homicide offenders are.” For these reasons, Defendant concludes that

“[h]e should have been granted a sentencing hearing by a court with the power and

authority to properly apply the Eighth Amendment as described in Miller,” and the

failure to provide such a hearing “was the application of an Unconstitutional

Statute in an Unconstitutional way.”

The Attorney General begins its response brief with a reminder that statutes

are presumed to be constitutional:

Statutes are presumed to be valid, and the constitutionality of a statute
should be upheld whenever possible. Because a state statute is
presumed constitutional, the party challenging the statute bears the
burden of proving its unconstitutionality. State v. Bazile, 2012-2243
(La. 05/07/13), 144 So.3d 719, 732, reh’g denied (Aug. 30, 2013)
(citations omitted).

The Attorney General then states that Defendant reads Miller too broadly and that

nothing in Miller disallows a state from requiring a mandatory life sentence with

the possibility of parole for a juvenile homicide offender. Additionally, the

Attorney General asserts that there is no Louisiana jurisprudence that supports

Defendant’s argument that La.Code Crim.P. art. 878.1 fails to properly implement

7

Miller. In fact, the Attorney General points out that the second circuit denied a

constitutional challenge to La.Code Crim.P. art. 878.1 in State v. Fletcher, 49,303,

pp. 11-13 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, 942, writ denied, 14-2205 (La.

6/5/15), 171 So.3d 945, cert. denied, ___ U.S. ___, 136 S.Ct. 254 (2015):

We find no error in the trial court’s denial of the defense motion
to declare the statutes unconstitutional. Like the trial court, we
observe that the Miller court was presented with an opportunity to
categorically declare that no juvenile murderer shall be imprisoned
without benefit of parole, but it specifically refused to do so. The
Supreme Court plainly recognized that the circumstances of some
murders and the characters of some juvenile killers would warrant the
imposition of the “harshest possible penalty,” and it gave the
sentencer latitude to respond appropriately to those situations.

The Louisiana legislature promptly addressed the Miller
directive against mandatory life-without-parole sentences for juvenile
killers by devising a sentencing procedure which would require that a
trial court sentencing a youthful offender review all pertinent factors
before determining whether parole eligibility was warranted. By its
very application to only murderers under the age of 18, the provisions
of La. C. Cr. P. art. 878.1 mandating a sentencing hearing at which the
defense will be given an opportunity to present mitigating factors−
which obviously include the defendant’s age as an important part of
his social history−satisfy Miller’s requirement that mitigating factors
favoring a juvenile killer be heard in a proceeding held for that
purpose. Furthermore, we find that Miller does not require deferral to
the distant future of the determination of whether to allow parole
eligibility.

Contrary to the defendant’s claim, the legislature was not
required to amend the second degree murder statute itself to provide
for sentencing of juvenile killers. As noted by the attorney general,
life without parole is still a constitutionally acceptable sentence for
adult killers and it is not a prohibited sentence for all juvenile killers.
Our legislature carefully designed an adequate solution by adding a
new statute pertaining to parole eligibility for juvenile killers which is
to be read in conjunction with the first and second degree murder
statutes. In the event that the trial court imposes a life sentence with
parole eligibility, La. R.S. 15:574.4(E) provides conditions which
must be satisfied before the defendant can apply to the parole board
for parole consideration.

Based on the foregoing, we find no constitutional deficiencies
under Miller in the challenged Louisiana statutes, and we affirm the
ruling made below.

8

The Attorney General also argues that the argument raised by Defendant –

the mere possibility of parole is not sufficient to satisfy Miller – has already been

rejected in principle by the Louisiana Supreme Court. In State v. Shaffer, 11-1756

(La. 11/23/11), 77 So.3d 939, the supreme court addressed the United States

Supreme Court case of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011 (2010), in

which the Supreme Court held that a juvenile who commits a non-homicide

offense cannot be sentenced to life without parole. After the Graham decision,

Louisiana defendants who had been convicted of aggravated rapes committed

when they were under the age of eighteen sought to have their life sentences set

aside and to be resentenced. Shaffer, 77 So.3d 939. Rather than remand for

resentencing, the Louisiana Supreme Court simply amended the life sentences to

delete the restriction on parole eligibility. Id. The supreme court clarified its

holding as follows:

We reiterate that this Court is not ordering relators released on parole.
The determination of whether relators may be released on parole falls
within the exclusive purview of the Board of Parole, charged with the
duty of ordering parole “only for the best interest of society, not as an
award of clemency.” La. R.S. 15:574.4.1(B). Access to the Board’s
consideration will satisfy the mandate of Graham.

Id. at 943.

In his brief, the Attorney General argues that he fails to see how life with the

possibility of parole is a permissible alternative for juveniles who have committed

non-homicide offenses but is not a permissible alternative for juveniles who have

committed homicide offenses. We agree. Under Graham, a juvenile who commits

a non-homicide offense punishable by life imprisonment must be eligible for

parole. Graham, 560 U.S. 48. However, as the Louisiana Supreme Court held in

Shaffer, the juvenile may not be released on parole unless the Board of Parole

9

decides to release him. Shaffer, 77 So.3d 939. Thus, in reality, a juvenile who

commits a non-homicide offense punishable by life in Louisiana is only promised

the possibility of being released on parole. It stands to reason that a juvenile who

commits a homicide offense punishable by life imprisonment should be granted no

greater relief. As the Attorney General points out, if the mere possibility of being

released on parole is sufficient to satisfy the mandatory parole eligibility

established in Graham for juvenile non-homicide offenders, the mere possibility of

being released on parole is more than sufficient to satisfy the chance of parole

eligibility after a hearing established in Miller for juvenile homicide offenders. As

the Louisiana Supreme Court held in Shaffer regarding Graham, the mere access to

the Board of Parole’s consideration satisfies the mandates of Miller.

For the foregoing reasons, Defendant fails to prove that the statutory scheme

implemented by the Louisiana Legislature in response to Miller is unconstitutional.

Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, Defendant asserts that La.Code Crim.P. art.

878.1 is unconstitutional because the trier of fact is not required to consider

specific factors prior to its determination that a juvenile is not eligible for parole.

Defendant makes two arguments in support of this assignment. First, Defendant

argues that Article 878.1 fails to give sufficient guidance to the sentencer in

“narrowing the pool of juvenile offenders who are convicted of murder and subject

to a sentence of life without the possibility of parole.” Second, Defendant cites

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and argues that the

jury, being the fact-finder, should decide beyond a reasonable doubt any factors

that determine whether a juvenile homicide offender is sentenced to life without

10

parole. For the reasons that follow, we find that the first argument lacks merit.

The second argument was not sufficiently raised in the trial court and is, therefore,

waived.

In his first argument, Defendant asserts that Article 878.1 fails to give the

sentencer specific guidance in determining whether a juvenile should be eligible

for parole:

The Legislature has failed to give sufficient guidance to the
sentencer in narrowing the pool of juvenile offenders who are
convicted of murder and subject to a sentence of life without the
possibility of parole. Article 878.1 does not require the sentencer to
consider these factors at sentencing; instead, it allows the parties to
offer relevant evidence in this regard. Even if offered, the article does
not require the sentencer to specifically consider this fact, just as a
sentencer need not consider each factor set forth in La. Code Crim.P.
art. 894.1. Since the sentencer is not mandated to consider these
specific factors, it fails to comply with Miller.

Life without parole for a juvenile is akin to the death penalty.
Miller, supra. To pass constitutional muster, a state’s capital
sentencing regime must “genuinely narrow the class of persons
eligible for the death penalty.” Lowenfield v. Phelps, 484 U.S. 231,
244 (1988) quoting Zant v. Stephens, 462 U.S. 862, 877 (1983). This
requires state legislatures to provide clear guidance and a “meaningful
basis for distinguishing the few cases in which the penalty is imposed
from the many cases in which it is not.” Godfrey v. Georgia, 466 U.S.
at 420, (1980), quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976)
quoting Furman, 408 U.S. at 313 (White, J., concurring).

Although this argument was not orally presented to the trial court, we find it

was raised amongst the various other arguments asserted in the written motion:

[W]ithout a clearly defined list of aggravating circumstances that
narrow the pool of juveniles convicted of murder who are eligible for
the harshest sentence, the statute violates the Eighth Amendment.
Without such enumerated factors, and without a requirement that the
State specify which factors it will attempt to prove, and that jurors
specify which they find apply beyond a reasonable doubt, the statute’s
sentencing scheme violates the Eighth Amendment. . . .

....

11

The bare-bones sentencing procedure outlined in La. C.Cr.P.
art. 878.1 is in violation of the Eighth and Fourteenth Amendments.
Applying it allows, and in fact requires, standardless sentencing
discretion to impose the harshest available punishments, which the
Louisiana and United States Supreme Courts have repeatedly found
antithetical to a reasoned, non-arbitrary decision.

We find nothing in Miller that requires the trial court to consider certain

factors prior to determining whether the juvenile’s sentence will be imposed with

or without parole. Rather, Miller simply held “that the Eighth Amendment forbids

a sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders.” Miller, ___U.S. at ___. Such a sentencing scheme, the

Supreme Court held, makes “youth (and all that accompanies it) irrelevant to

imposition of that harshest prison sentence . . . .” Id. Earlier in its opinion, the

Supreme Court discussed the factors that a mandatory life without parole

sentencing scheme ignores:

To recap: Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark features–
among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. It prevents taking into account the family and
home environment that surrounds him–and from which he cannot
usually extricate himself–no matter how brutal or dysfunctional. It
neglects the circumstances of the homicide offense, including the
extent of his participation in the conduct and the way familial and peer
pressures may have affected him. Indeed, it ignores that he might
have been charged and convicted of a lesser offense if not for
incompetencies associated with youth–for example, his inability to
deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys. . . . And
finally, this mandatory punishment disregards the possibility of
rehabilitation even when the circumstances most suggest it.

Id. at ___ (citations omitted).

It is clear that the United States Supreme Court intended the sentencer to

have the freedom to consider the above factors when imposing a sentence on a

juvenile homicide offender, but the Court did not mandate that certain factors be

12

considered. In fact, the Supreme Court set forth the above factors as examples of

what a sentencer should be able to consider while intending the sentencer to

consider any other factors he deemed relevant. Louisiana Code of Criminal

Procedure Article 878.1 likewise gives the sentencer examples of what it may

consider when deciding whether a juvenile homicide offender is eligible for parole

but also allows the sentencer the freedom to consider any other relevant factors:

B. At the hearing, the prosecution and defense shall be allowed to
introduce any aggravating and mitigating evidence that is relevant to
the charged offense or the character of the offender, including but not
limited to the facts and circumstances of the crime, the criminal
history of the offender, the offender’s level of family support, social
history, and such other factors as the court may deem relevant.
Sentences imposed without parole eligibility should normally be
reserved for the worst offenders and the worst cases.

We find La.Code Crim.P. art. 878.1 satisfies the United States Supreme

Court’s pronouncement in Miller that the sentencer must consider relevant factors

pertinent to juveniles when deciding whether to allow a juvenile homicide offender

the benefit of parole eligibility.

In his second argument Defendant cites Apprendi, 530 U.S. 466, and argues

that the jury, being the fact-finder, should decide beyond a reasonable doubt any

factors that determine whether a juvenile homicide offender is sentenced to life

without parole. Defendant did not raise this argument in the trial court and is

precluded from raising it on appeal. Uniform Rules—Courts of Appeal, Rule 1-3.

Defendant did not mention Apprendi in his twenty-seven page motion filed in the

trial court nor did he mention it in his oral argument at the hearing on the motion.

In several sentences throughout his motion, Defendant mentioned that La.Code

Crim.P. art. 878.1 deprives juveniles of their Sixth Amendment right to a jury

finding, beyond a reasonable doubt, of any fact that exposes them to an enhanced

13

sentence. Defendant, however, failed to develop this argument either in the motion

or at the hearing in the trial court. Thus, we find Defendant failed to put the trial

court on notice of the Apprendi argument and failed to preserve it for appeal.3

For the foregoing reasons, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, Defendant alleges that the trial court erred in

denying his right to present the testimony of Dr. Daliah Bauer. Defendant claims

Dr. Bauer’s testimony was critical to his defense and the jury’s consideration of his

culpability, especially in light of Defendant’s admission that he used marijuana

laced with embalming fluid on the day of the shooting. Defendant reserved the

right to appeal this issue when he entered his Crosby plea.

At a hearing held March 9, 2015, the State objected to Defendant’s

introduction of Dr. Bauer’s testimony during the guilt phase of trial. The trial

court agreed that there was nothing in the report that would be admissible during

the guilt phase of trial:

Look, on this there’s nothing in here that -- this is -- by the way, this is
with regard to the report of Daliah Bauer, Ph.D, forensic psychologist,
and it’s a 16-page report from Dr. Bauer regarding Mr. Doise, Jeffrey
-- 17 pages, excuse me -- 18 pages, sorry, 18 pages and, anyway, I
don’t see anything in here that would be admissible in the guilt phase
of a trial as this seems really sentence related -- related to sentencing.
3
We note that, even if the issue had been preserved, the second circuit found the same
argument lacking. See State v. Fletcher, 149 So.3d 934 (La.App. 2 Cir. 10/1/14), writ denied,
14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied, 136 S.Ct. 254 (2015). In Fletcher, the
Attorney General argued that Apprendi was not applicable because neither Miller nor La.Code
Crim.P. art. 878.1 required the trial court to make any factual findings. The second circuit
agreed finding Apprendi “inapplicable to the instant situation.” Id. at 943. The court stated:

Miller does not require proof of an additional element of “irretrievable depravity”
or “irrevocable corruption.” It merely mandates a hearing at which youth-related
mitigating factors can be presented to the sentencer and considered in making a
determination of whether the life sentence imposed upon a juvenile killer should
be with or without parole eligibility.

Id.

14

It goes through his background, his history of, you know,
dysfunctional home environments and that type of thing, but I just
don’t see how any of that relates at all and there’s a statement in here
about, you know, drug use on the day of this incident. I think
marijuana dipped in PCP, I believe, but there’s nothing in here that
would indicate that there’s -- I mean I’m not sure how you would get
any of this stuff in, and I guess if you can convince me that there’s a
basis to admit it into evidence then I’ll certainly consider that, Mr.
Casanave, but this seems like a classic type of sentencing issue.

Defense counsel responded as follows:

Your Honor, first of all, procedurally the State could’ve filed a
Motion in Limine about this. We have continued this trial because of
Dr. Bauer’s availability in the past and, you know -- so this was not
properly brought up and, secondly, part of my duty is to assert not just
the idea of not guilty, but the idea of lesser included offenses and I do
believe that this report helps explain certain behaviors of the
defendant that led to this event and that could be used to -- by the
Court, by the jury, to reach a lesser offense than second-degree
murder, and, therefore, I believe that it should be admitted.

The State then responded:

Your Honor, this is a new advance in the law. We now call
experts through hearsay of witnesses to give their opinion as to why
the conduct appeared as it did. Under no legal defense issue, if we
had insanity, which he originally said is the reason this doctor is being
called, to address his insanity issue, which it is clearly not, or if we
had the intoxication defense, which we’re going to see in Dangerfield,
they’re going to call witnesses in for that, or if we had other legal
defenses that you could raise to an expert, that’s fine, but just to say
I’m going to call an expert in to give the explanation of why this
particular defendant did what he did on that date and I’m going to do
this through the auspices of a psychologist who interviewed the
witnesses who if he called on his own would not be allowed to testify
to some of the things that we’re hearing today from this report. I
would even point out that on page 16 of her report she states, “He
does not suffer from extremely severe psychotic disorder, he appears
to have some motivation to change his life, and is in general very
tolerant and polite toward others,” and it goes on and on and on.

The fact that there was -- that we want to bring up drug use on
that date through some third party, which we don’t even know if it’s
true or not true, I mean that would be great for defense attorneys. You
just hire an expert and have them come in and interview all these
people and testify from the stand and there’s nobody to cross-examine
them because you have an expert coming in to do that. I mean that’s
absurd. If this expert -- when I first read this report, the first thing I

15

thought of was, well, she most likely could testify at a -- when we do
death penalty cases we have these experts who come in for
aggravating and mitigating circumstances and they’re allowed to do
this kind of thing, testify as to people interviewed, what their
conclusions are, in a sentencing situation, but in the guilt phase none
of this stuff should come in unless she’s here under the not guilty, not
guilty by reason of insanity defense, and she certainly is not talking
about that because she indicated he’s not suffering from any type of
mental disease or disorders in her report itself.

So that’s why I objected to that in the guilt phase. I don’t think
I can object to it during the sentencing phase, if we get to that part.

The trial court then issued the following ruling:

Well, let me say this. It’s clear to me that -- I mean the reason
this case was continued was because of the unavailability of this
expert. It was never fully disclosed to me. I took it on defense, you
know, claim that this was a -- you know, this was -- because I think
the whole -- I had said repeatedly and I think the State took the
position also that any experts would go to the sentencing phase, not
the guilt phase; that, you know, we had time to deal with the issues
that would’ve necessitated -- previously necessitated a continuance,
but I was assured by defense counsel that this wasn’t just sentencing
issues, this was guilt-phase issues, and I don’t see it that way at all. I
mean I read through this report. I was looking for something that
would be helpful or that would be probative for the guilt - - to the
guilt or innocence of the defendant and I don’t see anything in here.
This is all sentencing phase stuff, and if there had been something in
here related to a not guilty by reason of insanity plea where there
would’ve been a -- if this doctor would’ve opined that Mr. Doise did
not know right from wrong at the time of the offense then obviously
that would be admissible for that reason, but I just don’t see that
there’s a basis to allow this testimony. I don’t think it’s admissible
based on the content. I don’t see how it’s -- how it can possibly be
admissible during the guilt phase of this trial and because of that I’m
going to disallow the testimony or I’m not going to allow the
testimony of Dr. Bauer in the guilt phase of this trial.

Defendant objected to the trial court’s ruling.

In brief, appellate counsel argues that the trial court’s disallowance of Dr.

Bauer’s testimony at Defendant’s guilt phase deprived Defendant of his right to

present a defense and deprived the jury of additional facts to consider in making a

decision as to Defendant’s culpability, as well as making a decision as to whether a

16

responsive verdict of manslaughter would be appropriate. Appellate counsel

further claims that details in Dr. Bauer’s report, such as Defendant’s use of

marijuana dipped in embalming fluid on the day of the shooting, the drug use of

Defendant’s biological parents, the abuse and neglect suffered by Defendant, and

Defendant’s low academic skills, would have been helpful to the jury in

determining Defendant’s culpability.

According to appellate counsel, Defendant’s plea of not guilty and not guilty

by reason of insanity distinguishes this case from State v. Bourque, 93-594

(La.App. 3 Cir. 2/16/94), 636 So.2d 254, writ denied, 94-1839 (La. 1/6/95), 648

So.2d 920, wherein Bourque was not allowed to present expert testimony that his

mental condition could mitigate the crime from second degree murder to

manslaughter. This court upheld the exclusion of such expert testimony because

Bourque failed to plead “not guilty and not guilty by reason of insanity” and

because the definition of manslaughter requires the “defendant’s action be

measured by the average person’s standard and not the particular psychological

variances of a particular defendant.” Id. at 268. As appellate counsel points out,

unlike Bourque, the present Defendant did enter a plea of “not guilty and not guilty

by reason of insanity.”

In brief, appellate counsel notes the court minutes for May 29, 2012,

inaccurately state that defense counsel informed the court that Defendant’s sanity

at the time of the offense was not an issue at that time. In actuality, on that date,

Defendant amended his not guilty plea to “not guilty and not guilty by reason of

insanity,” and defense counsel informed the trial court that there was no issue with

Defendant’s competency to proceed at that time. Because the May 29, 2012

minutes are inaccurate, appellate counsel states that they should be corrected.

17

Since the minutes are inaccurate and appellate counsel requests they be corrected,

the district court is ordered to amend the May 29, 2012 minutes to correctly reflect

the transcript.

In its brief, the State argues that this court may find Defendant failed to

comply with La.Code Evid. art. 103(A)(2) by failing to proffer the substance of Dr.

Bauer’s testimony. Article 103(A)(2) states that when the trial court excludes

evidence, the substance of the evidence must be made known to the court by

counsel. We note that Dr. Bauer’s report was introduced at the hearing. It is also

obvious from the trial court’s ruling that it had reviewed Dr. Bauer’s report. Thus,

we find the issue was preserved for review and, for purposes of reviewing this

assignment of error, we will assume the substance of Dr. Bauer’s testimony would

have been the substance of her report. Even if properly preserved, the State argues

that Dr. Bauer’s report was proper evidence for sentencing but not for guilt.

The first circuit case of State v. Dietrich, 567 So.2d 623 (La.App. 1 Cir.),

writ denied, 568 So.2d 1079 (La.1990), is helpful in deciding this issue. In

Dietrich, the defendant sought to introduce evidence of a mental defect called

“homosexual anxiety panic syndrome” in his second degree murder trial. Id. at

632. At the State’s request, the trial court excluded the evidence. Id. On appeal,

Dietrich argued that he was “entitled to present expert testimony relating to his

mental defect because he entered the dual plea of not guilty and not guilty by

reason of insanity.” Id. Upholding the trial court’s exclusion of the testimony, the

first circuit stated the following:

The State of Louisiana does not recognize the doctrine of
diminished responsibility. Under the statutory definition set forth in
LSA-R.S. 14:14, a mental defect short of legal insanity cannot serve
to negate specific intent and reduce the degree of the crime.

18

We find no error in the court’s ruling excluding evidence of the
“homosexual anxiety panic syndrome.” Defendant was apparently of
the opinion that the evidence was relevant to mitigate a finding of
specific intent by proving his panicked state of mind. In light of his
own expert’s testimony both at the sanity hearing and at trial, it
appears that defendant was willing to present expert testimony that he
was able to distinguish between right and wrong at the time of the
offense; however, because of his state of mind, he believed he was
justified in killing the victim because the victim threatened him.
Evidence of defendant’s mental condition was presented to the jury
for use only in its determination of whether or not he was insane at the
time of the offense and was not relevant to a determination of whether
or not he had the specific intent to kill or inflict great bodily harm.
Only legal insanity, that is, the inability to distinguish between right
and wrong at the time of the offense, can negate specific intent or
reduce the degree of the crime, and the expert witness through whom
the testimony was to be presented freely admitted that defendant could
distinguish between right and wrong at the time of the offense.

We find, therefore, that the evidence defendant sought to
introduce was not relevant to a material issue at trial because it did not
relate to defendant’s ability to distinguish between right and wrong.
Accordingly, we find no error in the court’s ruling granting the state’s
motion in limine.

Id. at 633 (citations omitted).

Like the expert’s proposed testimony in Dietrich, the expert’s proposed

testimony in the present case does not relate to Defendant’s ability to distinguish

between right and wrong. After a thorough reading of Dr. Bauer’s report, we find

no mention of any opinion expressed by Dr. Bauer as to whether Defendant knew

right from wrong at the time of the offense. Rather, Dr. Bauer’s report discussed

Defendant’s depression, anxiety, general drug use, drug use on the day in question,

and prior physical and verbal abuse. Dr. Bauer also reported that Defendant was

upset the day of the incident because Kyle (the victim’s husband) told Defendant

that he would no longer be living with them. Defendant stated that he was angry

with Kyle and slightly angry with the victim. One of the people Dr. Bauer

interviewed reported that Kyle and Defendant had significant confrontations during

19

the week of the incident. Although Defendant did not describe the specifics of the

incident, Defendant reported that afterward he felt scared and afraid.

Dr. Bauer further reported that Defendant “presented as someone who has

engaged in impulsive irresponsible and childish acts, which have created

significant problems for him.” According to Dr. Bauer, Defendant was

experiencing strong regret for the acts which led him to where he “is today.” As

for his academic ability, Defendant failed the first grade three times and was

functioning on a seventh grade level. In 2007, Defendant was diagnosed with

Attention Deficit Hyperactivity Disorder (ADHD) and an Adjustment Disorder.

In her conclusion, Dr. Bauer described Defendant’s first years as being

characterized by significant neglect and exposure to violence, causing the

Defendant to lack “stimulation and safe and secure attachments necessary for

appropriate development of social relations.” Dr. Bauer further observed that as

Defendant aged, he was diagnosed with ADHD and “appeared to struggle

significantly with impulsivity and distraction.” The academic deficits Defendant

suffered, Dr. Bauer suggested, could be “accompanied by reduced executive

functioning and problem solving abilities.” Finally, Dr. Bauer concluded that as a

result of his history of early abuse, Defendant “has limited abilities to develop

insight in to the dynamics of his relationships and poor abilities to identify

effective interpersonal strategies to cope with loss and conflict.” Dr. Bauer never

opined, however, that any of the foregoing caused Defendant to be unable to

distinguish between right and wrong at the time of the offense.

In fact, in her report Dr. Bauer summarized the results of Dr. Anderson’s

evaluation of Defendant as to Defendant’s mental condition at the time of the

offense. According to Dr. Bauer, Dr. Anderson opined that Defendant was “not

20

suffering from any mental disease or defect that rendered him incapable of

distinguishing right from wrong with reference to his conduct.”4 Dr. Bauer herself

concluded that Defendant did not suffer from “extremely severe psychiatric

disorders.”

Although Dr. Bauer’s report offered relevant information as to Defendant’s

mental condition at the time of the offense, the report falls short of stating that

Defendant was legally insane at the time of the offense. Since Dr. Bauer’s report

did not relate to Defendant’s ability to distinguish between right and wrong at the

time of the offense, we find the trial court was correct in finding the report, and

any testimony relating to the report, would be admissible at a sentencing hearing

but not at trial.

Accordingly, we find this assignment of error lacks merit.

DECREE

Defendant’s conviction and sentence are affirmed. The district court is

ordered to amend the May 29, 2012 minutes to correctly reflect the transcript.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

4
Dr. Anderson’s report was filed into the record and confirms that, in Dr. Anderson’s
opinion, Defendant was not suffering from a mental disease or defect that rendered him
incapable of distinguishing right from wrong at the time of the offense.

21