State of Louisiana v. Elijah James Latique

STATE OF LOUISIANA
COURT OF APPEAL

KA 18-622

STATE OF LOUISIANA

VERSUS

ELIJAH JAMES LATIQUE

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APPEAL FROM THE
TH
15 JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER CR 155978
HONORABLE DAVID M. SMITH, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

Elijah James Latique
Thru Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602
Pro Se Appellant:
Elijah James Latique

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602
Counsel for Appellant:
Elijah James Latique

Kenneth Hebert
Assistant District Attorney and
Keith Stutes
District Attorney
P. O. Box 3306
Lafayette, LA 70502
Attorneys for Appellee:
State of Louisiana

PERRY, Judge.

Defendant Elijah James Latique (“Defendant”) appeals his jury convictions

for possession of a firearm by a convicted felon, aggravated burglary, and attempted

manslaughter, and the sentences the trial court imposed. We affirm Defendant’s

convictions and sentences, but we remand this matter to the trial court to more fully

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

FACTS

On the night of April 11, 2016, Robert Short (“Short”) was working at his

business, Busy Bee Towing, in Scott, Louisiana. While outside with a tow truck

driver, he saw five men pass, then double back and pass again. Shortly thereafter, he

saw Defendant pass on a bicycle, followed by another man. Later, he saw the pair

returning.

After the tow truck driver left, Short went into his office, locked the door, and

worked at his desk. The office door had a large translucent oval-shaped window and

Short was able to see that Defendant and another man were trying to look through

the door window. Short then armed himself with a handgun he kept in the office and

called emergency services. With guns visible, the Defendant and the other man

kicked open the front door, leaving foot prints on the door, and initially fled when

they saw Short armed inside. However, as Short rushed toward the open door,

Defendant ran back toward the office door and pointed his handgun at Short. Short

shot Defendant just outside the office door, and both the offenders fled. When law

enforcement responded, they found Defendant moaning and bleeding in the tow

yard, Short had security cameras and was able to provide officers with surveillance

footage of the confrontation.

PROCEDURE AND TRIAL

On June 15, 2016, the State filed a bill of information charging Defendant

with aggravated burglary, possession of a firearm by a convicted felon, and

aggravated assault with a firearm. On July 27, 2016, the State filed an amended bill

charging him with attempted first degree murder, a violation of La.R.S. 14:27 and

La.R.S. 14:30, and reiterated the other two charges. Later on June 12, 2017, the

State filed yet another amended bill of information, ultimately charging Defendant

with three counts: Count 1, attempted second degree murder, a violation of La.R.S.

14:27 and La.R.S. 14:30.1; Count 2, possession of a firearm by a convicted felon, a

violation of La.R.S. 14:95.1; and Count 3, aggravated burglary, a violation of

La.R.S. 14:60.

On September 26, 2017, the parties selected a jury, and the case continued to

trial. After hearing evidence on September 26 and 27, 2017, the jury deliberated and

found Defendant guilty of a lesser-included offense, attempted manslaughter, on the

first count, and guilty as charged on the other two counts.

On March 22, 2018, the trial court sentenced Defendant to fifteen years for

attempted manslaughter, ten years and a $1,000 fine for possession of a firearm by

a convicted felon, and twenty-five years at hard labor for aggravated burglary. The

trial court imposed the sentences concurrent to each other, except for five years for

Defendant’s possession of a firearm as a prior convicted felon which was imposed

consecutive to the other sentences.

Defendant, represented by appellate counsel, now seeks review by this court,

assigning four errors: (1) The evidence introduced at the trial of this case, when

viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard,

was insufficient to prove beyond a reasonable doubt that Defendant committed the
2

completed crime of aggravated burglary; (2) The evidence introduced at the trial of

this case, when viewed under the Jackson standard, was insufficient to prove beyond

a reasonable doubt that Defendant committed either attempted manslaughter or

attempted second degree murder; (3) The trial court erred in returning the jury for

further deliberation as to count one after the jury returned a verdict form which

complied with the court’s instructions and was lawful; and (4) The sentences

imposed by the trial court violate the Eighth Amendment of the Constitution of the

United States and La.Const. art. 1, § 20, as they are nothing more than cruel and

unusual punishment and, thus, excessive.

In addition, Defendant has urged three additional pro se assignments of error:

(1) All of the State’s witnesses were present during voir dire examination; (2)

Defendant’s right to testify was erroneously forfeited; and (3) Defendant’s right to

testify was unknowingly, unintelligently, and involuntary waived.

ERRORS PATENT REVIEW

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. After carefully reviewing the record, we find one

error patent.

The record shows the trial court advised Defendant at sentencing that he has

“two years to file any post-conviction relief petitions that he may be entitled to.”

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant

has two years after the conviction and sentence become final to seek post-conviction

relief. Considering the specific provisions of La.Code Crim.P. art. 930.8, we find

the trial court’s advisement was insufficient because it failed to alert the Defendant

that the two years commenced with the rendition of our opinion in this court.

Therefore, we direct the trial court to inform the Defendant of the provisions of
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La.Code Crim.P. art. 930.8 by sending 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. 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.

SUFFICIENCY OF EVIDENCE

In his first two assignments of error, Defendant argues the State’s evidence

was insufficient to support his convictions for aggravated burglary and attempted

manslaughter. With regard to the aggravated burglary conviction, Defendant

contends the State failed to prove he entered Short’s office. As to the attempted

manslaughter conviction, Defendant further contends the State failed to prove he had

specific intent to kill Short, an essential element of the crime charged.

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

1371, we articulated the well-established analysis for such claims:

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

4

Aggravated Burglary

As applicable in the present case, the elements of aggravated burglary are

found in La.R.S. 14:60(A)(1): “Aggravated burglary is the unauthorized entering of

any inhabited dwelling, or of any structure, water craft, or movable where a person

is present, with the intent to commit a felony or any theft therein, under any of the

following circumstances: (1) If the offender is armed with a dangerous weapon.”

Defendant argues the State failed to prove any part of his body passed the line of the

threshold into Short’s office.

In State v. Bryant, 12-233, pp 5-6 (La. 10/16/12), 101 So.3d 429, 432-433, the

supreme court addressed the meaning of “entry” as contemplated in La.R.S.

14:60(A)(1):

“Entry” is not statutorily defined in Louisiana. While this Court
has never directly addressed the issue, our appellate courts have found
“entry” for purposes of the crime of burglary whenever any part of the
defendant’s body passes the line of the threshold. See, State v. Abrams,
527 So.2d 1057, 1059 (La.App. 1st Cir.1988) (“it is sufficient if any
part of the actor’s person intrudes, even momentarily, into the
structure”); State v. Hogan, 33,077 (La.App. 2 Cir. 3/1/00), 753 So.2d
965, 967; State v. Jefferson, 33,333 (La.App. 2 Cir. 5/10/00), 759 So.2d
1016, 1019. The term has also been uniformly defined in criminal law
treatises. Wharton’s provides:

There is entry when any part of the defendant’s person
passes the line of the threshold. Thus, there is an entry
when the defendant, after opening a closed door, steps
across the threshold; when, after breaking the glass of a
door or window, he reaches inside to unlock the door or
window or to steal property; when in the course of
breaking the glass of a door or window, his finger, hand,
or foot happens to pass through the opening; or when, in
the course of pushing open a closed door or raising a
closed window, his finger or hand happens to pass the line
of the threshold or to pass through the opening.

3 Wharton’s Criminal Law, § 322, pp. 247-48 (15th ed.1995, Charles
E. Torcia, ed.); see also W.R. LaFave, A.W. Scott, 2 Substantive
Criminal Law § 8.13, p. 467 (1986) (“It is sufficient if any part of the
actor’s person intrudes, even momentarily, into the structure. Thus,
5

the momentary intrusion of part of a foot in kicking out a window,
constitutes the requisite entry.”)

High courts in other jurisdictions have defined entry similarly,
consistently holding that a “slight entry,” consisting of any part of the
actor’s body crossing the plane, is sufficient. See, People v.
Beauchamp, 241 Ill.2d 1, 348 Ill.Dec. 366, 944 N.E.2d 319, 324 (2011);
State v. Keopasaeuth, 645 N.W.2d 637 (Iowa 2002); State v. Gutierrez, 285 Kan. 332, 172 P.3d 18, 23 (2007); State v. Crossman, 790 A.2d
603, 606 (Me.2002); Hebron v. State, 331 Md. 219, 627 A.2d 1029
(1993); State v. Fernandes, 783 A.2d 913, 917 (R.I.2001); Rowland v.
Com., 281 Va. 396, 707 S.E.2d 331, 333 (2011). We agree with the
universal definition given to the term “entry,” and hold as a matter of
law that an “entry” for purposes of the crime of burglary occurs when
any part of the intruder’s person crosses the plane of the threshold.

Initially, Short testified that the men “fell in” after they kicked open the door.

Defendant argues that no part of his body crossed the threshold of the front door,

only the barrel of his gun extended into the office.

The State presented evidence to the jury of Defendant’s entry into the Busy

Bee Towing office by two means: a contemporaneous security video of the entry and

Short’s direct testimony. We have carefully viewed the video and observe that

although the camera was mounted on a post aimed at the front door, it is somewhat

difficult to determine to what extent Defendant’s hand or arm protruded into Short’s

office. Nonetheless, the video clearly shows Defendant’s right foot and leg crossed

the threshold of the door as he kicked it. Despite Defendant’s contention that his

hand did not cross the threshold, Short, who was off to one side of the entry door,

unequivocally testified Defendant’s and the other offenders’ “hands were in the

building.” Juries are not required to abandon common sense and life experiences

when they enter a jury room. State v. Blazio, 09-851 (La.App. 5 Cir. 6/29/10), 44

So.3d 725, writ denied, 10-1781 (La. 2/4/11), 57 So.3d 310. Having viewed the

contemporaneous crime scene video and read Short’s testimony about his placement

6

in relation to the door location, we find the record fully supports the jury’s factual

determination Defendant entered Short’s office.

Considering the video evidence and Short’s testimony, when viewed in light

of Bryant and after viewing the evidence in the light most favorable to the

prosecution, we find the State proved every element of the crime of aggravated

burglary. Therefore, Defendant’s first assignment of error lacks merit.

Specific Intent: Attempted Manslaughter

Defendant’s next argument is that the State failed to prove he had specific

intent to kill and thus prove that he committed attempted manslaughter. In making

this argument, Defendant rests his contention on three arguments: (1) Short’s

testimony was inconsistent; (2) the testimony of Detective Caleb Lege (“Detective

Lege”) of the Scott Police Department was also inconsistent; and (3) the physical

evidence shows that no round was chambered in the weapon and thus contradicts

Short’s testimony that Defendant pulled the trigger of the weapon.

Attempt is defined by La.R.S. 14:27, which states in pertinent part:

Any person who, having a specific intent to commit a crime, does
or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

Manslaughter is defined, in pertinent part, by La.R.S. 14:31:

(1) A homicide which would be murder under either Article 30
(first degree murder) or Article 30.1 (second degree murder), but the
offense is committed in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average person of his
self-control and cool reflection. Provocation shall not reduce a
homicide to manslaughter if the jury finds that the offender’s blood had
actually cooled, or that an average person’s blood would have cooled,
at the time the offense was committed; or

(2) A homicide committed, without any intent to cause death or
great bodily harm.
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(a) When the offender is engaged in the perpetration or attempted
perpetration of any felony not enumerated in Article 30 or 30.1, or of
any intentional misdemeanor directly affecting the person[.]

The record shows the State originally charged Defendant with attempted first

degree murder and later amended the bill of information to attempted second degree

murder; thus, the verdict at issue is for a lesser-included offense, attempted

manslaughter. A jury may return any legislatively provided responsive verdict, if

the evidence sufficiently supports a conviction of the originally-charged offense.

State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S.

959, 103 S.Ct. 2432 (1983); State v. Sepulvado, 10-435 (La.App. 3 Cir. 3/9/11), 59

So.3d 463, writ denied, 11-1151 (La. 11/14/11), 75 So.3d 941; see La.Code Crim.P.

art. 814. Further, specific intent to kill is an element of both attempted first and

second degree murder as well as attempted manslaughter. La.R.S. 14:40, La.R.S.

14:30.1, La.R.S. 14:31; State v. Stafford, 17-714 (La.App. 3 Cir. 3/7/18), 241 So.3d

1060, writ denied, 18-549 (La. 11/20/18), 256 So.3d 997.

Defendant argues the State failed to prove that he had the specific intent to

kill Short. As the record shows, Short testified that Defendant pointed a pistol at

him and pulled the trigger. Defendant acknowledges in brief that pointing a firearm

at another person and pulling the trigger is evidence of specific intent to kill, but he

attacks Short’s credibility. However, Defendant argues that Short’s original

statement to police did not mention that Defendant pulled the trigger. He also points

out that Short’s memory of the timeline of events did not match that of the officers

who responded to the scene.

From the outset, we find that Short’s incorrect temporal perception or

memory of the relevant events is not fatal to the State’s case. Although the victim

8

testified the relevant events took place at about midnight, the responding officers

testified they were called out to the scene at about 2:00 a.m. Nonetheless, it is clear

from the video evidence that the incident occurred generally as Short described it in

his testimony.

Moreover, we have carefully viewed the security footage. Although the video

evidence may not definitively show that Defendant pulled the trigger, it does clearly

show Defendant retreated and then rushed back to the office door, stopped in the

doorway, and pointed his pistol at Short, who was standing just feet away. As to

whether Defendant pulled the trigger, Short’s testimony is that Defendant not only

pointed the weapon, he also pulled the trigger of the weapon. “It is well-settled that

a jury is free to believe some, none, or all of any witness’s testimony.” State v.

Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817.

In addition to Short’s victim testimony, the jury also heard Detective Lege’s

investigative testimony regarding the recovery of the Defendant’s weapon at the

scene. On cross-examination Detective Lege testified that Defendant’s gun had not

been fired. However, later Detective Lege told the jury that his earlier testimony did

not mean the trigger had not been pulled. To the contrary, he said when the gun was

taken into police custody and examined, the trigger mechanism indicated the trigger

had been pulled.

Lastly, we now turn to Defendant’s argument that physical evidence of the

absence of a chambered-round in the gun contradicts the testimonies of Short and

Detective Lege that Defendant pulled the trigger. The record does show that

Detective Lege testified that there was not a round in the chamber when police

recovered the Defendant’s weapon. Without engaging in speculation regarding

Defendant’s knowledge of how to operate firearms, the record reflects that the jury
9

was presented with evidence that Defendant’s actions indicate that he thought he had

a weapon ready to fire and tried to shoot Short with it.

The Jackson standard of review is highly deferential to the fact finder as it

“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319. It was up to the jury, not us as a

reviewing court, to determine fact questions, such as whether the Defendant pointed

a pistol at the victim and pulled the trigger. We, as a reviewing court, should not

second-guess that determination. Considering the totality of the evidence and

viewing that evidence most favorably to the prosecution, we find the record reflects

that the State has satisfied its burden of proving the elements of the crime of

attempted manslaughter beyond a reasonable doubt. Therefore, this assignment of

error lacks merit.

THE VERDICT FORM

In his third assignment of error, Defendant argues the trial court erred when it

sent the jury back to clarify the jury form. He argues that the first verdict form

returned a verdict of not guilty which conformed with the trial court’s instructions.

Arguing that the first verdict was legal, Defendant contends the trial court should

have accepted it.

Our review of the record shows that after being properly instructed on the

completion of the verdict form, the jury returned a verdict form that said, “as to

Count 1: Not Guilty” and then on the blank line between Count 1 and Count 2, the

jury handwrote “Guilty of Attempted Manslaughter.” Finding it unclear what the

jury verdict was as to Count 1 and after discussion with the attorneys, the trial court

filed the verdict form under seal. It then addressed the jury about Count 1:
10

I sent you back . . . so that your jury verdict form would conform
to instructions that I gave you. At this point what I will do is I will read
those instructions again that are applicable to the filling out of that jury
instruction form.

....

If you are convinced beyond a reasonable doubt that the
defendant is guilty of attempted second degree murder, your verdict
should be guilty.

If you are not convinced that the defendant is guilty of attempted
second degree murder but you are convinced beyond a reasonable doubt
that the defendant is guilty of attempted manslaughter, the form of your
verdict should be Guilty of attempted manslaughter.

If you are not convinced that the defendant is guilty of second
degree murder but you are convinced beyond a reasonable doubt that
the defendant is guilty of aggravated battery, the form of your verdict
should be Guilty of aggravated battery.

If you are not convinced that the defendant is guilty of attempted
second degree murder but you are convinced beyond a reasonable doubt
that the defendant is guilty of aggravated assault with a firearm, the form
of your verdict should be Guilty of aggravated assault with a firearm.

If the State has failed to prove beyond a reasonable doubt that the
defendant is guilty of either the offense charged or the lesser responsive
offense, the form of your verdict should be Not guilty.

After the trial court re-instructed the jury,1 it remanded the jury for further

deliberation in conformity with its instructions. After re-deliberation, the jury

returned the second jury form that said “guilty of attempted manslaughter” as to

Count 1.

Louisiana Code of Criminal Procedure Article 809 states: “After charging the

jury, the judge shall give the jury a written list of the verdicts responsive to each

offense charged, with each separately stated. The list shall be taken into the jury

1
Prior to the trial court’s jury re-instruction, the trial court denied Defendant’s motion for
a mistrial.
11

room for use by the jury during its deliberation.” Louisiana Code of Criminal

Procedure Article 810, in pertinent part, further states:

When a verdict has been agreed upon, the foreman shall write the
verdict on the back of the list of responsive verdicts given to the jury
and shall sign it. There shall be no formal requirement as to the
language of the verdict except that it shall clearly convey the intention
of the jury.

As an ancillary to La.Code Crim.P. art. 810, La.Code Crim.P. art. 813 states:

If the court finds that the verdict is incorrect in form or is not
responsive to the indictment, it shall refuse to receive it, and shall
remand the jury with the necessary oral instructions. In such a case the
court shall read the verdict, and record the reasons for refusal.

In conformity with La.Code Crim.P. art. 813, the trial court in the

present case stated:

The original jury verdict form that came in, I placed it under seal.
That one said, “Count 1, attempted second degree murder. We the jury
find the defendant not guilty.”

And then on the second line guilty attempted manslaughter.
Count 2 felony possession of a firearm, we find the defendant guilty.
Count 3, aggravated burglary, we find the defendant guilty. And then
they had signed and dated it.

The original count 1 when it refers to attempted second degree
murder is not in conformity with my instructions. They did not find
that he was – that the case was proven beyond a reasonable doubt. They
were instructed to find him guilty of either a lesser and included
responsive charge or not guilty. By actually putting “We find the
defendant guilty of” whatever, exactly like I had read into the record.
That’s not what it did. It came out and said not guilty and then guilty
of something.

In an abundance of caution my reading, even though we all have
a feeling of what this should be read, it says: Not guilty, guilty of
attempted manslaughter.

So I didn’t want to interpret what the jury was finding. So,
therefore, I found it not in conformity with the requirements of the jury
charge.

12

As the trial court explained, the first jury verdict clearly was “incorrect in

form” under La.Code Crim.P. arts. 810 and 813. Simply stated, the first jury verdict

did not clearly convey the jury’s intention. In accordance with La.Code Crim.P. art.

813, the trial court properly refused to receive the first verdict, properly re-instructed

the jury, and properly returned the jury for further deliberation with a new verdict

form. In the present case, the trial court neither suggested what the verdict should

be nor implied that the first verdict was incorrect other than as to its form. To the

contrary, the trial court simply told the jury, “I sent you back . . . so that your jury

verdict form would conform to instructions that I gave you.” See State v. Tart, 93-

0772 (La. 2/9/96), 672 So.2d 116, cert denied, 519 U.S., 1035, 117 S.Ct. 600 (1996);

State v. Ellis, 13-1401 (La.App. 4 Cir. 2/4/15), 161 So.3d 64, writ denied, 15-489

(La. 1/15/16), 184 So.3d 704.

For the foregoing reasons, we find the trial court acted as La.Code Crim P.

art. 813 required and it made no effort to influence the jury verdict. Therefore, this

assignment of error lacks merit.

EXCESSIVENESS OF SENTENCE

In his final counsel-filed assignment of error, Defendant argues that his

sentence is excessive. Our review of the record shows that Defendant, both pro se

and through counsel, filed motions to reconsider sentence in the trial court. In

Defendant’s motion for reconsideration, he alleged that the trial court did not take

into account “all of the mitigating factors available” but did not specify which factor

or factors in mitigation were not considered. The same is true in Defendant’s pro se

motion, specific reasons are not stated. Thus, Defendant’s argument constitutes a

bare claim of excessiveness.

13

Under State v. Mims, 619 So.2d 1059 (La.1993), when a Defendant’s motion

to reconsider sentence merely alleges that the sentence is excessive, he is “simply

relegated to having the appellate court consider the bare claim of excessiveness.” Id.

at 1060. This bare assertion preserves only a claim of constitutional excessiveness.

Id.; State v. McEachern, 624 So.2d 43 (La.App. 2 Cir. 1993).

The analysis for a bare claim of excessiveness is well-settled:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review of excessive
sentence claims, stating:

La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or that
the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than
a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124,
writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The
relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might
have been more appropriate. State v. Cook, 95-2784 (La.
5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117
S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983) ), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.
5/30/03), 845 So.2d 1061, a panel of this court observed that:

14

While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” State v. Batiste,
594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is
within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.” State v. Cook, 95-
2784 (La. 5/31/96), 674 So.2d 957, 958[, cert. denied, 96-
6329, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996) ].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261 (first alteration in

original).

For the aggravated burglary, the trial court sentenced Defendant to twenty-

five years at hard labor; the sentencing range is one to thirty years, pursuant to

La.R.S. 14:60(B). For attempted manslaughter, the trial court sentenced Defendant

to fifteen years, to run concurrently with the aggravated burglary sentence. The

potential maximum sentence for attempted manslaughter is twenty years, pursuant

to La.R.S. 14:27(D)(3) and La.R.S. 14:31(B). For possession of a firearm by a

convicted felon, the trial court sentenced Defendant to ten years at hard labor, with

five years to run concurrently with the aggravated burglary and five years to run

consecutively. The sentencing range for the firearm offense was ten to twenty years

pursuant to La.R.S. 14:95.1(B).2 The trial court held a hearing regarding possible

reconsideration of the sentences and affirmed the sentences.

The trial court gave the following reasons for its sentencing choice:

THE COURT: I have looked at the aggravating and the
mitigating factors. And up until today, what we have seen from Mr.
Latique is that he was not remorseful. He was still claiming to be the
victim and he was saying it wasn’t him, even though the video was clear
2
This was the sentencing range at the time the offense was committed. By Acts 2017, No.
281 § 1, the legislature changed the sentencing range.
15

and he was the individual who had gotten shot upon entering the
business.

But I will give him some consideration for his act of remorse
today, as well as the consideration, some mitigated, for the family unit
that was involved in the person who his wife testified him to be. [sic]
Despite that, I have a list of aggravating factors, including a previous
history of prior felonies, of guns being used, him being on parole, the
lack of remorse up until today. And the fact that he left, basically, the
scene where the incident happened and then he came back and pointed
the gun at the victim where there was testimony of him pulling the
trigger.

I also note the lack of his prior aggravating crimes. With that
being said, -- or crimes of violence, I should say. With that being said,
I think the appropriate sentence, the gun, the third felony conviction
and everything, on the aggravated burglary the top of the sentence is
hard labor not less than one nor more than thirty years.

I think the appropriate sentence on that for Mr. Latique would be
25 years.

On the manslaughter, it’s hard labor not more than twenty
because he was convicted of an attempted manslaughter. So, with that,
I think the appropriate sentence is fifteen years. That will run
concurrent with the aggravated burglary.

On the convicted felon in possession of a firearm, not less than
ten nor more than twenty without benefit of probation, parole, or
suspension of sentence, and fine of not less than $1,000 nor more than
$5,000, there will be $1,000 fine. But on the sentence part, it will be
ten years hard labor without benefit of probation, parole, or suspension
of sentence. Five to run concurrent with the aggravated burglary, and
five to run consecutive to the aggravated burglary.

Our review of the trial court’s detailed, particularized reasons shows that the

Defendant was a repeat felon. Further, the seriousness of Defendant’s offenses is

reflected in the record. Although our research has found no case with sentences for

this conglomeration of offenses similar to the one now before us, as for a comparison

to sentences for similar individual offenses, this court has upheld a twenty-five-year

sentence for aggravated burglary for a defendant who was a prior felon. State v.

Tolliver, 12-1355 (La.App. 3 Cir. 5/8/13), 157 So.3d 674. Also, this court has upheld
16

a twenty-year sentence for attempted manslaughter. State v. Benoit, 16-129 (La.App.

3 Cir. 6/1/16), 195 So.3d 668. And this court has upheld a ten-year sentence for

possession of a firearm by a convicted felon. State v. Johnson, 09-862 (La.App. 3

Cir. 2/3/10), 28 So.3d 1263. After reviewing this case law together, it is clear the

trial court’s sentencing scheme does not fall outside the norm of Louisiana

jurisprudence. Further, in light of the sentencing factors set forth in Soileau, 153

So.3d 1002, we find this assignment is without merit.

Notwithstanding, Defendant takes issue with the trial court’s decision to

impose half of the sentence for illegal possession of a firearm consecutive to the

other offenses.

Louisiana Code of Criminal Procedure Article 883 provides in pertinent part:

“If the defendant is convicted of two or more offenses based on the same act or

transaction, or constituting parts of a common scheme or plan, the terms of

imprisonment shall be served concurrently unless the court expressly directs that

some or all be served consecutively.” The jurisprudence has concluded that “[a]

judgment directing that sentences arising from a single course of conduct be served

consecutively requires particular justification from the evidence or record.” State v.

Harris, 42,376, p. 10 (La.App. 2 Cir. 9/26/07), 966 So.2d 773, 781–82, writ denied,

07-2109 (La. 3/28/08), 978 So.2d 304. When consecutive sentences are imposed, the

court shall state the factors considered and its reasons for the consecutive terms.

State v. Boudreaux, 41,660 (La.App. 2 Cir. 12/13/06), 945 So.2d 898, writ denied,

07-58 (La. 11/2/07), 966 So.2d 591; State v. Mitchell, 37,916 (La.App. 2 Cir.

3/3/04), 869 So.2d 276, writ denied, 04-0797 (La. 9/24/04), 882 So.2d 1168, cert.

denied, 543 U.S. 1068 (2005). However, the failure to articulate specific reasons for

consecutive sentences does not require remand if the record provides an adequate
17

factual basis to support consecutive sentences. State v. Boudreaux,945 So.2d 898;

State v. Hampton, 38,017, 38,022 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs

denied, 04-0834 (La. 3/11/05), 896 So.2d 57, 04-2380 (La. 6/3/05), 903 So.2d 452.

Although the trial court may not have particularized these factors when

announcing its decision to make half of the sentence for illegal possession of a

firearm consecutive, earlier in its articulated reasons for sentence the trial court noted

Defendant’s previous history of prior felonies, of guns being used, and that he was

on parole when he committed the offenses for which he was convicted. Those

factors and the record provide more than an adequate factual basis to support the

trial court’s limited use of consecutive sentencing.

Finally, Defendant argues that his use of a firearm should not have been

viewed as an aggravating factor in sentencing, as it was an element of two of the

offenses. Notwithstanding Defendant’s assertion, when we review the totality of the

trial court’s reasons for sentencing, it becomes apparent to us that Defendant’s

possession of the weapon was clearly overshadowed by the trial court’s concern with

the danger that weapon posed to the victim as an aggravating factor. Therefore, we

find the Defendant’s assignment of error lacks merit.

WITNESS PRESENCE DURING VOIR DIRE
(PRO SE ASSIGNMENT OF ERROR NO. 1)

In his first pro se assignment of error, Defendant complains that the State’s

trial witnesses were present during voir dire. Specifically, he contends that the

presence of the witnesses unduly influenced the prospective jurors. In support of his

argument, Defendant, relying on State v. Johnson, 438 So.2d 1091 (La.1983),

contends that, pursuant to former La.Code Crim.P. art. 764,3 sequestration is

3
The right of sequestration is now governed by La.Code Evid. art. 615(A), which states:

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available during voir dire. Nevertheless, Defendant acknowledges that he did not

move for sequestration in the present case. Indeed, our review of the record indicates

that Defendant did not move for sequestration until the jury was about to hear

evidence. In the absence of a motion for sequestration, we find Defendant did not

preserve this issue for appellate review. State v. Cowden, 04-707 (La.App. 5 Cir.

11/30/04), 889 So.2d 1075, writ denied, 04-3201 (La. 4/8/05), 899 So.2d 2.

For this reason, this assignment of error lacks merit.

DEFENDANT’S RIGHT TO TESTIFY
(PRO SE ASSIGNMENT OF ERROR NO. 2)

In his second pro se assignment of error, Defendant argues his “right to testify

was erroneously forfeited.” He acknowledges that the record shows he waived his

right to testify but complains the waiver was not memorialized until after the defense

rested. He cites State v. Coleman, 14-402 (La. 2/26/16), 188 So.3d 174, cert. denied,

___ U.S. ___, 137 S.Ct. 153 (2016), for the proposition that any protest by him after

his counsel rested would have been untimely. Further, he states, “Appellant could

not have testified on his own behalf once his counsel rested the case. . . . What would

the trial judge have done if this Appellant objected to waiving his right to testify?”

Our review of the transcript shows that the reason Defendant’s question cannot be

answered rests squarely on his own shoulders. On the record, Defendant

acknowledged not only waiver of the right but also that he had previously advised

On its own motion the court may, and on request of a party the court shall, order that
the witnesses be excluded from the courtroom or from a place where they can see or
hear the proceedings, and refrain from discussing the facts of the case with anyone
other than counsel in the case. In the interests of justice, the court may exempt any
witness from its order of exclusion.
This language is similar to that of former La.Code Crim.P. art. 764.

19

his counsel of his wish, including an instance approximately fifteen minutes before

the colloquy in the record. Thus, this assignment lacks merit.

DEFENDANT’S COMPELLED SILENCE
(PRO SE ASSIGNMENT OF ERROR NO. 3)

In his third and final pro se assignment of error, Defendant contends that his

trial counsel compelled him to remain silent. Defendant alleges that during a

meeting with him and his wife, defense counsel coerced him to agree to waive his

right to testify by brandishing, cocking, and uncocking a pistol. Accordingly,

Defendant, relying on State v. Dauzart, 99-3471 (La. 10/30/00), 769 So.2d 1206,

and State v. Hampton, 00-522 (La. 3/22/02), 818 So.2d 720, argues that if his right

to testify was violated, his convictions and sentences must be set aside.

Despite Defendant’s contention, it is obvious that the alleged encounter

involving trial counsel, Defendant, and Defendant’s wife happened outside the

record. It is well-settled that appellate courts have no authority to review facts not

contained in the trial court record. See State v. Waguespack, 589 So.2d 1079

(La.App. 1 Cir. 1991), writ denied, 596 So.2d 209 (La. 1992); State v. Swan, 544

So.2d 1204 (La.App. 1 Cir. 1989). Thus, we pretermit discussion of this issue as we

have no record of this alleged encounter to review.

DISPOSITION

We affirm Defendant’s convictions and sentences. We direct the trial court to

inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending 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.

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