State of Louisiana v. Edwin Albert Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-639

STATE OF LOUISIANA

VERSUS

EDWIN ALBERT MILLER

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 330,429
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Van H. Kyzar, Judges.

AFFIRMED.

Phillip Terrell, Jr.
District Attorney – 9th Judicial District
Numa V. Metoyer, III
Assistant District Attorney – 9th Judicial District
Amani P. Augustine
Assistant District Attorney – 9th Judicial District
P. O. Dristrict 7358
Alexandria, LA 71306
Telephone: (318) 473-6650
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602
Telephone: (337) 491-0570
COUNSEL FOR:
Defendant/Appellant - Edwin Albert Miller

THIBODEAUX, Chief Judge.

Defendant Edwin Albert Miller was charged with one count of stalking,

second offense, a violation of La.R.S. 14:40.2(4). After a twelve-person jury

unanimously found him guilty of the offense, he was sentenced to twenty years at

hard labor without the benefit of probation, parole, or suspension of sentence, with

credit for time served. On appeal, Defendant asserts that his defense counsel’s

failure to object to the impaneling of a twelve-person jury in the trial of a six-person-

jury offense constitutes a claim for ineffective assistance of counsel, and thus

requires a reversal of his conviction. He additionally argues that the trial court erred

in denying his challenges for cause. Finally, Defendant challenges his sentence as

unconstitutionally excessive.

For the following reasons, we affirm Defendant’s conviction and

sentence.

I.

ISSUES

We must decide:

(1) whether the erroneous trial by a jury of twelve
instead of a properly-constituted jury of six is
reversible error;

(2) whether the trial court erred in denying Defendant’s
challenges for cause; and

(3) whether the sentence imposed by the trial court was
unconstitutionally excessive, in violation of
La.Const. art. 1, § 20.

II.

FACTS AND PROCEDURAL HISTORY

In 2009, Defendant was arrested and pleaded guilty to stalking M.S., 1 a

violation of La.R.S. 14:40.2. He was initially ordered to pay a $1,000 fine and serve

a one-year sentence in Rapides Parish jail. However, the sentence was suspended,

and Defendant was thereafter placed on supervised probation for two years.

The matter giving rise to the instant appeal occurred in 2016, when

Defendant was charged by Bill of Information with stalking, second offense, a

violation of La.R.S. 14:40.2(4), alleging that he did willfully, maliciously, and

repeatedly follow and/or harass and threaten M.S. again with the intent to place her

in reasonable fear of serious bodily harm. He entered a plea of not guilty to the

offense.

A jury trial was held thereafter. Before conducting voir dire, the court

noted that it was going “to select a twelve-person jury for a criminal case.” After a

panel of twelve jurors had been accepted and sworn, defense counsel then objected

to the composition of the jury by noting that under La.Code Crim.P. art. 782, a

twelve-person jury is only appropriate when the punishment is necessarily

confinement at hard labor, whereas a six-person jury is appropriate when the

punishment may be confinement at hard labor instead. Because stalking, second

offense, is punishable “with or without hard labor” under La.RS. 14:40.2(4), defense

counsel argued that Defendant’s case ought to be heard by a six-person jury. The

1
In accordance with La.R.S. 46:1844(W), initials are used to preserve the confidentiality
of crime victims who are minors, victims of sex offenses, and victims of human trafficking-related
offenses. The perpetration of stalking under La.R.S. 14:40.2 is classified as a “sex offense” under
the statute, we shall thus keep confidential the victim’s name. La.R.S. 46:1844(W)(2)(b).

2

trial court, however, denied the defense’s request for a six-person jury, and twelve

jurors were accepted and sworn to the jury.

During voir dire, each side was granted twelve peremptory challenges.

Defense counsel raised several challenges for cause with respect to prospective

jurors, and they were denied by the trial court. The case was then decided before a

panel of twelve jurors, which unanimously found Defendant guilty of the offense

charged.

In analyzing the sentencing factors of La.Code Crim.P. art. 894.1, the

trial court concluded from the evidence that Defendant was a most egregious

offender and thus sentenced him to serve a maximum term of twenty years

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

with credit for time served. A Motion to Reconsider Sentence was denied.

On appeal, Defendant now argues that defense counsel’s failure to

object to the twelve-person jury prior to the jury’s swearing constitutes ineffective

assistance of counsel such that Defendant’s conviction should be reversed. Further,

he asserts that the trial court erroneously denied his challenges for cause. Finally,

Defendant challenges his sentence as unconstitutionally excessive.

III.

LAW AND DISCUSSION

Ineffective Assistance of Counsel

Defendant asserts a claim for ineffective assistance of counsel at trial.

He contends that his defense counsel’s failure to object to the impaneling of a

twelve-person jury for a six-person offense constituted deficient performance of

3

such a serious nature that prejudice must be presumed. As a result, Defendant argues

that his conviction should be reversed.

At the outset, the issue of ineffective assistance of counsel is more

appropriately addressed in an application for post-conviction relief filed before the

trial court, where a full evidentiary hearing can be conducted. State ex rel. A.B., 09-

870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where the record discloses

sufficient evidence to rule on the merits of an ineffective assistance claim, an

appellate court may consider the issues raised on appeal in the interests of judicial

economy. Id.

Finding the record in this case sufficient,2 we shall assess Defendant’s

claim of ineffective assistance of counsel under the two-part test established by

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Under the

Strickland analysis, Defendant must first demonstrate that his trial counsel’s

performance was deficient and that he was prejudiced by the deficiency.

Counsel’s performance is ineffective when it can be
shown that he made errors so serious that counsel was not
functioning as the “counsel” guaranteed to the defendant
by the Sixth Amendment. Strickland, supra, 466 U.S. at
686, 104 S.Ct. at 2064. Counsel’s deficient performance
will have prejudiced the defendant if he shows that the
errors were so serious as to deprive him of a fair trial. To
carry his burden, the defendant “must show that there is a

2
The trial court polled the jury after the announcement of the guilty verdict, after which the
trial judge explained he would ascertain that “a sufficient number” of jurors concurred in the
verdict before making the ballots available to counsel for the parties. The ballots were then to be
placed into an envelope and sealed in the court record. The trial court in fact found “a sufficient
requirement number for the verdict to be proper and good” and counsel for both parties concurred.

The ballots were not included in the record on appeal. This court issued an order on
December 13, 2018, to the Clerk of Court for the Ninth Judicial District to send the written jury
ballots filed under seal. The clerk then filed a supplemental record enclosing a copy of the jury
ballots. The supplemental record shows all twelve members of the jury found Defendant guilty of
stalking, second offense. Therefore, we find that the information supplied by the supplemental
record is sufficient to allow this court to address the issue of ineffectiveness of counsel in this
appeal without relegating it to post-conviction relief.

4

reasonable probability that, but for counsel’s
unprofessional errors, the results of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct.
at 2068. The defendant must make both showings to prove
that counsel was so ineffective as to require reversal. State
v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir. 1992).

This Court has recognized that if an alleged error
falls “within the ambit of trial strategy” it does not
“establish ineffective assistance of counsel.” State v.
Bienemy, 483 So.2d 1105 (La.App. 4 Cir. 1986).
Moreover, as “opinions may differ on the advisability of a
tactic, hindsight is not the proper perspective for judging
the competence of counsel’s trial decisions. Neither may
an attorney’s level of representation be determined by
whether a particular strategy is successful.” State v.
Brooks, 505 So.2d 714, 724 (La.1987).

State v. Schexnaider, 03-144, p. 18 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 462

(quoting State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34,

40).

Defendant cites as deficient performance his trial counsel’s failure to

object to a twelve-person jury where the charge of stalking, second offense imposes

a permissive, rather than mandatory, punishment of confinement at hard labor.

Louisiana Code of Criminal Procedure Article 782(A) states that “[c]ases in which

punishment is necessarily confinement at hard labor shall be tried by a jury

composed of twelve jurors, ten of whom must concur to render a verdict.” La.Code

Crim.P. art. 782(A). 3 In contrast, “[c]ases in which the punishment may be

3
Louisiana Code of Criminal Procedure Article 782(A) was recently revised to require a
twelve-person jury to render a unanimous verdict in cases in which punishment is necessarily
confinement at hard labor. It now provides that “[a] case for an offense committed on or after
January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried
before a jury of twelve persons, all of whom must concur to render a verdict.” La.Code Crim.P.
art. 782(A) (emphasis added).

5

confinement at hard labor shall be tried by a jury composed of six jurors, all of whom

must concur to render a verdict.” Id. (emphasis added). The crime of stalking,

second offense is punishable “with or without hard labor[.]” La.R.S. 14:40.2(B)(4).

Notwithstanding any deference accorded to trial counsel’s strategy, we submit that

the case should have been tried before a jury of six, rather than twelve, veniremen.

While there is no doubt that an error occurred with respect to the size

of the selected jury in this case, our supreme court has held that “the error in trying

a six-person jury offense in a 12-person jury forum no longer constitutes a non-

waivable structural defect in the proceedings, but ‘falls within the vast category of

trial errors which are subject to harmless error analysis and which warrant reversal

only where the defendant is actually prejudiced.’” State v. Brown, 11-1044, p. 3 (La.

3/13/12), 85 So.3d 52, 53 (quoting State v. Jones, 05-226, p. 3 (La. 2/22/06), 922

So.2d 508, 511).

In light of the unanimous verdict reached by the twelve-juror panel, we

cannot say that Defendant has been prejudiced in his case. But for counsel’s failure

to object to the composition of the jury, any six of the twelve jurors in this case

would nevertheless have rendered a guilty verdict because all twelve jurors found

Defendant guilty. In fact, Defendant received six additional factfinders than

constitutionally mandated, and was thus afforded greater protection than required by

law. Therefore, because the result of the proceeding would not have been any

different had defense counsel objected prior to the acceptance of the jury, we find

that the error of impaneling a twelve-person jury in the trial of a six-person offense

We note, however, that the amendment applies to crimes committed on or after January 1,
2019. Because this offense pre-dates January 1, 2019, the amendment of La.Code Crim.P. art.
782(A) has no bearing on this case.

6

was harmless. Accordingly, we find that Defendant was not actually prejudiced due

to the errors of both defense counsel and the trial court.

Challenge for Cause

Defendant argues that the trial court erred in denying his challenges for

cause regarding juror, Ms. Humphries; second alternate juror, Ms. Trotter; and three

potential jurors, Ms. Jordan, Ms. Ryder, and Ms. Mier. As a result, Defendant

alleges that the erroneous denials caused him to exhaust all of his peremptory

challenges. 4

The grounds for which a juror may be challenged for cause are set forth

in La.Code Crim.P. art. 797. The defense may challenge a juror for cause if “[t]he

juror is not impartial, whatever the cause of his partiality.” La.Code Crim.P. art.

797(2). A juror may additionally be challenged for cause on the ground that “[t]he

relationship, whether by blood, marriage, employment, friendship, or enmity

between the juror and the defendant, the person injured by the offense, the district

attorney, or defense counsel, is such that it is reasonable to conclude that it would

influence the juror in arriving at a verdict[.]” La.Code Crim.P. art. 797(3). The

defense may also challenge a juror for cause on the basis that he or she “will not

accept the law as given to him by the court[.]” La.Code Crim.P. art. 797(4).

The Louisiana Supreme Court has set forth the following standard for

reviewing a trial court’s denial of challenges for cause:

4
We note here that both the State and the defense erroneously received twelve peremptory
challenges each. While we find that either side should have only been granted six peremptory
challenges given the instant trial for an offense not necessarily punishable by imprisonment at hard
labor pursuant to La.Code Crim.P. art. 799, this error of the trial court was nevertheless harmless.
As stated in the discussion of the preceding assignment of error, Defendant was afforded a greater
number of challenges than required by law, and thus, we do not find that his case was prejudiced
from such additional protections.

7

A trial court is vested with broad discretion in ruling
on challenges for cause, and its rulings will be reversed
only when a review of the voir dire record as a whole
reveals an abuse of discretion. Prejudice is presumed
when a challenge for cause is denied erroneously by a trial
court and the defendant ultimately exhausts his
peremptory challenges. An erroneous ruling depriving an
accused of a peremptory challenge is a substantial
violation of his constitutional and statutory rights and
constitutes reversible error. “A challenge for cause should
be granted, even when a prospective juror declares his
ability to remain impartial, if the juror’s responses as a
whole reveal facts from which bias, prejudice, or inability
to render judgment according to law may be reasonably
implied.” However, a trial court does not abuse its
discretion when it refuses to excuse a prospective juror on
the ground he is not impartial where, after further inquiry
or instruction, the potential juror has demonstrated a
willingness and ability to decide the case impartially
according to law and evidence.

State v. Scott, 04-1312, pp. 16-17 (La. 1/19/06), 921 So.2d 904, 921 (citations

omitted), overruled on other grounds by State v. Dunn, 07-878 (La. 1/25/08), 974

So.2d 658. Moreover, this court has stated

When the defendant exposes the partiality of a juror, the
juror may not be automatically excluded for cause. The
state or the trial court may rehabilitate the juror by asking
questions and obtaining answers demonstrating the juror’s
ability to decide the case impartially pursuant to law and
evidence. Ultimately, the trial court has the power to
determine whether or not a juror may be excused for cause.

State v. Noel, 15-617 (La.App. 3 Cir. 12/9/15), 181 So.3d 223, rev’d on other

grounds, 16-43 (La. 10/18/17), 236 So.3d 523.

Accordingly, we shall review the challenges for cause denied by the

trial court to determine whether the trial court abused its discretion.

Juror Ms. Humphries

When the parties considered Ms. Humphries, a nursing student, the

State accepted her. The defense responded with a challenge for cause because

8

“[s]he’s got tests, she’s pregnant, she doesn’t want to be here.” The trial court then

acknowledged that while Ms. Humphries affirmatively answered that her jury

service would affect her life and her future, she would not miss any tests because of

the trial, and thus the challenge for cause was denied. The trial court then held,

“[s]he did answer affirmatively as far as affecting her life and future. However, I do

think that she was rehabilitated.”

Ultimately, the defense failed to object to the trial court’s denial of its

challenge for cause regarding Ms. Humphries. Instead, defense counsel expressly

replied, “Accept[,]” and Ms. Humphries was then seated as juror number seven.

Additionally, our review of the record reveals that while Defendant had six

peremptory challenges remaining at the time the challenge for cause was denied, he

did not use any to exclude Ms. Humphries.

To prove there has been an error warranting reversal of a conviction,

[A] defendant must demonstrate 1) erroneous denial of his
challenge for cause, and 2) use of all of his peremptory
challenges. Additionally, the defendant must show that,
when the trial court denied his challenge for cause, he used
one of his peremptory challenges curatively to remove that
juror, thereby reducing his number of peremptory
challenges, or waive the issue on appeal. This is so even
in a case where the defendant uses all of his peremptory
challenges.

State v. Guillory, 16-237, p. 6 (La.App. 3 Cir. 11/2/16), 206 So.3d 1153, 1157

(quoting State v. Mitchell, 08-136, pp. 14-15 (La.App. 5 Cir. 1/13/09), 7 So.3d 720,

730), writ denied, 16-2186 (La. 9/22/17), 227 So.3d 823. While this court has held

that a defendant need not exhaust all of his peremptory challenges before

complaining of a trial court’s denial of his challenge for cause on appeal, the

“defendant must still demonstrate prejudice arising from the ruling.” State v.

Lormand, 00-435, p. 8 (La.App. 3 Cir. 10/11/00), 771 So.2d 734, 738 (quoting State

9

v. Guillory, 97-179 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, writ denied, 98-955

(La. 10/9/98), 726 So.2d 17), writ denied, 00-3214 (La. 11/2/01), 800 So.2d 866).

“However, an erroneous ruling on a challenge for cause which does not deprive a

defendant of one of his peremptory challenges will not provide grounds for a reversal

of a defendant’s conviction and sentence.” State v. Magee, 11-574, pp. 26-27 (La.

9/28/12), 103 So.3d 285, 307, cert. denied, 571 U.S. 830, 134 S.Ct. 56 (2013).

In this case, Defendant failed to raise an objection to the denial of his

challenge for cause to Ms. Humphries before the trial court, but instead expressly

accepted her. In light of these facts, Defendant cannot now complain of the trial

court’s denial of the challenge for cause on appeal where the defense’s ultimate

acceptance of Ms. Humphries was accompanied by neither an objection nor the

exhaustion of all, let alone the exercise of any, of his six remaining peremptory

challenges. As such, Defendant has failed to demonstrate that the trial court’s refusal

to sustain his challenge for cause has prejudiced him in any manner.

Alternate Juror Ms. Trotter

During voir dire, prospective juror Ms. Trotter stated that she had been

the victim of a domestic violence incident between herself and her ex-husband.

While charges were filed in the matter, Ms. Trotter stated that she dropped the

charges later. However, upon further questioning from the State, Ms. Trotter

affirmatively responded that her experience would not hamper her ability to be fair

and that she would base the verdict on the law and evidence.

On appeal, appellate counsel cites the possibility that Ms. Trotter

“could easily have second thoughts based on her prior experiences” as the basis for

why the challenge for cause should have been granted. While the defense challenged

10

Ms. Trotter for cause before the trial court, it failed to state any of the grounds thereof

as enumerated in La.Code Crim.P. art. 797.

A defendant may not assign as error a court’s refusal
to sustain a challenge for cause made by him, unless he
makes an objection at the time of the ruling that states the
nature of the objection and grounds therefor. La. C. Cr. P.
art. 800(A). Accordingly, in a challenge for cause, the
challenging party has the burden of showing that a
prospective juror should be excluded based on one or more
of the grounds in La. C. Cr. P. art. 797.

State v. Hampton, 50,561, p. 14 (La.App. 2 Cir. 5/18/16), 195 So.3d 548, 557

(citation omitted), writ denied, 16-1181 (La. 5/26/17), 221 So.3d 854.

In ruling on Defendant’s challenge for cause, the trial court found,

“[s]he stated that she had no affect [sic] in this case. She thought everything was

done fairly, she dropped the charges herself. I will deny the challenge for cause.”

In so ruling, the trial court named Ms. Trotter the second alternate juror. However,

while Ms. Trotter heard all the evidence presented, she never participated in reaching

the verdict because she was ultimately excused after closing arguments. Thus, while

we do not believe that the trial court abused its discretion in denying the challenge

for cause, we additionally find that any error arising therefrom was harmless given

her ultimate discharge from the deciding jury panel.

Potential Juror Ms. Jordan

Prospective juror Ms. Jordan stated to the court during voir dire that her

husband and brother worked for the Department of Corrections. She disclosed that

her brother hired Phillip Terrell, the District Attorney for Rapides Parish, to

11

represent him in defending a malfeasance charge, which resulted in a successful

expungement of the offense.5 The following colloquy took place:

BY MR. METOYER [STATE]:

. . . Would you be more likely to go my way because Mr.
Terrell represented your brother?

BY MS. JORDAN:

Possibly.

BY MR. METOYER:

Possibly. Okay. And why don’t you tell us why,
possibly why?

BY MS. JORDAN:

It was a hard case. I was real young so, I mean, of
course I don’t know any details about the case –

....

BY MR. METOYER:

But do you, what I’m asking you is this. Do you
think you can be fair to this man . . . even though I work
for Mr. Terrell? And I need you to be honest. It’s either
yes or no?

BY MS. JORDAN:

Yes.

BY MR. METOYER:

You think you can.

BY MS. JORDAN:

(Nods in the affirmative)

....

5
On appeal, Defendant incorrectly states that Ms. Jordan’s brother is currently suing the
Department of Corrections. Ms. Jordan’s actual testimony during voir dire was that her brother’s
lawsuit was completed in 2011 and that Mr. Terrell no longer represents her brother.

12

BY MR. METOYER:

Okay. Would you be able to disregard the fact that
I work for Mr. Terrell and just stick to the elements of the
crime and the evidence that we present? Would you base
your opinion just on that?

BY MS. JORDAN:

Yes, sir.

BY MR. METOYER:

Okay. So in that respect you could be fair to this
defendant?

BY MS. JORDAN:

Yes, sir.

In challenging Ms. Jordan for cause, the defense argued that Ms. Jordan

did not want to be there and noted that “she didn’t want to get involved.” In ruling

on the challenge, the trial court remarked that Ms. Jordan admitted a possible

favoritism toward the State, but it nevertheless found that “she could be fair to the

defendant and base everything on the evidence and testimony and not on the fact

that just because Mr. Terrell is the DA [a]nd that she could be fair.”

On appeal, Defendant cites Ms. Jordan’s familial relationship to law

enforcement officers and her brother’s connection to Phillip Terrell in arguing that

Ms. Jordan’s “initial response should have been enough” for the challenge for cause

to be granted. However, at no point did Defendant argue to the trial court that Ms.

Jordan’s familial relationship to law enforcement officers and/or the district attorney

was a basis for challenging her. Therefore, we find that that ground was not properly

preserved for review pursuant to La.Code Crim.P. art. 800(A).

Nevertheless, nothing in the record suggests that the trial court abused

its discretion in denying the challenge for cause regarding Ms. Jordan. Despite her

13

reservations about serving on the jury, she stated that she could put aside the State’s

counsel’s association with Mr. Terrell. She affirmatively responded that she could

base her opinions on the elements of the crime and the evidence and could think of

no reason why she should not or could not serve as a juror.

Potential Juror Ms. Ryder

The defense challenged prospective juror Ms. Ryder for her

associations with law enforcement, as well as her familiarity with two of the

witnesses. During voir dire, Ms. Ryder stated to the trial court that her husband,

father-in-law, brother-in-law, and brother have all worked or currently work in law

enforcement. She also interned at the Federal Bureau of Prisons in 2001. Further,

Ms. Ryder disclosed to the trial court that she knew two of the witnesses, Mr. Bruner

and Mr. Collins, through her husband and that she socialized with them on several

occasions, including Mr. Bruner’s recent attendance at a barbeque at her home.

Finally, Ms. Ryder disclosed that her mother’s nephew is currently serving a life

sentence in prison. Despite her many connections to law enforcement and

familiarity with some of the witnesses, Ms. Ryder stated that she could remain fair.

However, Defendant failed to raise the issues regarding Ms. Ryder’s familial

associations with law enforcement officers, her internship, and her cousin’s

imprisonment in its challenge for cause. Accordingly, this court may not consider

those arguments which were not properly preserved on appeal. See La.Code Crim.P.

art. 800(A).

Defendant also argues on appeal that the challenge for cause regarding

Ms. Ryder should have been granted given her socializing with two of the witnesses.

The following colloquy took place between the trial court and Ms. Ryder:

14

BY THE COURT:

You or [sic] connected in any way with the witnesses
named?

BY MS. RYDER:

I know some of the witnesses.

BY THE COURT:

Who do you know?

BY MS. RYDER:

[Bruner] and Collins.

BY THE COURT:

And how do you know them?

BY MS. RYDER:

Just through my husband. [Bruner] was at our
house this weekend.

BY THE COURT:

Socialize with them?

BY MS. RYDER:

Just on occasion.

BY THE COURT:

Knowing them under circumstances that you see
them, does that in any way affect your ability to make a
fair and impartial decision?

BY MS. RYDER:

No, sir.

In raising the challenge for cause, the defense speculated that Ms. Ryder

talked about the case with Mr. Bruner at the barbecue, wherein he allegedly told her

to “tell them you don’t have any problem with cops.” The record, however, shows

15

Ms. Ryder never indicated any such conversation ever took place. The State pointed

out that the defense could have questioned her about the possibility of such a

conversation had it suspected one. The State also noted that at the time of the

barbecue, Ms. Ryder had no way of knowing she would be a possible juror in this

case in which Mr. Bruner was a witness. Ultimately, Ms. Ryder testified that her

association with these witnesses would not affect her ability to make a fair and

impartial decision.

In State v. Juniors, 03-2425, p. 11 (La. 6/29/05), 915 So.2d 291, 306,

cert. denied, 547 U.S. 1115, 126 S.Ct. 1940 (2006), our supreme court held that

The existence of a relationship, even one of blood or
marriage, is not sufficient to disqualify a juror unless the
facts reveal that the nature of the relationship is such that
it is reasonable to conclude it would influence the juror in
arriving at a verdict. LSA-C.Cr.P. art. 797. The law does
not require that a jury be composed of individuals who are
totally unacquainted with the defendant, the person injured
by the offense, the district attorney, or defense counsel. It
requires that jurors be fair and unbiased. Fairley, 25,951
at 3, 645 So.2d at 216.

Here, the trial court determined that the challenge for cause should be

denied based on Ms. Ryder’s statement that she could be fair and impartial. Given

the fact that the trial court was in the best position to evaluate Ms. Ryder’s

credibility, coupled with Ms. Ryder’s answers demonstrating that she could decide

the instant matter independent of her acquaintances, we conclude that the trial court

did not abuse its discretion in denying the challenge for cause.

Potential Juror Ms. Mier

Prospective juror Ms. Mier stated during voir dire that she and her

husband had been victims of crime when their home was burglarized fifteen years

ago. The burglars were never caught, and Ms. Mier believed that law enforcement

16

did not properly investigate the matter. However, she stated that this would not

affect her ability to digest the facts and make a fair and impartial decision in this

case. Further, Ms. Mier raised her hand when the defense questioned if any of the

jurors simply did not want to be there. She then stated that she is the primary

caretaker and sole source of transportation for her eighty-six-year-old mother. While

Ms. Mier stated that she would be thinking of her mother during the trial, she did not

know of any other reason why she could not be fair and impartial.

On appeal, Defendant cites the prior burglary and Ms. Mier’s status as

her mother’s caretaker as reasons why the challenge for cause should have been

granted. “In Louisiana, the fact that a juror personally has been the victim of a crime

will not necessarily preclude that juror from serving on a jury as long as the juror’s

partiality has been unaffected.” State v. Dorsey, 10-0216, p. 38 (La. 9/7/11), 74

So.3d 603, 631. Further, Ms. Mier stated in both instances that she could remain fair

and impartial. Nothing in the record suggests Ms. Mier’s experience as a crime

victim would bias her or that thinking of her mother would prevent her from being

fair and impartial. Under these circumstances, we find that the trial court did not

abuse its discretion in denying Defendant’s challenge for cause of Ms. Mier.

Excessive Sentence

Defendant challenges his sentence as unconstitutionally excessive, in

violation of La.Const. art. 1, § 20. He contends that the trial court erred in imposing

a sentence of twenty years at hard labor without the benefit of probation, parole, or

suspension of sentence for the offense of stalking, second offense. Specifically, he

argues that the trial court failed to give adequate consideration to the sentencing

guidelines imposed by La.Code Crim.P. art. 894.1, and that his sentence should be

17

more in line with that imposed by this court’s ruling in State v. Saucier, 11-246

(La.App. 3 Cir. 11/9/11), 81 So.3d 691, writ denied, 12-227 (La. 6/22/12), 91 So.3d

966.

At trial, Defendant objected to his sentence. His Motion to Reconsider

Sentence was denied. While he argues on appeal that the trial court erred by not

considering the factors set forth in La.Code Crim.P. art. 894.1, the issue was not

raised before the trial court. “Accordingly, this argument cannot be raised for the

first time on appeal.” State v. Hebert, 08-542, p. 3 (La.App. 3 Cir. 11/5/08), 996

So.2d 688, 690. Nevertheless, we find that the trial court adequately examined the

statutory sentencing factors, as discussed below.

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

[Louisiana Constitution Article] 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. 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. The relevant question is
whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been
more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted) (second

alteration in original).

An offender convicted of stalking, second offense faces a sentence of

five to twenty years imprisonment and a fine of up to $5,000, or both. La.R.S.

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14:40.2 (B)(4). While Defendant received a sentence for the maximum possible

term of twenty years, he was not fined. Even though a penalty falls within the

statutory sentencing range, however, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes
no meaningful contribution to acceptable penal goals, an
appellate court may consider several factors including the
nature of the offense, the circumstances of the offender,
the legislative purpose behind the punishment and a
comparison of the sentences imposed for similar crimes.
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.” 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. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789 (citations

omitted), writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061. “While the trial judge

need not articulate every aggravating and mitigating circumstance outlined in art.

894.1, the record must reflect that he adequately considered these guidelines in

particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698

(La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); State v. Keeney, 422 So.2d

1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)). Nevertheless, “[t]he

appellate court shall not set aside a sentence for excessiveness if the record supports

the sentence imposed.” La.Code Crim.P. art. 881.4(D). Moreover, “maximum

sentences will be reserved for the most egregious or blameworthy of offenders[.]”

State v. Telsee, 425 So.2d 1251, 1254 (La.1983).

In Saucier, 81 So.3d 691, this court affirmed the defendant’s sentence

of ten years for stalking, second offense. While the trial court in that case found no

aggravating or mitigating factors under La.Code Crim.P. art. 894.1, it did note the

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defendant’s criminal history of more than thirty arrests and convictions spanning

over three decades, some of which were for crimes of violence. The defendant had

violated four protective orders and had “subjected the victim to years of abuse and

threats of violence.” Id. at 704. The victim in that case was the defendant’s former

wife with whom he had a child, and the defendant had previously been convicted of

stalking another victim.

In reviewing the record in this case, the trial court stated the following

in imposing Defendant’s sentence:

Reviewing the victim impact statements and
reviewing prior cases, and also what transpired over the
course of a four[-]day trial. [Sic] The matter started in
August of two thousand nine with an arrest. It’s been
going on for over eighteen years of stalking. Protective
orders in oh-nine did not work. [M.S.] was a victim of a
matter where she was performing her occupation as a
professional person trying to render help to [Defendant’s]
mother. To the point to where [M.S.] had to stop that in
order for her own being [sic]. Whatever reasons
[Defendant] had by being infatuated with [M.S.], I do not
know. However[,] they have directly affected her family.
It came to the point of being more aggressive. And [M.S.]
was not comfortable with it to where she terminated her
employment. Continuing on to where uninvited presence
with weapons causing [M.S.] to feel like she is scared to
death [sic]. On another night to where at the house
uninvited of where physical contact was made of hands
around the neck to where [M.S.] thought she was going to
die [sic]. [Defendant] continued with the phone calls, gifts
and candy of a signature to the point to where [M.S.]’s
family had to take matters of property, phone unlisting
even to the point to where it was finally after her repeated
requests from law enforcement something was done about
the matter with the second arrest. The pattern continued
even after the arrest all the way up until trial. The passing
on the highway, the driving in the driveway, being around
the home, all matters taken into this court. All matters I
see where [M.S.] was emotionally distressed and feared
bodily harm or her death.

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The testimony of M.S., a registered nurse, confirmed the trial court’s

findings. She testified she had no personal relationship with Defendant. 6 She first

met Defendant when she began working as a home health nurse for his mother

sometime in 1998. From the beginning, M.S. described Defendant as “a very

forward person . . . . Sometimes intrusive.” He began bringing her unwanted gifts

such as flowers and candy, which she never accepted, and found that his behavior

became “unusual” once he became “more and more aggressive.” In an effort to

minimize her contact with Defendant, M.S. reported the situation to her direct

supervisor.

Beginning in either late 1998 or early 1999, M.S. testified that

Defendant would repeatedly drive by her home. One night, she and her husband

heard the dog barking and saw a flash of light coming from Defendant’s red Ford

Ranger pickup truck. Defendant then walked up to her vehicle and put a beer can

box under her windshield wipers. As she and her husband stood in the doorway,

they watched Defendant walking and noticed that he had a pistol in his hand.

M.S. eventually reported Defendant to the police after he continued

driving by her home, honking his horn. She testified that she “was scared to death”

after an incident where Defendant spray painted his phone number on her mailbox

and on the road in front of her home. However, Defendant’s behavior continued

after M.S. reported him to the police. She recalled that late one night, while visiting

with a friend, she heard the dog barking and saw headlights pull into her driveway.

She opened the door to see that Defendant was swiftly approaching her doorway. At

that point, M.S. told Defendant that if he didn’t leave, she would call the police.

6
Although one of the protective orders stated that M.S. and Defendant were dating partners,
the victim testified this was incorrect.

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Defendant then pushed his way through her door, grabbed her by the neck, and put

her up against the wall. M.S.’s friend then threatened Defendant that she would call

the police if he did not stop, when Defendant jerked the phone out of M.S.’s hand

and the wall, grabbed her friend, and then left with the phone.

Finding Defendant’s behavior “too aggressive” and “inappropriate”

M.S. quit her position as a home health nurse and went back to the hospital. At this

point, however, Defendant began to initiate further contact with M.S. She testified

that Defendant would call her multiple times a day to the extent that she had to get

an unlisted phone number. She would find candy on the hood of her car at work,

and sometimes find Defendant sitting in the parking garage. M.S. recalled an

incident at the grocery store where she noticed Defendant staring at her from the

next line over, only to go out to her car and find a card addressed to her left by

Defendant in her driver door handle. While M.S. called the police numerous times,

either the police were unable to find Defendant, or they would go to his house, but

in neither case was Defendant arrested.

In 2009, Defendant was finally arrested after driving past M.S.’s home

and throwing beer in her face while she was outside at her mailbox. Because of

Defendant’s actions, M.S. put up a gate, installed a security system, hired a security

guard to sit outside her home when her husband worked at night, and left her house

to stay with family members when left alone. She took a concealed weapons class

and carried a weapon at all times thereafter. M.S. also obtained multiple protective

orders against Defendant.

Defendant’s behavior never changed after his arrest in 2009, however.

Although sometimes the activity was less frequent, it never stopped; in fact, it

continued until a few days before the trial was held in this case. Defendant continued

22

to leave beer cans and candy in M.S.’s mailbox and drive slowly by her home,

honking the horn, sometimes more than five or ten times throughout a single day.

She estimated that she reported Defendant’s behavior to the police between ten and

twenty times. One evening, M.S. went outside and smelled cigarette smoke. The

next morning, she found “a Bud Light can sitting on the porch rail.” Sometime in

2017, Defendant’s vehicle met M.S. and her husband on the road as their vehicle

was pulling a trailer full of lumber. Defendant crossed the center line and “threw

his hand out of the window” toward them, which pushed them off the road and into

the ditch.

M.S. testified she did not feel safe, “live[d] in a prison with no bars[,]”

and “enjoy[ed] nothing by [her]self anymore.” Being stalked by Defendant had

changed her life. In 2016, she testified that Defendant was again arrested for

“[d]riving by [her] house repeatedly. Honking the horn. Crossing the center line.

Throwing [a] beer can at [her], cursing [her], screaming at [her].” While the incident

where Defendant threw a beer can was similar to the episode in 2009, M.S. also

testified that on another occasion, Defendant stopped his vehicle and threw whiskey

in her face.

As established by M.S.’s testimony, we find that the record supports

the sentence imposed by the trial court. Moreover, we agree with the trial court’s

conclusion that Defendant was a most egregious offender. Defendant was convicted

twice for stalking the same victim over a period spanning eighteen years, with the

evidence demonstrating no change in behavior following the first conviction. The

trial court properly considered Defendant’s repeated behavior over a period of time.

We find that the imposition of the maximum sentence in this case is not so grossly

disproportionate to the severity of the crime that it either shocks the sense of justice

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or inflicts any needless pain and suffering. Accordingly, we find that the trial court

did not abuse its discretion in sentencing Defendant to twenty years imprisonment

at hard labor, without the benefit of probation, parole, or suspension of sentence.

V.

CONCLUSION

Based upon the foregoing, this court affirms the judgment of the trial

court in all respects. Accordingly, we affirm Defendant Edwin Albert Miller’s

conviction for stalking, second offense, a violation of La.R.S. 14:40.2(4), as well as

his sentence to twenty years imprisonment without the benefit of probation, parole,

or suspension of sentence, with credit for time served.

AFFIRMED.

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