State of Louisiana v. Michael Lee Walls

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-730

STATE OF LOUISIANA

VERSUS

MICHAEL LEE WALLS

************
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89486 AM
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, Billy H. Ezell, and Candyce G. Perret, Judges.

AFFIRMED WITH INSTRUCTIONS.

Asa A. Skinner, District Attorney
Lea R. Hall, Jr., Assistant District Attorney
P.O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

S. Christie Smith, IV
SmithAdvocates, LLC
300 Courthouse Street
P.O. Drawer 1528
Leesville, LA 71496
(3370) 239-2244
COUNSEL FOR DEFENDANT/APPELLANT:
Michael Lee Walls

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On July 21, 2016, Defendant, Michael Lee Walls, was indicted on one count

of molestation of a juvenile when the offender has control or supervision over the

juvenile, in violation of La.R.S. 14:81.2(A)(1); and one count of indecent behavior

with a juvenile under the age of thirteen, in violation of La.R.S. 14:81(A)(1) and

14:81(H)(2). The molestation charge was based upon allegations that Defendant,

while having supervision of the juvenile, had “anal sexual intercourse” with S.H.

The indecent behavior charge was based upon facts alleging Defendant chased

S.H.’s sister, J.H., “while wearing Sponge Bob underwear with his penis hanging

out.”

Following a multi-day trial, a unanimous jury found Defendant guilty as

charged on both counts on March 23, 2017. The trial court ordered a Pre-Sentence

Investigation (PSI). On May 24, 2017, the trial court sentenced Defendant to

eighteen years at hard labor for the molestation of a juvenile charge and eighteen

years at hard labor without the benefits of probation, parole, or suspension of

sentence for the indecent behavior charge. Noting the case involved “an issue of

having occurred on multiple occasions to multiple victims,” the trial court ordered

the two sentences to run consecutively to each other.

On May 26, 2017, Defendant filed a “Motion to Reconsider Sentence,”

arguing his sentences were excessive as they were partially based upon disputed

evidence and that Defendant’s age (sixty-three years old) and health meant the thirty-

six year total sentence was essentially a life sentence. The trial court denied the

motion.

In late December, 2018, this court noticed, and the State raised in its brief,

that Defendant’s brief was devoid of any page references to the record, in violation

of Uniform Rules—Courts of Appeal, Rule 2-12.4(A), which requires an appellant’s
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brief to contain “reference to the specific page numbers of the record and citations

to the authorities on which the appellant relies.”

Defense counsel was verbally notified he had until January 7, 2019, to file an

amended brief containing record references, with a written order stating the same

sent on December 26, 2018. On January 11, 2019, this court received a faxed

courtesy copy of said brief which was unsigned and included a certificate of service

noting “a copy of this Brief has been served on all parties at the addresses set forth

below by depositing same into the U.S. Mail on the 31[sic] day of October 2018.”

On January 16, 2019, this court received a signed original of Defendant’s

Supplemental Brief. The brief was postmarked on January 14, 2019. A review

found, after comparing the page references to the record, none of them are accurate

aside from the references pertaining to Defendant’s assignment of error number one.

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, there is an error

in the commitment order that requires correcting.

At sentencing, the trial court ordered the sentences to be served consecutively.

Although the minutes of sentencing correctly reflect the sentences were ordered to

be served consecutively, the commitment order does not provide so, stating “[t]his

sentence shall be concurrent with any or every sentence the offender is now

serving[.]” There is no other statement in the commitment order as to the imposition

of the sentences to run consecutively. Therefore, we order the commitment order to

be corrected to accurately reflect the trial court’s imposition of the sentences to run

consecutively to one another.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends he should receive a new

trial on the grounds the trial court erred in denying his for cause challenge to strike
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a juror, Ms. Shawn Moak. Defendant alleges this forced him to use a peremptory

challenge to remove her. However, as noted by the State, there is no evidence in the

record to support Defendant’s claim that he used a peremptory strike to remove Ms.

Moak.

On March 21, 2017, after Ms. Moak had been tentatively accepted as a juror,

the trial court held a hearing outside the presence of the jury regarding use of certain

evidence under La.Code Evid. art. 412.2. At that time, the trial court also took up

the issue of Defendant’s claim that, while being transported to the courthouse that

morning, he and Ms. Moak “made eye contact and I could just tell by the expression

on her face that she recognized me.” Defendant stated that he was dressed in the

same civilian clothing he was wearing during court and that he was unshackled while

riding in the front seat of the marked police unit in which he was being transferred.

Defendant testified he immediately informed Ben West of the Vernon Parish

Sheriff’s Office, the officer transporting him to the courthouse, whom Defendant

claimed told him “not to worry about it.”

Deputy West confirmed he was in uniform while transporting Defendant.

Deputy West testified they saw two ladies walking across the street, and Defendant

recognized one of them as a juror in his case. Subsequently, Ms. Shawn Moak was

called into the courtroom and the following exchange occurred between Ms. Moak

and the trial court:

Q. Okay. My question that I have to you, Ms. Moak, is as far as
today is concerned, at any time have you seen Mr. Walls outside
of the courthouse or the courtroom today?

A. No, sir.

Q. You’re clear about that?

A. Yes, sir.

Q. All right.

A. Today?
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Q. Today; outside of the courthouse or the courtroom today?

A. No, sir.

Ms. Moak acknowledged she did park in the parking lot in which Defendant

testified he saw her. The trial court then ruled:

All right, as far as I’m concerned gentlemen, Ms. Moak has
indicated that she did not see Mr. Walls. If she did, I have no reason to
-- no indication from her that she’s not being truthful. She looked me
dead in the eye whenever she answered those questions and I believe
her. So, I don’t think we have a problem. Let’s proceed.

At that point, defense counsel objected to the ruling but noted “I think we can

readdress that when we -- when we do our back strikes.” As noted by the State, there

is no evidence that Ms. Moak was ever removed from the jury or that Defendant

used a peremptory challenge to remove her. Also, the record includes a list of the

venire members removed by peremptory challenges. Although the list indicates

Defendant did in fact use all twelve of his peremptory challenges, Ms. Moak was

not one of them.

In State v. Odenbaugh, 10-268, pp. 23-27 (La. 12/6/11), 82 So.3d 215, 236-

38, cert. denied, 568 U.S. 829, 133 S.Ct. 410 (2012), the supreme court stated:

The United States Constitution’s Sixth Amendment guarantees
the accused the right to a trial by an impartial jury. The Louisiana
Constitution Article I, Section 17(A) provides that a defendant has a
right to challenge jurors peremptorily, with the number being fixed by
law at twelve. LSA-C.Cr.P. art. 799. When a defendant uses all of his
peremptory challenges, a trial judge’s erroneous ruling depriving him
of one of his peremptory challenges constitutes a substantial violation
of his constitutional and statutory rights, requiring reversal of the
conviction and sentence. State v. Jacobs, 99-1659, p. 5 (La.6/29/01),
789 So.2d 1280, 1284; State v. Cross, 93-1189 La.6/30/95), 658 So.2d
683, 686; State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526,
534; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280.
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 entire
voir dire reveals the trial judge abused its discretion. Robertson, 92-
2660, 630 So.2d at p. 1281. Prejudice is presumed when a challenge for
cause is erroneously denied by a trial court and the defendant has
exhausted his peremptory challenges. Cross, 93-1189 at 1192, 658
So.2d at 686; State v. Robertson, 92-2660 at 3-4, 630 So.2d at
1280; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous ruling
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depriving an accused of a peremptory challenge is a substantial
violation of his constitutional and statutory rights and constitutes
reversible error. Cross, 93-1189 at p. 6, 658 So.2d at 686; State v.
Bourque, 622 So.2d 198, 225 (La.1993).

“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.” State
v. Jones, 474 So.2d 919, 926 (La.1985). 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 the law and evidence. Robertson, 92-2660
at p. 4, 630 So.2d at 1281. Thus, to establish reversible error warranting
reversal of a conviction and sentence, defendant must demonstrate “(1)
erroneous denial of a challenge for cause; and (2) the use of all his
peremptory challenges.” Id. at 1281. In the instant case, it is undisputed
that defense counsel exhausted his peremptory challenges, and,
therefore, need only show that the trial court abused its discretion by
denying a challenge for cause.

....

[W]hile cognizant of the broad discretion afforded a district court when
ruling on cause challenges, this Court has cautioned that a prospective
juror’s responses cannot be considered in isolation and that a challenge
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 [inferred].” State v. Jones, 474 So.2d 919, 929
(La.1985); See State v. Frost, 97-1771, p. 4 (La.12/1/98), 727 So.2d
417, 423; Maxie, 93-2158 at 16-17, 653 So.2d at 535; State v.
Hallal, 557 So.2d 1388, 1389-1390 (La.1990) (per curiam); State v.
Brown, 496 So.2d 261, 264-65 (La.1986); State v. Smith, 430 So.2d 31,
38 (La.1983). Yet a refusal to disqualify a prospective juror on grounds
he is biased does not constitute reversible error or an abuse of discretion
if, after further examination or rehabilitation, the juror demonstrates a
willingness and ability to decide the case fairly according to the law and
evidence. State v. Howard, 98-0064, pp. 7-10 (La.4/23/99), 751 So.2d
783, 795-797[.]

Louisiana Code Criminal Procedure Article 799, in pertinent part, provides

that “[i]n trialS of offenses punishable by death or necessarily by imprisonment at

hard labor, each defendant shall have twelve peremptory challenges, and the state

twelve for each defendant.” In State v. Richards, 17-1135, p. 16 (La.App. 3 Cir.

6/6/18), 247 So.3d 878, 891, this court noted:

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However, even if the trial court abused its discretion when it
denied the challenges for cause, this assignment of error has no merit
in that Defendant cannot show prejudice. As noted, to prove reversible
error, a defendant is required to show an erroneous denial of a challenge
for cause and the use of all his peremptory challenges. See State v.
Turner, 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612, writ denied, 97-
2761 (La. 2/20/98), 709 So.2d 773.

In the current case, for each potential juror challenged for cause
and subsequently denied by the trial court, Defendant had peremptory
challenges available to excuse the juror after the trial court denied his
challenge for cause. He was not forced to accept a juror he felt was
prejudicial to his case because all of his peremptory challenges were
used. Defendant has failed to show prejudice in this case.

The issue with Ms. Moak arose on the morning of March 21, 2017. Defendant

had peremptory challenges remaining when the trial court denied his challenge for

cause, using the last of them on March 22, 2017. Defendant had the opportunity to

remove Ms. Moak from the jury and apparently chose not to do so.

Furthermore, Defendant cannot prove the trial court erred in denying his

challenge for cause. As noted above, the trial judge is vested with broad discretion

in ruling on challenges for cause.

This is necessarily so because the trial court has the benefit of seeing
the facial expressions and hearing the vocal intonations of the members
of the jury venire as they respond to questioning by the parties’
attorneys. State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108.
Such expressions and intonations are not readily apparent at the
appellate level where a review is based on a cold record. Id.

State v. Munson, 12-327, p. 9 (La.App. 5 Cir. 4/10/13), 115 So.3d 6, 12, writ denied,

13-1083 (La. 11/22/13), 126 So.3d 476.

Defendant stated he and Ms. Moak made eye contact and he knew she

recognized him. Ms. Moak specifically stated she had not seen Defendant outside

of the courtroom, and the trial court stated he believed her statements. We find no

support for Defendant’s contention the trial court abused its discretion. Therefore,

this assignment of error lacks merit.

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ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

As noted above, Uniform Rules—Courts of Appeal, Rule 2-12.4(A) requires

an appellant’s brief to contain:

(9) the argument, which shall contain:

(a) appellant’s contentions, with reference to the
specific page numbers of the record and citations to the
authorities on which the appellant relies,

As noted by the first circuit in State v. Hawkins, 633 So.2d 301, 308 (La.App.

1 Cir. 1993):

According to Uniform Rules–Courts of Appeal Rule 2–12.4, an
argument on an assignment of error in a brief shall include a suitable
reference by volume and page to the place in the record which contains
the basis for the alleged error. This Court may disregard an argument
on that error in the event suitable reference to the record is not made.

Additionally, Uniform Rules—Courts of Appeal Rule 2-12.4(B)(3)

specifically states “The court may disregard the argument on an assignment of error

or issue for review if suitable reference to the specific page numbers of the record is

not made.”

Defendant’s second assignment of error is that the trial court erred in allowing

testimony from a retired Georgia police officer regarding an out-of-court statement

Defendant gave admitting to a prior sexual act with one of the victims. His third and

fourth assignments of error allege he was prejudiced by the State’s reference to, and

introduction of, a witness who the court ruled could not testify during closing. None

of these assignments of error contain a single record reference wherein the reference

has any connection to the issues discussed. Furthermore, the record contains six

volumes and 1357 pages.

Despite this court providing Defendant an opportunity to correct and

supplement his brief, Defendant failed to provide a single appropriate record

reference to support assignments of error two, three, and four. Accordingly, this

court will dismiss these assignments of error.
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ASSIGNMENT OF ERROR NUMBER FIVE

In his final assignment of error, Defendant contends that:

The sentence(s) were excessive considering the age of the [D]efendant
and the conduct for which he was accused of in the case-at-bar, being
premised on the other alleged behavior in other jurisdictions for which
he was not on trial in the instant case.

This is the same argument presented in Defendant’s motion to reconsider. On

May 24, 2017, the trial court sentenced Defendant to eighteen years at hard labor

without benefits on each count with the sentences to run consecutively “due to this

being an issue of having occurred on multiple occasions to multiple victims.”

Under La.R.S. 14:81.2(B)(2), Defendant’s conviction for molestation of a

juvenile carried a possible fine of “not more than ten thousand dollars, or imprisoned,

with or without hard labor, for not less than five nor more than twenty years, or

both.” Under La.R.S. 14:81(H)(2), Defendant’s conviction for indecent behavior

with a juvenile carried a sentencing range of “imprisonment at hard labor for not less

than two nor more than twenty-five years. At least two years of the sentence imposed

shall be served without benefit of parole, probation, or suspension of sentence.”

Louisiana courts have laid out the following guidelines with regard to

excessive sentence review:

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 disproportionat0e 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
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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:

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, 519
U.S. 1043, 117 S.Ct. 615 (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.

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d

83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, writ denied, 07-1116 (La.

12/7/07), 969 So.2d 626, this court adopted the fifth circuit’s three factor test from

State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied,

99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate court

should consider the nature of the crime, the nature and background of the offender,

and the sentences imposed for similar crimes.

The following is Defendant’s argument for why his sentences are excessive:

The age and health of [Defendant] make plain that the sentence
imposed by the court is effectively a life sentence. The [D]efendant
suggests that the harshness of the sentences is a by-product of the
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court’s view of alleged behavior in other jurisdictions for which he was
not on trial in the instant case and for which he has been neither
prosecuted nor convicted.

As noted by the State, Defendant does not specifically contest the consecutive

nature of his sentences, nor does he give any support for his contention the trial court

based its sentencing decisions on unrelated other crimes. Given the vague nature of

Defendant’s argument, we will examine this claim as a bare excessiveness claim

using the factors specifically enumerated in Baker: nature of the crime, nature of

Defendant, and sentences imposed for similar crimes.

With regard to the crimes in question, Defendant was convicted of molestation

of a juvenile against S.H., who was thirteen at the time of the offense; and one

indecent behavior with a juvenile against J.H., who was eleven at the time of the

offense. The molestation conviction resulted from Defendant anally penetrating the

thirteen-year old victim, while the indecent behavior resulted from Defendant

chasing the eleven-year old victim around the living room with his penis hanging

out of his underwear. As both of Defendant’s present convictions involve sex

offenses against children, there can be no question regarding the severity of the

offenses. The trial court also noted the girls were both in counseling as a result of

these incidents.

Defendant, at the time of the crimes, was a sixty-three-year old man, married

with six children of his own and three stepchildren. Although Defendant cites his

age as a reason why his sentence is excessive, the trial court noted Defendant appears

to be in good health, despite some prior issues with cancer. Defendant has worked

as an aircraft mechanic following his time in the United State Navy between 1971

and 1977. There was no history of drug or alcohol abuse reported; however,

Defendant has a prior conviction for child molestation from 1977.

In State v. A.B.M., 10-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021, this court

upheld a fifteen-year sentence for molestation of a juvenile to run consecutively with
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a fifteen-year sentence for incest. This court found the sentence was not an abuse of

discretion given the defendant was the victim’s father and the victim was frequently

entrusted to his care, the victim was only eleven years old, and she would deal with

emotional issues for the rest of her life. Likewise, the second circuit in State v.

Freeman, 44,419 (La.App. 2 Cir. 6/24/09), 13 So.3d 1241, upheld a nineteen-year

sentence for a man convicted of molestation of a juvenile over whom he had control

where the facts indicated the defendant had forced his nine-year-old stepdaughter to

perform oral sex on him and doctors indicated she had been anally penetrated.

In State v. Armstrong, 29,942 (La.App. 2 Cir. 10/29/97), 701 So.2d 1350, the

second circuit upheld a maximum sentence for indecent behavior for a sixty-five-

year old convicted of fondling his nine-year-old stepgranddaughter. The court

noted:

Defendant abused a position of trust and responsibility for his own
perverted sexual interests without regard to the lifelong harm he could
cause to the victim. There is no excuse, justification or mitigation for
such misconduct. On the showing made, we do not find an abuse of
discretion. The sentence is not constitutionally excessive and is
adequately supported by the record.

Id. at 1351.

We cannot say the trial court abused its discretion in imposing consecutive

eighteen-year sentences where Defendant, a man in his sixties, anally penetrated a

thirteen-year old and chased an eleven-year old around the room with his penis

hanging out of his underwear, both occurring as a result of Defendant’s friendship

with the family and occurring while Defendant was entrusted with supervision of the

child in question. This assignment of error lacks merit.

DECREE

For the foregoing reasons, this court orders the commitment order to be

corrected to accurately reflect the trial court’s order that the sentences are to be

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served consecutively to one another. In all other respects, Defendant’s convictions

and sentences are affirmed.

AFFIRMED WITH INSTRUCTIONS.

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